Kasamu Kameli v People (Appeal 52 of 2006) [2007] ZMSC 148 (28 November 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) f? REPUBLIC OF ZAMBIA/p~ JUDJCMRy '' APPEAL NO. 52 OF 2006 J VEEN: | : 28 NOV I KASAMU KAMELI' ' -VS- THE PEOPLE s A K A ® ■ .'Appellant . <■ RESPONDENT CORAM: LEWANIKA, DCJ, SILOMBA, JS AND KABALATA, A/JS On the 7th November, 2006 and 8 November, 2007 For the Appellant: Mr. EM. Sikazwe, Deputy Director of Legal Aid For the Respondent: Mrs. M. C. Kombe, Deputy Chief State Advocate JUDGMENT SILOMBA, JS, delivered the judgment of the court. Case referred to:- 1. David Zulu -Vs- The People, (1977) ZR 151. The appellant is appealing against the judgment of the High Court dated the August, 1999 in which the learned trial Judge, sitting at Mongu, convicted him on two counts of murder contrary to Section 200 of the Penal Code and sentenced him to hang by the neck until he was pronounced dead. The particulars of the first count were that the appellant, on the 26th day of July, 1996, in the Western Province of Zambia at Sesheke, did murder Simasiku Lutangu. It was further alleged, in the second count, that the appellant, on the 22 day of August, 1996, at Sesheke in the nd Western Province of Zambia, did murder Lubonile Muyoba. The evidence of the prosecution was that in the evening of the 25th of July, 1996, around 18.00 hours, the appellant was seen chasing the two deceased persons, Lubonile and Simasiku. As he chased them, PW3 (Namakau Makala) heard the appellant utter, among others, the words “today I am going to burn you inside the house because you did not give me your beer.” He continued “unless God comes to your assistance I am going to burn you in the house.” The foregoing words were uttered about ten metres away from PW3 who heard them very clearly. According to the prosecution evidence, the appellant and the two deceased persons were known to PW3 as they lived in the same village. The further evidence was that when the two deceased persons left the appellant to go and see their uncle, PW3 heard the appellant state that “even if you have run away I am going to wait for you under a tree behind the house.” After a while, the two deceased persons came back wanting to sleep in their house. After sometime, PW3 saw some light; he rushed there and, together with her sister, saw the appellant set fire to the house. The prosecution evidence, through PW3, was that the appellant used a bunch of dry grass, which he lit from a small fire nearby to set the house on fire. When the appellant saw PW3, he fled the scene and was pursued by Subulwa, a friend of PW3. PW3 and others tried to open the door in order to rescue the occupants but had difficulties because the door was tied with wires from outside. When the door was finally opened, Lubonile managed to come out. By the time Simasiku tried to come out, the fire had become very intense and at the same time the roof of the house collapsed. He was, however, pulled out of the fire with serious bums after which the police rushed him to the hospital. Simasiku died the same night while Lubonile died later on 22nd of August, 1996 after he had given his statement to the police. In cross-examination, PW3 testified that he was related to the late Simasiku and that his death had pained him. He, however, denied that he had exaggerated the evidence. The further evidence was that as they passed by the road, PW4 (Rose Katembo) who was in her courtyard, heard the appellant tell late Lubonile Muyoba and late Simasiku that “you think you can beat me like this with a metal bar”, to which the two deceased persons retorted and told the appellant not to play with them but with others or his mother. The appellant then told them that, “you will see today. I am going to burn you inside the house.” Later that evening, PW4 was awakened by Christopher Ndolelwa and when he went to the burning house he found that some people had been burnt inside the house. In cross-examination, PW4 told the trial court that although it was dark he was able to recognize the voices as those of the appellant, late Lubonile and Simasiku as they passed by her courtyard because he knew them very well and had talked to them on several occasions. In his defence, the evidence of the appellant on oath was that on the th27 of July, 1996, he went out with his nephew to fish. On his return, he found that some people had gained entry into his house and quite a few belongings were missing. With reference to the 26th of July, 1996 the appellant testified that he was at his home village on this day. He denied that he was on the scene when the house was set on fire. In cross- examination, the appellant confirmed that he knew PW4 (Rose Katembo); that he talked to her on many occasions and that she could recognize her voice. He, however, denied that he was the one who was quarrelling with the late Simasiku. J 4 On the totality of the evidence before him, the learned trial Judge was of the view that the evidence against the appellant was purely circumstantial. After examining the evidence of PW3 and PW4 in some detail, the learned trial Judge was satisfied that it was the appellant who set fire on the house in which the two deceased persons were sleeping and tied the door. The learned trial Judge dismissed the appellant’s defence of alibi with the contempt it deserved and convicted him as charged because the prosecution had proved the appellant’s guilt, on both counts, beyond all reasonable doubt. At the hearing of tire appeal, counsel for the appellant advanced two grounds of appeal. The two grounds of appeal were amply supported by heads of argument on which counsel entirely relied. The two grounds of appeal are:- (1) The learned trial Judge fell into error when he convicted and sentenced the appellant to death for murder without regard being had to all the attendant circumstances of the case and (2) The learned trial Judge erred in drawing the inference of the appellant’s guilt based on whether he threatened the deceased to have them burnt inside the house because they had beaten him. In his heads of argument, respecting ground one, the appellant’s counsel submitted, apparently in agreement with the learned trial Judge, that the appellant was convicted purely on circumstantial evidence as there was no direct evidence to suggest that it was the appellant who set fire on the house. Besides, it was contended that the defence of alibi set up by the appellant was never challenged by the prosecution even though the trial court dismissed it with the contempt it deserved. Counsel did not doubt the power of the court to convict on the basis of circumstantial evidence but cautioned that such power should be exercised cautiously bearing in mind the weaknesses peculiar to circumstantial evidence. The case of David Zulu -Vs- The Peoplewas cited in aid. On ground two, counsel submitted, in his heads of argument, that the evidence of PW3 must be taken as coming from someone who had an interest in the matter and wanted to implicate the appellant at all costs. Counsel submitted that from the evidence in cross-examination, PW3 did not hide the fact that the deceased (late Simasiku Lutangu) was her cousin and that his death pained her. Counsel highlighted the discrepancies in the evidence of PW3 and PW4 on the one hand and that of PW3 and PW5 on the other and submitted that the learned trial Judge should have taken into account the sincerity of the witnesses in deciding their credibility and honesty. We were urged to allow the appeal and forthwith acquit the appellant. There was no oral submissions on the two grounds of appeal. On the other hand, it was contended by counsel for the respondent, that the learned trial Judge did not err when he convicted the appellant in view of the overwhelming evidence; that by relying on the evidence the learned trial Judge guarded against wrong inferences from circumstantial evidence. Counsel briefly alluded to the evidence of PW3 and PW4 who heard the appellant make threats to the late Lubonile Muyoba and submitted that the two witnesses knew the appellant very well and were able to recognize him and his voice, a fact that was acknowledged by the appellant regarding PW4’s knowledge of him. Counsel submitted that consistent with the J 6 threats made on the deceased, the house in which the deceased were sleeping was set on fire that same evening resulting in the deaths of the deceased. Counsel submitted that the conclusion by the learned trial Judge that the appellant was responsible for the deaths of the deceased was based on the threats he made on them. As far as counsel was concerned, the inferences made by the learned trial Judge were not remote as the nature of their deaths was consistent with the threats the appellant made on the deceased. Besides, it was the submission of counsel that in fact PW3’s evidence was that she saw the appellant on the scene of crime when she rushed to the scene. On defence of alibi, the respondent’s counsel submitted that there was no evidence to show that the investigating officer was informed that the appellant was not in the village at the time of the crime; that PW6 (investigating officer) was not even cross-examined on the alleged alibi. In conclusion, counsel submitted that the learned trial Judge was on firm ground in convicting the appellant as charged. We have examined the evidence on record and the submissions of counsel very exhaustively. What emerges from the evidence and the submissions is that there is no dispute that Simasiku Lutangu (count one) and Lubonile Muyoba (count two) died as a result of the serious bums they had following the burning of the house in which they were sleeping. The question is who burnt the house that resulted into the deaths? The evidence of the prosecution is that during the early part of the evening (around 19.00 hours) before the house was burnt PW3 heard the appellant telling the two deceased persons that he was going to bum their house while they were sleeping. He was further heard by PW3 that unless God came to their assistance he was going to bum them. J 7 The evidence in cross-examination was that when PW3 approached the burning house he saw the appellant bum the house from a short distance. This direct evidence was not taken into account by the learned trial Judge probably because it was not corroborated. Although there is evidence that the appellant ran away upon seeing PW3 and her sister, there is no evidence from the one who pursued him because the witness died before trial. The threats on the lives of the two deceased persons were not only heard by PW3 but by PW4 as well. The latter witness heard the altercation between the deceased and the appellant as they passed close to his courtyard around 19.00 hours. In that altercation, the appellant is said to have told the deceased that he was going to bum them while they were inside their house. With these threats still hanging over the deceased, their house was set on fire that same evening. In the circumstance, the only reasonable inference the learned trial Judge was entitled to make, which we would have also made if we were a trial court of first instance, was that the appellant was the person who burnt the house, which resulted in the deaths of the deceased. To make sure that the deceased did not escape death, he tied the door from outside. The issue was not whether the appellant was heard utter the threats. As for PW3, he knew the appellant very well because they stayed in the same village. As for PW4, he knew the appellant as well as his voice, a fact the appellant acknowledged in his cross-examination. With regard to the defence of alibi, the authorities are clear. You do not raise the defence at trial but during police investigations so that the allegation can be inquired into to establish its truthfulness or otherwise. The authorities further state that if, during investigations, the police are aware of the alibi put up by an accused person and they do not investigate they will be guilty of dereliction of duty. In the present case, there is no evidence to suggest that the police were told by the appellant that he was not in the village when the fatal incident took place. There was a submission on behalf of the appellant that PW3 should not have been believed because she was a witness with an interest to serve or that she had a possible bias against the appellant as she was related to the late Simasiku Lutangu who died in the inferno. Even if she was related to the late Simasiku Lutangu, the judgment of the trial court will show, that the conviction of the appellant was not based on the evidence of PW3 alone but on tire combined evidence of PW3 and PW4 because the two witnesses corroborated each other very well. From our reasoning, we find that die judgment of the learned trial Judge was on firm ground because it was based on overwhelming prosecution evidence. Consequently, we decline to entertain the appeal and dismiss it as one without merit. D. M. Lewanika, DEPUTY CHIEF JUSTICE S. S. Silomba, SUPREME COURT JUDGE. (-----T^rKabalata, ACTING SUPREME COURT JUDGE.