Mwisiya and Anor v People (Appeal 75 of 2005) [2005] ZMSC 41 (1 November 2005)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 74.75 OF 2005 HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: KELVIN MWISIYA SHIMANI HACHIKONA 1st APPELLANT 2nd APPELLANT AND THE PEOPLE RESPONDENT CORAM: SAKALA, CJ., SILOMBA AND MUSHABATI, JJS On 1st November, 2005. For t^ie Appellants: Mr. W. K. Cheelo, Legal Aid Counsel with | Mr. F. B. Nanguzyambo, Director of Legal Aid For the State: Mrs. F. L. Shawa-Siyuni, Senior State Advocate and Ms. M. Muzumbwe, State Advocate JUDGMENT Sakala, CJ., delivered the judgment of the Court. The two Appellants were convicted of aggravated robbery contrary to Section 294 (1) of the Penal Code, Cap.87 of the Laws of Zambia. The particulars of the offence alleged that the two Appellants, on 23rd February, 2004, at Livingstone in the Livingstone District of the Southern Province of the Republic of Zambia, jointly and whilst acting together did steal 1 wrist watch and K200,000.00 cash from Anna Kashweka and used force at the time of the robbery. They were each sentenced to 18 years imprisonment with hard labour. The prosecution evidence connecting the Appellants to the offence was given by PW1, the complainant. According to her evidence, on the material day, I after 19.00hours, on her way home from where she went to collect K200,000 for her husband, she saw four men, two standing on each side of the road. Two of them stopped her and demanded money; while the other two continued going in the direction she was coming from. She knew the two who stopped her and they also i knev^ her. They lived together in Dambwa. When she told them that she had no money, they retorted that she sells charcoal with her husband. Thereafter, she was hit on the left eye and she fell. One of them held her on the month; while the other got the money from her pocket. According to her further evidence, she resisted and in the process her assailants tore her underpant and took turns in raping her. Thereafter, she reported the matter to PW2, who was reluctant to escort her because he was afraid that the assailants would attack again. She reported the matter to the Police where she was given a Medical Report and taken to the Clinic. PW1 also explained that she had known the Appellants by names for about four to five years. In their defence on oath, both Appellants denied being at the scene. They further denied attacking the complainant. But they all admitted knowing the complainant. The Court considered the evidence of PW1, the complainant, and the circumstances under which she was attacked. The Court found that she had the opportunity to see her attackers and that the possibility of an honest mistake had been ruled out. The Court concluded that the prosecution had proved its case beyond reasonable doubt and convicted the Appellants accordingly. The Appellants have appealed against their convictions. There is one i ground of appeal, namely: that the learned trial Judge erred in law and misdirected herself when she relied on the evidence of a single witness without properly taking into account the possibility of an honest mistaken identity. The submission on this ground was that from the evidence on record, it was not in doubt that the learned trial Judge relied on the evidence of PW1, who was the only identifying witness. It was contended that the witness did not describe the physical features of her attackers. It was also submitted that the fact that PW1 stated that she knew the names of the Appellants was not in itself enough on the question of identification. It was further submitted that this was a case where there could have been a possibility of an honest mistake. We were urged to quash the conviction. On behalf of the State, Mrs. Shawa-Siyuni supported the conviction contending that the learned trial Judge did not err in relying on the evidence of a single witness. It was submitted that the evidence of a single witness was sufficient so long the quality of that evidence was good. It was pointed out that in this particular case, the complainant recognized her attackers before they pounced on her. She even conversed with them and knew them. It was submitted that the evidence of the complainant was not shaken. She explained to the Court the circumstances under which she recognized the Appellants. She elaborated how they were dressed and the roles each one of them played. On the question of I moonlight and feasibility, it was submitted that PW2, to whom the complainant immediately complained of the incidence, corroborated her. In conclusion, it was submitted that the complainant had ample opportunity of observing her assailants. We have addressed our minds to the evidence on record, the judgment of the learned trial Judge, the submissions by both learned counsel. Whether the evidence of a single witness is to be relied on or not depends on the circumstances of each particular case. In the particular case before us, there is no doubt that the complainant had ample opportunity of identifying her assailants. Firstly, there was moonlight. Secondly, there was a conversation between them before the assailants pounced on her. Above all, it was common cause that the Appellants knew the complainant and the complainant knew them for a long time. We are satisfied that the complainant had ample opportunity of identifying her assailants. The question of an honest mistake of identification did not arise. The trial Court properly convicted the Appellants on reliable evidence of PW1, the complainant. The appeal against convictions is therefore dismissed. On sentence, we take note that there was too much violence in that the complainant’s underpant was tom. The complainant was even taken to a clinic. In disapproving the offence of aggravated robbery, we set aside the sentence of 18 years imprisonment with hard labour. In its place, we impose a sentence of 20 years imprisonment with hard labour on each Appellant. i I E. L. SAKALA CHIEF JUSTICE S. S. SILOMBA SUPREME COURT JUDGE C. S. MUSHABATI SUPREME COURT JUDGE IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) APPEAL NO 96 OF 2004 RODRICKTEMBO MUTEMWA MUTOLEKA 1st Appellant 2nd Appellant V THE PEOPLE Coram: Chirwa, Chibesakunda and Chitengi on 17,h May 2005 and 1st November 2005 For the 1st Appellant: Mr R K Malipenga, of Malipenga & Company For the 2nd Appellant: In Person For the People: Mr J Mwanakatwe, Deputy Chief State Advocate JUDGMENT Chirwa, JS delivered the judgment of the Court- Case referred to: 1. Chimbini v The people [1973] Z. R. 191 The appellants, Rodrick Tembo and Mutemwa Mutoleka (hereinafter referred to as 1st and 2nd Appellant respectively) were jointly charged with two others with one Count of Aggravated Robbery, contrary to Section 294 (2) (a) of the Penal Code, Cap. 87. The particulars of the offence alleged that the appellants and two others on 1st January 2001 at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other J2 unknown persons and whilst being armed with firearms did steal from FAHEEMA KHAN K8 million cash, 1 gold chain, 1 wrist watch, 1 brief case altogether valued at K9,250,000.00 the property of HACKIM ABDEL and at or immediately before or immediately after stealing did use or threaten to use actual violence to the said FAHEEMA KHAN in order to obtain or retain the said property or to prevent or overcome resistance from its being stolen. Upon their conviction, they were sentenced to death. They have now appealed against both conviction and sentence. The evidence against the appellants was mainly from PW 1 the complainant who testified that on the 1st January 2001 between 08 : 00 hours and 09 : 00 hours she was in the kitchen in her house cooking when five men entered the kitchen. Three of these people were dressed in Police uniforms and they had two AK 47 rifles. They introduced themselves as officers from the Drug Enforcement Commission (DEC) and they wanted her husband and that they were looking for drugs. She told them that her husband was not around and that they were not drug dealers. They then pulled and dragged her in the sitting room where she and her maid were made to sit down. A gun was pointed at her head. Three of these men went to search the rooms while two of the armed men remained guarding her. They did not find what they wanted. They then demanded money and she pointed at the brief case in which there was K8 million. They took the case, her gold bungle and wrist watch. They then locked them in the bathroom and they left. The whole episode took between twenty and thirty minutes. The matter was reported to the Police. Few days later she attended an identification parade where she J3 identified two men. She identified these men because they were the ones that were guarding her. One was holding her shoulders and the other was pointing a gun at her head. The two she identified are the two appellants. The second prosecution witness was a Police officer who conducted the identification parade who confirmed that the complainant identified the two appellants at the parade. The last prosecution witness was the investigating and arresting officer. He testified that on 1st January 2001 he received a report of armed robbery that occurred in Makeni. He visited the scene. The following day he got some information that those involved were Police officers from Chunga Police Post. In the course of his investigations he apprehended the 1st appellant who led him to the other people who were jointly charged with the appellants but acquitted. He also recovered from the 1st appellant’s house a brief case and <250,000.00. The brief case was later identified by the complainant as the one stolen from her in which she had <8 million. Later he arrested the appellants and the two others. On being put on defence, the two appellants gave evidence on oath. The 1st appellant in his defence testified that on 7th January 2001 he knocked off from his Chunga Police Post at about 09 : 00 hours having worked the whole night and went home to rest. He slept and at about J4 12 : 00 hours he was awakened by his wife saying there were his workmates who had come to see him. He went outside and found seven Police officers and out of these he identified two as his workmates. They told him that they had come to search his house and he allowed them. In the house, the officers went straight to the table on which he had put his wallet containing <250,000.00, his December salary. From there he was taken and detained at various Police stations and on 12th January 2001 he was put on identification parade where no one identified him. He was later jointly arrested and charged with the present case. He denied that a brief case identified by the complainant was found in his house. The 2nd appellant testified in his defence that on 10th January 2001 around 05 : 30 hours Police officers came to his house and they asked him about the gold chain, wrist watch and <8 million. He denied any knowledge of those things. From there they took him into Police custody. On 12th January 2001, he was put on an identification parade but no one identified him. The 1st appellant called one witness who testified to the effect that 1st appellant's house was searched and the Police collected a radio and <250,000.00 and he produced a document purportedly written by PW 3 indicating the goods seized from the 1st appellant's house. The learned trial judge considered the evidence and made some findings of fact. He found as a fact that robbery had been committed. He found as a fact that this was a case of a single identifying witness and J5 concluded that she had ample opportunity to identify the two appellants. He accepted that the complainant’s brief case and <250,000.00 were found in the 1st appellant's house. He rejected the 1st appellant's evidence that the <250,000.00 found in his house was his December salary. He found that the evidence against the two appellants was overwhelming and convicted them. The only ground advanced on behalf of the 1st appellant is that there was no proper identification of the appellants and that there was dereliction of duty by the Police in that they did not lift finger prints from the brief case allegedly found in the 1st appellant's house. It was argued that the appellant denied ever being identified at the identification parade and that this could have been cleared had the pictures taken at the identification parade been produced in Court. It was further argued that there was dereliction of duty by the Police in that they did not lift finger prints from the brief case allegedly recovered from the appellant’s house. The 2nd appellant filed detailed written heads of arguments in which he is also attacking his identification submitting that although PW 1 stated that he was with the 2nd appellant for about 20 minutes, she never gave his description to the Police and that in fact PW 1 was forced to give evidence against him. He submitted that this was a single identifying witness case and the witness ought to have given his description to eliminate possible honest mistake. With this poor identification and as J6 nothing was recovered from him, there is no link to connect him to the crime, it was submitted. We have considered this ground of appeal. It is a fact that this is a case of a single identifying witness and as such the possibility of an honest mistake must be eliminated. As we said in CHIMBINI V THE PEOPLE (1), it is always competent to convict on the evidence of a single witness if the evidence is clear and satisfactory in every respect; where the evidence in question relates to identification there is the additional risk of an honest mistake, and it is therefore necessary to test the evidence of a single witness with particular care. This, learned trial judge was very much aware and he warned himself of this danger. According to PW 1, the only identifying witness, the whole episode took about 20 - 30 minutes and it was during broad day-light. The people who came to raid her house were five. While three of them were searching her house, the two appellants remained guarding her. One in Police uniform was holding her shoulder and she identified the 1st appellant as the person involved. She identified the 2nd appellant as the one who was pointing a gun in her head. She identified the two at an identification parade conducted by PW 2 who confirmed the identification. In addition to this identification there is further evidence against the 1st appellant; a brief case stolen during the robbery was found in his house. Further as against the 1st appellant, it is too much of a coincidence that he is in fact a Policeman. Both appellants denied being identified at an identification parade. Why should PW 1 and PW 2 tell lies about the identification when there is evidence that PW 1 only picked the two of them out of a line of 14 J7 people. It was a matter of credibility of the witnesses and the learned trial judge in his finding found that PW 1 had ample opportunity to observe her attackers. We therefore find no merit in the appeal against the conviction and it is dismissed. Upon their conviction, the appellants were sentenced to death under Section 294 (2) of the Penal Code. The learned Deputy Chief State Advocates does not support the sentence as no evidence or proof that the appellants were armed with a firearm as defined under the Firearms Act. This is a proper stand taken by the State. We squash the death sentence. In considering the proper sentence, we feel that this is not a case in which a minimum sentence can be passed. The offence is aggravated by the fact that there was the use of security (Police) uniform in this case. The appropriate sentence is 20 years. The appellants are therefore sentenced to 20 years IHL with effect from the date of arrest. To this extent, the appeal against sentence succeeds. D K Chirwa JUDGE OF THE SUPREME COURT L P Chibesakunda JUDGE OF THE SUPREME COURT P Chitengi JUDGE OF THE SUPREME COURT