Biemba v People (83 of 2006) [2007] ZMSC 169 (10 April 2007)

JI IN THE SUPREME COURT OF ZAMBIA APPEAL/83/2006 HOLDEN AT LUSAKA (Civil Jurisdiction) BWEETEN: LUMINGU BIEMBA APPELLANT AND THE PEOPLE RESPONDENT Coram: Lewanika DCJ. Chibesakunda and Mushabati, DS. On 16th January 2007 and 10th April 2007. For the Appellant: Mr. A. C. Nkausu, Principal Legal Aid Counsel For the Respondent: Mrs. F. L. Shawa-Siyuni, Deputy Chief State Advocate Chibesakunda, JS, delivered the Judgment of Court. JUDGMENT This is an appeal against both conviction and sentence. The Appellant was charged and convicted on two counts of Murder contrary to Section 200 and Attempted Murder contrary to Section 215 (a) of the Penal Code,Cap 87. The particulars on the first count were that the Appellant on 23rd November 2000 at Silowana village in the Shangombo District of the Western Province of the Republic of Zambia, did murder Shakameya Chinoya. On the second Count, the Appellant, on 23rd November 2000 at Silowana village, in the Shangombo District of the Western Province, of the Republic of Zambia, did attempt to murder Mununga Chiputa. J2 The evidence for the prosecution on which he was convicted is that on 23rd November 2000 PW 1, Mununga, was sleeping with the deceased who was her husband, Shakameya Chinoya. PW 1 and the deceased were sleeping outside in the veranda as they ran from the main house because of mosquito bites. PW 1 woke up in the course of the night when she heard a sound which sounded like cattle trampling on the shrubs. When she woke up she immediately saw the Appellant standing over them and chopping the deceased with an axe. PW11 then shouted for help saying, “here is Limungu killing us" three times, when the Appellant realized that she, PW 1, had recognized him, he then turned to her and tried to chop her. She tried to block the axe but she was struck and chopped on the arm and the Appellant then run away. She testified that the Appellant was a grand son to her. She called out for help. PW 2 and PW 3 came to their rescue and just arrived when the Appellant was running away from the scene. She testified that when the Appellant ran away after PW 2 and PW 3 had arrived she and the deceased were taken to the hospital. The deceased died on the way to the hospital. She was treated. She had a medical report. She produced it before the court. village. In cross-examination she accepted that the Appellant had a girl friend in their PW 2, an aunt to the Appellant testified that she was in her house asleep next to the deceased and PW 1’s house. During the night she heard her mother, PW 1, calling out in agony, “come here Lumungu is killing us”. PW 2 testified that she ran to her parents’ house and found her father chopped with an axe on his shoulders leaning forward helplessly. She noticed that PW 1 had an injury and she was calling out for help. She also found the Appellant holding an axe. She asked him what he was doing. The Appellant when being asked by PW 2 started running away from the scene. He was subsequently arrested and charged with these two offences. J3 PW 3, a young brother of both PW 2 and the Appellant’s late father, more or less echoed the evidence of PW 2. He testified that he was equally awaked by his mother’s calling for help, saying: “come here Lumungu is killing us”, he ran to his mother’s house, where she was calling out for help. When he arrived at his mother’s house he saw the Appellant running away from the scene holding an axe. The Appellant was subsequently arrested and charged with these two offences. The Police Officer gave evidence of how he arrested the Appellant. When the court found the Appellant with the case to answer he testified on oath that he knew nothing about these two offences. He testified that he was not even in the village when the incident took place. He was in another village on the night in question. He was with his girl friend in the village next to the village where the deceased and PW 1 used to live. On the evidence before him the learned trial Judge found the Appellant guilty of both offences. He was sentenced to death on the 15 Count and to 20 years IHL on the 2nd Count of attempted murder and hence the appeal before this court. Before us Mr. Nkausu after an application for leave to file grounds of appeal in court, which was granted, raised two grounds of appeal. These are: 1) that the learned trial Judge erred in law and in fact when he dismissed the alibi of the Appellant that the night in question when the deceased and PW 1 were attacked he was with his girl friend in another village; 2) that the learned trial Judge erred in law and in fact when he failed to consider the dangers of an honest mistake. Mr. Nkausu argued these two grounds together. His argument is that the learned trial Judge erred in law and in fact in dismissing his alibi, which the J4 Appellant raised with the Police Officer, PW 4 and which, he raised in court. He argued that at law, the onus was not on the Appellant to prove the alibi, the onus was with the prosecution to disprove the alibi. Augmenting this argument he argued that the court erred also by not warning itself against convicting the Appellant on the evidence of the three prosecution witnesses, firstly, because there was a possibility of making an honest mistake by the witness who claimed to have seen the Appellant on the scene of the crime as this crime was committed at night and visibility was not clear. Secondly because these witnesses were related to the deceased and PW 1 and as such had an interest to serve. On the possibility of an honest mistake, Mr. Nkausu argued that the episode took place at night. There was insufficient light for the three prosecution witnesses to have clearly seen that the person who was committing these two offences was the Appellant. He noted that there was a strong possibility, notwithstanding the fact, that the three main witnesses were closely related to the Appellant, that the three prosecution witnesses made an honest mistake in identifying the Appellant, as the perpetrator of the two offences. Mr. Nkausu on the alibi raised by the Appellant argued that the prosecution in this case had failed to disprove this alibi. He argued that this alibi had been raised by the Appellant with the Police Officers. The Police Officers never investigated this alibi. It was equally raised before the court. He reminded this court that the onus is on the prosecution to refute the alibi claimed by the Appellant. His other argument is that the learned trial Judge failed to warn himself on the dangers of convicting the Appellant on the evidence of the three witnesses, whom he described as witnesses with an interest to serve. He therefore urged us to uphold the Appeal and quash the lower court’s order. Mrs. Shawa-Siyuni supported the conviction. She argued that all the three witnesses were relatives of the Appellant. The first witness PW 1 was the grandmother to the Appellant. The second witness PW2 was an aunt to the Appellant and the third witness was an uncle to the Appellant, therefore knew the J5 Appellant very well. She argued that on the night in question all the three witnesses talked to the Appellant. They questioned his conduct and according to him his only response was to run away from the scene. She further argued that the evidence before the court was such that there was no possibility of making a mistake in pointing at the Appellant as the man who committed these offences. She in addition submitted that the argument advanced by the Counsel for the Appellant could only have been tenable at law if it was a single identifying witness. In the case before us there were three witnesses so that argument was not tenable at law. She therefore urged us to dismiss the appeal. We have looked at the record and arguments raised by both parties before us. We entirely agree with Mrs. Shawa-Siyuni that at law the only occasion when the court is called upon to warn itself of the dangers of convicting an accused person is when there is a single identifying witness. In the case before us there were three witnesses, very closely related to the Appellant. We note however that the learned trial Judge at page 3 of his Judgment observed that, '7 am aware that all these people are related but that does not stop this court from convicting the accused as along as I remind myself of witnesses with possible interest and I am satisfied they are credible.” Sic. We are satisfied that looking at this statement of the learned trial Judge, although there was no requirement at law for him to have warned himself on the dangers of convicting the Appellant on the evidence of the three witnesses, he did just that and resolved that problem by treating it as a question of credibility. He observed all the demeanour of the witnesses and chose to believe the prosecution witnesses. Mr. Nkausu raised a related question that there was a possibility of an honest mistake in the three witnesses identifying the Appellant as the one who committed the two offences because the offence was committed at night and there was no evidence as to how the three witnesses managed to recognize the Appellant as the one who committed these offences. J6 We are of the view that this was a question of credibility. The learned trial Judge chose to accept the evidence of the three witnesses that they saw the Appellant and even tried to talk to him. As already indicated they were very closely related to the Appellant. We are therefore satisfied that there was no possibility of the three witnesses individually and collectively making an honest mistake in identifying the Appellant as the person whom they saw holding an axe as he stood over the deceased and chopped PW 1 as she cried out for help and that this is the same person who ran away only to be apprehended later. Mr. Nkausu has raised an argument of alibi, which the Appellant put up when he talked to the Police Officer and even before the lower court during the trial. We accept that at law the onus is on the prosecution to refute this alibi. However, we note that although the Appellant was not obliged to prove his innocence, when he informed the Police Officers that on the night in questioned he was with his girl friend and that he repeated the same defence in cross-examination, when he was asked why his girl was not called to the witness stand to support his claim, the excuse he gave was very feeble. Also the evidence given by the prosecution was overwhelming and as already indicated in our Judgment the trial court was entitled to accept one version that of the prosecution in preference to the version of the Appellant. This was so in this case because in a village set up where there is a strong bond in families for three prosecution witnesses closely related to the Appellant, to have all in unison testified that the Appellant assaulted the deceased and PW1, was very convincing to the court. We are therefore satisfied that there was overwhelming evidence on which the lower court convicted the Appellant. We cannot fault the learned trial Judge. We therefore dismiss the appeal and confirm both conviction and sentence on two counts. DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE