Keith Adam Chitambala and Anor v People (APPEAL No. 75, 76/2018) [2018] ZMCA 630 (15 October 2018)

IN THE COURT OF APPEAL OF ZAMBfA: •~ APPEAL No.75,76/2018 -- I .._ HOLDEN AT LUSAKA (Crimina l Juris d iction) BETWEEN: KEITH ADAM CHITAMBALA PAUL FUMBATA 1 ST APPELLANT 2 N D APPELLANT vs. THE PEOPLE CORAM: Mulongoti, Sichinga, Ngulube JJA On 25th September and 15th October, 2018 For the Appellants: P. Chavula, S enior Legal Aid Counsel, Legal Aid Board For the Respondent: M. C. Mwansa, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. • Cases referred to: J2 1. John Mkandawire Vs. The People (1978) ZR 46 (SC) 2 . Kateka vs The People (1977) ZR 35 (SC) 3. Muvuma Kambanja Situna vs The People ( 1982) ZR 115 (SC) 4 . Mushemi vs The People (1982) ZR 71 5. Kenneth Mtonga and Victor Kaonga vs. The Pe ople SCZ Judgment Number 5 of 2000 6 . Chabala vs The People (1975) ZR 98 7. Saluwema vs The People ( 1965) ZR 4 (CA) 8 . Ngati and Others vs The People SCZ Judgment Number 14 of 2003 9 . Ilunga Kabala and Another vs The People (1981) ZR 102 (SC) 10. Nzala vs. The People (1976) ZR 221 Legislation referred to: The Penal Code, Cap 8 7 of the Laws of Zambia . Th e appellants stood charged with the offence of Aggravated Robbery, contrary to section 294(1) of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars were that KA WALA CHITAMBALA and PAUL FUMBATA, on the 8 th of August, 2014 at Kitwe in the Kitwe District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together and whilst armed with an iron bar stole one motor vehicle, Toyota fun cargo, registration number ACX 1180 and One Hundred • J3 Kwacha cash, altogether valued at K31,000 , the property of Barbra Manta and at or immediately before, or immediately after the time of such stealing used or threatened to use actual violence to Shubert Mwape Chipulu in order to obtain, retain, prevent or overcome resistance to its being stolen. The appellants denied the ch arge and a tria l was conducted. The prosecution called five witnesses. The first witness, Shubert Mwape Chipulu's testimony was that on t h e 8 th of August, 2014, he was employed as a taxi driver by Barbra Manta. At about 1900 hours , he was hired by two men at Spur centre in Chimwemwe and they ask ed him to drive them to town. He charged them a fare of Thirty Kwacha and drove them to Chisokone Market, at the beer sales section. One of the men bought a six pack of black label beer and the men then requested to be driven to roadside bar in Ndeke township. When they got there, one of the men asked the first prosecution witness to buy beer and gave him One Hundred Kwacha. He bought the beer and upon the men's request , h e drove t h em to • J4 Insomnia night club in town where they bought food at after 10 restaurant, which they shared and ate together. They returned to Insomnia night club and at this point, the owner of the motor vehicle called the witness and asked him to go and park the vehicle as it was late in the evening. The men told him to wait and soon thereafter, he was hit with an object at the back of his head by the man who sat at the back seat of the vehicle. The men then beat him up until he collapsed. The witness testified that when he regained consciousness , he found that he was in a furrow near freedom park. He discovered that he did not have his shoes on a nd that his phone was missing. The motor vehicle had also been taken away. The witness testified that he got a lift from a friend and went to report the matter at Chimwemwe Police Station where h e was issued with a medical report form on 9 th August, 2014. He was treated at Kitwe Central Hospital because h e sustained cuts on his forehead and face during the attack. He was also issued JS with a medical r eport which h e took to Kitwe Central Police Station. The witness testified that he was subsequently called to Kitwe central police station to attend an identification parade where h e identified the m an who sat at t he b ack of the taxi on position number one and a lso identified t h e man who sat in the front passenger's s eat on position number ten. The witness was later taken t o t h e Kitwe District Police Headquarters where he was asked to identify anyone h e knew on a lineup of five men. He identified the two m en who robbed him of the motor vehicle by touching t h em on their heads. He described the motor vehicle as a Toyota Funcargo, blue in colour, Registration Number ACX 1 180. He a lso identified t h e m edica l report that was issued to him and it was marked ID 1. He identified the two m en in the dock as the on es who robbed him on the m aterial night. He testified that he s p ent three h ours with them a nd that, h e interacted with them during that • J6 time, thus being able to identify them at the identification parade. The second prosecution witness, Barbra Manta's testimony, was that on 9 t h August 2014, a man she had employed as a taxi driver called to inform her that he had been robbed of the motor vehicle . She described it as a Toyota Funcargo, blue in colour, Registration Number ACX 1180, valued at K31 ,000=00. She identified the white book which was marked ID2. The motor vehicle was not recovered. The third prosecution witness, Sergeant Kakoma Nyambe, a scenes of crime officer, testified that on the 27 th October , 2014, he was assigned to take photos at an identification parade which was held at Kitwe central police station. He stated that there were twelve men lined up, and that the only witness positively identified two men on positions one and ten . He compiled a photographic album which he identified in court. It was marked ID3. J7 The fourth prosecution witness, Kelvin Lazarous Mulenga , Detective Chief Inspector's testimony was that he conducted an identifica tion parade at Kitwe Central Police Station on the 27 t h October, 2014. He stated that twelve men were lined up and that the suspect on position one , Paul Fumbata as well as Adamson Chitambala on position 10 were duly identified. In cross-examination, the witness was question ed on the fairness of the identification parade that h e conducted . He stated that the witness was not exposed to t h e accused persons prior to the parade. The fifth prosecution witness, Detective Sergeant Twizzy Moongwe Himanthu of Ipusukilo Police Post testified that he r ecalled the 9 th August, 2014 when a report of aggravated robbery was made at the police station. The first prosecution witness reported that he had b een robbed of a motor vehicle, Toy ota Funcargo, which belonged to Barbr a Monta. The fifth prosecution witness stated that on 20th October 2014, he went to Chililabombwe Police Station to collect a suspect he came to JS know as Adamson Chitambala who he conveyed back to Kitwe. He later charged and arrested Adamson Chitambala and Paul Fumbata for the offence of Aggravated Robbery. They both denied the charge. The white book for the stolen motor vehicle which came into his possession during investigations was admitted into evidence and marked exhibit P3. In his defence, the first accused Keith Adamson Chitambala's testimony was that on 21 st October, 2014, he was in Chililabombwe and went to buy lunch at a restaurant. He was confronted by an immigration officer and was subsequently taken to Chililabombwe Police Station. The following day, 22nd October, 2014, h e was taken to Kitwe District Police Headquarters and was lined up on an identification parade at Kitwe Central Police Station on 27 t h October, 2014, where Shubert Chipulu identified him and Paul Fumbata, his cousin . He stated that he complained to the Police that the witness had seen him prior to the parade being conducted. They were later J9 charged with the offence of Aggravated Robbery, although he denied any knowledge of the stolen motor vehicle. The second accused, Paul Fumbata gave sworn evidence, that on 23 rd October, 2014, he returned home from work at 08:00 hours after a night shift. He noticed that things in the house were in disarray. When his wife returned home, she told him that police officers were at the house at 23:00 hours the night before and that they took his payslips and photographs. He went to Kitwe District Police Headquarters with his sister where he found a Mr. Mukelabai, one of the Police Officers who a llegedly went to his house the previous night. He was taken to an office where he found the first accused, bleeding on his hand. Mr. Mukelabai, with the help of other police officers, took him outside where he saw Shubert Chipulu, whose name he did not know then, outside the police station. He was remanded in custody until the 27th October, 2014 when he was lined up on an identification parade at Kitwe Central Police Station. There were twelve men on the parade and he was at position number JlO one. He stated that the identification parade was for a case of theft of motor vehicle. Shubert Chipulu pointed at him and Adam Chitambala, at position number ten. He was later taken to Kitwe Police District Headquarters where Shubert Chipulu identified him again. On 31 s t October, 2014, he was charged with the offence of theft of motor vehicle. When h e was taken to Court, a charge of Aggravated Robbery was eventually read to him, which he denied. In cross-examination the second accused stated that he first saw Shubert Chipulu at the Kitwe District Headquarters b efore the identification parade was held. The Court, in analyzing the evidence before it as well as the submissions by Counsel found that the evidence of the first prosecution witness Shubert Chipulu, the s ingle identifying witness was elaborate on how he was robbed of the motor vehicle on the material night. The Court found that the witness remembered a ll the places where he drove the men who Jll even tu ally rob b ed him of the motor vehicle. The Court found as a fact that the First Accused, Adam Keith Chitambala sat in the front passengers' seat while the Second Accused, Paul Fumbata sat at the back seat. The Court found that the identification of the two accused persons by Shubert Chipulu was good quality identification as he had observed them under calm circumstances with sufficient light. The Court found that this was not a case of mistaken identity, noting that from the time the matter was reported to the police, the witness stated that h e could identify his assailants. The Court went on to find that the witness had no problem in identifying the man who sat on the rear passengers' seat on position one, as well as the man who sat in the front passenger's seat on position ten. The Court found that the first prosecution witness was reliable in his observation of the two accused persons prior to the robbery as he was with the men for three hours. J12 The Court was satisfied that the first prosecution witness identified his assaila n ts positively, notwithstanding the fact that he did not give a description of his assailants when he reported the matter to the police. The Court found that the first prosecution witness was not a suspect witness or one that had his own interest to serve nor was there evidence to suggest that he knew the accused persons and planned the robbery with them. The Court found that as soon as he r egained consciousness, h e went to report the matter to Chimwemwe police station and accordingly dismissed the argument that he was a suspect witness. The Court found that the accused persons knew that they were charged with the offence of aggravated robbery and not theft of motor vehicle because the charge on r ecord was of the offence of Aggravated Robbery, which they were warned and cautioned for. The Court concluded that the two accused p ersons stole the motor vehicle from the first prosecution witness after they hit J13 him with an object and beat him up, thus sustaining an injury on the head as well as general body pains. The Court then convicted the two accused persons of the offence of Aggravated Robbery as charged and sentenced them to twenty years imprisonment with hard labour with effect from the date of arrest. Being dissatisfied with the Judgment of the lower Court, the First and Second appellants raised three grounds of appeal. In ground one , the appellants contended that the learned trial Judge erred and misdirected h erself both in law and fact when she convicted the appellants on the uncorroborated testimony of a single identifying witness whose evidence was unreliable. In ground two, the appellants contended that the learned trial Judge erred and misdirected herself both in law and fact when she held that the prosecution proved their case beyond a ll reasonable doubt when in fact, there w er e lingering doubts which could have been resolved in favour of the appellants. J14 In ground three , the appellants contended that the learned trial Judge erred and misdirected herself both in law and in fact when she failed to seriously con sid er or comment on the exp lana tions given by the appellants in t h eir d efence when such explanation s were reasonably possible ther eby entitling them to an acquittal. At the hearing of the appeal the Learned Senior Legal Aid Counsel, Mr Chavula submitted tha t h e would r ely on t h e heads of argument tha t were filed on the 20t h September , 2018. On ground one, it was s ubmitted that the case rests on the identification by the first prosecution witness, Shuber t Mwape Chipulu, who did not know his attackers prior to the Aggravated Robbery. Counsel s ubmitted that the testimony of the first prosecution witness was not corroborated to rule out the possibility of mistaken identity, and that there was no connecting link b etween the appellants a nd t h e offence as nothing was recovered. Counsel r ef erred to the case of John Mkandawire vs The People1 in this regard. • JlS It was submitted that in the case of a single ide ntifying witness, the question is not one of credibility in t he sense of truthfulness but of reliability. In t h e present case, Counsel contende d t h at more info rmation ought to h ave been presented by the prosecution to r e nder the convictions safe and satisfactory, and referred to the case of Kateka vs The People2 where the Court stated that - "the question is not one of credibility in the sense of truthfulness but of reliability and the greatest care should be taken to test the identification. It is not enough for the witness to simply say that the accused is the person who committed the offence." Counsel submitted that the first prosecution witness did not give any description of his attackers' distinctive features such as the clothes that they wore. H e conte nded that the witness drove the motor veh icle during the greatest part of the episode and that his concentration was on driving as opposed to looking at the passengers. • J16 We were ref erred to the case of Muvuma Kambanja Si tuna vs The People3 on the issue of testing the evidence of a single identifying witness to make sure that he is reliable in his observation, whether it was day time or night time, the state of light and the opportunity of the witness' observation of the a ppellants. Counsel contended that the witness was not credible and reliable as his evidence had inconsistencies, since he told the police that h e was attacked by two men but told the owner of the motor vehicle that there were three assailants . Mr Chavula referred to the cas e of Mushemi vs The People4 where the Suprem e Court stated that the judgment of any trial court faced with conflicting evidence should show on the face of it the r easons why a witness who h as b een seriously contra dicted by others is believed in preference to those others . Counsel contended t hat t h e learned trial Judge did not address her mind to the inconsistencies b etween the evide n ce of the first prosecution witness and tha t of the second prosecution witness and accordingly prayed that this ground of a ppeal succeeds. J17 On ground two , it was submitted that there were lingering doubts on the evidence on record , which s hou ld have been resolved in favour of the appellants. Counsel contended t h at the first prosecution witness s a w the a ppella nts b efor e the identification parade was conducted, thus m aking t h e possibility of pre-exposure real. Counsel contended that th e a ppella nts were 1n cu stody for a long time b efore the identification parade was conducted a nd r eferred to the case of Kenneth Mtonga and Victor Kaonga vs The People5 , where the Suprem e Court stated that ide ntification parades must b e fair a nd independ ent, otherwise they will be d eclared a nullity. He contended that the conduct of the police prior to the p a r a d e prevented it from b eing proper a nd fair. Counsel con tended that t h e conduct of the second appellant, who handed himself over to the police is inconsistent with that of a guilty p erson a nd h e accordin gly prayed that ground two succeeds. J18 On ground three, it was submitted that the app ellants were not challenged when they gave evidence in their defence and stated that the first prosecution witness was exposed to them prior to the identification parade. It was submitted that the appellants' explanations were reasonably possible and that they ought to have been acquitted. Counsel r eferred to the case of Chabala vs The People6 on the court considering whether an accused person's explanation might reasonably b e true . It was submitted that the learned trial Judge did not adequately analyse the evidence of the appellants and that since their testimonies in their d efence was reasonably possible, they were entitled to acquittals. We were referr ed to the case of Saluwema vs The People 7 in this regard. Counsel accordingly prayed that ground three succeeds, that the convictions b e quashed and that the appellants be set at liberty. In reply, the Learned Deputy Chief State Advocate, Mrs. Mwansa submitted that the State supports the conviction and that it executed its burden of proving the case b eyond all J19 reasonable doubt. She submitted that the evidence on record is overwhelming to support the fact that the appellants acted together and with the use of force, stole a motor vehicle from the first prosecution witness. In response to ground one, Counsel submitted that the learne d trial Judge was on firm ground when she convicted the appellants on the testimony of a single identifying witness. She referred to the case of Ngati and Others Vs The People8 , in which the Court stated that it is competent to convict on the testimony of a single identifying witness, provided t he possibility of an honest mistake is eliminated. It was submitted that the first prosecution witness ' reliability was confirmed by the manner in which h e identified the appellants at t h e identification parade as well as in Court. Counsel submitted that the witness had enough time to observe h is assailants as they spent three hours together and sat in a restaurant which was well-lit, thus e nabling him to see the two men who he later identified at an identification parade. She J20 submitted t hat from those surrounding factors , the danger of an honest mistake on the identity of the a ppellants cannot anse. It was further submitted that the eviden ce of leading was not challenged and she urged the court to consider inconsisten cies in the testimonies of the appellants as corroborative evidence to the testimony of the first prosecution witness. Counsel submitted that the first appellant, on b e ing asked where h e was on the night the first prosecution witness was attacked stated that h e was in Mba la, raising a n a libi tha t h e had not raise d at the earliest opportunity . She s ubmitted that it was safe to rely on the identification by the single identifying witness as the possibility that there was mista k en identity was excluded. On ground two, Counsel s ubmitted that the app ellants were properly identified , with the witness identifying them giving a n account of the differ ent roles tha t they played in the comm1ss1on of the offence . It was submitted that the I J21 identification parade that was conducted was fair and proper as none of the appellants complained after the parade, an indication that it was fair as was held in the case of llunga Kabala and Another vs The People9 • Counsel submitted that the sole object of an identification parade is to test the ability of an identifying witness to pick out a person he claims to have previously seen on a specified occasion. It was submitted that the objective had been achieved in this case. Counsel con tended that it is deceptive to s ubmit that the appellants were pre-exposed to the first prosecution witness simply because h e visited the Police s tation. It was s ubmitted that the second appellant's reporting himself to the Police did not necessarily mean that he was innocent as he could have had other u lterior motives for doing so. It was accordingly submitted that t h e learned tria l Judge properly analysed the evidence on record, and on th e totality of it, the convictions of the appellants cannot b e fa u lted. Counsel I .. J22 prayed that ground two of the appeal be dis missed for lack of m erit. In r esponse to ground three, it was submitted that no explanation could b e considered as reasonable a nd worthy of a ffecting the weight of t h e prosecution's evidence that the appellants initially tried to c halle n ge the ch a r ge as on e which had not b een properly presented to him. La t e r , t h e first a ppellant r a ised an a libi that h e was in Mba la on the material night. The appellants a lso stated that they were cousins wh o w e re fa lsely implicated in the matter. It was submitted tha t the inconsistencies a nd reasonably unbelievable s t ories that the app ella nts gave in their defence confirmed the truthfulness of the first prosecution witness' testimony that h e was attacked b y t h e appellants who robbed him of the motor vehicle on the material night. Counsel submitted that a ll the ele m e nts of t h e offence of aggravated robbery had b een proved as the Court properly directed itself when it convicted the appellants. She further • • J23 submitted that s ince the first prosecution witness was brutally attacked, this nullified the appellants' entitlement to a m1n1mum mandatory sentence as his life was endangered. Counsel accordingly prayed that the Court dismisses the appeal and upholds the conviction and sentence from the lower Court. We have considered the evidence on record , the Judgment of the lower court and the submissions by learned Counsel. Ground one of appeal attacks the evidence of the identification by a single identifying w itness whose evidence was a llegedly unreliable. In this case, Mrs Mwansa submitted that the first prosecution witness had ample opportunity to observe t h e appellants. We do agree with this submission as the witness spent about three hours with his assailants 1n a calm and peaceful environment as t h ey asked him to drive them to a number of places before they eventually attacked and robbed him of the motor vehicle . The witness and his assailants even shared a meal at after ten restaurant, a place which was properly lit. • . '- J24 We are of the view that the witness had enough time and opportunity to look at the people he was with and later identified them at the identification parade. We are therefore satisfied that the learned trial Judge was on firm ground when she convicted the appellants on the evid ence of a single identifying witness as in our view, the possibility of an honest mistake was eliminated. The witness had an excellent opportunity constituted by sufficient time within which h e observed his assailants, sufficient lighting and observed them in the absence of fear. We do not find merit in ground one of the appeal and it accordingly fails. On ground two , it was submitted on b e half of the appellants that there were lingering doubts 1n the evidence on record which should h ave been resolved in favour of the appellants. It was argued that the identification parade was unfair because the first prosecution witness was pre-exposed to the appellants. We do not find merit in this argument. This is because there is • [. w J25 no evidence on record to suggest that the first prosecution witness was pre-exposed to the appellants. We cannot fault the manner in which the identification parade was conducted. The appellants did not raise any issues soon after the identification parade was h eld . Further, the circumstances described by the first prosecution witness confirm that he had ample opportunity to observe his assailants for about three hours and as such made reliable observations . We do not find that this is a proper case in which we can nullify the evidence of identifica tion. The mere fact that the second appellant reported himself to the police does not suggest that h e was innocent and knew nothing about the aggravated robbery. We agree with Mrs Mwansa that the appella nts were properly identified as there was no mistaken identification. We cannot fa ult the learned trial Judge. We do not find m erit in ground two of the appeal and it accordingly fails. On ground three, whether the learned trial Judge was on firm ground when s h e failed to comment on the explanation s given • l • J26 by the appellants in their defence when such explanations were reasonably possible. The starting point is the alibi that was raised by the second appellant, that h e was in Mbala when the first prosecution witness was robbed. In the case of Nzala vs The People1 0 , it was held that the police can only investigate an alibi where the accused provides details on which witnesses could support it. It this matter, the second appellant only raised the issue of alibi in his defence, without giving details about the witnesses who can support it. It therefore follows that the raising of the alibi so late in the matter was an afterthought which the learned trial Judge rightly dismissed for lack of merit. Regarding the other explanations that the appellants gave in their d efence, they could have been considered and thought to b e reasonably possible if the evidence against the appellants was not overwh elming. The learned trial Judge was on firm ground when she found that the appellants ' inconsistent statements in their defence were afterthoughts made to save • J27 themselves. They gave explanations which were disbelieved and absolutely rejected by the learn ed trial Judge. We are of t h e view that t h ese were explanations which could not reasonably be true . In all the circumstances, particularly in view of the overwhelming evidence against the appellants, we do not find merit in this ground of appeal and it accordingly fails . In sum, we find that the appeal has no m erit. We uphold the conviction and sentence by the lower court and the a ppeal is hereby dismissed. J?/IMJL~tz' J. Z. MULON~TI COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE