Mwila and Ors v People (Appeal 134 of 2004) [2005] ZMSC 43 (1 November 2005)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CRIMINAL JURISDICTION) APPEAL NO 134 OF 2004 CHARLES MWILA ENOCK CHABU MOHAMADI BENARD MUSONDA 1st Appellant 2nd Appellant 3rd Appellant THE PEOPLE Coram: Chinva, Silomba JJS and Mushabati Ag. JS on 17th December 2004 and 1st November 2005. For the Appellant: Mr E M Sikazwe, Deputy Director, Legal Aid For the People: Mr F C R Mchenga, Director of Public Prosecutions JUDGMENT Chinva, JS delivered the judgment of the Court:- Cases referred to: 1. 2. Mushala v The People ([1978] Z. R. 58 Molley Zulu and Others v The People [1978] Z. R. 227 The appellants, ENOCK CHABU MOHAMADI, BENARD MUSONDA and CHARLES MWILA (herein referred to as 1st, 2nd and 3rd appellants respectively) were jointly charged with one Count of Aggravated Robbery Contrary to Section 294 (1) of the Penal Code, Cap. 87. The particulars alleged that the appellants on 2nd day of April 2003 at Ndola, in the Ndola District of the Copperbelt Province of the Republic of J2 Zambia, jointly and whilst acting together and whilst armed with a knife, did rob ALLAN MBAMBE of K40,000.00 cash the property of the said ALLAN MBAMBE and at or immediately before or immediately after the said robbery, did use or threaten to use actual violence to the said ALLAN MBAMBE in order to obtain or retain the said property. They all pleaded not guilty but after trial, they were all found guilty of the charge and sentenced to 20 years I. H. L They have now appealed against both the conviction and sentence. The prosecution evidence was to the effect that the complainant, in the night of 2nd April 2003, was in his house reading. At about 02 00 hours, he decided to go to the toilet, he saw three crossing his neighbour's boundary and came into his yard and surrounded him. He recognized these people as Charles Mwila, 1st appellant, Mohamadi, 2nd appellant and he recognized the 3rd appellant by face only. When the appellants surrounded the complainant, the 1st appellant got hold of his hands from the back, the 2nd appellant produced a knife and stabbed him on the forehead and left arm. The 3rd appellant dipped his hands in the complainant's trouser pocket and got K40,000 which he had. At the time of the attack, although it was dark, he was able to see the appellants as there were two spot lights at the spot where he was attacked and he knew the appellants before as they used to drink illicit beer, Kachasu, at his neighbour's house. As he was attacked, he shouted for help and 1st and 3rd appellants ran away first but the 2nd appellant remained behind insulting him and warning him of the consequences should he report to the Police and he also left. The complainant later reported the matter to the Police who gave him a Medical Report and only went to the hospital for treatment two days later as he had no J3 money. After two weeks, he saw the 1st appellant at Main Masala Market and he reported to Crime Prevention officers who apprehended the 1st appellant and took him to Masala Police Station. On 3rd November 2003 at Masala Market again, he saw the 2nd appellant. He again reported to the Crime Prevention officers who apprehended the 2nd appellant and took him to Masala Police Station. On 5th November 2003 the 3rd appellant was also apprehended. The other prosecution evidence came from the wife of the complainant who testified that when she heard the complainant shout for help, came out of the house and she saw three men surrounding her husband under a tree. She recognized these people with the help of the spot lights which were nearby as people who used to come to their neighbour to drink Kachasu and she identified these men as the appellants. PW 3 was a Crime Prevention officer who, on receiving a report from the complainant on 4th November 2003 apprehended the 2nd appellant. PW 4, a Police officer, formally arrested the appellant on different dates. At the close of the prosecution case, the appellants were found with a case to answer and were put on their defence. They all gave evidence on oath. 1st and 3rd appellants called one witness each. The 1st appellant7 s defence is an alibi. He testified that on 2nd April 2003 he was in Serenje where he was a farmer and only went to Ndola on 17th April 2003 after he got a letter from his mother informing him that his brother had died J4 on 26th November 2002. On arrival in Ndola and as he was going to his mother's house he was stopped by some people who alleged that he had attacked some people. He was apprehended and taken to Masala Police station where he was arrested for the subject offence. He denied the offence. The 2nd appellant7s defence is also an alibi. He testified that in December 2002 he was taken by his Moslem friends to go to Zimbabwe but since he had no passport he was left in Lusaka where after finding a job, he started working and only came back to Ndola on 1st November 2003. On 3rd November 2003 he came to Ndola town to look for a job and on his way to Kabushi Mosque he was apprehended and they took him to Masala Police station where he was detained without being told the reason of the detention and after three days he was arrested for the subject offence and he denied the charge. The 3rd appellant denied any knowledge of what happened on 2nd April 2003. He was in Kabushi in Ndola. On 6 November 2003, he came to town center to collect his debt. After collecting the money, he boarded a bus and disembarked at Main Masala market and started walking. When he neared Kacha village, he rested under a tree and a few minutes later, he was apprehended and taken to Masala Police station where he was accused of aggravated robbery. The 1st appellant's witness, who was his mother, testified that the 1st appellant went to the village in Serenje in 1990. When his brother died in November 2002, she wrote him a letter informing him of the demise of his J5 brother. She was unaware that he had come to Ndola until she got some news from people who had visited remand prison that her son, the 1st appellant was in prison. She visited him at the remind prison where he told her that he had been arrested and asked her to collect his belongings from the Police station. She could not tell for sure that her son was in Serenje on 2nd April 2003. The defence witness for the 3rd appellant was his wife. She testified that on 2nd April 2003 they were at home and they slept in the same house. The following day he went into town to collect his money but later learnt that 3rd appellant had been apprehended. On getting this news, she went to Masala Police station where she was told that her husband was facing a very serious charge. In considering this case, lire learned trial judge found that the only issue in dispute was the identity of the people who committed the robbery and he then went to consider the prosecution evidence as against each appellant. In considering this evidence the learned trial judge found that this was a case of a single identifying witness and he was seized of the need of eliminating the dangers of honest mistaken identification. The single identifying witness in this case was the complainant. In considering his evidence, the learned trial judge took into consideration the fact that he had known the appellants for sometime as they used to drink illicit beer at the neighbour's house and in fact he knew the 1st and 2nd appellants by their names. Further, he took into account the state of the light at the place and time of robbery and the time the robbery took place and he concluded that the complainant had good opportunity to observe his J6 assailants and that the attack was not of a flick of time and that the attackers were not strangers to him. He, therefore, ruled out the possibility of an honest mistake and accepted the identification of the complainant of the three appellants as the people who attacked and robbed him of K40,000. For each appellant7 s defence of alibi, he dismissed it as they never told the Police of this defence neither did they tell their Counsel as this possible defence was not put to any witness. He concluded that the appellants and their witnesses had cooked the defence of alibi. There is only one ground of appeal and this is that the learned trial judge erred in convicting the appellant on the evidence of a single identifying witness whose evidence, he had earlier held that it was unreliable. It was submitted that the complainant could not be relied upon because of the circumstances under which the offence is alleged to have been committed. It was argued that it was at night and he was suddenly surrounded by the assailants and he was in a shock and could not properly see his assailants. He was so shocked that he messed himself in his trousers. It was further pointed out that the complainant was not sure of his assailants as who he alleged he saw them the following day at their usual drinking place, he never made any effort to have them apprehended. He also never gave the names of his assailants to the Police although he alleged that he knew them. It was submitted that it was unsafe to sustain conviction on his evidence. On the other hand, the learned Director of Public Prosecutions submitted that the identification of the appellant by the complainant was reliable and it J7 eliminated any possible honest mistaken identity. The appellants were known before and the attack was not for a flick of a second and that the judge correctly directed himself on the dangers of convicting on a single identifying witness. We have considered the evidence and judgment on record and the submissions by both Counsel. The learned trail judge did recognize that this was a case of single identifying witness and the need to eliminate the dangers of honest mistake. In considering this issue, the learned trial judge took into account that the appellants were known to the complainant before the incident and that at the place of the attack, there were security spotlights that gave sufficient light to enable the complainant recognize his attackers. This was not an abrupt attack that lasted a few seconds. We did say in the case of MUSHALA v THE PEOPLE (1) and MOLLEY ZULU AND OTHERS v THE PEOPLE (2) that although recognition was more reliable than identification of a stranger, the Court should remind itself that mistakes in recognition of close relatives and friends are sometimes made and there is need to exclude the possibility of honest mistake. In dismissing the possibility of an honest mistake the learned trial judge did consider the opportunity presented to the complainant to observe his assailants. The complainant struggled with his attackers for sometime whilst shouting for help. After the robbery, two of the attackers ran away but the 2nd appellant remained behind warning the complainant of the consequences if he reported to the Police. Under the circumstances of this case, we cannot fault the finding by the learned trial judge that the possibility of honest mistake had been eliminated. The complainant had ample opportunity to observe and recognize his attackers. We also agree that the defences of alibi put up by the appellants J8 were an after-thought as they never told the Police on arrest. And from the cross-examination of the prosecution witnesses, it appears they never even told their Counsel as no questions were put to any prosecution witnesses suggesting the alibi. Even the witnesses called to support the defence, were not helpful to the appellants. For the 1st appellant, his witness was not with him in Serenje where he alleged to have been. He should have called his uncle who was said to be still alive. As for the 3rd appellant, his wife never testified to the events of 2nd April 2003, she only talks of the day he left for town to collect his debts when he was arrested. We find that there are no merits in the appellants' appeals and they are dismissed. As to sentence of 20 years, we were not addressed on this, we therefore do not disturb it. The appeal is dismissed. D K Chirwa JUDGE OF THE SUPREME COURT SS Silomba JUDGE OF THE SUPREME COURT CS Mushabati JUDGE OF THE SUPREME COURT