Joseph Chanda v The People (Appeal 72/2024) [2025] ZMSC 21 (20 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal 72/2024 BETWEEN: JOSEPH CHANDA AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga, DJP, Majula and Muzenga JJA On 12th August 2025 and 20th August 2025 For the Appellant: Ms E. I. Banda, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. John Kafwanka, Assistant Senior State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. David Zulu v. The People (1977) Z. R. 151 2. Leonard Yonah Jere v. The People, CAZ Appeal No. 102 of 2019 3. Peter Yotamu Hamenda v The People (1977) Z. R. 184 4. Phiri and Others v. The People (1973) Z. R. 47 5. Mbinga Nyambe v. The People, SCZ Judgment No. 5 of 2011 6. Ezious Munkombwe and Others v. The People, CAZ Appeal No. 7, 8, 9 of 2017 7. Ilunga Kabala and John Musefu v The People (1989) Z. R. 102 8. Abedinegal Kapeshi and Best Kanyakula v The People, Selected judgment No. 35 of 2017 Legislation referred to: 1. The Penal Code Chapter 87 of the Laws of Zambia 1.0. INTRODUCTION 1.1. The appellant was convicted of the offence of murder contrary to Section 200 of the Penal Code Chapter 87 of the Laws of Zambia and sentenced to life imprisonment by Limbani, J. 1.2. The particulars of offence alleged that on an unknown date but between the 7th and 8th July 2021 at Chinsali in the Chinsali District of the Muchinga Province of the Republic of Zambia, the appellant murdered Fredrick Chibesa. 1.3. He has appealed against the conviction. 2.0. EVIDENCE IN THE COURT BELOW 2.1. The evidence of three prosecution witnesses secured the appellant's conviction. A summary of the prosecution evidence as presented in the court below is that the deceased left his wife, PWl in the rice fields on 7th July 2021 around 06:00 hours to go and pass time at Chilombwa bar in the company of Chanda Tandewe (the appellant) also known as Bashi Morgan and never returned. Worried that he did not return home at the rice fields, PWl went to the bar the following day where the bar owner, Bashi Kapeso told her that the deceased left the bar after having a fight with Chanda Tandewe. 2.2. PWl continued looking for the deceased and when she went to her main house at the village, she found the appellant standing by the door of her house. She asked him about the deceased's whereabouts after which he told her that he was inside the house. When she entered the J3 house, she found the deceased lying on his back facing the door, with his forehead and cheeks swollen and a cut on the lip. The deceased was unresponsive and she rushed outside mourning that the appellant had killed her husband. The appellant then ran away. 2.3. A physical inspection of the body was conducted by Detective Constables Muvwanga and Tembo wherein they found the deceased with a swollen forehead, swollen left cheek and a broken neck. A post mortem was conducted and it was found that the deceased died from spinal code injuries. 3.0. DEFENCE EVIDENCE 3.1. In his defence the appellant called three witnesses. He told the trial court that on 7th July 2021 he went to Chilombwa village to look for soap whilst carrying his music player. At Chilombwa, he found the deceased at Shi Kapeso where they used to drink alcohol from. The appellant went inside the grocery store and bought salt, soap and a bottle of beer, and went to sit outside on a bench alone and as time went by, he started getting drunk. The deceased then approached the appellant asking for the memory card to go and play music but the appellant refused to give it away. This infuriated the deceased who told the appellant that he was showing off with his memory card. The deceased stood up and roughed up the appellant, he grabbed his clothes by the chest and the appellant also grabbed him by the chest in retaliation. The owner of the bar rebuked them and ordered them not J4 to fight from his bar. 3.2. The fight between the two ended and the appellant continued relaxing alone as the deceased socialised with his friends. Around 16:00 hours the deceased left to go home. Around 20:00 hours, the appellant also stood up, lit up the torch on his phone and headed home to sleep. The following morning, his brother in law picked him up to go and assist him pack bags of rice at Musalila. 3.3. On the day of his death, DW3 was informed that the deceased was sick. She went there with other people from her village including the appellant. When they got there, they found the deceased just yelling. They prepared porridge for the deceased which he ate, finishing the bowl. DW3 is the one who fed the deceased the porridge, after which he stretched and died. She witnessed his death. DW3 stated that contrary to what PWl told the trial court, the appellant was not there at the deceased's home at the time the deceased died. 3.4. When the appellant returned home, he heard people mourning and because the deceased was his wife's brother in law, they decided to go where the mourning was, at which it was alleged that the deceased had died at the hands of the appellant. The following day, the appellant was apprehended. 3.5. This marked the end of the appellant's defence. 4.0. FINDINGS AN D DECISION OF THE TRIAL COURT JS 4.1. The learned trial judge considered the evidence before him and found that the circumstances of the case analysed together with all other pieces of evidence and the odd coincidences pointed to the accused as being the person who killed the deceased . On the totality of the evidence, the court was satisfied that the prosecution had proved their case as per required standard that the appellant caused the death of the deceased with malice aforethought. He accordingly found the appellant guilty of the offence of murder and convicted him. 5. APPEAL 5.1. Embittered with the conviction and sentence of the court below, the appellant launched the present appeal fronting one ground of appeal couched as follows: 1) The learned trial Judge erred in law and fact by convicting the appellant based on circumstantial evidence which had not taken the case out of the realm of conjecture so as to permit only one inference of guilt as there were other possible inferences. 6.0. THE APPELLANT'S ARGUMENTS 6.1. In support of the sole ground of appeal, learned counsel for the appel lant, relying on the case of David Zulu v. The People1, argued that the only evidence appearing to connect the appellant to the commission of the offence is circumstantial evidence as rightly admitted J6 by the trial court and that the said circumstantial evidence did not take the case out of the realm of conjecture. 6.2. Learned counsel argued that the court misdirected itself when it concluded that since the appellant was the last person to be seen with the deceased before he passed away means that he had committed the offence in question. It was submitted that the court below looked at what he termed "the accused was the last person to be seen" with the deceased at page 127 (J20), paragraph 4 line 2 as one of the considerations in arriving at its conclusion that the appellant had committed the offence. It was contended that mere suspicion cannot form the basis of conviction and the prosecution must present corroborating evidence to support that theory robustly. We were referred to the case of Leonard Yonah Jere v. The People2 , on the last seen theory. 6.3. It was further argued that it was not in dispute that the appellant and the deceased were seen together at Bashi Kapeso's place drinking beer and at the same time had an altercation. That PWl in her evidence stated that her husband left around 06:00 hours and never came home which prompted her to go and inquire from the drinking place. There was no mention of the time when the husband or the appellant would have left the drinking place and the timelines as it were, were offered by the appellant himself who stated inter alia that the deceased left at 16 hours and he only left at 20 hours. 6.4. Learned counsel's argument was that there was no other evidence to J7 speak to the timelines or whether indeed the deceased left alone or with the appellant, thus the need to resolve this by calling in aid independent witnesses to speak to it. It was submitted that the explanation by PW3 that all the people who witnessed the fight were unavailable due to threats and further that the owner of the drinking place had relocated to unknown place consequently creating in gaps in PWl 's evidence amounted to dereliction of duty. The case of Peter Yotamu Hamenda v The People3 was relied on. 6.5. Turning to the second limb relating an accused person's explanation, it was argued that the appellant explained that he parted company with the deceased as the deceased left him still drinking and remained unshakable even under serious cross examination. It was further contended that there was no evidence laid as to how far the drinking place was from the deceased's house in Mwisalila Village, and that if the appellant killed the deceased and took him to his house he would have been seen along the way. It was submitted that the court should have addressed its mind to how the appellant transported the deceased without being seen by any single witness or where he was killed from. 6.6. It was argued that the unanswered questions left gaps in the prosecution evidence and such it cannot be said that the prosecution had proved its case beyond reasonable doubt. For this assertion, the appellant relied on the case of Phiri and Others v. The People4 • J8 Further, learned counsel disagreed that there was irresistible inference of guilt and submitted that from the evidence on the record it could not be said that the only reasonable inference to be drawn is that the appellant committed the offence in question. In taking this position, we were referred to the case of Mbinga Nyambe v. The People5 • 6. 7. It was contended that it is a well-established principle of law that where there are two or more inferences, the courtmust adopt the one which is more favourable to the accused person if there is nothing in the case to exclude such inference. Counsel submitted that there were several inferences open to the court which included that; the appellant had committed the offence or; that the deceased fell from the drinking spree and sustained the injuries from the trauma of a fall or; that the deceased was beaten by persons unknown as he walked home from the drinking spree or that the deceased fought with his wife at home and sustained those injuries. 6.8. It was contended that the trial court erred by convicting on insufficient evidence as the prosecution had not made out the case against the appellant. 6.9. We were urged to allow the appeal, quash the conviction and acquit the appellant and set him at liberty forthwith. 7.0. THE RESPONDENT'S ARGUMENTS 7 .1. In response, learned counsel for the respondent submitted that the ultimate test for a conviction based on circumstantial evidence is set out J9 in the case of David Zulu supra and that they are of the considered view that the learned trial court was on firm ground in convicting the appellant as there was strong circumstantial evidence on record connecting the appellant to the commission of the offence. 7.2. It was argued that there were key facts which the learned trial court considered before drawing the inference of guilt at pages 110 to 111 of the record of appeal. Referring to Ezious Munkombwe and Others v. The People6 , counsel's submission was that when the key facts considered in totality lead to only one inference; that the injuries found on the deceased _were occasioned by the appellant. It was argued that the court was therefore justified to have an irresistible conclusion that the appellant is the one who killed the deceased and convicted him solely on circumstantial evidence after it considered and analysed collectively the above enumerated strands of evidence. 7.3. It was further submitted that the trial court was entitled to use other corroborative evidence available in forming a chain of circumstantial evidence leading to the only inference of guilt of the accused as stated at page 127 of the record of appeal. 7.4. Learned counsel argued that there are no other possible inferences as argued by learned counsel for appellant, suggesting to amount to possible inferences that the trial court ought to have drawn from the circumstantial evidence as the purported possible inferences lack credibility and are not in any way supported by any evidence. It was JlO submitted that the trial court explained why it could not believe the explanation furnished by the appellant as his account of what happened and the testimonies of the witnesses were marred with a lot of discrepancies and inconsistency. She relied on Ilunga Kabala and John Musefu v. The People7 that odd coincidences, if unexplained, may be supporting evidence. 7.5. Learned counsel highlighted the findings of fact made by the learned trial court and urged us not to interfere with them on the basis that they were supported by the evidence on the record. We referred us to the case of Abedinegal Kapeshi and Best Kanyakula v The People8 • She submitted that there is no cogent basis upon which anchors any suggestion that the learned trial court's assessment of the credibility of the prosecution's witnesses was flawed. 7.6. It was further submitted that contrary to the appellant's assertion that there was dereliction of duty on the part of the investigating officer PW3, the record of proceedings at page 28 line 1 to 21, that PW3 demonstrated the efforts he made to locate the owner of the bar and other people who were there at the time and how numerous efforts he made proved futile. 7.7. It was argued that on the issue raised by the appellant that it was not clear whether the deceased was killed along the way or at the house does not hold water as the respondent demonstrated that how the pieces of evidence forming the chain of circumstantial evidence connecting the appellant to the killing of the deceased in this matter, Jll remain unbroken. 7.8. All in all, we were urged to dismiss the appeal for lack of merit and uphold both the conviction and the sentence meted out by the trial court. 8.0. HEARING 8.1 At the hearing of this appeal, the learned counsel for the appellant inform ed the Court that she would rely on the filed heads of argument and the learned counsel for the respondent informed the Court that the State would equally rely on th e filed arguments. 9.0. DECISION OF THE COURT 9.1 We have carefully considered the evidence on the record, the arguments by counsel and the judgment of t he court below. The issue in this appea l is whether the circumstantial evidence was sufficient to warrant a conviction. 9.2 We have in several cases reiterated that, to convict based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of the accused's guilt. The Apex Court in the leading case of David Zulu supra held inter alia that: i. It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct proof of a matter at issue but rather is proof of facts not in issue but J12 relevant to the fact in issue and from which an inference of the fact in issue may be drawn. ii. 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. The judge must be satisfied that the circumstantial evidence has 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. 9.3 It is clear t herefore that in order for a conviction based on circumstantial evidence to be sou nd, the only inference that should be drawn fro m the facts is that of guilt. If more than one inference can be drawn from the facts, an inference which is more favourable to th e accused person must be preferred. I n this case, the circu mstantial evidence is mainly that the appella nt picked up the deceased early morning on t he 7th July 2021 around 06: 00 hours to go and drink beer at Chi lombwa bar. The deceased and the appellant had a misunderstanding at the bar which almost culminated in a fight. The deceased did not return home t hat day, prompting his wife (PW1) to make a fol low-up the following morn ing at the bar and ultimately at thei r house, where she found the appellant standing at the door to the house . She asked the appellant where her husband was, and he responded that he was in the house. When she entered t he house, she found her husband (the deceased) lying on the floor dead with visi ble J13 injuries on his body. She came out crying that the appellant had killed her husba nd, upon which the appellant took off. This is the circumstantial evidence on the record. 9.4 The learned tria l court, after considering the circumstantial evidence, reached a firm conclusion that the circumstantial evidence had taken the case outside the realm of conjuncture, permitting only an inference of guilty. We have taken time to evaluate the foregoing ci rcumstantial evidence. We see no reason to interfere with the lower court's finding in this respect. We agree with learned counsel for the respondent that the circumstantial evidence was sufficient to warrant an inference of guilt. 9.5 We therefore find no merit in the sole ground of appeal. 10.0. DECISION OF THE COURT 10.1 Having found no merit in the appeal, we dismiss it. The conviction and sentence imposed by the lower court are upheld. DEPUTY JUDGE PRES! .......... ~~~········· .... ·~·." ~ ~-~·~~ COURT OF APPEAL JUDGE ····· ····~ ··················· K. MUZENGA COURT OF APPEAL JUDGE