Ernest Mupeta Bweupe v The People (Appeal No. 64 of 1997) [1998] ZMSC 107 (6 October 1998)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 64 OF 1997 (CRIMINAL JURISDICTION) BETWEEN: ERNEST MUPETA BWEUPE APPELLANr vs THE PEOPLE RESPONDENT CORAM: NGULUBE, CJ., CHIRWA AND MUZY AMBA, JJS. · On 7rh April and 6th October, 1998. For the Appellant : Mr. E. J. Shamwana, SC, Shamwana & Company, with Mr. Lagos Nyembele, Ellis & Company. For the Respondent: Mr. W. Wangwor, Principal State Advocate JUDGMENT Ngulube, CJ., delivered the judgment of the court. The appellant was sentenced to fifteen years imprisonment with hard labour following upon his conviction on a charge of aggravated robbery. The particulars were to the effect that on 27th. February 1996 at Lusaka, the appellant in concert with other persons unknown robbed PW3 Bernard Sinkamba of a government landcruiser. The learned trial judge heard two mutually exclusive versions of how the appellant came to be in possession of a government vehicle being used by Minister Honourable Sata's driver to ferry the school children. The prosecution story was that on the day in question, PW3 was accosted by three men one of whom was the appellant. One of the persons was armed with an object which PW3 claimed to have been an AK.4 7 rifle but which the learned trial judge was not satisfied had been proved to be a real firearm so as to warrant a capital conviction. PW3 said that when he arrived at the house where he was to check for Honourable Sata's children, he noticed that he had been followed by a blue Toyota Corolla car. Two men came from it, one of whom had the gunlike object with which he smote PW3 on the forehead~ -· causing an injury and much bleeding. PW3 tried to shoot the bandits with his pistol but it jammed. The appellant jumped into the government vehicle and drove off with it while the man at111ed with the supposed gun jumped into the Corolla which also sped off. PW3 gave chase, all the while raising hue and cry. He also had the presence of mind to activate by remote commander the immobilizer for the vehicle which was certain to stop after a short while. As far as the chase and subsequent apprehension of the appellant was concerned, PW3 was supported by PWsl and 2. These two prosecution witnesses testified to seeing PW3 and others chasing the stolen vehicle. They saw that PW3 was bleeding; and they helped to capture the appellant, red handed as it were. As against the foregoing prosecution story, there was the appellant's own version. According to him, there was a prior arrangement and agreement involving PW3, a Mr. Dunstan Mundubi and the appellant. Under this arrangement PW3 would simply handover the government vehicle to the appellant who would use it to convey ivory curios for Mundubi to Mwanamayinda just across the Kafue river. The appellant was to be paid . K200,000 for his part. The use of a government vehicle was to avoid detection at the check point at the river since government vehicles are normally not checked. In pursuance of the arrangement entered into, he met PW3 at the agreed rendezvous and the witness duly handed over the vehicle. There was no violence and no inflicting of any injury on the forehead or at all. The appellant said he was shocked when PW3 came with PW s 1 and 2 and later reported the transaction as an aggravated robbery. The vehicle would have been returned to PW3 after the delivery of the ivory curios. The appellant was also surprised that the police believed PW3 when they had verified his story about Mr. Mundubi but instead they called him Mundubi. ' It was common ground that the appellant was first detained under the name Dunstan Mundubi until two days later when he gave the police his true names. The learned trial judge decided that the case fell to be resolved on an issue of credibility. He rejected the appellant's story and convicted him. On behalf of the appellant, Mr. Shamwana submitted that he had given an explanation that could reasonably be true. It was argued that the appellant's story was capable of belief; that it did not have to be a true story. The submission was based on a well-settled principle of the criminal law whereby an accused person is entitled at the very least to the benefit of doubt if he has given an explanation which might reasonably be troe, though not necessarily actually true. Mr. Shamwana argued that Mun<lubi existed and could have hired the appellant to transport ivory curios to Mwanamayinda; his name was found at Zam.earth Lodge as alleged by the appellant. These submissions, it should immediately be noted, are based on the appellant's own evidence and related to his version of the events; the very issue that · the learned trial judge had to resolve. It was also submitted that the evidence pointed to a simple theft of motor vehicle. The argument was that on the appellant's story which is capable of being believed, PW3 was an essential part of the theft but he must have developed cold feet at the last minute and then set out to make an effort to exculpate himself. Learned State Counsel invited the court to view PW3's description of the robbery as showing a person who was going through the motions mechanically and who was not even in a pamc. It was also submitted that PW3, a trained police officer, did not give a credible account when he claimed to have been struck with the butt of the gunlike object instead of it being pointed at him, as would be expected. His failure to tell 'the investigating officer that his pistol had jammed was also cited as a factor weakening PW3 's credibility. All this, it was submitted, showed that PW3 was part and parcel of the transaction to steal the vehicle. With regard to the injury sustained by PW3, it was submitted that, because the medical report bore the previous day's date, PW3 must have gone to the hospital the day before in preparation for the theft since it was quite easy for the witness to inflict an injury upon himself in order to cover up the transaction. The learned trial judge observed that no offence would have been committed at all if, as the appellant claimed, he was to simply use the vehicle to ferry the goods and later return it to PW3. Again, in a very careful and detailed judgment, the learned trial judge consitlt:red whether this was a simple theft or an aggravated robbery. He also considered the contention that PW3 had opened an injury he had prepared the previous day, being the date shown on the medical report. The judge found that the date on the report was a mistake and that all the events took place on 27th February· 1996, as deposed by the witnesses. On behalf of the State, Mr. Wangwor relied on the evidence on record to support the learned trial judge. The case before the learned trial judge fell crisply for decision on an issue of credibility. He had before him two diametrically opposed stories. He found that a non-capital type of aggravated robbery had been committed and rejected the version offered by the appellant. The learned trial judge had the advantage of seeing and hearing the witnesses at first hand. In dismissing the appellant's version, he observed, among other things, that he ''was desperate and uncomfortable in the witness box" and found that he had fabricated the Mundubi story, and that Dunstan Mundubi was in any case the name the appellant himself had given to the police in order to hide his true identity. The judge found that the defence story could not reasonably be true and was infact untrue. We have given very careful consideration to all the issues raised in this appeal. We have also borne in mind the principles applicable when an appellate court is faced with a challenge on .findings made on the basis of the credibility of witnesses. In NKHATA AND FOUR OTHERS -v- THE ATTORNEY-GENERAL OF ZAMBIA (1966)ZR 124 our predecessors said, at page 125---- "By his grounds of appeal the appellant, in substance, attacks certain of the learned trial judge's findings of fact. A trial judge sitting alone without a jury can only be reversed on fact when it is positively demonstrated to the appellate court that: (a) by reason of some non-direction or mis-direction or otherwise the judge erred in accepting the evidence which be did accept; or (b) in assessing and evaluating the evidence the judge has taken into account some matter which he ought not to have taken into account, or failed to take account some matter which he ought to have taken into account; or (c) it unmistakably appears from the evidence itself, or from the unsatisfactory reasons given by the judge for accepting it, that he cannot have taken proper advantage of his having seen and heard the witnesses; or (d) in so far as the judge has relied on manner and demeanour, there are other circumstances which indicate that the evidence of the witnesses which he accepted it is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer." These guidelines are as valid today as when they were first given. Of course, this court has said in some previous cases, such as DIRECTOR OF PUBLIC PROSECUTIONS -v-RISBEY (1977)ZR 28 that where it is clear on the face of the transcript of evidence that all the primary facts are common cause then, the appeal being by way of re-hearing, the appellate court would in such a situation be in as go_pd ~· a position to draw inferences of fact from the primary facts as was the trial court. In the case at hand, there were no primary facts which were common cause as far as how the vehicle came to be taken by the appellant. In the event, it is appropriate to quote from the RISBEY case where we said at page 31---- "But where, as in this case .•...... ... the issue was one of credibility, and inevitably reduced itself to a decision as to which of two conflicting stories the trial court accepts, an appelJate court can not substitute its own findings in this regard for those of the trial court." The words we have quoted apply to this case and any interference by this court can only be defended if one or more of the factors outlined in the NKHATA case can apply. These principles have been applied quite consistently in a large number and variety of cases. For instance, in THE ATTORNEY-GENERAL -v- ACHWME (1983)ZR 1 we affirmed that an appellate court which only has the transcript of evidence before it and which does not have the advantage of seeing and hearing the witnesses should not interfere unless it is satisfied that the trial judge has given reasons which are not satisfactory or because it unmistakably appears from the evidence that the trial judge has not taken proper advantage of his having seen and heard the witnesses. In the case at hand, the learned trial judge was called upon to address each and everyone of the points which have been raised and urged before us. In a detailed and well-reasoned judgment, he dealt with each and every such point, giving reasons for his findings and explaining why he had rejected the appellant's story. We can not say that he was in error or that he had misdirected himself in some way in the manner in which he dealt with the evidence before.. P:im~_JJi. truth; .there is no valid excuse to justify any interference by this court. The appeal against conviction is dismissed. No appeal lies against the compulsory minimum sentence. ~ ......... . M. M. S. W. NGUL E CHIEF JUSTICE ............... ~ ................... : .. . D. K. C!ITRWA SUPREME COURT . TTJDGE ................... ,I ~b..~r .................... .. zrMUzt~A SUPREME COURT JUDGE