Josphat Nyambe and Anor v The People (Appeal No.41/2022; Appeal No.42/2022) [2023] ZMCA 306 (24 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA and NDOLA (Criminal Jurisdiction) Appeal No.41,42/2022 ,BETWEEN: JOSPHAT NYAMBE KELVIN SOKO AND THE PEOPLE 1 ST APPELLANT 2ND APPELLANT RESPONDENT CORAM: Mchenga DJP, Chishimba and Muzenga JJA ON: 11 th November 2022 and 24 th August 2023 For the Appellant: L. Tembo-Tindi, Legal Aid Counsel, Legal Aid Board For the Respondent: G. Nyalugwe, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia Cases referred to: 1. Peter Yotamu Haamenda v. The People [1977] Z. R. 183 2. Kalebu Banda v. The People [1977] Z. R. 169 3. Mwewa Murono v. The People [2004] Z. R. 208 4. David Zulu v. The People [1977] Z. R. 151 ' l J2 5. Kabala Ilunga and Jolin Masefu v. The People [1980] Z. R. 102 6. Charles Lukolongo and Others v. The People [1986] Z. R. 115 1. INTRODUCTION 1.1. The appellants appeared before the High Court (Mulife, J., as he then was), charged with the offence of vandalism contrary to Section 341D(l) (2) (a) of The Penal Code. 1.2. They denied the charge and the matter proceeded to trial. 1.3. At the end of the trial, they were found guilty of committing the offence and each sentenced to. 13 years imprisonment with hard labour. 1.4. They have both appealed against their convictions only. 2. CASE BEFORE THE TRIAL JUDGE 2.1. The prosecution evidence was that on the 15 th of January 2020, at around 20:00 hours, the appellants, who were cycling, visited Thomas Siapenga's house in Sikornbela Village, in Sinazongwe. J3 2.2. The 2 nd appellant informed Thomas Siapenga that the 1 st appellant was unwell. He asked for a hoe that he could use to dig herbs for use as traditional medicine. 2.3. He was given the hoe and the appellants headed in the direction of the "irrigation area". 2. 4. When the appellants did not return within the period he anticipated that they would be back, Thomas Siapenga became alarmed. 2.5. He went to the headman's house and informed him of the visitors. The headman and members of the neighbourhood watch group followed in the direction that the appellants had taken. 2. 6. When the headman and his party got to the "irrigation area", they were able to see two men packing something in a sack. They were unable to identify the men because it was dark and the men ran away as they closed in. 2.7. The headman and his entourage immediately returned to Thomas Siapenga's house, where they found that the appellants had just returned. J4 2.8. Although the appellants returned with a hoe, they did not have the herbs they claimed they had gone to dig. When they failed to account for that fact, the headman insisted that the go back to where the appellants had gone. 2.9. The appellants led them to the "irrigation arean, where cut ZESCO cables that where packed in a sack were discovered. Also discovered in the bag was a hacksaw, a knife and a meter box. 2.10. The cables were valued at K25,256.00 by a ZESCO employee. 2.11. The arresting officer, conceded that the contents of the sack were not subjected to fingerprint examination. 2.12. The appellants' evidence was that on the fateful day, they travelled to Lake Kariba to buy fish. When it became dark, they sought shelter at Thomas Siapenga's house. 2.13. After Thomas Siapenga made their presence known to the headman, they spent a night in his house. The following morning, just before they could leave, a man came running with a bag. JS 2.14. He informed Thomas Siapenga and the headman that the appellants were the owners of the bag and that he had found it at the site of the vandalism. 2.15. Soon thereafter, a mob of villagers descended on them and beat them up. They were also robbed of their money. 3. FINDINGS BY THE TRIAL JUDGE 3.1. The trial Judge made a finding that the case against the appellants was anchored on circumstantial evidence. 3.2. He considered the appellants' claim that they were falsely implicated. He dismissed the claim having found that there was no evidence of any rea~on that could have motivated the prosecution witnesses to falsely incriminate the appellants. 3. 3. He accepted the prosecution witnesses' version of events which he found to be credible. 3.4. The trial Judge found that even though the appellants were not identified as the men who fled from the place where the cables were vandalised, it was too odd a coincidence that when the headman followed in the direction the appellants had taken J6 to dig for traditional medicine, they came across the two men who fled. Further, just after the two men had fled, the appellants returned to Thomas Siapenga's house. 3.5. He also accepted the headman's evidence that the appellants led them to the vandalised cables. 4. GROUND OF APPEAL 4 .1. The sole ground of appeal is that "the learned trial court erred in law and fact when the court failed to take into account all the circumstances of the case and convicted the appellants for the offence of vandalism based on circumstantial evidence which did not take the case out of the realm of conjuncture". 5. ARGUMENTS IN SUPPORT OF THE APPEAL 5. 1. The cases of Peter Yotamu Haamenda v. The People 1 and Kalebu Banda v. The People 2 , were referred to and Mrs. Tembo-Tindi submitted that there was a dereliction of duty when the police failed to obtain fingerprints from the articles found at the scene. 5. 2. In the face of that failure, the court should have found that the appellants' explanation that J7 they had gone to buy fish and their claim that they were falsely implicated, couid reasonably have been true. 5.3. Mrs. Tembo-Tindi also submitted that even if the trial Judge did not accept the appellants' explanations, the prosecution, going by the decision of Mwewa Murano v. The People 3 , were still required to prove the case against them beyond all reasonable doubt. 5.4. She argued that in his case, the standard set in the case of David Zulu v. The People 4 , for a conviction to be based on circumstantial evidence, was not met. The appellants having denied leading to the vandalised cables, the headman's evidence on the issue should not have been relied on. 6. ARGUMENTS AGAINST THE APPEAL 6. 1. In response, Ms. Nyalugwe submitted that the standard set in David Zulu v. The People 4 , for a conviction to be anchored on circumstantial evidence, was met. JS 6.2. She submitted that the trial Judge rightly found that there were odd coincidences which implicated the appellants. 6. 3. She also referred to the case of Kabala Ilunga and Jolin Masefu v. The People 5 and submitted that the trial Judge having rejected the appellants' explanation, their explanation could not reasonably have been true. 6.4. As regards the failure to collect finger prints, Ms. Nyalugwe submitted that there was overwhelming evidence which offset that failure; she referred to the case of Peter Yotamu Haamenda v. The People 1 in support of the proposition. 7. CONSIDERATION OF THE APPEAL AND COURT'S DECISION 7. 1. In the case of Charles Lukolongo and Others v. The People 6 , the effect of there being a dereliction of duty was set out as follows: "Where evidence available only to the police is not placed before the court, the court must presume that, had the evidence been produced, it would have been favourable to the accused." 7. 2. In addition, in the case of Peter Yotamu Haamenda v. The People 1 , it was held, inter alia, that: J9 "Where the nature of a given criminal case necessitates that a relevant matter must be investigated but the Investigating Agency fails to investigate it in circumstances amounting to a dereliction of duty and in consequence of that dereliction of duty the accused is seriously prejudiced because evidence which might have been favourable to him has not been adduced, 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 to offset the prejudice which might have arisen from the derelictions of duty" 7. 3. Even though there was evidence from the arresting officer that fingerprints were not picked because the scene was contaminated, the trial Judge did not make a decision on the issue. 7. 4. The evidence against the appellants was essentially that they ~sked for a hoe and headed in the direction where the cables where vandalised. When they took long to return, they were followed. Just as the headman and his party reached the place, two persons who had been packing the cables in the bag ran away and the headman and his party returned to the village. 7. 5. The appellant's returned to the village just before the headman and his party arrived. They had JlO a hoe but no herbs for use as medicine. When pressed, the appellants led the villagers to the vandalised cables. 7. 6. The appellants' version of events, that is that they spent a night in the village on the way to buy fish, having been rejected, the issue is whether an inference of guilt, was properly drawn on the evidence that the appellants headed in the irrigation area and shortly afterwards, cables where found vandalised. 7. 7. The accepted evidence proved that the appellants, who were two, were seen heading in the direction where the cables were cut. Two people were seen packing the vandalised cables in a sack. 7. 8. Further, the time period between which the persons who were seen packing the sack ran away and the appellants returned to the village, narrows the possibility that it was persons other than the appellants, who were packing the sacks. 7.9. This is more so that the appellants did not have the herbs that they claimed they had gone to dig and • Jll when pressed, they subsequently led the headman to the vandalised cables. 7.10. In the circumstances, we agree with Ms. Nyalugwe's submission that the test for a conviction on circumstantial evidence set in David Zulu v. The People 4 was met. 7.11. Even though the recovered implements and cables where not tested for fingerprints) this dereliction I of duty was offset by the fact that the appellants led the headman to the vandalised cables soon after they were confronted. 7.12. In such a short space of time, it is most unlikely that they would have known where the vandalised cables where if they were not the ones who had caused the damage. 7 .13. On the circumstantial evidence that was before him, we are satisfied that the trial Judge was entitled to draw the conclusion that it was the appellants who were seen packing the cables in the sack and that being the case, that they are the ones who must have cut them. • 8. VERDICT J12 8. 1. We find no merit in the sole ground of appeal and we dismiss it. 8.2. We uphold the convictions and sentences imposed on the appellants. C. F. R. Mcheng DEPUTY JUDGE PRESIDENT F. M. Chishimba COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE