Ngosa v People (SCZ Judgement 30 of 2010) [2010] ZMSC 12 (2 November 2010)

SCZ JUDGMENT NO. 30 OF 2010 1651) IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO.2/2009 HOLDEN AT NDOLA AND KABWE (Criminal Jurisdiction) IN THE MATTER BETWEEN: MORGAN NGOSA APPELLANT AND THE PEOPLE RESPONDENT Coram: Sakala, CJ., Chibesakunda and Mwanamwambwa, JJS. 7th September, and 2nd November, 2010. For the Appellant: Mr. N. J. Simwanza, Senior Legal Aid Counsel. For the State: Ms. C. L. Phiri, Assistant Senior State Advocate. JUDGMENT Sakala, CJ., delivered the Judgment of the Court. Cases Referred to: 1, Patrick Sakala V The People (1980) ZR. 2005. (652) 2. Mbuyi Jean V The People (1971) ZR.82. Chabala V The People (1976) ZR. 14. 3. 4. Kafuti Vilongo V The People (1977)ZR 423. The Appellant was sentenced to suffer death by hanging following upon his conviction on one count of murder, contrary to Section 200 of the Penal Code, and to suffer 15 years Imprisonment with Hard Labour on the second count of Aggravated Robbery, contrary to Section 294(1) of the Penal Code. The particulars of the offence on the count of murder were that the Appellant, Morgan Ngosa, Jerry Tembo and James Tembo, on the 10th of April, 2007, at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together did murder Bylon Musonda. On the second count of Aggravated Robbery, the particulars of the offence were that the Appellant, Morgan Ngosa, Jerry Tembo and James Tembo, on the 10th of April, 2007, at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together, being armed with an iron bar, did steal from Bylon Musonda 13 computer monitors, 16 mouses, 15 keyboards and 14 computer processing units, all together valued at K70,000,000.00, the property of Walk Tall Institute and used force at the time of the stealing. (653) Jerry Tembo died before the trial; and the State discontinued the criminal proceedings against him. James Tembo was acquitted at the end of the trial. The summary of the evidence in support of the case for the prosecution on both counts is that PW1, a Care Taker, and PW2, a Cleaner, at Walk Tall Institute, reported for duty around 04.30 hours on the 11th of April, 2007. They found all the gates open. They shouted for the deceased, the Armcor Security Guard, who was on guard duty at the material time. There was no response. But in the car park, at a tap, they noticed some boxes and blood. According to PW1 and PW2, thereafter, they entered the building. In the corridor, they found a trail of blood leading to the library. They followed the trail, but did not reach the library as they were scared. They went back outside and shouted for help. Two Mint Master Security Guards from across the road arrived. After they explained to the two Mint Master Security Guards what they had found, PW1 switched on the alarm in the building. The Armcor personnel then arrived. The two witnesses explained to them of having found 8 computers and an iron bar at the tap in the car park. They also explained that upon entering the building, (654) they found a trail of blood in the corridor leading to the library. Thereafter, the two witnesses and the Armcor personnel went back into the building. Upon reaching the closed library door, the personnel from Armcor stopped the two witnesses from entering. In the meantime, while they were waiting outside the library, the Zambia Police arrived at the scene. PW1 and PW2 learnt that the Armcor Guard on duty had been killed. Subsequently, they made statements at Lusaka Centre Police Station. PW1 identified a small thick blood stained iron bar that was at the tap. The evidence of PW3, a Security Officer at Armcor, confirmed receiving an emergency panic signal from Walk Tall Institute at around 05.30 hours. He confirmed going to the scene and finding PW1 and PW2, who told him why they had placed the alarm panic button. PW3 called for the guard on duty three limes; but there was no response. PW3 explained that PW1 and PW2 directed him where the computers were located. Upon entering the library, they saw 13 boxes of computers; they also saw a trail of blood. They found the body of the Armcor Guard at a corner under the table covered on the head with an Armcor Coat. There was blood on the Armcor Guard up to his abdomen; while there was also an iron bar nearby. PW3 also testified that another iron bar was found outside near the tap, and that he sent a radio message to (655) his superiors; who later arrived at the scene. Thereafter, the Police took over the matter. The evidence of PW4, a businessman, was that on the 11th April, 2007, two men approached him at his shop at Spar Soweto. They told him that they had some computers for sale. He told them that he did not deal in computers; but that he had a friend who might be interested; but he needed to contact him. He contacted his friend, who asked him about the colour of the computers. According to PW4, it was then decided that he goes with the two men to John Laing Compound. At John Laing Compound, he saw five computers that were in the boxes in the bedroom. He arranged that the two men should come to his shop the following day. The following day, as PW4 was opening his shop, Police officers arrived and told him that they had information that he had computers. He explained to the Police Officers and later led them to a house in John Laing. When they got at the house in John Laing, the two men, who had the previous day told him that they were selling computers, were not there; but there was only a young man. The Police went inside the house, searched the house and emerged out with a picture of the owner of the house. PW4 identified the picture to be that of one of the men, who the (656) previous day had told him that they were selling computers. The man in the picture was later identified by PW4 as the Appellant. PW4 identified the five cream computers in court. In cross examination, PW4 admitted that he had been detained in Police custody until the two men were apprehended. PW5, a cousin to the deceased, was a witness who identified the body of the deceased during the Postmortem examination on the deceased. PW6, a Computer Engineer at Walk Tall Tuition Centre, testified that on the 11th April, 2007, when he reported for work, he learnt of the theft of the computers. He saw the stolen computers at Chawama Police Station. On the 19th April, 2007, he verified the computers against their serial numbers. He identified the recovered computers, monitors and other accessories. The evidence of PW7, a Computer Consultant at Walk Tall Tuition Centre, is that on the 11th April 2007, he received a report, whilst at his house, that there had been a robbery at the Centre and that the Guard on duty had been killed. He rushed to the Centre where he found Armcor personnel. He observed blood at the (657) scene. Inside the building, he found that fourteen sets of computers were missing. He identified the recovered computers and other accessories. PW8 was the Police officer who attended the postmortem examination on the body of the deceased. PW9, also a Police Officer, testified that she was one of the officers who went to the scene of the murder on 11th April, 2007, and later caused the body of the deceased to be conveyed to the University Teaching Hospital Mortuary. She later interviewed the suspects and charged them for the offence of murder and aggravated robbery. PW10, also a Police Officer, confirmed of recovering the six boxes of the computers and handing the Appellant and others to Lusaka Central Police Station. The Appellant gave evidence on oath. He testified that he was a poultry farmer before his arrest. He operated from Makeni opposite Sable Transport. He explained that on 13th April, 2007, he went to Chawama to collect money from one of his customers, a Mrs. Tembo. He arrived at her house and found her with her husband. She gave him K450,000.00. The husband then told him that he was selling computers. He got two computers from (658) the bedroom. The Appellant explained that he showed interest in one of the computers. He was told that the price was K2million each; but before they could complete the negotiations; a man knocked on the door and entered. This man stated that he also wanted to buy ten computers. According to the Appellant, the man who just entered and the owner of the house, went into the bedroom. Later, he was told that the computers were going to be sold to the man who wanted ten computers. But when he was about to leave the house, the man who wanted ten computers produced an identification card; and immediately other Police officers entered the house. According to the Appellant, the owner of the house and his young brother and himself were all taken to Chawama Police Station. But the Police later went back with the owner of the house to conduct a search. They returned to Chawama Police Station with all the computers. Later that night, after they had given their statements, he accompanied the Police to his house, where the Police conducted a search and ended up collecting the picture from the picture frame; one of the pictures being the one that was produced in court. In cross-examination, the Appellant denied knowing the deceased, he denied that Jerry Tembo, the owner of the house in (659) Chawama, was his friend. He denied any involvement in the crime. He insisted that he went to Chawama only to get his money. He admitted giving a statement to the Police; that it was read back to him; and he was made to sign it. The statement was given and written in Bemba. He explained that his statement contained what he had said in court. He wondered why his statement in Bemba was not brought in court. He denied that the signature on the English statement was his. The learned trial Judge considered the evidence. She found that it was not in dispute that the deceased died on 11th April, 2007, at Walk Tall Institute Centre in Lusaka after sustaining head injuries after being hit with an iron bar that was found near his body outside the building and within the premises of the Centre. The trial court noted that there was no direct evidence linking the Appellant and his co-accused to the crime as there was no eye witnesses; but that the Appellant, together with the late Jerry Tembo and James Tembo, became suspects as a result of being found in the house where some stolen computers later identified by the personnel from Walk Tall Tuition Centre, were found. The court observed that the prosecution evidence was mostly circumstantial; that for the prosecution to succeed, the circumstantial evidence must be so overwhelming or so cogent and compelling that no other rational hypothesis other than that (660) the Appellant murdered the deceased, as was held in the case of Patrick Sakala V The People1. The court observed further that the prosecution evidence, though circumstantial, must be able to link the Appellant to the commission of the offence or scene of crime. The court noted that apart from the stolen computers that were found in Jerry Tembo’s house in Kuku compound, in the presence of the Appellant, there were statements that were recorded from the Appellant and the co-accused under warn and caution; that the Appellant’s statement was a confession of hitting the deceased so that he and the late Jerry Tembo could steal more computers than the deceased, Bylon Musonda, was prepared to give them as arranged between them. The trial court observed that in the said confession, the Appellant had stated that it was not the first time that the deceased had taken the computers out of the Centre and sold them with the assistance of friends; that the statement did not mention the co­ accused as being present at the Centre; that although the Appellant denied making the confession statement referred to in court, because it was in English and not Bemba, he admitted giving a statement to the Police; that it was read back to him and signed, but denied signing the English version. The court further observed that the Appellant did not challenge the confession (661) statement as having been obtained in circumstances that were unfair to him or torture. The court found no impropriety on the part of the Police in the manner the statement was obtained. The court noted that the statement contained details that the Police could not have known or fabricating them. The learned trial Judge then turned to consideration of the charge of aggravated robbery count. She found that it was not in dispute that the computers were stolen from Walk Tall Tuition Centre; and that the Security Guard on duty was found dead at the scene. She accepted that there were no eye witnesses to the commission of the two offences. But she observed that whoever stole the computers must have caused the death of the Security Guard on duty in order to steal the computers. She pointed out that the Appellant, who was identified as being one of the two men selling the computers, might not necessarily have been one of the people who stole the computers; but that the court had to consider the doctrine of recent possession to satisfy itself that the prosecution had proved that the Appellant was actually the person, who stole the computers from the Walk Tall Tuition Centre. After citing the case of Mbuyi Jean V The People2, and the case of Chabala V The People3, in relation to the doctrine of recent (662) possession, the court found that in the instant case, the Appellant was identified by PW4, as one of the men, who approached him at his shop at Spar Soweto and told him that they had computers for sale; but that the Appellant denied this; that he was just caught up when he went to collect his money for chickens from Mrs. Tembo; when the Police arrived and nabbed him together with the deceased Jerry Tembo and his young brother, the co-accused. The court found that the Appellant’s statement was supported by PW4’s identification of him; that the prosecution had succeeded in linking the Appellant, not only to the computers, but to the scene of crime and the commission of the two offences. The court also found that this was a robbery that went wrong; that the prosecution had proved their case against the Appellant on both counts of murder and aggravated robbery and found him guilty and convicted him accordingly. The Appellant appealed against both conviction and sentence. There was only one ground of appeal; namely: that the learned trial Judge erred in law and fact when she convicted the Appellant for the offences of murder and aggravated robbery based on circumstantial evidence. (663) On behalf of the Appellant, Mr. N. J. Simwanza, Senior Legal Aid Counsel, filed written heads of argument, augmented by brief oral submissions based on this ground of appeal. The summary of the written heads of argument is that contrary o the authority of the case of Patrick Sakala V. The People1, cited by the trial Judge, the prosecution evidence, circumstantial as it was, did not link the Appellant to the commission of the offences or to the scene of the crime; that the trial Judge seemed to have relied on the confession statement allegedly made by the Appellant; and that the trial court ought to have seriously addressed the aspect of the voluntariness of the Appellant’s statements, especially that the Appellant stated in his evidence that he was made to sign a statement recorded and read over to him in Bemba. It was contended that in the absence of establishing the voluntariness of such incriminating statements, the confession was inadmissible; that the court did not resolve the disputed facts as to the language used in recording the statement as the Appellant testified that the statement was recorded in Bemba, while the statement produced in court was recorded in English and did not have the Appellant’s signature. It was submitted that the trial court’s approach on the confession statements was a misdirection as the court failed to resolve the (664) disputed issues which the court was obliged to deal with. The case of Kafuti Vilongo V. The People4 was cited in support of the submissions. It was further argued that the circumstantial evidence could not have linked the Appellant to the offence or placed him at the scene of crime, because no computers were found at the Appellant’s home as the computers allegedly seen at the Appellant’s home were poorly identified by PW4, who did not even inspect the items and could not state their make; and that so much reliance was placed on the confession that the trial court failed to properly apply the doctrine of recent possession. It was submitted that this was a case not on a finding based on circumstantial evidence; but purely on a disputed confession, which the trial court failed to meet and render it inadmissible. In his oral submissions, Mr. Simwanza, argued that the Appellant stated in his defence that the statement he gave to the Police was recorded in Bemba, but what was produced in court was a statement recorded in English. It was submitted that the statement in Bemba which supported the defence was not a confession. (665) On the issue of the doctrine of recent possession, counsel contended that the court having explained the doctrine, referred itself back to the challenged confession. It was submitted that the Appellant explained his reason for being at the house, where he was found; that the explanation was reasonable and could not have led to an inference of guilty as the owner of the house was the deceased; that the computers were poorly identified despite the evidence of PW4, PW6, and PW7 having seen the computers. Mrs. Phiri, the Assistant Senior State Advocate, on behalf of the State, supported the conviction on both counts. She contended that the circumstantial evidence sufficiently connected the Appellant to the commission of the offence; that there was evidence of PW4, who was approached by the Appellant and another person, who attempted to sell PW4 computers on 11th April, 2007, a day after the commission of the two offences; further that the evidence of PW4 shows that he was taken to a house in John Laing, where he was shown the computers; that later PW4, upon being approached by the Police, led the Police to a house where he had seen the computers the previous day; that on this very day, the Police recovered a photograph of the Appellant, although the computers were not there, but the photograph showed that the house belonged to the Appellant; and that later, the Appellant and his deceased co-accused were (666) apprehended in a house where the computers were actually found. It was submitted that it was too much of an odd coincidence that the computers should have been recovered in the same place; where the Appellant and his deceased co-accused were apprehended and that this should have been the same person who, with another person, attempted to sell the computers to PW4; that the recovery of the computers having been within three days after the murder and the robbery, it fortified the confession statement alluded to by the trial Judge. It was submitted that the trial Judge was on firm ground in convicting the Appellant of the two offences based on the circumstantial evidence and the confession statement by the Appellant. We have examined the evidence on record, the Judgment appealed against and the arguments and submissions by both learned counsel. The only ground of appeal in the instant case is couched as follows:—(sic) “The trial Judge erred in law and fact when it convicted the Appellant for the offences of murder and aggravated robbery based on circumstantial evidence.” (667) Quite clearly, the ground of appeal, as presented, challenges the Appellant’s convictions on both counts for being based on circumstantial evidence. Yet, a great part of the written heads of argument and the oral submissions delved into the voluntariness of the confession statement. We propose to deal with the issue of the circumstantial evidence first. The arguments on behalf of the Appellant were that the circumstantial evidence of the prosecution did not link the Appellant to the commission of the two offences; that the circumstantial evidence could not have linked the Appellant to the commission of the offences or placed him at the scene of crime because no computers were found at the Appellant’s house as those seen at his house were poorly identified by PW4; and that the trial court failed to properly apply the doctrine of recent possession; and that the Appellant explained his reason for being at the house where the computers were recovered and from where he was apprehended with his co-accused; and that the explanation that he was at that house to collect his money from the wife of his co-accused was reasonable in the circumstances. On the other hand, the oral arguments and submissions on behalf of the State were that the circumstantial evidence sufficiently connected the Appellant to both counts, in that the evidence of PW4 established that he was approached by the Appellant and another person and attempted to sell computers to (668) him on 11th April, 2007, a day after the commission of the two offences; that the evidence of PW4 showed that he was taken by the Appellant to a house in John Laing where he was shown some computers; that the following day PW4 led the Police to a house where he had seen the computers the previous day and while the Police did not recover the computers, they recovered the Appellant’s photograph, which PW4 identified as belonging to the Appellant. Subsequently, the Appellant, according to his evidence, was apprehended together with the deceased co-accused from a house where the computers were recovered. It was submitted that it was too much of an odd coincidence that the computers should be recovered in a house from where the Appellant and his deceased co-accused were apprehended; and that the Appellant should have been the same person with another who attempted to sell the computers to PW4, a day after the commission of the two offences. We have considered all these arguments and submissions. On a consideration of the trial Judge’s Judgment, we are satisfied that all along, she was alive to the fact that there was no direct evidence linking the Appellant to the commission of the two offences; but that the Appellant and the deceased co-accused became suspects upon being found in the house from where the (669) computers, identified to have been stolen from Walk Tall Tuition Centre were found. The court accepted that whoever st ole the computers must have caused the death of the Security Guard. The court was also alive to the principles governing the application of the doctrine of recent possession as enunciated in the cases of Mbuyi Jean V. The People and Chabala Vs The People. The court was satisfied that the circumstantial evidence of the prosecution linked the Appellant not only to the stolen computers; but also to the scene of crime and the commission of the two offences. We are satisfied that in coming to this conclusion, she cannot be faulted. In our view, based on the authority of Patrick Sakala V The People, even without the challenged confession statement, the circumstantial evidence was so cogent and compelling that no rational hypothesis other than murder and aggravated robbery could the facts in this case be accounted for. There was ample evidence for finding the Appellant guilty as charged . The appeal against convictions and sentences on both counts must, therefore, be dismissed. This should have concluded the whole appeal. But counsel for the Appellant also raised the issue of the voluntariness of the confession statement, although it was not a ground of appeal. (670) At the outset, in dealing with the issue of voluntariness of the confession statement, we must observe that in her Judgment, the trial court tended to discuss the doctrine of recent possession and the confession statement together and interchangeably and thus perhaps raising some confusion and concerns. The arguments and submissions on the confession statement were that the Appellant made and signed a statement in Bemba and not in English as per statement produced; that the voluntariness of the statement produced was not established; that the court did not resolve the language in which the disputed statement was written. As we have observed, the question of voluntariness of the statement was not part of the ground of appeal and the Appellant did not seek the leave of the court to argue an additional ground of appeal. More importantly, the argument on behalf of the Appellant was that the Appellant did not make or sign a statement in English but in Bemba. The prosecution produced a statement in English which the Appellant denied making. In these circumstances, the question of holding a trial-within-a-trial did not arise. Whether the Appellant made a statement in Bemba or English, the issue became a general issue which had to be determined like any other issue in the trial. On the question of general issues, this court held in Kafuti Vilongo V The People that:- (671) (i) The objection to the production of the confession statement on the grounds that the Appellant did not understand or use the language in which it was recorded does not raise a triable issue to be dealt with by the procedure of trial within a trial; it is a matter to be dealt with as one of the general issues.” In the instant case, the court accepted that the Appellant made the statement in English for the reasons given in her Judgment. We cannot fault her. But what is important in this appeal is that even if the trial court misdirected itself on the question of the admissibility of the Appellant’s English Statement to the Police, there was nevertheless ample evidence on which it must inevitably have found the Appellant guilty as charged. This was the circumstantial evidence which the trial court properly accepted. We, therefore, dismiss the appeal against convictions and sentences on both counts. 672) E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE /rmc