Donald Bwanali Phiri and Ors v People (Appeal 139 of 2002) [2003] ZMSC 102 (21 October 2003)

IN THE SUPREME COURT OF ZAMBIA APPEALS NOS. 139-141 OF 2002 HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) DONALD BWANALI PHIRI KANDELA NYAMBE CHRISTOPHER BANDA V THE PEOPLE 1st APPELLANT 2nd APPELLANT 3rd APPELLANT RESPONDENT CORAM: Chirwa, Chitengi and Silomba, JJs on 24th April and 21st October 2003 FOR THE 1st APPELLANT: Mr. N. Okware, Okware Associates FOR THE 2nd & 3rd APPELLANTS: Capt. F. Nanguzyambo, Director of Legal Aid with FOR THE PEOPLE: Mrs. J. C. Kaumba, Deputy Chief State Advocate Mr. A. Bwalya, Senior Legal Aid Counsel JUDGMENT Chirwa, JS delivered judgment of the Court: - The three appellants, DONALD BWANALI PHIRI (1st Appellant), KANDELA NYAMBE (2nd Appellant) and CHRISTOPHER BANDA (3rd Appellant) in this judgment referred to as 1st, 2nd and 3rd appellant, were originally charged with two others on two counts. The first count was that of murder, contrary to Section 200 of the Penal Code, Cap. 87. The particulars of this first count were that, the three appellants together with other two named persons, on 6th march 1999 at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together did murder one MATHEW BANDA. The second count was of aggravated robbery, the particulars being that the three appellants and two other named persons, on 6th March 1999 at : J2 : Lusaka in the Lusaka district of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together and whilst armed did rob JOYCE KALALUKA of 1 National Television, 1 Sonny Television, 1 National Video Player, 1 Decoder, 1 Phillips Cassette Player, 2 rifles, 1 Welding Machine, 2 Nokia Cell Phones, 12 pairs of men’s shoes, 1 wrist watch, 12 dresses, 10 men’s clothing and 1 Toyota Hilux Twin Cab registration No. AAH5'79 altogether valued at K25,850,000-00 the property of SAELI KALALUKA and at or immediately before or immediately after the time of robbery did use or threatened to use actual violence to the said JOYCE KALALUKA in order to prevent resistance to the property being stolen. Upon convictions on both counts, the appellants were sentenced to the mandatory death sentence on both counts. They have now appealed against convictions and sentences on both counts. The evidence adduced by the prosecution is that prosecution witness numbered 1, 3 and 7 were all in their home in Chamba Valley here in Lusaka during the night of 6th March 1999. The first prosecution witness Joyce Kalaluka, who is the complainant, was asleep and prosecution witnesses 3 and 7 and one other person by the name of Mbololwa were watching television. According to PW1, whilst she was asleep and after midnight she was awakened by a loud bang and shooting by her window. She got out of bed and in the corridor she met her family members who included PW3, and 7. They all went into the children’s bedroom and tried to hide under the bed. She heard footsteps within the house and she heard someone ask for the boss’s bedroom. She heard another gun shot in the house and the door to the bedroom they were hiding was forced open. These intruders picked out PWs 3 and 7 and later herself after the bed under which she was hiding was lifted. She was stripped naked and asked for money. She told the intruders that she had money in her bedroom. They took her to her bedroom where she found things scattered and could not find her handbag immediately. They threw her to the floor and these intruders started collecting electrical goods and clothing. In the process they found some guns and ammunition and one of them fired into the ceiling. She was once again thrown to the ground and : J3 : one of them spread her legs and said that before he leaves he wanted to infest her with AIDS. He kissed her but one of his friends pushed him off. They tied her hands and legs and demanded the keys to the motor vehicle. One of her children gave these people the keys. She then heard some sounds of people carrying things from the house and later she heard their motor vehicle registration number AAH 7951 drive off. These people carried a lot of property including the property listed in the information. PW1 further testified that they had one employee by the name of MATHEW BANDA who she had left baking rolls before she went to bed and after the attackers had left, she came out of the house and found Mathew Banda lying in a pool of blood in the verandah. She testified that she was able to see what was going on during the robbery because of the electric lights which were on. She further testified that she attended two identification parades at the Police Station at which she identified the appellants. She said that the second appellant is the one who attempted to rape her and that the first appellant was the one who was standing by the door to her bedroom. The third prosecution witness (PW3) was Malupi Matoko, who at the time of the robbery was a worker for the complainant in Chamba Valley. On the night of the robbery, she was with the complainant’s daughter and her cousin by the names of Monde and Mbololwa. Whilst watching television, after midnight she heard some noise of commotion outside the house and when she peeped through the window she saw some people running. She ran to her bedroom and she heard some shooting. She then left her bedroom and went to the complainant’s children’s bedroom where she also found PW1. They all tried to hide under the bed and one of the intruders came into the bedroom and saw the witness’s legs protruding from under the bed. The intruder called his friends and was asked where her mother was. They beat her up and undressed her and one of the intruders wanted to have sexual intercourse with her but one of his friends stopped him but threatened to shoot her. She was then tied her legs with her skirt and underpants and took her to another bedroom where the intruders started packing things. She told the court that when all this was happening lights in the house were on and she : J4 : was able to see the assailants clearly and she later identified the three appellants at an identification parade conducted at Kabwata Police Station. She described the role each appellant played during the robbery, namely that the first appellant was the one who was guarding her armed with a firearm and packed some things. The second appellant was the one who attempted to rape her twice and the third appellant was the one who beat her and tore her skirt and tied her legs. Under cross-examination, she agreed that the police showed her a photograph of the first appellant. She had known the appellant before this incident as she used to see him in Kanyama where she used to stay but never knew his name but heard his name from the Police who called him Savimbi. She told the court that the Police showed her the pictures before the parade and she identified him. The fourth prosecution witness conducted an identification parade at Kabwata Police Station. He testified that the parade consisted of 14 men including 6 suspects. There were 4 identifying witnesses that included PW1, 3 and 7 and that PW1 identified appellants 1 and 2 and another person. PW 3 identified appellants 1 and 2 and also another person. PW 7 identified all the three appellants. The seventh prosecution witness was Monde Kalaluka, a daughter to the complainant, who testified that on the night of the robbery and after her mother and her twin siblings had retired to bed, she remained watching television with PW3 waiting for workers who were baking to finish. These workers were under MATHEW BANDA the deceased. Whilst watching TV she heard some gun shots and when she peeped through the window she saw three men armed approaching the house. She ran from where she was and joined others in the bedroom when they tried to hide. She then heard the intruders ask the deceased where the owner of the house was and were told he was in Ndola and that the madam was away. However, the intruders caught up with her, they harassed her and threatened to shoot her as she seemed not to tell the truth about where her parents were and they reminded her of the late Tembo. Whilst this was going on, another group was harassing the late Mathew Banda and she saw them shoot Banda twice on the : J5 : forehead. PW 7 testified further that she was tied and she was able to see her mother being harassed for money. The intruders then packed what they could and loaded them in the family vanette. They then asked for the car keys and after they were given they went to the motor vehicle but could not move it and asked her to help. Later she attended an identification parade where she identified the second and third appellants. She further told the court that the second appellant was armed and guarding the garage whereas the third appellant, also armed, was guarding her parent’s window. She also told the court that when all this was going on the lights were on and that in addition to the two appellants in court, she identified others. The second prosecution witness was Saili Kalaluka who is the husband to PW1 and owner of the stolen property. He positively identified some of the recovered stolen property and he valued the stolen property at K25,000,000- 00 (twenty five million kwacha). After investigations the appellants together with others were arrested and jointly charged on the two counts. All the appellants denied any knowledge of the offences. At the close of the prosecution case, all the appellants and co-accused at trial were found with cases to answer on both counts. All the appellants gave evidence of total denial of involvement in the crimes. As regard appellant number one, he produced witnesses to support his alibi. The learned trial judge dismissed the defence of alibi and found that the appellants were involved in the crimes and that the witnesses had ample opportunity to observe their assailants as the robbery took a long time and there was sufficient light to enable the witnesses to see what was going on. In arguing this appeal, Mr. Okware for the 1st appellant, argued one ground of appeal, namely, that the learned trial judge erred in law and fact in accepting contradictory and unreliable evidence of identification of the appellant in convicting the appellant. Mr. Okware argued forcefully that there was contradiction between prosecution witnesses as to the role played by the first appellant during the robbery. PWs 1 and 3 claimed that the appellant was guarding by the bedroom door, whereas PW7 said that the appellant was : J6 : outside by the window of the bedroom of the complainant. It was submitted that the learned trial judge failed to resolve this contradiction and as such the benefit must be given to the appellant. It was argued that since the witnesses confirmed that they were scared and were greatly threatened, the experience was such that the possibility of an honest mistaken identity had not been removed. As regards PW 3, it was submitted that her evidence was further coloured by her denial that she knew the appellant as Savimbi when PW 6 told the court that PW 3 told him that the appellant’s name was Savimbi and that if she was shown the picture of Savimbi she would recognise it and that she actually identified the appellant by the picture shown to her. We have considered this ground based on the identity of the 1st appellant. We note that this robbery took a long time. There were lights in the vicinity and witnesses were moved from the one section of the house to the other. The evidence of PW 1 and 3 is confined to the events in the house. PW 7 in addition to what he observed whilst in the house before the intruders came into the house is one aspect. When the intruders entered the house, she was taken outside the house and later brought back into the house. Certainly, the evidence also shows that the intruders were never in one place. They transversed literally the whole house and as such witnesses saw the intruders at different times and at different places at the scene. It is pertinent to note that after the robbery, PW3 told PW7 that she recognised the man she had known in Kanyama and this man was later identified as the 1st appellant. Bearing in mind that both the witnesses and the intruders were never in one position during the robbery, it is obvious that witnesses observed the intruders at different times and places. There is the scenario of attack in the TV room, children’s bedroom, the master bedroom and the kitchen. The witnesses had different opportunities to observe the intruders. We would therefore agree with Mrs. Kaumba that as the intruders were never stationary, witnesses saw them in different places. We are satisfied that the witnesses properly identified the 1st appellant as one of the attackers at the house on that night. Even disregarding the factor of the picture of the appellant being shown to the PW 3 that is of no effect on the identity of the 1st Appellant. The 1st Appellant : J7 : was properly identified by the prosecution witnesses who had ample opportunity as there was sufficient light and the robbery took a long time. We are satisfied that the possibility of an honest mistaken identity is eliminated. We would dismiss the appeal by the 1st Appellant. As against the 2nd and 3rd Appellants, Capt. Nanguzyambo advanced the same ground of improper or insufficient identity of the appellants as among the people who robbed the complainant. It is accepted that the convictions of these two appellants is again based on the evidence of PWs 1, 3 and 7. It was argued that the evidence was not satisfactory in that PW 3 was shown the photographs before the identification parade. There is no evidence that PW 3 was shown pictures of all the appellants in this matter; there is only evidence that she was shown the picture of the 1st appellant and the effect of which as far as it concerns the 1st appellant, we have already dealt with and as such, any weakness of that identity cannot benefit these two appellants. In any case, we have held that even if the evidence of PW 3 on identification is disregarded, there was sufficient evidence eliminating the possibility of an honest but mistaken identity. However, dealing with individual appellants, the 2nd Appellant was identified by PW 1 and 3. They described the brutal manner in which he wanted to rape them. He pointed the gun he was armed with at the private parts of PW1 and threatened to infest her with AIDS and kissed her all over. PW1 was only saved by the intervention of one of the attackers. As for PW3, she too was dragged from under the bed and undressed by the 2nd Appellant who attempted to raped her twice and on each occasion he was restrained by one of his friends. We have already referred to the lighting situation at the scene and the length of time the robbery took. The victims had ample opportunity to observe their assailants and the possibility of an honest but mistaken identity is eliminated. The appeal by the 2nd Appellant is also dismissed. The positive identity of the 3rd Appellant is that of PW 7. Her detailed narration of what happened on that night is so assertive that it reflects her steady composure. She remained steady from the time she heard, first the gun shots and then foot steps. She peeped through the window and saw : J8 : three armed men approaching the house. These armed men talked to the deceased inquiring where the owners of the house were. She then saw the men enter the house and started shooting indiscriminately. She was pulled from where she was hiding and assaulted with gun butt and iron bar and they threatened her that she would be shot like the late Tembo. She witnessed the deceased been shot twice in the head. This observation is confirmed by the post mortem report on the deceased that he had two bullet entry wounds, one at the midd of the frontal area and the other at right neck below the mandible causing multiple fractures of the skull. If PW 7 was of a weak heart she could not observe that the deceased was shot twice in the head. Her observations are such that they eliminate the possibility of wrong identity. As we have already said, the evidence on record clearly shows of movements of both the assailants and prosecution witnesses; neither were static in one point. PW 7 further helped to start the stolen motor vehicle. PW 7 testified that the 3rd Appellant was keeping vigil at the window of her parent’s bedroom when she saw him. It is our considered opinion that PW 7 was a very courageous and composed witness for her age. She could not have observed all this but for her strong character. We are satisfied that the possibility of mistaken identity is equally eliminated as regard the 3rd Appellant. We see no merits. In totality, therefore, the appeals against conviction on both counts fail and they deserve the mandatory sentence of death by hanging and we so order. D. K. CHIRWA SUPREME COURT JUDGE P. CHITENGI SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE