Jennipher Mofya v People (CAZ/16/2016) [2017] ZMCA 499 (16 March 2017)

.-,<ii~'.~~ :~ ·r ·-. :,. ";' .:. -R~:W . -~ . ,,.. ,, ' IN THE COURT OF APPEAL FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA ( Criminal Jurisdiction) CAZ/ 16/ 2016 BETWEEN: JENNIPHER MOFYA APPELLANT Vs. THE PEOPLE RESPONDENT CORAM: MCHENGA SC, CHISHIMBA, SICHINGA SC, JJA On the 16th day of March, 2017 ~ - - /'-- ' . ~ -- For t1ti?'f;pp~llant: ~ :;_=.,i;P{;JVg~lub.e, Di~ cfooYJ Legal. Aid Bo"ii~~ : For the Respondent: Mrs. G. C. Mulenga, State Advocate of National Prosecution Authority JUDGMENT SICHINGA, SC, JA, delivered the Judgment of the Court CASES REFERRED TO: 1. Charles Lukolongo and Others v. The People (1986) ZR 115 (SC) 2. Chola and Others v. The People (1988-89) ZR 163 (SC) 3. Maketo and Others v. The People (1979) ZR 23 4. Hamfuti v. The People (1972) ZR 240 s ·:·~~~~ -,, LEGISLATION REFERRED TO: 1. The Penal Code, Chapter 87 of the Laws of Zambia The Appellant, Jennipher Mofya, was charged with the offence of murder contrary to section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. She was tried, convicted and sentenced to 25 years simple imprisonment by the High Court sitting at Kasama. The particulars of the offence alleged that the Appellant jointly and whilst acting together with other persons murdered Charles Mwape at Mpika in the Mpika District of Muchinga Province of the Republic of Zambia on a date unkn~~n but bet:"'een .~~and 30th Septem)_er, 2013. Mulima; PW2 , Lackson Mkandawire; and PW3, Kelvin Silombwana. The brief facts of the case were that the Appellant was known to the deceased, Charles Mwape who was her brother. The deceased body was found in a pit latrine after, the Appellant's son, Mofya Tifi, now deceased, led the police to the discovery of the remains. After, he was apprehended, the said Mofya Tifi a llegedly confessed of his participation and that of his brother, Reagan Tifi (also deceased) and his mother, the Appellant in the murder of the deceased. According to the testimony of PWl , an advisor to Chief Chunda Ponde, he was told by one Mulyata Nsombo, a CCPA member, that the deceased went missing -J2 - after being beaten by the Appellant and her sons. When Mofya Tifi, one of the Appellant's sons was apprehended, he confessed that he along with his brother Reagan Mofya and mother, the Appellant, together beat the deceased and buried him in a shallow grave. PWl said Mofya Tifi led him and others to a disused pit latrine where the deceased's remains were discovered. He said the Appellant opted to remain silent after she saw that Mofya Tifi had been apprehended and confessed to the murder. PW2 testified to the effect that whilst on patrol in Lubushi Manda National Park, he arrested Mofya Tifi for unlawful entry in a game park. He said he handed over Mofya Tifi to one Teddy Musonda, a neighbourhood watch community member who was searching for him in connection with the murder .>.. . . :.>-. . jl,._ - jl,._ . jl,._ - - PW3, the last prosecution witness testified that the Appellant informed him that the deceased fell in an abandoned pit latrine and died whilst attempting to run away from her sons and herself. PW3 said whilst enroute to the crime scene the Appellant's sons jumped off a moving police vehicle and died. His evidence was that the Appellant later led him to the scene of the crime even though he had previously attended to the scene. When put on her defence, the Appellant elected to remain silent, which she was perfectly entitled to do . After considering all the evidence before him, the trial judge found that the Appellant was not implicated by her son's confession (Mofya) because she did -J3- not adopt it m court. He however found that she was implicated by her statement to PW3, when they were taking her to the pit latrine, that the deceased person fell into it when he was running away from them. This is the same pit latrine that her son indicated they had thrown the deceased into after committing the offence. He found that the Appellant's statement established that she was with her sons when they buried the deceased in the pit latrine. The trial judge also found that smce the Appellant was with her sons at the time they committed the offence, they must have been acting with a common design. He found her equally responsible for Charles Mwape's death. The Appellant being dissatisfied with the lower court's judgment has appealed agair].a_t the conviction gAJ.d sentence. - - The Appellant had advanced one (1) ground of appeal, namely: The trial court erred in fact and in law to convict the Appellant as there was no evidence upon which the conviction could safely rest. At the hearing of this appeal, the Learned Director of Legal Aid initially informed us that he had instructions to abandon the appeal. Following consultations with his client in court, he informed us that he had instructions to proceed with the appeal but would file a reply to the State's arguments in support of the conviction, if need arose. -J4- On behalf of the Respon dent, Mrs. Mu lenga submitted that the State supported the conviction. First of a ll, she conceded that t h ere was misdirection when the trial Judge relied on the confession of Mofya. She referred to the case of Charles Lukolongo and Others v. The People( 1l and submitted that there was a requirement for the police to warn and caution her before they went out as she was in custody, but there is no evidence that it was th e case . Mrs. Mulenga also r eferred to the case Chola and Others v. The People(2 l and submitted that the evidence of th e Ap pellant leading the police was of no probative value because the police h ad previously been to th e pit latrine. Ms . Mulenga, however, argued that the conviction was safe . She submitted that on the totality of the evidence on record, there was some other evidence upon . ,_;>-. . . . -->-. . J,A" _;t,_ . 1. The fact that the deceased person was never seen alive from the time the Appellant and her sons took him to a witch doctor on 6 th September, 2013; 2. The record showing that the Appellant and her two sons had relocated from the date the deceased disappeared; and 3. The fact that when the Appellant was interviewed by PW3 on 29t h September 2013, she expressed knowledge of the whereabouts of the deceased's body. -JS- _.·:.~- .,,,,. J .-1' It was pointed out that from this evidence, two inferences could be drawn. The first being that the Appellant was present at the scene of the crime and the second, that she participated in the commission of the offence. She referred the court to the case of Maketo and Others v. The Peop le (1979) ZR 23f3J in which Section 21 of the Penal Code was considered. It is submitted that the Appellant was the sister to the deceased, and she offered no resistance to the deceased being beaten. It was further submitted that the Appellant being the mother to the other persons that participated in the commission of the offence, had the power to control and influence her sons, but she chose not to. Ms. Mulenga pointed out that even at the time of being _ ~ -. interviewed j.~ relation to th~ (_)ffence, ~he Ap~~lant spoke on_ -~~half of her _ . . A _ -~~~ -,::--s _. ,sons. ·shi'l£~1l11tted __ that: h-a.cl;t-he _<;011-:_rt ~belo.w -~ope2Jy_ dfrec..tw-j§e:lf__to -this ,;.~ .. ~ -:~: evidence, it would still have come to the same conclusion and inevitably convicted the Appellant. Counsel urged the court to uphold both the conviction and sentence as there would be no miscarriage of justice. We have considered the sole ground of appeal and the submissions by counsel. We have also examined the Judgment of the court below. The issue, as we see it, is whether the incriminating statement by the Appellant, that the deceased person fell into the pit latrine as he was being chased by her and her sons, was properly admitted into evidence. A consideration of the judgment of the court below reveals that the trial court's finding of guilt was anchored on the evidence that the Appellant led the police -J6- to the scene of the crime where she m a d e the incriminating statem ent to PW3. At page J15 p aragraph 2 line s 8-15, the Judge had this to say: "Although that leading cannot be used as a basis of proving the offence of murder, I am however of the considered view that the said evidence is material to this case and must be looked at in the context within which it was conducted. PW3 testified that during his investigations, the accused had denied killing the deceased alleging that the deceased fell in the pit when the deceased was fleeing from them. And as such the accused led them to a place where she alleged the deceased had fallen into which turned out to be t1;,f. same place _ th<:1-t Mofya had c~nfessed the deceased was . _ _j}._ brlneif:ufter they-:rc-ill'!)t hi!J1- _,;i.nd -w."4~~--J1,i~ r~ma{tt¾,:~e,-·a'!t'!ally_:;._~,;i; -,:;-._--_ :· . . ~- . j,A_ . - _J>_ . - . ~ recovered from. " As it turns out, this is the main evidence implicating her. But before d ealing with it, we will comment on Mrs. Mulenga's submission that the Appellant was also implicated by evidence thatthe deceased person was never seen alive from the time the Appellant and h er sons took him to a witchdoctor. This evidence was given by Kingsley Chulu Yandwa, PWl, and h e told the court that it is one Mulyata Nsombo who told him about it. The evidence is clearly hearsay and of no probative value. -J7 - As was indicated earlier on, Mrs. Mulenga submitted that the Appellant's incriminating statement that the deceased fell into the pit latrine is admissible because it was made after she was warned and cautioned. Scrutiny of the record of proceedings shows that PW3 only indicated that the statement was made after the Appellant was warned and cautioned when he was being cross examined. He did not say it was the case before testifying to it. In the case of Hamfuti v The People (1972) ZR 24()(4J, it was held that: "Whether or not an accused person is represented, a trial court should always, when the point is reached at which a witness is about to depose as to the content of a statement, ask whether the . <j}._ . . J,._ . j ,/,._ . ~ - . -"'-· . ~ 418-'!:.! :h'!s ':ny ,~'1jf~if~ t~ -~hat.~!.:~~~c.e -~ei_ng · lfl. J!::. J -:~ ": :·· __ _ ~ ,:::~~ ·:,": :· In this case,the record shows that before PW3 recounted the incriminating statement, the trial judge omitted to inquire whether the defence had any objection to it being led. We find that the failure to do so was a misdirection and that the incriminating statement was improperly admitted into evidence . It cannot therefore be used to make the case against the Appellant. In the circumstances of this case, the only evidence against the Appellant is that she relocated after her brother went missing and her sons confessed to having killed him. We find that this evidence falls short of circumstantial evidence that can lead to an inference of guilt on her part. In light of the -J8- foregoing, we find merit in this appeal. We allow it. The conviction and sentence are hereby set aside. • • • • • • • • • • • • • ••••••• I C. R. F. MCHENGA, SC DEPUTY JUDGE PRESIDE ,~~~--~~ ;. M: c~i~iifl\f;1'.··_-:···_····~··~1~~ -; ~ :·· COURT OF APPEAL JUDGE -J9-