Maybin Namonda Kondu v People (APPEAL 46/2019) [2019] ZMCA 427 (20 August 2019)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL 46/2019 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: MAYBIN NAMONDA KOND AND THE PEOPLE .... °'~" APPELLANT I '\ \ ' , : r j Z O AUG 2019 • ,... J ·• ECISTr y X 5000 1. LIJC RESPONDENT CORAM: Makungu, Mulongoti and Siavwapa, JJA On 25th June 2019 and 20th August 2019 For the appellant: For the respondent: Ms. K. Chitupila, Senior Legal Aid Counsel, Legal Aid Board Mrs. M. K amwi, A ssistant Senior State Advocate, National Prosecution Authority JUDGMENT MULONGOTI, JA, delivered the Judgment of the Court Cases referred to: 1. David Zulu v The People (1977) ZR 151 2. Katebe v The People (1975) ZR 13 3. Douglas Mpofu and Washingtone Magura v The people (1988) ZR 24 When we heard this appeal on 25th June 2019, we acquitted the appellant and said we would give our reasons later, which we now do. The appellant, Maybin Namonda Kondu, and one Pa ul Kanyampa were jointly charged with murder. They were convicted and sentenced to death. The particulars of the offence had alleged that Paul Kanyampa and Maybin Namonda Kondu, jointly and whilst acting together murdered Elizabeth Nkumbula, a child aged 8, at Kaoma in the Western Province of the Republic of Zambia. The facts before the trial court were that on 2 nd September 2016, PWl was at his home in the shelter with his friends. Later Paul and Maybin who were working for his uncle PW2, joined them. PW 1 and his friends decided to go inside his house to watch video . Paul joined them but Maybin remained outside. Some children including PW 1 's sister in law Elizabeth were also watching video. They watched video till night time. PW 1 retired to bed and left Paul, Elizabeth and others watching video. The following morning, they noticed that Elizabeth was missing, when her sister PWl 's wife and his mother in law did not find her in her room. They went to check for her at PW 1 's uncle (PW2)'s house which was about 100 meters away but she was not J2 there. PW2 joined the search and advised that they mobilise more people to help with the search especially those who were watching video with PWl. When they got to Paul's house and asked for him to join the search for Elizabeth, he answered to say he was looking for his slippers and would join them later. Kandiye and Musipili Susiku who were also watching video, joined the search and told PWl and others that they had left Paul, Elizabeth and about 5 others watching video. As the search continued; PWl, PW2 and others observed some footprints of a child along with those of an adult and prints of an adult's floaters (slippers). They trailed the foot prints up to a point where they saw stains of blood which were still fresh but had clotted a bit. Then the blood stains disappeared and they lost trail of the footprints. However, they found a pair of floaters, blue in colour, abandoned at the place but left them behind. According to PWl they all recognized the floaters as belonging to Paul and that he was wearing them the previous night. J3 PWl and PW2 reported the matter to PW3, a member of the neighborhood watch. The three of them went and informed the headman. Together with others they went back to the point where they saw the floaters and footprints. PW3 collected the floaters. When they returned, they searched for Paul and Maybin but could not find Paul. Upon being apprehended, Maybin denied being r esponsible for the disappearance of Elizabeth. Later Paul was also apprehended by PW3. On their way to Nkeyema Police, Paul confessed to PW3 in the presence of PW 1, PW2 and others that he and Maybin had killed Elizabeth and hidden her body in the bush. At the point where the footprints disappeared , they had crossed t he stream and buried her in a shallow grave near a hill. PW2 and PW3 testified that Maybin only admitted after being questioned further following Paul's confession. PW 1 and PW2 said Paul led them to the pla ce where they had buried Elizabeth. After the body was exhumed, PWl and PW2 said they observed deep open wounds on the head and n eck of Elizabeth. The body was wrapped in a jacket which PWl identified as the one Paul wore the night they were watching video. Paul admitted that the jacket and floaters were his, in the presence of PWl, PW2 and PW3. J4 In his defence Maybin denied being involved in the murder of Elizabeth. He denied leading the people to the scene where Elizabeth's body was exhumed. He said he and Paul were handcuffed together and he merely followed where Paul led the people. He said they were forced to exhume the body with their bare hands. He admitted that he was at PW l 's house on the day in question but that he left and spent the night with his girlfriend Gertrude. Gertrude was not called to testify but PW4 the scenes of crime officer, had recorded a statement from her, in which she said that Maybin did not spend the night at her home. The statement was admitted in evidence. Paul opted to remain silent. After analyzing the evidence, the trial Judge found the duo guilty. She reasoned that the duo led others to the recovery of the body as testified by PWl, PW2 and PW3. Further, that they were only handcuffed together after they had already led others to the place where they had buried the body of Elizabeth. Dissatisfied with the Judgment, the appellant, Maybin Namonda Kondu, appealed to this Court on five grounds: 1. The learned trial court erred in law and fact when it convicted the appellant based on JS circumstantial evidence despite an inference of guilt not being the only inference that could reasonably be drawn from the evidence. 2. The learned trial court erred in law and in fact when it failed to find the appellant's explanation in court to be reasonably possible, therefore, casting reasonable doubt on the prosecution's evidence. 3. The learned trial court misdirected itself when it believed the statement (P2) despite the owner of the statement not being in court to testify to its truthfulness. 4. The learned trial court erred in law and fact when it relied on the said statement (P2) to convict the appellant in the absence of corroboration or some other independence evidence. 5. The learned trial court misdirected itself when it held that the appellant led the police and the witnesses to where the body was found when the evidence on record reveals that the appellant was handcuffed to the person who actually led the said individuals to where the body of the deceased was found. " In support of the grounds of appeal, the appellant's counsel, Ms Chitupila filed heads of argument. She argued in ground one that there was no evidence that connected the appellant Maybin to the murder of Elizabeth, relying on the case of David Zulu v The People 1 that a trial court should guard against drawing wrong inferences on the circumstantial evidence at its disposal. Counsel J6 argued that the appellant's conviction was based on a wrong inference. That the confession by Paul, which is inadmissible, was the only connection of the appellant to the offence. In relation to grounds two, three and four, it was argued that the trial Judge erred when she believed the statement by Maybin's girlfriend who did not testify before her and which was not corroborated. In addition that it was encumbered on the prosecution to investigate the alibi as held in Katebe v The People 2 . In ground five it was argued that the trial Judge erred when she found that the appellant Maybin and Paul were only handcuffed together after they led to the recovery of the body . According to counsel, the evidence was clear that they were handcuffed during the leading. The learned state advocate, Mrs. Kamwi, also filed heads of argument. She submitted that the respondent does not support the conviction of Maybin due to insufficient evidence linking him to the murder of Elizabeth. She conceded that the evidence showed that the two were handcuffed together during the recovery and leading to the place where the body was buried. Reliance was placed on the case of Douglas Mpofu and Washingtone Magura v The people 3 where the supreme court held that: J7 "Where a number of accused persons are alleged to have led the police to where incriminating evidence is found, it is essential for the trial court to ascertain what is exactly meant by "leading". In our view, except in the most exceptional cases, only one person could do the actual leading, and evidence should be adduced to show which of a number of persons alleged to have done the leading, did in fact have the guilty knowledge." We were urged to allow his appeal. We have considered the arguments by counsel including the r ecord of appeal. We shall first consider ground five as it is a pparent, that in convicting Maybin, the trial Judge reasoned that the duo led to the recovery of the body . It is settled law, as submitted by the learned state advocate, that two people cannot lead to the s cen e or place where incriminating evidence is found, as h eld in the Douglas Mpofu and Washingtone Magura v The people3 case. It was incumbent upon the trial Judge, based on the eviden ce a dduced , to d etermine who did the actual leading, and h a d the guilty knowledge. PW 1 testified at p age 48 lines 4 to 5 of the record of appeal, that Paul and Maybin were handcuffed together during the leading to the place, wh ere t h e body was found. At lines 6 to 9 (page 48) J8 PW 1 stated that Paul was the one who was giving directions to where the body was found. Equally, PW2 testified at page 91 lines 24 to 25 that Paul showed them the place where the deceased was buried. We agree with submissions by both counsel that the trial Judge misdirected herself when she held that both Paul and Maybin led to the recovery of the body. This finding was not only contrary to the position of the law but the evidence on record. The evidence reveals that Paul led to the scene and pointed to the place where the deceased Elizabeth was buried in a shallow grave. Furthermore, that the duo were handcuffed together as Paul led to the scene and the two of them walked in front of others. We therefore find merit in ground five. We note that the trial Judge did not address the issue of Maybin's confession and only relied on the evidence of leading by the duo . She also did not pronounce herself on the statement given by Maybin's girlfriend to PW4, although it was admitted in evidence. Thus grounds two, three and four are otiose. It is a lso unnecessary to consider ground one, having allowed ground five which is the crucial ground upon which the conviction of Maybin was based. J9 In the net result, the appeal succeeds. We quash the conviction, set aside the sentence and acquit the appellant, Maybin Namonda Kondu. C. K. MAKUN U COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE M. J. SIAVWAPA JlO