Kayola Mwanamwale and Anor v People (Appeal 60 of 2017) [2018] ZMSC 578 (7 June 2018)

J1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO.60,61/2017 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: KAYOLO MWANAMWALE su& PG. 15c SEVERINO MACHOMPA Ist APPELLANT I " 2nd APPELLANT AND THE PEOPLE RESPONDENT CORAM: Hamaundu, Kaoma and Kajimanga, JJS. On 10th April, 2018 and 7th June, 2018 For the Appellants : Mrs M. K Liswaniso, Legal Aid Counsel For the Respondent : Mrs M. K. Chitundu, Deputy Chief State Advocate JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court. Cases referred to: 1. Wilson Mwenya v The People [1990-1992] ZR 24 2. Musupi v The People [1978] ZR(Reprint) 385 3. Emmanuel Phiri v The People [1978] ZR (reprint) 112 J 2 Legislation referred to: Supreme Court of Zambia Act, Chapter 25 of the Laws of Zambia, Section The appellants appeal against their conviction in the High Court for the offence of murder. The evidence that the prosecution laid before the court below was this: On the 22nd February, 2015, around 21:00 hours, two people went to the house of PW1, Charity Simunyama, in Chief Haanjalika’s area in Mazabuka. The two people came in a white car and were carrying a firearm. They picked up PWl’s husband, Clever Hamooya, handcuffed him and took him away in the car. This was in the presence of Biven, one of Hamooya’s sons and Alice Ngandu, another of Hamooya’s wifes. PW1 then called a friend of her husband named Kizito Choonga. Together, they immediately followed up her husband at Mazabuka Police Station but did not find him there. The same night they went to Monze Police Station. Again, they did not find her husband there. The following morning, they went to Mazabuka Police Station again. Whilst there, they received a phone call that PWl’s husband had been found dead. The report now became that of murder; and investigations were assigned to PW8, J 3 Detective Inspector Martin Chingumbe, who went back with PW1 to her village where they found the body of her husband near St Joseph’s Secondary School. The deceased’s head was battered. His hands were still handcuffed. At the scene, PW8 picked a live round of shot gun ammunition, a pair of blue plastic slippers and a small cell phone. PW8 started his investigations in ernest. Shortly, he received information that the car that had been used belonged to PW7, Graison Sikamanga, a Deputy Head Teacher by profession. Upon being summoned to the police station, PW7 revealed that the car was used as a pirate taxi and his driver was PW2, Oscar Ngoma. PW7 revealed that, indeed, in the evening of 22nd February, 2015, Oscar Ngoma had informed him that he had been booked to Chivuna in Chief Haanjalika’s area. He informed the police that Oscar Ngoma came back to park the car around midnight and that the following morning Oscar Ngoma did not report for work. All his efforts to contact Oscar Ngoma on his phone failed as the phone was turned off. PW7 informed the police that up to that time Oscar Ngoma was nowhere to be seen. DW8 now tuned his investigation on Oscar Ngoma; he soon received information that, on the fateful night, Oscar Ngoma had gone to Chivuna in the company of PW3, Brian J 4 Mweemba, and PW5, Johnsom Chilokota Lwiindi Nyambe. DW8 could not find Brian Mweemba as he had fled with Oscar Ngoma. However, PW5 was around. Upon being summoned, PW5 explained to the police that, indeed, on that evening he had accompanied Oscar Ngoma who had been booked by people in Chivuna who wanted to go and apprehend a suspect and bring him to Mazabuka Police Station. He explained that they found the two people on the road, and that one of them was tall and was dressed in a jersey that is usually worn by police officers. The same man also carried a firearm. The other man was short and carried handcuffs. PW5 explained that they went to a certain house where the two men apprehended a man who was only wearing shorts. That the two men brought that man into the car with his hands handcuffed. PW5 went on to explain that they then started driving back but that on the way the two men stopped and disembarked with their suspect, saying that they were taking him to the nearest police station. The tall man paid Oscar Ngoma the fare and then they left their passengers there. PW5 explained, further, that the following morning while he was at the taxi rank a story was doing the rounds that some people in Chivuna had gone to apprehend a person and that that person had now been found dead, J 5 in handcuffs. In the story, there was a description of the car that was used. PW5 explained that upon realizing that the description fitted that of the car which Oscar Ngoma was driving, he went to meet Oscar Ngoma and Brian Mweemba and told them what he had heard. That, there and then, Oscar phoned the number of one of the two men who had hired him but the number was not reachable. PW8 then turned his investigations on the items that he had picked at the scene. The small cell phone turned out to belong to the deceased. However, he got information that the blue slippers belonged to a man named Kayolo Mwanamwale, the 1st appellant herein. PW8 went to the 1st appellant’s home where he only found the 1st appellant’s wife, who turned out to be a sister of the deceased. The 1st appellant’s wife said that her husband had not come back or slept home since the night of the murder. The 1st appellant’s wife also told PW8 that the pair of slippers looked like those of her husband. At this point, the 1st appellant became a wanted suspect, and a manhunt was launched for him. At that time no one had implicated the 2nd appellant in the murder; therefore, he went about his business at his home. About eleven days later, PW8 received information that the 1st appellant was hiding in some thickets in J 6 Chief Manachingwala’s area of Magoye. A search party was formed and the search of the 1st appellant started around 19:00 hours on 5th March, 2015. It went on until 02:00 hours in the early hours of 6th March, 2015 when the 1st appellant was apprehended. The 1st appellant then led PW8 to the home of the 2nd appellant. The 2nd appellant, in turn, led PW8 to a bush where a home-made gun was recovered. The gun was broken in pieces. The 2nd appellant also led PW8 to another place where some clothes were hidden; these were a dark jersey and, a black t-shirt, both of which were found to belong to the 1st appellant. The home-made firearm was sent for ballistic examination where it was found to be not capable of discharging live ammunition because its firing pin was defective. After the 1st appellant was apprehended, Oscar Ngoma and Brian Mweemba, that is PW2 and PW3, came out of hiding and handed themselves over to the police. They were detained. During that time, they were interviewed. They explained how Oscar Ngoma was hired by two people in Chivuna and how the two people had gone to apprehend the deceased. They gave the version of the story that PW5 had earlier given to the police. An identification parade was J7 conducted where the two identified the 1st appellant. They identified the jersey as the one that the 1st appellant had worn and went on to identify the gun as the one that the 1st appellant had carried on that night. To explain why they had run away, they said that upon hearing the news of the murder, they had called the 1st appellant who became evasive and went out of contact. Fearing that they would be detained, they went into hiding. The two appellants were now charged with murder and brought to court. The 1st appellant’s version of the story was this: on 21st February, 2015, a cousin of his named Botari, whom he resembled, asked him to find a motor vehicle which he could use to collect beef for his customers. He gave Botari the phone numbers for a Nchimunya Mweemba and the matter ended there. However, on 28th February, 2015, PW8, together with other armed men came to his home and apprehended him. He was taken to Mazabuka Police Station where he was detained. During his detention, he met Oscar and Brian who were later turned into identifying witnesses at his identification parade. J 8 The 1st appellant denied that the gun, the jersey, the slippers and the clothes that were hidden in the bush were his. The 1st appellant’s wife threw her weight behind him. She confirmed that she did tell PW8 that the slippers appeared to be those that belonged to her husband, but she told the court that she only did so after being threatened to be detained. The 2nd appellant’s version was this: On the night that the deceased was killed, the 22nd February, 2015, Botari went to his home in his absence, seeking to leave a gun there. The 2nd appellant’s wife refused, whereupon Botari went in the bush and left the gun. When the 2nd appellant returned his wife told him what had happened. He then went to the bush and confirmed the presence of the gun. After the 1st appellant was apprehended, the 2nd appellant went to the police cells to take some food for him on 10th March, 2015. He then took that opportunity to see PW8 and tell him about the gun that Botari had brought to his home. Instead PW8 alleged that the gun infact belonged to the 2nd appellant and detained him. In the evening the police took him to the bush where he showed them where the gun was. J 9 The defence advanced the contention that Oscar Ngoma, Brian Mweemba and Johnstone Lwiindi Nyambe ought to be treated as witnesses with an interest to serve. The court below rejected that argument, saying that although these witnesses had been detained, they were not suspects but “would-be” witnesses who were there merely to help with the investigations. According to the court, they should not even have been detained. Having disposed of that issue, the court then went on to adopt the combined version of the story as presented by these three witnesses and found as facts accordingly. Weighing that version as against the version of the two appellants, the court rejected the 1st appellant’s story that he was at home on the night of the deceased’s murder, branding the story a lie. It also rejected the 1st appellant’s story that he was apprehended from his home. Instead, the court found that the 1st appellant was apprehended in Magoye area; and that upon being apprehended he led the police to the 2nd appellant, which leading resulted in the recovery of the exhibits which the three witnesses had identified as having been in his possession. J 10 As for the 2nd appellant, the court rejected his story as a lie. Instead the court found, on the strength of the version of the said three witnesses, that both appellants had been properly identified by the said witnesses; and that from their narration of the events, there was no doubt that it was the two appellants who killed the deceased. The court then convicted the two appellants for murder and sentenced them to death. The appellants have advanced six grounds of appeal as follows: 1. The lower court erred in law and in fact when it convicted the appellants on uncorroborated evidence of suspect witnesses; 2. The lower court erred in law and in fact in convicting the appellants when there were several inconsistencies amongst the prosecution witnesses; 3. The lower court erred in law and in fact by convicting the appellants when there was no reliable observation of the appellants by PW2 & PW3; 4. The lower court erred in law and in fact in convicting the appellants without a sufficient link, or something more, to connect them to the offence; 5. The court erred in law and in fact when it convicted the appellants and did not consider the alibi advanced; and 6. The lower court erred in law and in fact when it convicted the appellants when there was a dereliction of duty on the part of the investigating officer. J11 The first issue that we wish to deal with is the trial court’s rejection of the contention by the defence that Oscar Ngoma, Brian Mweemba and Johnson Lwiindi Nyambe were witnesses with an interest to serve who should have been treated as such. This issue is raised in appellants’ first ground of appeal. Mr Liswaniso, learned counsel for the appellants, argued, correctly in our view, that the evidence of PW2 and PW3 was suspect because they had been detained over the same offence and had failed to report it early enough. The cases of Wilson Mwenya v The People v The People*1’ and Musupi v The People*2’ were cited in aid of that submission. The prosecution did not specifically address us on this issue, having chosen to make a general traverse of the appellants’ submissions on all the grounds of appeal. We agree with the argument on behalf of the appellants that the trial court erred in its rejection of the appellants’ contention. At least PW2, PW3, and PW5 should have been treated as witnesses with an interest to serve. Quite apart from the fact that we have held in a few cases that witnesses who have been previously detained over the same offence should be treated on the same footing as accomplices, it was clear from the evidence that the three witnesses were the first J 12 suspects for the murder. This is because, as the public started trying to make sense of the circumstances surrounding the death of the deceased, the first object that was identified to have been involved was the car. Once the car was identified, the first people that were identified to have been with that car at the time the deceased was picked were the three witnesses. We fail to understand, therefore, why the trial court was of the view that the trio were merely picked as witnesses to help with investigations. If that were so, we would ask the question why PW7, the owner of the car, was not detained. We think, however, that the trial court shied away from treating the witnesses as those with an interest to serve because it held the notion that it could not convict on the evidence of suspect witnesses unless the remainder of the evidence was sufficient to secure a conviction. That is not the correct approach. We held in Emmanuel Phiri(3), and several other cases, that the only purpose for treating the evidence of suspect witnesses with caution is for the court to ensure that, by their testimony, the suspect witnesses are not falsely implicating the accused. We guided in that case, and indeed in others, that faced with such testimony the court should examine the whole evidence in the matter, and all the circumstances, in order to J 13 determine whether or not the danger that the suspect witnesses are falsely implicating the accused has been excluded. Once the court is satisfied, upon reasons that are explained on record, that the danger of false implication has been excluded, it is now at liberty to rely heavily on the suspect witnesses’ testimony, make findings of fact based it and even convict on the strength of that testimony. In this case, there were several pieces of evidence, and also circumstances, that would have satisfied the trial court that the danger that the three witnesses were falsely implicating the appellants had been excluded. For example, there was the evidence of the slippers that were found near the body of the deceased. The trial court did not even touch upon that evidence. The prosecution had contended that the wife of the 1st appellant had confirmed that the slippers belonged to her husband. Of-course, the prosecution could not call the wife as a witness because she was not compellable. But the wife volunteered to be a witness for her husband. At this point she became a competent witness and her testimony was to be treated like that of the others. In her testimony, she confirmed having told PW8 that the slippers belonged to her husband but went on to say that she had only said so because she was threatened to be J 14 detained. The court could have simply resolved the issue on credibility and should not have found much difficulty in finding that she was not threatened. There was the evidence of the gun. The deceased’s wife said that one of the people who came to pick up her husband carried a gun. All the suspect witnesses said that one of the two people who hired them was carrying a gun. Infact, two of the suspect witnesses said that it was the 1st appellant who carried the gun. The finding of a live cartridge near the body of the deceased strongly suggested that the gun was involved. Yet the person who led the police to the recovery of a gun was the 2nd appellant; and not any of the suspect witnesses. Could it be said that, in trying to falsely implicate the 2nd appellant, the three suspect witnesses planted the gun on him? From the evidence on record the answer is “no”. The 2nd appellant by his own account had been aware of the gun for almost two weeks. There was also the evidence of the jersey. The suspect witnesses all said that the man who carried the gun wore a jersey of the type worn by the police; in fact, two of the witnesses identified the appellant as the man who wore that jersey. Yet, again, it was the 2nd appellant, and not the witnesses, who led the police to where the jersey was hidden in the bush. Could it again be said that the suspect J 15 witnesses planted the jersey on the 2nd appellant in order to implicate him? Again, the answer is “no”. Otherwise the 2nd appellant would not have known where the jersey was hidden. Therefore, had the trial court approached the testimony of the suspect witnesses in the manner that we have explained above, it would inevitably have come to the conclusion that the danger that the suspect witnesses were falsely implicating the appellants had been excluded. The court would then have proceeded to rely on their evidence, as it actually did, and even convict upon it. For our part, we have no difficulty in applying the proviso to Section 15 of the Supreme Court of Zambia Act, Chapter 25 of the Laws of Zambia because, in line with one of our holdings in Emmanuel Phiri v The People’31, we are satisfied that any reasonable court that would have approached the case the way we have explained would have inevitably relied on the testimony of the three suspect witnesses and would have convicted the appellants. Therefore, there was no miscarriage of justice that arose from the trial court’s refusal to treat Oscar Ngoma, Brian Mweemba and Johnson Lwiindi Nyambe as suspect witnesses. J 16 In conclusion on this ground, we say that much as there is merit in it, the result still remains that the outcome cannot change unless there is success in the other grounds. In the second, third and fourth grounds of appeal the appellants bring forth the following issues: (i) That generally there were several inconsistencies among the prosecution witnesses; (ii) That PW2 and PW3, in particular, did not give reliable accounts of their observation of the appellants; and, (iii) That there was absence of “something more” to connect the appellants to the offence. We have resolved these issues as we were dealing with the issue in the first ground of appeal. The way witnesses perceive events differs from one to another. One cannot expect all witnesses to an event to give the same account of the event. There will obviously be differences in a number of immaterial aspects. What is important are those points on which there is similarity. In this case, while there may have been differences in the way the witnesses perceived the events, especially PW2, PW3 and PW5, there were certain parts of their accounts that were similar. We have given as examples the gun, J 17 and the jersey. There was also the account of PW1, the wife to the deceased whose account also referred to a gun and clothes of the police type. On these material points, there was no inconsistency among the witnesses. As we have observed, the items mentioned above were recovered from the 2nd appellant, after the 1st appellant led them to him. Once it was established that the two appellants led the police to where the items mentioned by the witnesses were hidden, the stories of the witnesses, with all their discrepancies, became corroborated. Similarly, even assuming that the observation of the appellants by PW2 and PW3 was not reliable for identification purposes, the moment the items stated by the witnesses were found on the appellants, their evidence on the identification was greatly fortified. On the issue as to whether or not there was something more to connect the appellants to the offence, we say that the very aspects of the evidence that would have satisfied the court below that the danger of false implication had been excluded were the “something more” or connecting link. We have already pointed them out in the first ground of appeal. J 18 We, therefore, find no merit in the second, third and fourth grounds of appeal. In the fifth ground of appeal, the appellants fault the court below for convicting them without considering their alibis. The fact that the 1st appellant’s slippers were found at the crime scene and the fact that the 1st appellant led the police to the 2nd appellant who, in turn, led them to the hidden gun and clothes was sufficient to defeat any alibi that the two appellants put forward. We find no merit in the fifth ground. In the sixth ground, the appellants fault the court below for convicting them when there was a dereliction of duty by the investigating officer. According to the submissions on behalf of the appellants, the alleged dereliction of duty is with regard to the alleged failure by the investigating officer to lift and test for fingerprints on the handcuffs which were found on the deceased. Again, we say that, even assuming that there was merit in this contention, the overwhelming evidence against the appellants was not of the handcuffs. Infact, from the way the evidence was presented, the handcuffs did not appear as a piece of evidence that was incriminating the appellants. In that J 19 regard it was even unnecessary to lift fingerprints. We have already pointed out the evidence that incriminated the appellants. We therefore, find no merit in this ground as well. All in all, the appeal by the appellants has failed. We dismiss it. E. M. Hamaundu SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE C. Kajimanga SUPREME COURT JUDGE