Mbulo v People (Appeal 184 of 2020) [2022] ZMCA 76 (23 September 2022)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 184/2020 HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: JACKSON MBULO AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga DJP, Majula and Muzenga JJA On 19th May, 2021 and 23rd September, 2022. For the Appellant: Mrs. L. Z. Musonda, Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. S. Muwamba, State Advocate, National Prosecution Authority JUDGMENT MUZENGA, JA, delivered the Judgment of the Court. Cases referred to: 1. Sammy Kambilima Ngati and Others v The People - SCZ Appeal No. 14 of 2008 2. Muvuma Kambanja Situna vThe People (1982) ZR 115 3. Chimbini v The People (1973) ZR 191 J2 4. Chiyovu Kasamu v The People (1978) ZR 252 5. Chabala v The People (1976) ZR 14 6. George Lipepo and Others v The People - SCZ Judgment No. 2 of 2014 7. Peter Yotamu Hamenda v The People - Court of Appeal Judgment No. 42 of 2019 8. Honest Munene Mainza and Another v The People - CAZ Appeal No. 150A and 150B of 2020 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1 .0 INTRODUCTION 1.1 Jackson Mbulo (the appellant herein) was charged with the offence of aggravated robbery contrary to section 294(1) of the Penal Code, Chapter 87 of the Laws of Zambia. He was subsequently convicted and sentenced to 15 years imprisonment by the High Court (before Mr. Justice D. M. Bowa). 1.2 The particulars of the offence alleged that the appellant, on 5th March, 2016 jointly and whilst acting together with other persons unknown and whilst armed with some unknown objects, did steal from Kondwani Banda, a motor vehicle namely Toyota Spacio Registration No. ALR 753 valued at K30,000.00 the property of Brenda C. Nakazwe and at or J3 immediately before or immediately after the time of such stealing, did use or threaten to use actual violence to Kondwani Banda in order to obtain or retain or prevent or overcome resistance to its being stolen or retained. 2 .0 PROSECUTION EVIDENCE IN THE COURT BELOW 2.1 The appellant's conviction was hinged on the evidence of five prosecution witnesses namely, Kondwani Banda, Richard Cheela, Detective Constable Ben Mwita, Chola Mwila, and Detective Chief Inspector Mubita Mooya. The facts of this case were that on 4th March, 2016, Kondwani Banda (PW1) asked his friend Richard Cheela if he could pirate with his vehicle. Richard agreed and gave him the vehicle around 20:00 hours. Kondwani proceeded to station himself in Kalingalinga at a nightclub where he waited for clients. Around 01:00 am, two gentlemen approached him and asked if the vehicle he had was a taxi. His response was in the affirmative and they booked him to take them to an area called Kuma Plot Mtendere. He informed them that the fare was K50.00 and the gentlemen got onto the vehicle. He passed through a gas station to buy fuel and his passenger gave him K30.00 for the same. J4 2.2 When they reached the destination, he was asked to park the vehicle on the side of the road. He was also told to accompany the gentlemen so that they could give him the rest of the fare. He accordingly parked the vehicle, got out of the car and walked with the gentlemen. One was in front while the other was behind him. The one behind him suddenly grabbed him by the neck and dropped him to the ground. The gentleman who was in front joined in and the two started beating him using their fists and their legs to kick him. At some point he was hit in his arm by something that felt like a plank, his arm immediately got numb from the impact and he dropped the car keys that were in his hands. 2.3 His assailants got into the vehicle and drove off. Eventually, he stood up and started walking along the tarred road. After the incidence, he went to his friend's house, to inform him what had transpired. He and his friend Richard went to report the matter to the police. At the police station, he was given a medical report form and went to Mtendere Clinic for treatment. He was able to describe his assailants by their heights, one being tall while the other was shorter. He was unable to remember what they looked like or what they wore that fateful night. J5 He described the stolen vehicle as a grey Toyota Spacio registration number ALR 753. He next saw the vehicle parked at EmmerdaIe Police Station two days after the attack. 2.4 A day after the robbery, while on duty in Chazanga Compound with other police officers, Constable Chola Mwila (PW4) noticed an over loaded motor vehicle being driven from Ka banana road at a very high speed with its headlamps on. The driver of the said vehicle was also hooting to clear the way. A decision was made to follow the vehicle and at some point, the occupants seem to have noticed that they were being followed, increased their speed and the driver turned into Chingwele Cemetery road. The chase continued until they reached the cemetery where the police managed to overtake and block the target vehicle from the front. Constable Mwila and Detective Sergeant Andeleki came out of the vehicle walked to the driver's side of the car and tried to open the door whilst ordering the occupants to get out of the vehicle. He noted that all the doors were locked. In the process, the driver started to reverse the vehicle at high speed. Constable Mwila and his colleagues fired some warning shots but the driver did not stop. He continued to reverse until he got to the gravel road J6 leading to Chunga Township. The police officers resumed the chase and after driving a distance, they noticed the car stopping and immediately people came out and scampered in all directions. 2.5 The police officers ran after them and only managed to apprehend a lady by the name of Clara Chishimba who turned out to be a girlfriend of the driver of the target vehicle. The police officers made arrangements to ferry the vehicle from the scene and while communicating on radio with their station, they received confirmation that the said vehicle had been reported stolen earlier that morning in an aggravated robbery. 2.6 While with the lady, she received a call from her boyfriend. The officers advised her to tell him she was lost and needed help. They agreed to meet in town at Stanley bar. The officers accompanied her into town and managed to apprehend the driver who later came to be known as Jackson Mbulo the appellant herein. The chase and apprehension of the suspects took place during the day and the visibility was good. Constable Mwila testified that he was able to take a look at the driver of the vehicle who was wearing a white vest at the J7 time and was dark in complexion. The period of observation was less than a minute. 2.7 This marked the end of the prosecution case. The appellant was found with a prima facie case and was placed on his defence. 3 .0 THE DEFENCE 3.1 In his defence the appellant told the trial court that he was a bus conductor by occupation, operating between City Market and Stanley Bar. He narrated that on 7th March, 2016, he left his home around 07:00 am for work. He worked until 22:00 hours when he saw two people, he did not know, approach him at Stanley bar. He assumed they were customers. The two men held him by both his hands and led him to a taxi rank, handcuffed him, beat him and put him in the boot of car and took him to Emmasdale Police Station. He denied knowing anything about the stolen car. He also denied knowing anyone by the name of Clara Chishimba who was alleged to be his girlfriend. 4 .0 FINDINGS AND DECISION OF THE LOWER COURT 4.1 The trial court considered the evidence presented before it by both parties. The court noted that the offence of aggravated robbery took J8 place as there was more than one assailant involved and actual violence was used to steal the vehicle in question. The court ruled out the possibility of an honest but mistaken identity on account that the police officer who approached the vehicle observed the appellant in broad daylight and that the period was more than just a fleeting glance. Based on the principle of recent possession the trial court was fortified in convicting the appellant as the stolen vehicle was found in his possession barely hours after the robbery took place and there being no sufficient rebuttal. The appellant was later sentenced to 15 years imprisonment with hard labour. 5 .0 GROUNDS OF APPEAL 5.1 Dissatisfied with the conviction and sentence the appellant filed two grounds of appeal as follows: 1. The learned trial judge erred in law and in fact when he convicted the appellant on the single identification evidence of PW4 when the possibility of an honest mistake had not been ruled out. 2. The learned trial judge misdirected himself in law and in fact when he rejected the explanation of the appellant which explanation could reasonably be true. J9 6 .0 APPELLANT'S ARGUMENTS 6.1 On behalf of the appellant, counsel filed written heads of argument. In relation to ground one of the appeal, it is contended that where the evidence before the court relates to identification, the evidence of a single identifying witness needs to be tested with a particular case so as to eliminate the additional risk of an honest mistake. In support of this, we were referred to the case of Sammy Kambilima Ngati and Others v The People1 where the Supreme Court held that "it is settled law that a court is competent to convict on a single identifying witness provided the possibility of an honest mistaken identity is eliminated." 6.2 We were also referred to the cases of Muvuma Kambanja Situna v The People2 and Chimbini v The People3 in support of their argument. It was submitted that in this case, the opportunity for a positive and reliable identification was poor since the vehicle was in motion and PW4 gave a chase the whole time and only had less than a minute to observe the appellant who was in a car with closed tinted windows. It is further contended that the evidence of PW4 with J10 respect to the story of one Clara Chishimba cannot be relied on as the said lady was never brought to court to confirm his evidence. 6.3 In support of ground two of the appeal, it is contended that in the absence of fingerprint evidence connecting the appellant to the stolen car and the prosecution having failed to bring to court the alleged girlfriend to the appellant to testify, the court below was wrong to ignore the appellant's explanation. It was learned counsel's contention that the matter was not thoroughly investigated and the dereliction of duty raises a presumption in favour of the appellant. For this argument counsel referred us to the case of Chiyovu Kasa mu v The People.4 6.4 It was learned counsel's argument that in the absence of finger print evidence and that of a lady who led to the apprehension of the appellant, his explanation can reasonably be true and should have been believed. We were referred to the case of Chabala v The People5 where the Supreme Court held that: "If the explanation is given, because guilty is a matter of inference, there cannot be a conviction if the explanation might reasonably be true, for then guilty is not the only inference. It is not correct to say that the accused must give a satisfactory explanation." Jll 6.5 We were urged to allow the appeal, quash the conviction and set the appellant at liberty. 7 .0 THE RESPONDENT'S ARGUMENTS 7.1 In response, the respondent filled written heads of argument and contended that PW4's encounter with the appellant was sufficient to give him the opportunity to see the driver through the windows even though the doors were closed. It was pointed out that there is no evidence on record that the windows for the vehicle in question were tinted. We were referred to the case of Muvuma Kambanja Situna supra where it was held inter-alia that: "If the opportunity for a positive and reliable identification is poor then it follows that the possibility of an honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence which renders mistaken identity too much of a coincidence." 7.2 It is contended that the identification evidence given by PW4 was supported by the evidence leading to the apprehension of the appellant. It was learned counsel's submission that the facilitation of the appellant's apprehension by his girlfriend provided a connecting link rendering mistaken identification being too much of a coincidence. J12 It was argued that PW4 witnessed the apprehension of the appellant and thus his evidence cannot be said to be hearsay. 7.3 With respect to ground two, it is the respondents view that the appellant's contention that failure by the police to uplift finger prints on the stolen vehicle amounts to dereliction of duty which must be resolved in favour of the appellant does no arise in this case. We were referred to the case of George Lipepo and Others v The People6 where the Supreme Court held that: "In criminal cases, it is the responsibility of investigative agencies to thoroughly investigate the cases they bring before the court for prosecution. It is during this investigation that all relevant evidence both favourable and unfavourable to the state must be gathered. During the prosecution case evidence so gathered must be presented to the court so that it can arrive at a just decision. Failure on the part of the agencies to diligently execute the said responsibility amounts to a dereliction of duty." 7.4 Further, the court was referred to the case of Peter Yotamu Hamenda v The People7 where the Supreme Court held that: "...... the dereliction of duty will operate in favour of the accused and result in an acquittal unless the evidence given on behalf of the prosecution is so overwhelming as J13 to offset the prejudice which might have arisen from the derelictions of duty." 7.5 In concluding the arguments, it was submitted that the prosecution adduced overwhelming evidence against the appellant which offset any prejudice to the appellant. We were urged to dismiss all grounds of appeal as they lacked merit. 8 .0 HEARING OF APPEAL 8.1 At the hearing of the appeal, counsel for both parties placed full reliance on their filed written arguments. 9 .0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the evidence on the record, the arguments by both parties and the Judgment of the trial court. 9.2 The issue in this appeal is whether the identification evidence is sufficient to warrant a conviction. 9.3 It is not in dispute that PW4, the only witness on which the identification evidence is anchored only observed the occupants of the motor vehicle in question for less than a minute. This is a person he had never seen previously. He subsequently apprehended a lady who was in occupation of the vehicle. This lady informed PW4 that her J14 boyfriend was the one who was driving the motor vehicle and that it belonged to him. She then led PW4 to the apprehension of the appellant. For reasons not explained, the lady in question was never called as a witness. What she therefore told PW4 was inadmissible hearsay. 9.4 We stated in the case of Honest Munene Mainza and Another v The People8 that: "It is trite that identification evidence must be carefully evaluated and if the opportunity for positive identification is poor, then the danger of an honest mistake has not been excluded. Therefore a connecting link would be required in order for a conviction to be safe. We are alive to the fact that this was a case of recognition which is ordinarily considered to be better than identifying a total stranger. Even in recognition cases caution must be taken as people have been known to mistake even close relatives (see the case of Mwansa Mushala supra)." 9.5 It is trite that a court can convict on single identifying witness' evidence as long as the court is satisfied that the possibility for a mistaken identification has been excluded. The Supreme Court in the case of Muvuma Kambanja Situna supra held inter-alia that: J15 "The evidence of a single identifying witness must be tested and evaluated with the greatest care to exclude the dangers of an honest mistake; the witness should be subjected to searching questions and careful note taken of all the prevailing conditions and the basis upon which the witness claims to recognize the accused. If the opportunity for a positive and reliable identification is poor then it follows that the possibility of an honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence which would render mistaken identification too much of a coincidence." 9.6 PW4 stated in his evidence that in the less than a minute in which he observed the occupants of the motor vehicle, he saw that the appellant was dark in complexion and was wearing a white vest. When cross­ examined he admitted that he never included in his report any features of any of the occupants of the motor vehicle. He further never told the trial court that at the time he apprehended the appellant, whether the appellant was wearing a white vest or not. These were the circumstances surrounding the identification evidence. 9.7 The state in their arguments in response seemed to agree that the identification evidence was not sufficient as they argued that there was J16 a connecting link, being, the leading by the purported girlfriend to the appellant to his apprehension. 9.8 We are of the view that, that aspect of PW4's evidence cannot provide a connecting link as the lady in question was never called to testify. It is thus inadmissible hearsay that the appellant was the driver of that motor vehicle and that he was a boyfriend to the mysterious lady. 9.9 What could have possibly provided a connecting link would have been the finger print evidence or record of phone conversations between the appellant and the lady or any other mobile service provider evidence relating to the area in which the phone activity for the appellant was pinned. 9.10 The state failed to lift finger prints from the vehicle yet they had first hand possession of it immediately the occupants deserted it. The state had access to the phone which the mystery lady used to communicate with the appellant, meaning they equally had access to his number. All these important links were not explored by the state. We thus agree that the failure by the police to thoroughly investigate this matter amounted to a dereliction of duty, which dereliction raises a presumption in favour of the appellant. We find no strong evidence to rebut the presumption. 9.11 In the circumstances we are therefore satisfied that the single identification evidence herein has not ruled out the danger of an honest mistaken identification. There being nothing on the record to rule out the danger, we find merit in the appeal and we allow it. Had the trial court taken a proper view of the evidence, it would no doubt have reached the same conclusion as we have. 9.12 CONCLUSION 9.13 We thus quash the conviction, set aside the sentence and set the appellant at liberty forthwith. C. F. R. MCHENGA^^ DEPUTY JUDGE PRESIDENT B. MTMAJULA K. MUZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE