Evaristo Mwansa Chilomo v People (Appeal No. 108/2005) [2006] ZMSC 36 (6 June 2006)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 108/2005 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: EVARISTO MWANSA CHILOMO Appellant AND THE PEOPLE Respondent Coram: Sakala, CJ. Chitengi and Mushabati, JJS. On 7 th March, 2006 and 6 th June, 2006. For the Appellant : Mr. E. M. Sikazwe, Deputy Director - Legal Aid For the Respondent: Mr. C. R. F. Mchenga, Director of Public Prosecutions JUDGMENT Chitengi, JS, delivered the judgment of the court. Cases referred to: - 1. David Zulu V The People (1977) ZR 151 Works referred to: - 1. Law of Evidence 2 nd Edition by Professor Knox The Appellant in this case was tried and convicted of murder of one Shula Shilita contrary to Section 200 of the Penal Code Chapter 87 of the Laws of Zambia and sentenced to death by the High Court sitting at Kasama. " - 12 - The particulars of offence alleged that Evaristo Mwansa Chilomo on 29th June, 2003 at Chiba village in the Kasama District of the Northern Province of the Republic of Zambia did murder one male Shula Shilita. The facts of this case are that before the deceased's death, the appellant and the deceased were on bad terms. These bad relations came about because of a dispute between the deceased and the Appellant's father over some piece of land. The Appellant was occupying part of the land. On 24th or 25th June, 2003 about midday the Appellant went to the house of Abraham Mulenga (PW3) where the deceased and PW3 were sitting and threatened to kill the deceased for allegedly telling people that the appellant had caused the injuries he had. The deceased was an uncle to PW3 and had gone to PW3 to tell PW3 that the following day he would go to the headman to show the headman the injuries the Appellant had caused him. In the presence of the Appellant the d~ceased complained to PW3 about the Appellant having inflicted injuries on him. According to Geoffrey Chisanga, (PW4), on 29th June, 2003 the deceased came to his house to collect his debt of K4,000.00. At the time the deceased was with the Accused and Joseph Musonda (PW2). But according to' PW2 he found the deceased and the Appellant together at a beer party and the Appellant asked him to join them. The beer party was at the house of .. - J3 - Doreen Namusokwe(PWl) who also saw the Appellant, the deceased and PW2 together. According to PW 1, the Appellant, the deceased and PW2 left at about 18:00 hours. But according to PW2 they left at about 19:00 hours. The three walked together but at one point the Appellant asked PW2 to accompany him to his house which was about one kilometer away. The deceased went his own way using a path. When they reached the Appellant's house the Appellant prevailed upon PW2 to sleep as the Appellant thought PW2 was drunk. According to PW2 the Appellant also looked drunk. Both the Appellant and PW2 slept on the same bed. The house was one bed roomed. Immediately after sleeping, the Appellant went out of the house. PW2 thought the Appellant had gone to answer the call of nature but by 05:00 hours the Appellant had not returned into the house. As it was now Monday, PW2 left for his work place at Tafimbwa. From that time PW2 did not see the Appellant until Friday at 15:00 hours when the Appellant went to PW2's work place and told PW2 that the deceased was missing. The Appellant then told PW2 that in the event that he (Appellant) was apprehended he should tell the Police that he (PW2) was with the Appellant and that they walked together from the village where there was beer and spent the night together in the Appellant's house but d eny that they walked together with the - J4 - deceased. The Appellant then promised PW2 Kl00,000.00 if he cooperated. PW2 decided to go to the headman the following day to inform him of what the Appellant said to him. However, the following morning he was apprehended by the Police. Later PW2 discovered that the Appellant had already been apprehended by the Police. Both the appellant and PW2 were then separately interviewed and later taken to Kasama Police Station and detained. PW2 then learned that the deceased had died. PW2 was detained for eight days and after being released he was told to report to the Police Station every Friday. PW2 reported to the Police Station for four months and after that he was told to stop. After the deceased had gone missing after the drinking party on 29th June 2003, Emmanuel Chanda (PW5), the deceased's young brother, started looking for the deceased. PW5 checked with relatives and PW4 who owed the deceased money but in vain. Having .failed to trace the deceased, PW5 reported the matter to the Police. The deceased's body was later found in the river on 9th September, 2003 by Regina Chisanga (P\V7) and other women who went to the river to fish. The body was decomposed and was buried on 1 Ith September, 2003. No postmortem was conducted . .. - 15 - On 9th September, 2003, D/Sub Inspector Nkhowani (PW8) received a report of the deceased's body being in Kambwititi nver. PW8 was also handed the Appellant by the villagers. Later, the Appellant led PW8 and other Police Officers, villagers and PWS to the scene of the crime. PW8 found the decomposed body of the deceased with some parts missing and the legs were almost dismembered. D/Chief Inspector Godfrey Kawaya, (PWlO), who arrested the Appellant, testified that the Appellant confessed to him that he killed the deceased with a shovel and buried him in a grave. PWIO retrieved the shovel from a member of the Appellant's farn.ily. However, when formally charged and arrested the Appellant denied the charge saying he was not with the deceased. According to the Appellant, he only saw the deceased at a drinking place but he did not talk to the, deceased as they were not on talking terms. After drinking he went with PW2 to his (Appellant) village where they slept together. He woke up at 05:00 Hours and awakened PW2. PW2 left and he did not see PW2 again until 4 th July, 2003 when he (Appellant) went into the village to collect his debts. It was at that time that the Appellant learned from five neighbourhood watchmen that the deceased was missing. The men from neighbourhood watch asked him to accompany them to look for the person who had ,, . ' - J6 - been with the deceased. He spent the night at the funeral house and following morning the neighbourhood watchmen asked him about the whereabouts of PW2. He then took the neighbourhood watchmen to PW2's working place. They found PW2 and took him to Kanama tavern. The Police then interviewed them together on how they moved on 29th June, 2003. Later, they were interviewed separately. He said that he and PW2 were beaten up at the Police. He was so badly beaten up that he saw death. When he regained consciousness he and PW2 were taken to Kasama Police Station. His young brother, one Francis Chilomo, was also apprehended and tortured. He denied injuring the deceased and there being any differences between his family and the deceased's family. According to Gladys Chilomo (DWl), the Appellant's sister, at the time the Appellant and PW2 went to pick her so that they could go home, they were not with the deceased. But DWl said that she did not go back home with the Appellant and PW2. On this evidence, the learned trial Judge found as a fact that the Appellant was with the deceased and PW2 at the beer house on 29th June, 2003. The learned trial Judge observed that this case was based on circumstantial evidence. The learned trial Judge found that the Appellant left the beer - J7 - house with the deceased and PW2; that on the way the Appellant persuaded PW2 to go and spend a night with him while the deceased went his way; that the Appellant did not sleep in the house with PW2; that the Appellant later asked PW2 not to tell anyone that they were with the deceased on 29th June, 2003 and that the Appellant had earlier threatened to kill the deceased. The learned trial judge said that all these events were not mere coincidences and held that the Applicant must have had a hand in the death of the deceased. The learned trial Judge then said that he was satisfied beyond all reasonable doubt that the appellant killed the deceased. The learned trial Judge found that there were no extenuating circumstances in this case and sentenced the Appellant to death. The Appellant now appeals to this court against his conviction. The only ground of appeal is that the learned trial Judge erred in convicting the Appellant on circumsto/ltial evidence. Mr. Sikazwe, the learned Deputy Director of Legal Aid, submitted that there was no direct evidence. Citing the case of David Zulu V The Peoplef1J as authority, Mr. Sikazwe submitted that it is incumbent on a trial Judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. Mr. Sikazwe also referred us to Knox's Law of - J8 - Evidence 2 nd Edition at Page 467f1J where the learned author discusses the defects of circumstantial evidence. It was Mr. Sikazwe's submission that PW2 having been 1n company of the deceased and having been detained together with the Appellant in connection with the death of the deceased was a suspect witness with an interest of his own and with reason to implicate the Appellant. In reply, Mr. Mchenga, the learned Director of Public Prosecutions, conceded that the evidence was only circumstantial. ;But the learned Director of Public Prosecutions submitted that the only inference the learned trial Judge could draw on the evidence was one of guilty. The learned Director of Public Prosecutions po~nted out that the Appellant drunk together with the deceased and PW2. After the three had parted the Appellant and PW2 went to the Appellant's house to sleep. The Appellant left the house and turned up later at PW2's work place and told PW2 to deny that they had been together with the deceased and claim that the Appellant and PW2 had spent the night together. The learned Director of Public Prosecutions pointed out that there was also a promise of money if PW2 said what he was told. The learned Director of Public Prosecutions conceded that PW2 was a suspect witness whose evidence needs .,corroboration. However, it was the submission of the Director - 19 - of Public Prosecutions that the evidence of PWl and PW4 provides corroboration that the Appellant, the deceased and PW2 were drinking together. The learned Director of Public Prosecutions submitted that while looked at in isolation the evidence of PWl and PW4 may not provide corroboration, looked at from all the evidence, the evidence of PWl and PW4 is corroboration. He pointed out that there was evidence of a dispute between the deceased and the appellant over land. It was the submission of the learned Director of Public Prosecutions that there was sufficient evidence to connect the Appellant with the offence and he urged us to uphold the conviction. We have carefully considered the evidence that was before the learned trial Judge, the submissions of counsel and the judgment appealed against. As both counsel rightly observed in their submissions, there is no direct evidence linking the Appellant to this heinous offence. The evidence against the Appellant is circumstantial. We agree with Mr. Sikazwe's submissions that circumstantial evidence has its own dangers and that before a court can feel safe to convict on circumstantial evidence it must, as we said in the Zulu Casef1J, guard against.draVving wrong inferences. In this case, as both counsel also observed, there is also the danger that the critical witness, PW2, is a suspect witness, an ti - JlO- issue which the learned trial Judge was not alive to and did not address. The critical issue in this case is whether the circumstantial evidence pointed to the only reasonable inference that the Appellant killed the deceased. In other words, as we said in the Zulu case(1J, has the circumstantial evidence taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt? The learned Director of Public Prosecutions contends that the circumstantial evidence in this case permits only an inference of guilt. Mr. Sikazwe, learned counsel for the Appellant argued otherwise. Taking and consideri~g all the evidence together, we accept the submissions of the learned Director of Public Prosecutions that the circumstantial evidence in this case points only to the fact that it was the Appellant who killed the deceased. The Appellant had a dispute with the deceased over some piece of land; the Appellant himself said in his evidence that he was not on talking terms with the deceased; the Appellant before the deceased's disappearance threatened to kill the deceased; in the face of overwhelming evidence that he was seen drinking with the deceased on the evening the deceased disappeared, the Appellant lied that he was never in the company of the deceased; the Appellant left PW2 in his ~ house on the night he was with the deceased and four days - Jl 1 - later went to PW2 to tell PW2 to deny that the Appellant and PW2 were with the deceased on the evening the deceased disappeared and to lie that the Appellant and PW2 spent the night together on the day the deceased disappeared; the appellant promised PW2 Kl00,000.00 if PW2 kept his promise; though the Appellant said he was not on talking terms with the deceased, there is no reason on the evidence why the Appellant found it easy to merry make and drink with the deceased on the evening of 29th June, 2003. In these circumstances, we are satisfied that the circumstantial evidence in this case is cogent enough to permit only the inference that the Appellant killed the deceased. We come to this conclusion alive to the fact that PW2 whose evidence was critical to the conviction is a suspect witness. However, we are satisfied that the ev:idence of PW2 that he was with the Appellant and the deceased has been sufficiently corroborated by the evidence of PWl and PW4. Further, the evidence clearly shows that the Appellant had a motive to kill the deceased. The Appellant was at loggerheads with the deceased over a piece of land. We are satisfied that PW2 did not fabricate the evidence he gave to court in order to falsely implicate the Appellant. Rather, we find that it was the - 112 - Appellant and his witness who told falsehoods in an attempt to extricate the Appellant. We find no merit in this appeal and we dismiss it and confirm the conviction and sentence. ··············~·-············· E. L. SAKALA CHIEF JUSTICE ' .. Q ~'iNGi ...... SUP'REME-·COURT JUDGE : C. S. MUSHABATI SUPREME COURT JUDGE