Joe Chama and Anor v People (APPEAL NO. 106, 107/2019) [2020] ZMCA 239 (20 February 2020)

Jl IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 106,107/2019 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: JOE CHAMA GIVEN MULAUZI AND \ THE PEOPLE 1 ST APPELLANT 2ND APPELLANT RESPONDENT CORAM: CHISANGA, JP, SICHINGA AND NGULUBE, JJA. On 21 st January and 2CJth February, 2020. For the Appellants: P. Chavula, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: M. Kapambwe - Chitundu, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. 6. 7. Bwalya us ThePeople(1975)Z. R.227 Mwansa Mushala and others vs The People (1978) Z. R.58 Muuuma Kambanja Situna us The People (1982) Z. R.115 Peter Yotam Hamenda vs The People (1976) Z. R.184 Benson Phiri and Sammy Mwanza vs The People, SCZ Judgment 25 of 2002 Chimbini vs The People(1973)Z. R.191 Lipepo and others vs The People, Appeal Number 389, 390, 391, 392/2013 Runga Kabala and John Masefu vs The People (1981) Z. R. 1 02 Nyambe vs The People (1973) Z. R.228 8. 9. 1 0. Mwansa vs The People, SCZ Appeal Number 68 of 2004 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. J2 1.0. INTRODUCTION 1.1 This is an appeal against conviction and sentence. The two appellants were convicted of one count of the offence of murder, contrary to Section 200 of the Penal Code and one count of the offence of Aggravated Robbery, contrary to Section 294(1) of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the first count are that Joe Chama and Given Mulauzi, on an unknown date, but between 14th and 15th July, 2018 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with others unknown, murdered Charles Zimba. 1.2 In the second count, the particulars are that the two appellants, on dates unknown, but between 14th and 15th July, 2018, at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with others unknown stole a Samsung mobile phone, a coat, a pair of jeans trousers and a pair of canvas shoes, altogether valued at Kl,690.00, the property of Charles Zimba, and used actual J3 violence on the said Charles Zimba in order to obtain, retain, prevent or overcome resistance to the property being stolen. 1.3 The appellants were convicted of the offences of murder and aggravated robbery as charged and were sentenced to death on count one and fifteen years imprisonment with hard labour on count two. They now appeal against both conviction and sentence. 2.0 EVIDENCE IN THE TRIAL COURT 2.1 At trial, six (6) prosecution witnesses were called. Their combined evidence was to the effect that on the evening of 14th July, 2018, PW 1, Astridah Sinkala was on her way home in Kanyama compound at about 22:00 hours when she saw some people beating up a person near the communal tap. She recognized two people among the group, these being Joe and Given. PWl stated that she observed what was happening because she hid behind some flowers which were near the communal tap as she did not want the people to see her. She could see what was happening clearly because there was light that emanated from the houses J4 which were located near the communal tap and was at a distance of about ten meters from the scene. 2. 2 PW 1 testified that one of the two men she recognized in the group, Joe, had dreadlocks in his hair while Given had natural hair. She had known both men for about two years. PW 1 stated that she saw one of the men in the group hit the person who was lying down on the ground with a stone. She then left the place where she was hiding and used a different route to go home. However, on the way, she met Given and Joe, the men who had been beating up the person and they asked her where she left her child. She also noticed that one of the men carried clothes on his shoulder while the other man carried a pair of shoes. 2.3 The following day, PWl met Given at about 15:00 hours, within Kanyama compound and he threatened her not to tell anyone if at all she had seen anything the previous night. She was alarmed and told a Mr. Tembo about the threats that Given had issued and also went to report the matter at Trisha Police Post within Kanyama compound. She identified the first accused as Joe and went on to identify the second accused as Given. PWl further JS testified that on the material night, Joe was the one who carried clothes on his shoulder moments after she saw him participating in the beating of the person at the communal tap. The following day, she came to know the person who was beaten after his body was found lying at the communal tap. 2.4 In cross-examination, PWl stated that she saw four men and two women participating in the beating of the person who lay down near the communal tap on the material night. She was able to see clearly because there was electric light near the tap. She further stated that no identification parade was conducted after the two accused persons were apprehended. 2.5 PW2, Elina Zimba's testimony was that on 14th July 2018, she retired to bed at night and observed that her husband, Charles Zimba had not returned home. At 05:00 hours, she went to the communal tap and was shocked to find her husband lying on the ground and further that he was only dressed in his under garments. She later realised that he was dead and noticed that his body had some injuries at the back of the head and on the J6 chin. She was taken home by neighbours while her husband's body was taken to the mortuary. 2 .6 PW2 stated that the last time she saw her husband alive, on 14th July, 2018, he wore a white t-shirt, black jeans trousers, a brown rain coat and a pair of white sneakers. He also had a phone which was worth Kl ,300.00. She valued the clothes that he wore at K290.00. PW2 stated that she tried to call her husband at about 20:00 hours on the night of the 14th July, 2018 but his phone was off. None of the items that her husband wore on the last day that she saw him alive were ever recovered. In cross-examination, PW2 stated that there was no light at the tap where her husband's body was found . 2.7 PW3, Mathews Zimba was the late Charles Zimba's younger brother. His testimony was that he was informed that his brother Charles had been killed on the morning of 15th July, 2018. He went to the communal tap which was about three hundred metres from his house and found his brother's body lying on the ground. He noticed that the body only had under garments on. Upon further scrutiny, PW3 saw a cut at the back of the head and J7 another cut on the chin. He also saw a big stone nearby which had blood on it. After a short while, the police arrived on the scene and took the body to the mortuary. 2.8 PW4, Penias Zimba's testimony was that on 17th July, 2018, he went to the University Teaching Hospital to identify the body of his nephew, Charles Zimba. He identified the body to the doctor and also noticed cuts at the back of the head and on the chin. Phalesy Nkhuwa, a Police officer, whose service number was 37286, a detective constable was PWS. Her testimony was that on 17th July, 2018, she attended a Postmortem examination at the University Teaching Hospital which was conducted on the body of Charles Zimba and was conducted by Dr Musakhanov. 2.9 The testimony of PW6, Josephat Phiri, Detective Chief Inspector, whose service number was 9109 is that he investigated the matter involving the two suspects, Joe and Given, the accused persons herein. He also charged and arrested them for one count of the offence of murder and in count two, they were charged with the offence of aggravated robbery. He identified the two accused persons in court and also identified the postmortem report that he J8 obtained from Dr Musakhanov. It was duly admitted into evidence. He further testified that PWl, Astrida kept calling him to complain that she was being threatened by the second accused whenever she met him in the compound. 3.0 THE DEFENCE'S CASE 3.1 The First Accused, Joe Chama of Kanyama compound gave sworn evidence in his defence to the effect that he did not know anything about the death of Charles Zimba and was surprised to see the police officers who went to apprehend him on 28th July, 2018. He denied beating up a person on the 14th July, 2018 and further denied meeting PWl within Kanyama compound later that night. He went on to deny threatening PWl after the murder of Charles Zimba. 3.2 In cross-examination, he admitted having had dreadlocks in his hair in 2018. He maintained that he was not at the scene where Charles Zimba was beaten to death. He however admitted not having told the Police where he was on the evening in question. 3.3 The Second Accused, Given Mulauzi gave sworn evidence and stated that he knew nothing about the charges that were levelled J9 against him. He denied ever threatening PW 1 but could not recall what he was doing between 14th and 15th July, 2018. He denied meeting PWl within Kanyama compound on the night of 14th July, 2018 and denied knowing anything in this matter. 3.4 In cross-examination, the second accused stated that he knew PWl and that he has never differed with her. He denied having been involved in beating Charles Zimba to death as well as stealing his clothes. He stated that PW 1 lied when she stated that he threatened her whenever he met her within Kanyama compound. 3.5 In his Judgment, the learned trial Judge found that the prosecution had sufficiently proved that it was the First and Second accused persons who beat up Charles Zimba to death and that they acted with malice aforethought. The court found that PW 1 was a credible witness because PW6 confirmed that she told him of the threats that were issued to her by the second accused. The court concluded that the two accused persons were well known to PW 1 and that the first accused had dreadlocks at the time, which he confirmed. JlO 3.6 The court found that there was light at the communal tap which came from the surrounding houses and that PWl observed the beating of Zimba and recognized the first and second accused persons as having been among the assailants and stated the roles that each of them played during the attack. The court was satisfied that PW 1 was threatened by the second accused and concluded that although PW 1 was a single identifying witness, she had sufficient opportunity to observe the attack and in the process, recognized the two accused persons whom she knew well. 3. 7 The court then convicted the two accused persons for the offences of murder and aggravated robbery as charged, and sentenced them to death on count one and fifteen years imprisonment with hard labour on count two, because the court was of the view that there were no aggravating circumstances. GROUND OF APPEAL AND ARGUMENTS 3.8 At the hearing of the appeal, the learned Counsel for the appellants, Mr. Chavula, Senior Legal Aid Counsel, sought leave to file the sole ground of appeal and heads of argument out of time, Jl 1 which leave was duly granted. Counsel then submitted that he would rely on the heads of argument filed. 3.9 The sole ground of appeal was couched as follows- The learned trial Judge erred and misdirected himself both in law and in fact when he convicted the appellants based on the evidence of a single identifying witness which was not corroborated. 3.10 In arguing the sole ground of appeal, it was submitted that the lea.med trial Judge misdirected himself when he relied on the evidence of identification given by PWl, the single identifying witness which was not corroborated. Counsel contended that in a single identification witness scenario, the critical issue is not that of credibility but the reliability of the witness in the observation of the alleged events. 3.11 Counsel argued that clothes and a cell phone were allegedly stolen from the victim, Charles Zimba, but none of these were recovered from the appellants when they were apprehended. It was contended that PWl conceded that she was filled with fear when she witnessed the attack on Charles Zimba at 22:00 hours that J12 fateful night and that she hid behind some flowers which were thick, such that the assailants did not see her. It was submitted that the thick flowers could have affected PWl 's ability to observe the assailants properly, thus creating the possibility of an honest mistake in her identification of the two appellants. 3.12 We were referred to the case of Bwalya vs The People1, where the Supreme Court stated that- "tn sing le witness identification cases, the honesty of the witness is not the issue, the court must be satisfied that he is reliable in his observation and that the possibility of honest mistake has been ruled out." 3.13 Counsel argued that although PWl claimed that she knew the appellants prior to the date of the incident, mistakes may arise in recognition of friends and close relatives. He went on to refer to the case of Mwansa Mushala and others vs The People2, where the Supreme Court stated that- " ...... even when the witness is purporting to recognize someone who he knows, the Judge J13 should remind himself that mistakes in recognition of close relatives and friends are sometimes made and there is need to exclude the possibility of honest mistake, the poorer the opportunity for observation the greater that possibility becomes." 3.14 Counsel submitted that the events leading to the death of Charles Zimba happened at night and that according to the evidence on record, the source of light was from nearby houses, which piece of evidence was challenged. Mr. Chavula went on to submit that a risk of honest mistake in the identification of the two appellants was present. 3.15 We were referred to the case of Muvuma KambanJa Situna vs The People3, where the Supreme Court stated that the evidence of a single identifying witness needs to be tested and that the honesty of the witness is not sufficient as the court must look at other factors such as the time of day when the events occurred, the state of light, the opportunity of the witness to observe the appellant and the circumstances in which the observation was Jl4 alleged to have been made, to rule out the possibility of honest mistake. 3.16 Counsel contended that the evidence of the threats which were allegedly directed to PW 1 by the second appellant was challenged in cross-examination and cannot therefore be said to be corroboration. He further contended that the investigation officer was guilty of dereliction of duty because he did not obtain call records of the victim's phone nor did he endeavour to recover the clothes which were allegedly stolen during the attack. We were referred to the case of Peter Yotam Hamenda vs The People4, in this regard. Counsel prayed that the appeal be allowed, the conviction be quashed, the sentence set aside and that the appellants be set at liberty forth with. 3.17 The respondent filed heads of argument 1n reply, and Mrs Kapambwe - Chitundu, Deputy Chief State Advocate contended that the learned trial Judge was on firm ground when he convicted the appellants on the evidence of a single identifying witness. It was counsel's contention that the witness had known the appellants for about two years prior to the incident and that PWl 's JlS evidence of identification was reliable as she recognized the appellants as people she knew. Counsel referred to the case of Benson Phirl. and Sammy Mwanza vs The PeopleS, where the court held that- " The testimony of a single witness who knew the accused prl.or to the incident in issue is adequate to support a conviction." 3.18 Counsel further referred to the case of Chimbini vs The People,6 where the Court of Appeal held that- "· ..... there is the greatest difference between recognizing someone with whom one is familiar, or at least whom one has seen before, and seeing someone for the first time and attempting to recognize him later from observations and in circumstances which may be charged with stress and emotion." 3.19 Counsel submitted that the record shows that the learned trial Judge recognized the need to satisfy himself that the danger of Jl6 mistaken identity had been eliminated and embarked on the analysis and evaluation of the evidence before him in terms of the visibility at the scene, the opportunity for PWl to observe the commission of the crime, the distance from which she observed the crime and the fact that this was a case of recognition of known people as opposed to identification of strangers. The court then went on to conclude that- "I have no doubt that the communal tap area has some lighting coming from some surrounding houses. Further, PW1 was at a safe distance to observe exactly what was happening on the material night. She not on~y identified the accused persons but recognued them as they were people who were previously known to her." 3.20 Counsel submitted that PWl was not impeded in any way as she observed the commission of the crime under favourable conditions, as there was light at the scene and she was close enough and was stationery as opposed to her having a fleeting glance at the appellants. It was submitted that PWl stated that J17 there were spaces in between the flowers so she could see what was happening. It was argued that PW6 corroborated PWl 's evidence to the effect that she was threatened by the second appellant. The court also found that PW! had no motive to falsely implicate the appellants and that as such, the learned trial Judge was on firm ground as there was nothing discernible on the record to suggest such motive on the part of PW 1. 3.21 On the failure by the arresting officer to obtain the call records of the deceased's phone, counsel submitted that there was no dereliction of duty and that the appellants were not prejudiced as there was strong and compelling evidence which placed them at the scene, thereby offsetting the prejudice which might have arisen from the failure to obtain the said call records. 3. 22 We were referred to the case of Lipepo and others vs The People7, where the court stated that- " ........ It fs not every dereliction of duty that will affect the core oftheprosecution evidence. lfthere is overwhelming evidence, the court can Jl8 competently convict notwithstanding the dereliction of duty." Counsel referred to the case of llunga Kabala and John Masefu. vs The PeopleB, where the court stated that - "odd coincidences if unexplained may be supporting evidence." 3.23 It was argued that it is too much of a coincidence that the victim's body was found in the morning in underwear after the appellants had been seen walking from the scene where a person was beaten, carrying clothes on their shoulders the previous night. It was further argued that the learned trial Judge properly directed and satisfied himself that the danger of mistaken identity had been excluded. We were urged to dismiss the appeal and uphold the conviction and sentence. 4.0 DECISION OF THE COURT 4.1 We have considered the evidence on record, the Judgment appealed against, the submissions by both Counsel together with the authorities cited and the sentence passed by the lower court. J19 4.2 It is the function of this court as an appellate court, to scrutinize the evidence to see if it supports the lower court's findings and conclusions. In so doing allowance will be made of the fact that the trial court had the advantage of hearing and seeing the witnesses. 4.3 The following are the issues for determination in this appeal, namely- (i) Whether the identification was free from error; (ii) Whether the evidence adduced was sufficient to support a conviction. With regard to the sole ground of appeal, Mr Chavula contended that the learned trial Judge erred and misdirected himself both in law and fact when he convicted the appellants based on the evidence of a single identifying witness which was not corroborated. In the case of Chimbini vs The People (supra), the Court of Appeal held that- "most importantly among the factors to be taken into account ts whether the witness knew the J20 accused prior to the incident; there ts the greatest difference between recognizing someone with whom one is familiar, or at least whom one has seen before, and seeing a person for the first time and attempting to recognize him later from observations made in circumstances which may be charged with stress and emotion." In the case of Nyambe vs The People9, the Court of Appeal held that- "The adequacy of evidence of personal identification will depend on all surrounding circumstances and each case must be decided on its own merit." 4.4 In the case of Mwansa vs The People10, the Supreme Court, citing previous decisions had this to say: J21 ''it is always competent to convict on evidence of a single witness if that evidence is clear and satisfactory in every respect." 4.5 The law is not concerned with the number of w'itnesses called to prove an issue, but with the quality of the evidence submitted. A guilty verdict is only permitted if the evidence is of sufficient quality to convince a court beyond doubt that all the elements of the offence have been proved and that the identification is accurate. The court must also be satisfied that the identifying witness is credible and whether the observation by the witness was reliable with factors such as lighting, the distance between the witness and the perpetrator and whether the view was obstructed, being considered. 4.6 The evidence of PWl is that she saw the two appellants in a group of people who attacked the deceased and further stated that she saw the first appellant hit the deceased with a stone while she hid behind some flowers. Her testimony was that she later met the appellants within Kanyama compound as she went home that J22 night and that the first appellant carried some clothes on his shoulder. The evidence of PWl is that the appellants greeted her and asked her where she left her child. The fallowing day, she met the second appellant who threatened her not to disclose anything if she saw what happened the night before. 4.7 PWl's testimony was that at the time she saw the appellants attack the deceased, the first appellant had dreadlocks in his hair, a position that the first appellant confirmed. Further, the evidence of PW6 is that PW 1 told him about the threats that she had been receiving from the second appellant, to silence her in case she witnessed the attack on Charles Zimba. Having perused the evidence on record, we are satisfied that the lower court was on firm ground when it relied on the evidence of PW 1, a single identifying witness as she was reliable in her observation of the beating of Charles Zimba on the material night. She recognized the first appellant who had dreadlocks in his hair as well as the second appellant, who even issued threats to her the following day and on other occasions whenever he met her in Kanyama compound. J23 4.8 PW 1 's evidence was that she knew the appellants for about two years before she saw them in the group of people who beat up Charles Zimba. We are persuaded that the evidence adduced in the lower court showed that PWl positively identified the appellants and that the evidence of identification was corroborated by PWl 's testimony to the effect that the first appellant had dreadlocks in his hair during that period of time, a position that the first appellant himself admitted. Further, the evidence of PW6 was that, PW 1 told her of the threats that the second appellant issued to her after she witnessed the brutal attack. We are of the view that it was safe to rely on the evidence of PW 1 as the identification was free from error. 4. 9 The question that follows is whether the prosecution in this case established the case beyond reasonable doubt. This calls for a close scrutiny of the evidence on record and an examination of the defence advanced by the accused persons. 4.10 The prosecution evidence was largely premised on the identification evidence which we are of the view that was reliable and satisfactory in every respect. The issue of a possibility of J24 mistaken identity was therefore excluded. The evidence on record was strong and adequate to support a conviction. We are further of the view that the convictions were safe and warranted, based on the evidence on record and that there was no dereliction of duty due to the fact that the Police did not obtain call records of Charles Zimba's phone in an attempt to ascertain whether the appellants committed the offences that they were charged with, as there was overwhelming evidence against them. 4.11 The evidence of PW2, the late Charles Zimba's widow was that when her husband's body was found at the communal tap, he only had under garments on. The evidence of PWl was that when she met the appellants in Kanyama compound after she saw them attack a person at the communal tap, the first appellant carried clothes on his shoulder. 4.12 The lower court concluded that the appellants robbed Charles Zimba of his clothes, shoes and cell phone on the material night. The court convicted the appellants of the offence of aggravated robbery as charged. Having analysed the evidence on record regarding count two, we are of the view that the lower court was J25 on firm ground when it convicted the appellants of the second court as there was supporting evidence. The evidence of PWl is that she met the appellants soon after witnessing the attack, with the first appellant carrying clothes on his shoulder. The lower court accepted this evidence and we are satisfied that it was in order to do so. More so, we have not found any reason on record why PWl would have wanted to falsely implicate the appellants. Accordingly, we do not find merit in the sole ground of appeal and we dismiss it. 4.13 The information indicates the two appellants were charged and convicted of two counts, the first count being that of murder, contrary to Section 200 of the Penal Code and the second count being that of Aggravated Robbery, contrary to Section 294( 1) of the Penal Code. 4.14 The court convicted the appellants of both counts and sentenced them to death on count one and fifteen years imprisonment with hard labour on count two because it was of the view that there were no aggravating circumstances. J26 4.15 We agree with the leanied trial Judge's sentence of death for both appellants on count one and we uphold the death sentence accordingly. We further uphold the sentence of fifteen years imprisonment with hard labour on count two. The appeal is accordingly dismissed for lack of merit. F. M. CHISANGA JUDGE PRESIDENT - COURT OF APPEAL P. C. M. NGULUBE COURT OF APPEAL JUDGE