Ng'uni and Ors v People (SCZ Appeal 70 of 2007) [2008] ZMSC 144 (6 June 2008)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) SCZ APPEAL NO. 70/2007 BETWEEN: CHRISTOPHER NG’UNI RAMBO MUTETE ABEL MWANZA AND THE PEOPLE 1st APPELLANT 2nd APPELLANT 3rd APPELLANT RESPONDENT CORAM: Mambilima, DCJ, Chitengi, JS, Kabalata, AJS On 5th and 6th June, 2008. For the Appellant: For the Respondent: Mr. C. F. R. Mchenga, Director of Public Prosecutions L. E. Eyaa, Deputy Director, Legal Aid J U D G M E NT Chitengi, JS., delivered the Judgment of the Court Cases referred: 1. AH and Another V The People (1973) ZR 232 2. Tiki and Others V The People (1975) ZR 194 The appellants were convicted on the first count of the offence of murder contrary to Section 200 of the Penal Code Chapter 87 of the Laws of Zambia and on the second count of the offence of aggravated robbery contrary to Section 294(2) of the Penal Code Chapter 87 of the Laws of Zambia. On the first count the appellants were each sentenced to the ultimate penalty of death. On the second count the appellants were each sentenced to 16 years imprisonment with hard labour effective from 12 May 2003, the date of their arrest. The particulars of offence in the first count are that Christopher Ng’uni, Rambo Mutete and Abel Mwanza on 17th May 2001, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia jointly and whilst acting together with other persons unknown did murder Doubt Munsaka. In the second count the particulars are that Christopher Ng’uni, Rambo Mutete and Abel Mwanza on 17 May 2001 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia jointly and whilst acting together with other persons unknown and whilst being armed did steal from Doubt Munsaka 3 blankets, 2 radios, 3 pairs of shoes, 4 pairs of trousers, assorted clothes, assorted plates and cups together valued at K350,000.00 and at or immediately before stealing did use violence to the said Doubt Munsaka in order to overcome or prevent resistance to the said property being stolen. The facts of this case can be briefly stated. At 02.00 hours on 17th May 2001, the deceased Doubt Munsaka and his wife Mutinta Simuyaba Nkondo (PW1), were awakened by a group of four robbers who burst into their house. The house was lit and the robbers had three torches. Among the robbers PW1 recognized the first and third appellants as her neighbours for four years and the second appellant whose name she did not know. The appellants and the other robber demanded money from the deceased and when the deceased told them he had no money the appellants took property from the house and went away. After few minutes the robbers returned and said the deceased had recognized them which the deceased denied. After that the robbers accused the deceased of going about with their wives and ordered the deceased to lie down. When the deceased lay down the first appellant repeatedly hit the deceased on the head with an iron bar while the second and third appellants and the other robber urged him on. The first appellant continued to hit the deceased on the head until the skull broke and the brain matter came out. The injuries bled profusely and the deceased lost consciousness. At this stage the robbers left. After the robbers had left the deceased’s elder brother, Brian Munsaka (PW2), was called and he took the deceased to Los Angeles Police Post and later the University Teaching Hospital where the deceased died of his injuries. During the robbery three blankets, two radio cassette players, three pairs of gents shoes, four pairs of trousers, the deceased’s suits and shirts, PW1 ’s clothes, a water cooler, cups and plates together valued at K350,000.00 were stolen. Later PW1 identified all the appellants at an identification parade. However, PW1 said she did not know the second appellant before but she recognized and later identified the second appellant at an identification parade. But according to D/C Inspector Edward Kabwe (PW3) a Crimes Technician PW1 only identified the first and the third appellants at the identification parade. And according to D/C Inspector Moses Siwale (PW5) who conducted the identification parade, PW1 only identified the first and third Appellants and one Justine Seti. The first Appellant’s defence is a total denial of the charge and he said he was apprehended at his house by police who came with a handcuffed man who he knew facially and from whom he had bought a trousers and a shirt. According to the second appellant he was apprehended by the police on 31st May 2001 as he was going home from a drinking spree and taken to the police station where the following day he saw the other appellants. Later he was put on an identification parade with the first and third appellants. PW1 identified the first and third appellants at the identification parade. After the identification parade he was jointly charged with the first and third appellant’s for the subject offences which he denied. The third Appellant’s story is that he was arrested when he went to see his friend one Mike Mwanza at Kanyama Police Station. He saw the first appellant for the first time at Kanyama Police Station. Later he was put on an identification parade where he was identified by PW1 who he had found in the office of the Officer-in-Charge and who he used to see in the neighbourhood he was living. When the Officer-in-Charge told PW1 that he (3rd Appellant) was a suspect in the case, PW1 then said that she had been seeing him in the compound. When arrested for the subject offences he denied the charges. On this evidence the learned trial Judge found that the Appellants were properly identified and that the appellant were part of the group which killed the deceased and staged the robbery. Accordingly, the learned trial Judge convicted the appellant for murder and aggravated robbery. The Appellants now appeal to this court against their convictions and have advanced two grounds of appeal. The first ground of appeal is that the Hon. trial Judge misdirected himself in convicting the appellants on evidence of identification by single witness which evidence was not free from possibility of error as it had a lot of contradictions. The second ground of appeal is that the Hon. trial Judge misdirected himself in convicting the appellants in the absence of other evidence that would have cleared the contradictory evidence of single identifying witness in the case. Mr. Eyaa, the learned Deputy Director of Legal Aid, filed written heads of argument. The gist of Mr. Eyaa’s written heads of argument on ground one is that the evidence of PW1 as to identity of the appellants was not reliable because PW1 contradicted herself. Mr. Eyaa pointed out that at first PW1 said it was very dark in the house but later said there was light in the house. Mr. Eyaa also attacked the value of the identification parade when evidence is that PW1 had seen the appellants in the office of the Officer-in-Charge before the identification parade. It was Mr. Eyaa’s submission that PW1 was not sure of the identification of the first and third appellants and that PW1 did not even identify the second appellant at the identification parade. On the second ground of appeal Mr. Eyaa talked about the property stolen from the deceased’s house but was later recovered. Mr. Eyaa pointed out that the witnesses from whom the property was recovered were not called to testify. We do not see the need for this ground of appeal because the learned trial Judge never relied on the recovered property to link the appellants to these two heinous crimes. We say no more of this ground of appeal. Mr. Mchenga, the learned Director of Public Prosecutions, supported the convictions against the first and third appellants. It was Mr. Mchenga’s submission that the evidence shows that the incident took a considerable long time which gave PW1 the opportunity to identify the first and third Appellants who were earlier known to PW1, a fact which the first appellant confirmed. As regards the second Appellant, Mr. Mchenga did not support the conviction against him on the ground that there was no evidence. Mr. Mchenga pointed out that the only evidence is that the second appellant’s co-accused led the police to the second appellant and that the identification is court identification which is not evidence. We have carefully considered the evidence that was before the learned trial Judge, the submissions of Counsel and the judgment appealed against. We propose to deal with the second appellant first. We agree with the learned Director of Public Prosecutions that there was no evidence to link the second appellant to these offences. The second appellant was not identified by PWlat the identification parade. The only evidence of identification is that of identification in court during the trial. But as the Court of Appeal, the forerunner of this court, said in AH and Another V the People (1) court identification is no identification. For these reasons, we must interfere with the convictions of the second appellant as the charges against him were not proved beyond all measurable doubt. We allow the Appeal by the second appellant quash the convictions against him and direct that he now be set at liberty. The nature of the evidence is such that we have to deal with the first and third appellants together. The critical issue as far as appeal by the first and the third appellants is concerned is the identity of the persons who perpetrated these offences. The issue in matters of identity is not so much the truthfulness of the witness but the reliability of the evidence of identity: Tiki and Others V the People (2). The complaint in this appeal is that the evidence of identity by the single witness (PW1) was not satisfactory. It is true as Mr. Eyaa submitted that PW1 at one stage said that it was dark in the house and later said that she was able to identify the first and third appellants because the house was lit. But considering the evidence of PW1 in its totality we are left in no doubt that at the time of the robbery and the murder of the deceased the house was lit. The graphic description given by PW1 as to how her husband was killed and property stolen puts beyond all reasonable doubt the fact that the incident took place in lit circumstances where PW1 was able to see what was happening and not in darkness. And we agree with the learned Director of Public Prosecutions that the incident took a long time which gave PW1 ample opportunity to identify the first and third appellants whom she knew within the neighbourhood for about four years. We are satisfied that the evidence of PW1 excludes the possibility of an honest mistake. Mr. Eyaa attacked the identification parade as not having been properly conducted. On our part, we say that the identification parade was totally valueless and a waste of time. You cannot call a witness to identify a person whom the witness already knows. The evidence on record is that PW1 knew the first and third appellant for almost four years before the incident. Taking and considering all the evidence together we are satisfied that the first and third appellants were properly convicted. In the event, we find no merit in this Appeal and we dismiss it and affirm the sentences imposed on the appellants. I. C. MAMBILIMA DEPUTY CHIEF JUSTICE ........... ........................................................ P. CHITENGL SUPREME COURT JUDGE AG/SUPREME COURT JUDGE 9