Henry Kosamu Lungu v People (APPEAL NO. 09/2016) [2017] ZMCA 486 (17 March 2017)

_)t_ ) ) .-~-:--\:_\ ~;.'io.4 ,,- ~ . < ,.)( )~_i ··- ~-:~.:: ,...:·-_~ .. - ~;.'io.~ ,,- ,.. IN' THE COURT OF APPEAL FOR ZAMBIA APPEAL NO. 09/2016 HOLDEN AT LUSAKA (Criminal Appellate Jurisdiction) BETWEEN: HENRY KOSAMU LUNGU AND THE PEOPLE '1 Coram: Chisanga JP, Chashi and Mulongoti, JJA On 17th January, 2017 and 17th March, 2017 For the Ap:t1ellant: Mr. Pl:-- Ngulube, Dire~tor, Legal Aid Board For the Respondent: M-r~. C. M. Hambay1, Beputy Chief State . . Advocate, National Prosecutions Authority JUDGMENT MULONGOTI, JA, delivered the Judgment of the Court. Cases referred to: 1. George Musupi v. The People (1978) ZR 271 2. Choka v. The People (1978) ZR 243 3. Samson Mbavu and others v. The People (1963-1964) Zand N. R. L. R. 164 CA 4. Phiri and others v. The People (1973) ZR 47 5. Yokoniya Mwale v. The People SCZ Appeal No. 285 of 2014 -Jl -s . < .- )'f>(.;, - ~~-··.::.~~-- ~ ,,- · .. '-~'i,,· - • < • .ii;_?_;_ - ~--·~ ;.·- ~ .. ~~'ii.• r . Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia The appellant was convicted by the Subordinate Court of the First Class at Chipata of arson contrary to section 328(l)(a) of the Penal Code Chapter 87 of the Laws of Zambia. It was alleged that on the 30th day of August, 2013 at Chipata in the Chipata District of the Eastern Province of the Republic of Zambia, the appellant willfully and unlawfully did set fire to a dwelling house valued at K3,200.00, the property of Francisco Phiri. The Subordinate Court remitted the matter to the High Court sitting at Chipata for sentencing. The > > > > appellant was sentenced to a term of 20 years imprisonment with .· .. -> .. . J • > .. . J A • . > hard labour. Section 328(l)(a), which the appellant allegedly violated provides that: "any person who willfully and unlawfully sets fire to - (a) any building or structure whatever, whether completed or ) not; is guilty of a felony and is liable, on conviction, to imprisonment for a term of not less than ten years and may be liable to imprisonment for life: provided that where the arson causes the death of any person the offender shall, on conviction, be liable to imprisonment for life.'' -J2- • < -it ·?_~j_ •-~P•,; ~~---.. r , ... "";.~ ' The prosecution's evidence was that sometime in August, 2013, the complainant, Francisco Phiri (PWl) was away in Malawi. He had left his brothers John Abraham Phiri (PW3), Ackson Phiri (PW4), and John Phiri (PW2) at his house on the farm with three women and two children. While he was away, he received a phone call from his brother John Phiri (PW2) informing him that his house had been burnt by the appellant. The house was valued at K3,200.00. According to PW2 the appellant and his group of about 30 people including F)W2, DW3 and-OW4 went to tht=:: farm on the material day _.,,._ around oi:'oo hours and -~tarted beating' children with ·•sticks and machetes and two boys ran away. They beat PW2 up for about an hour and tied his hands using fibers and put him in the house which they set ablaze and left. He managed to kick the door open and the boys went back and untied him. Thereafter, he went to the neighbour's house. Shortly, headman Tapili came to the scene. PW2 disclosed that the appellant demanded to destroy the structures at the farm. PW2 denied burning down the house as alleged by the appellant. -J3- . < .r. ~ ) .. i ·- ~---~~~-- -.. - ~; ~-.. r PW3 narrated that the appellant and his group went to the house around 07:00 hours in the morning and beat them up. He ran away with PW4 and hid in the bush behind a kraal about 20 to 30 meters away. They watched as the mob tied PW2 and made him drink porridge from a dog's pot and locked him up in the house. PW3 and PW4 said they saw the appellant setting the house on fire while PW2 was locked up inside and they left. PW2 managed to kick the door open. They untied him and went to their neighbour's house. In cross examination, PW3 said that their neighbour's house was not burnt. In cross examination PW4 stated that no sticks or machetes ~ ~ A > > · we,re used to beat. Jhem . The appellant, who denied the charge , placed himself at the scene. He said he went there with Mathews (DW2) , Limbikani (DW3) , Y oshua (DW 1) and Astrida Banda to cultivate his field and found PW2 with seven Malawians . He stated that PW3 and PW 4 were not present and that they had lied in court. He asked PW2 what they were doing at his farm and told them to leave and remove the shelter. The appellant explained that he got the farm in 1982 when he was young. And that it was PW2 who removed his own things -J4- .. ,. )ti(•? ... ::. ·---"~.,.,:;,-- -.. . '-;.'i.4 r .- • < • . < ; }!( ~~ . .2--~-.. ~ ,.:..-- -.. .. '-;.'i.4 r · ;)!1(4 .... r ~-.. .:; ~..:-- " - .,..;.'i..4 ,., - from the house and set the shelter on fire but the police arrested and charged him with arson. He denied that he attacked PW2 with a machete or tied him up or that he set the house on fire. The appellant's witnesses DWI, DW2, DW3 confirmed that they accompanied the appellant to the field on the material day and found PW2 who said the land was theirs as it had been given to them by the Chief. PW2 expressed willingness to leave the farm and they saw him set the shelter on fire. They all denied that they attacked PW2 as alleged or that the appellant was the one who set t~ house on fire.,n. - . J - .> . ./i - .> . ./i - .> ..,,. - . J After considering the evidence , the learned trial magistrate found that there was a dispute over the land on which PWl had erected the structure and was cultivating with his family. That the accused had on the material day gone to reclaim the land, as his family's property since 1982, with more people than the three witnesses he called to testify, for purposes of forcibly ejecting PWl and his family and not to cultivate it on that day. The trial court found that there was resistance from the family of PW 1 led by PW2 which led to violence by the appellant's group. The violence scared PW3 and -JS- - < --~ "-~.;,-~--::.;.~ ~ ... ~;..'ii.4 r PW4 who ran and hid in a nearby bush where they were able to observe what was going on and returned to rescue PW2 from the burning house after the mob left. The learned trial magistrate also found that the house was burnt in the process and while the appellant was on site. The trial cour:t rejected the explanation by the appellant and his witnesses as to how the house got burnt. The appellant was found guilty as charged. The learned High Court Judge confirmed the appellant's conviction a.fJ.d sentenced 11im to 20_ yearl, imprisonment- with hard lafiour. The appellant has now appealed to this Court on two grounds couched as follows: 1. The trial court erred both in law and in fact when it relied on evidence that was inconsistent and unreliable thereby making the conviction unsafe; and the conviction went against the weight of the evidence. 2. The trial court misdirected itself and erred in law when it relied on the evidence of the prosecution witnesses without corroboration. -J6- • < - . . . I'-' _ __ ... .:: - -· - ... ~ ~~.;:. - < .' ;.>( /~_;_--~-~..:: ;:·- -.. .. - ~;.'i..4 r . < .)((.a:·-~-~..:.,; ··-.. .. ~;.'i.4 r . )lf/ . .a:-·---==.;--.. • < r - . \.o;.,;.~ · Learned counsel for the Appellant, Mr. Ngulube, filed the appellant's heads of argument which he relied on entirely at the hearing of the appeal. He argued both ground one and two together. It was submitted that PW 1 was not at the farm on 30 th August, 2013 such that he was not an eye witness to what happened on that day. None of the witnesses who were at the farm on the material day said a chicken was also burnt, and that two incomplete structures were damaged. It was submitted that it was not possible that PW2 was beaten for afi hour from 07':00 hours sine~ he testified tl'ia.t he called PWl to report that the house was burnt at 07:30 hours. It is most unlikely • ,> a ,} • ,> • . J that he could have survived and lived to tell the story if truly he was beaten by a mob armed with sticks and machetes for an hour. Learned counsel argued that PW3 could not have seen PW2 kick the door open as he stood at a distance outside. PW2 never said anything about the appellant making him drink porridge from a pot meant for dogs. Further, that it was a lie that they went to Tapili's house as he (PW3) was told by his brothers to say that he knew the appellant. -J7- It was submitted that PW4's evidence contradicted that of PW3 because during cross examination, PW4 said no sticks or machetes were used to beat them; they went to the headman's house; the appellant burnt a neighbour's house and that the mob did not follow them to Bwanali's house contrary to PW3's testimony on those aspects. Counsel contended that the evidence of PWl, PW2, PW3, and PW4 was inconsistent, contradictory and exaggerated such that it cannot be far-fetched to say that they lied. It was submitted that there was ,.,a_ a disp\}!.te over the ~_rm which rwkes it possij?le that the ,.,a_ prosecution witnesses fa'.lsely implicated the appellant. -, - - . - Relying on the case of George Musupi v. The People 1 , counsel argued that all the prosecution witnesses were relatives and the trial court did not make a finding on the exclusion of the danger of false implication and thus misdirected itself thereby rendering the conviction unsafe. Counsel cited the case of Choka v. The People 2 , that the evidence of a suspect witness requires corroboration and that the evidence of one suspect witness cannot be corroborated by the evidence of another suspect witness. It was submitted that -JS- . < .);_ ) __ ;_-~-·\::~ -.. )..;. .. -. ,.. . ~ _);_.,J_;_-- ~ r there was no corroboration of the evidence of PW 1, PW2, PW3 and PW4 and the four of them could not have corroborated each other. It was submitted that on the totality of the evidence adduced by the prosecution, it cannot be said that the prosecution proved the offence of arson beyond reasonable doubt. Counsel contended that the conviction was unsafe and urged the Court to quash the conviction and set aside the sentence. In her response , Mrs. Hambayi, counsel for the respondent, also filed heads of arguments which she relied on entirely at the hearing. P • .# She suM'rnitted that th~ evidence shows that PW2, PVv3 and PW4 . It ·-> ·-> • .# •,# were at the farm on the material day when the appellant and his group confronted them. These witnesses testified that the appellant came in a confrontational mood as there was a dispute over land. She argued that it is feasible that the appellant went to the farm with the intention of forcibly evicting the complainant and his family from the said farm. As the appellant stated that the farm belonged to his family since 1982, he was not happy with the state of affairs. -J9- .. ~)( ~{_j ~~-~.:~;--.. . ~;..'ii.4 r ·. .. ~)t J~_i·~~--~-¾::--.. r . ~;..~4 · ".. ~)t •(.~- ~-~.:;~·- .. .. '·;..'i..4 ,,. - • )( ~1'" r - r · - It was submitted that from the outset, the prosecution witnesses were consistent in their testimony that the appellant and others were wielding offensive weapons and threatened to beat up the people they found at the farm. PW2 stated that the appellant was among the people that tied him up and later locked him up in the house that was subsequently set on fire. He said it was the appellant who torched the house and that he saw him because it was in broad day light. Counsel argued that it is inconsequential whether PW3 did or did ,,;t,. not see ,.}'W2 kick the si,oor out of the ;iouse . Whethe_!o, PW2 went to .,, the h~adman or the headman came to ·the scene is inc'onsequenti~l~ ., She submitted that the fact is that the appellant was seen by PW3 and PW4 setting the complainant's house ablaze. She argued that the correct version of events is that the appellant being unhappy with the people encroaching on his land decided to take matters into his own hands and forcibly evict them from the land and burnt the house they were staying in to ensure that they did not go back. It was submitted that even though the prosecution witnesses were related it cannot be said that they had a motive to lie and falsely -J10- . · '.. • )t ,:~_;_ - ~-·\::- .. _ '-;.>i..4 r · . , . , .-Jtr~: .. r ~--~.::~~-- -~ - ~;.'i.4- r .. .)(4,.r~- ,. -. implicate the appellant. She argued that it defie s logic that PW2 and family would burn their own property and then claim that the appellant did it. She further submitted that the trial court evaluated both the prosecution and defence witnesses and found the prosecution witnesses consistent, credible and unwavering even under cross examination. The case of Samson Mbavu and others v. The People 3 was cited as authority on how an appellate court should deal with findings of credibility and demeanour by a trial court. She urged tj;ie Court to up9old the findin~ of the trial cq;µrt in relation ,A to the · credibility of the, prosecution· witnesses ove~ the appellant'; ·• . . witnesses. In reply, Mr. Ngulube , contended that the inference that the appellant burnt the shelter is not the only reasonable inference as it can also be inferred that having been challenged to leave the farm , PW2 decided to burn his shelter so as not to leave it for the benefit of the appellant after removing his items. He , however, conceded that the appellant's intention was to evict PW2 and his family from the farm but not to assault or burn any house. -J11- .. ... .::_..-·- -.. ~~ .· . < .}t~~r~-~~;~-- -. - ,..;.'ii.4 ,., - • < .)t.;,~. L..- ~-~¾: ·--" - ~;.,_. r He reiterated that the prosecution witnesses were inconsistent. He argued that the witnesses who observed or were part of the events cannot and should not say they observed different happenings from the same set of facts. Counsel cited the case of Phiri and others v. the People4 and submitted that PW2, PW3 and PW4 were untruthful witnesses such that the finding by the trial court that the prosecution witnesses were consistent and credible cannot stand. Counsel argued that the prosecution witnesses were inconsistent, they exaggerated and even _.,, lied. Counsel )fent further top_cite the case ~ Samson Mb~vu and -, others v. fh-e ·People 3 , in ·which it was held that the court-of',appeal 1s, and must be, guided by the impression made on the judge who saw the witnesses. He argued that the case is good law only in so far as the impression is based on consistent witnesses who can then be said to be truthful witnesses. He urged the Court to allow the appeal. We have considered the evidence and the submissions by both counsel. We shall deal with the two grounds of appeal together as argued. -J12- .: ____ -.. •• .,,,. "";.'-• . < . )( ;~.r --~~:.~ - ~;.~ ,.. _.. )( ;_1._.i. ·- ~-.. .:.?":---.. - < ,.. - - "";,:'i.4, The cardinal issue this appeal raises is whether the inferences and finding that the appellant set fire to the complainant's house was supported by the evidence. Related to this issue, is the question whether there was evidence to corroborate the prosecution witnesses who are related to the complainant. The conviction of the appellant was mainly secured on the evidence of PW2, PW3 and PW 4. The trial magistrate observed that these three witnesses "remained unshaken under fierce cross examination and all maintained that it was the accused who set the house on fire . .,. The incident ,.,/oak place ar9und 07:00 h9.urs when theJ."_e was ., adequate light' for identifi,~ation and these ·•all knew the accused (appellant) before the incident and were aware that accused has been claiming complainant)s land as his". The trial magistrate addressed the issue of corroboration of the prosecution witnesses. He observed, in fact, that even the defence witnesses could be classified as suspect witnesses with a motive or interest to serve. He acknowledged that PW2, PW3 and PW4 being related to the complainant could be witnesses with a motive or interest to serve. While DWl , DW2 and DW3 went to the scene to -J13- .. ,.)( ,{_;·-~-·~:::,,::--~ .. · <. r • 3-.~'i..~ ., ; }.( ✓~ .. ; ; - ~- -~.:: ?-.:·- .. . ~~'i..4 r assist the appellant in whatever he wanted to do and could be biased or have an interest to serve. The magistrate reasoned that as such both sides corroborated each other. In rejecting the appellant's account of events, the trial magistrate opined that though the case emanated from a land dispute, the steps taken by the appellant to use force to remove the complainant from the land amounted to taking the law in his hands. He also concluded that he did not believe that a person who believes that the land he was working on was given to him by the chief would, on .,,. the slightest J-gitation burn. J!.down the hou_~e he has built on the -· .: land where -he had his bel6ngings, without f11rst involving· the chief to resolve the dispute. That after the chief decides that the land is not his then one would then remove the structure or decide to burn it down. We are of the considered view that the magistrate properly analysed the case and applied the law. In the recent case of Yokoniya Mwale v. The People 5 , the Supreme Court pronounced itself on the subject of whether friends and relatives of the deceased or victim are always to be treated as witnesses with an interest to serve and -J14- .. --- .... ~~ ,· • • < , :ii )t ;~~i.- ~-~:; ;:.-- -. . ~;.~ r . < . )t_ ) ,..---.::--- . ,. ~:---;~. ~- ~~ :4 . ~ ;.1~_i_- ~-.. ~~..:---- -• - ~;~ ,., · whose evidence required corroboration. The Supreme Court stated that: "We ought however, to stress, that these authorities (Kambarage Kaunda v. The People and other cases) did not establish, nor were they intended to cast in stone, a general proposition that friends and relatives of the deceased, or the victim are always to be treated as witnesses with an interest to serve and whose evidence therefore routinely required corroboration. Were this to be the Rase, crime t9:at occurs in _,.family envir9,.nments ,,. ., where- no witnesses.-other than near•'relatives and:friends are present, would go unpunished for want of corroborative evidence. Credible available evidence would be rendered insufficient on the technicality of want of independent corroboration. This, in our view, would be to severely circumscribe the criminal justice system by asphyxiating the courts even where the ends of criminaljustice are evident". -J15- _, . )( (;_- --·.:~_;:-- .. ·· r _ '--,;.>i..4 . ' . _;>ti~r~~~-,_::'- -~ -- r · ~ "",;.,_-. • >< ,_I._;;:.r:,- __ • .: :,,✓ - r - ~.:.~- The Supreme Court observed further that it is only where it is discernable that such a witness may have a bias or interest of their own to serve that he or she be treated as suggested in Kambarage case . Thus, their evidence should be corroborated before it is safe to be relied upon. The Supreme Court concluded therefore, that a conviction on uncorroborated evidence of such witnesses (friends or relatives) will be safe if the Court satisfies itself on the evidence before it. The evidence before the trial magistrate was that the appellant in a grou_R of people i13icluding DW 1, JI DW2 and D'Y3 went to t1}_e compiainant's farm;~, where thef f-0und PW2 . fo -PW4, Pw2· --wa.s attacked with sticks while others got away. The appellant then set the house on fire with PW2 still inside. The trial court found that: "The gist of the matter is clear that the appellant went ) there in a group of other individuals not to peacefully dialogue with the complainant's relatives but with a set intention to forcefully remove them from the land. He was prepared to do anything". -J16- . , ,.)!f_ .{ _:.r:- ~-.. ?~.::.-,-1 .. r · . l-.;.~4 · <.. ' :. }( -'/ _i- ~-~.:~.::.·- .. - ~;,.-'i..-._ r .. ..)(~l ___ r --~~;:.-~., r - ~;."ii.-. .. . , • .),{ ,:t__;:-~--~,,_:---.. - ~;."ii.4 ,.- · ·"-( :r.:- ~-~.::, .,,.;.·:c ,.. We note that the appellant admitted going to the complainant's farm in the company of others and that there was a quarrel or disturbances with PW2 and others they found there. This was early in the morning around 07:00 hours. In the circumstances of this case, we are inclined to uphold the conviction as the findings made by the trial magistrate were supported by the evidence. Furthermore, though we do not support the finding that the prosecution witnesses were corroborated by the defence witnesses, we would still uphold the conviction based on the guidelines set out in t9e case of Yo!$oniya Mwale /iv. The PeoplSi, supra. Tl_l_e prosecution witnesses were present at the scene ·when they · were invaded by the appellant and his group. Although there were some inconsistencies in their testimonies as canvassed by the appellant's counsel, they all maintained as held by the trial court, that it was the accused who set the house on fire. In short, the inconsistencies did not go to the root of the offence the appellant was charged with as to affect the prosecution's case. Equally, the issue about the injuries sustained by PW2 not being proved or possible, do not go to the core of the charge of arson the appellant was facing . -Jl 7- • )( ..-1__~-:-:-~-¾,---,. . < r . - - ~;..~4 ;; );_ ; ·~ .. ; -- ~-~:: ~~~ -.. . < . r ~ ~;;.~ :.}.(;·~ .. r~-n.:~~ -.. . < r · - ~;e;.~ Section 328( 1) (a) is clear that if there is death as a result of arson, the sentence becomes stiffer. In casu, the trial magistrate accepted that the appellants and his group attacked PW2 and others. They tied up PW2 and locked him up in the house which the appellant then set on fire. We reiterate that in the circumstances of this case, the magistrate was on firm ground to accept the uncorroborated evidence of the prosecution witnesses. We can find no basis for concluding that he misdirected himself in law and fact or that he made improper and unreasonable inferences and findings. The dispute over the land, the appellant and his group going to the farm A p A p p · early; in the rriorni~~; amourit to ~pmething mor~., which tends ~o show that the prosecution witnesses told the truth. It is not discernable on the facts, that these witnesses had a bias or interest I of their own to serve. As reasoned by the court below, in the I i circumstances of this case, it is not reasonably possible that PW2 would set the house on fire. The trial magistrate properly reasoned and evaluated the evidence that when the appellant heard that the complainant had put up a -J18- . , • )!( ~;/--· i:- ~-=.: ;.:·-~ ~ ,- - ~;.'it.~ shelter at the farm , he went there with the intention to forcibly remove the complainant (PWl). Thus against the background of the totality of the evidence, we find no reason to interfere with the findings as they were consistent with the evidence before the magistrate. In the net result, both grounds of appeal have failed. The appeal is accordingly dismissed. ·"' F. M. CHISANGA JUDGE PRESID T COURTO "' ,./1 COUR J. Z. MULONG© COURT OF APPEAL JUDGE -J19-