Nkandu Musonda and Anor v People (APPEAL 203, 104/2019) [2020] ZMCA 238 (28 February 2020)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Cri mi nal J uris di c ti on ) APPEAL 103,104/2019 BETWEEN: NKANDU MUSONDA EMELDAH MUMBA AND THE PEOPLE . . - ' , Jl;tr -:::: .. ·.. - ~ ..... ·!'1( ::-, ~}J 28F · 1 ST APPELLANT 2ND APPELLANT ·----• ' 'I,( I\. _.- RESPONDENT CORAM: Mchenga DJP, Sichinga and Majula, JJA On 19t h November 2019 and 28 t h February 2020. For the Appellants: Mr. K. Katazo- Senior Legal Aid Counsel Legal Aid Board For the Respondent: Mrs. G. Mulenga - Principal State Advocate , National Prosecutions Authority JUDGMENT Mchenga, DJP, delivered the judgment of the court. Cases referred to: l . Miyoba v The Peopl e [1977] ~ . R. 218 2 . S akal a v The Pe ople [ 198 0] Z . R. 20 5 3 . David Zulu v The Pe ople [19 7"7] Z . R. 1 51 4 . Do ro thy Muta le and Ri chard Phi ri v Th e Pe op le (1 99 7 S. J . 51 5 . Phi ri and Ri chard Phiri v The People [1973] Z . R . 47 6 . Mbinga Nyambe v The Pe opl e [ 201 1 ] 1 Z. R. 246 7. Nkhata And Four Others v The Attorney-General of Zambia J2 [1966] Z. R. 124 8. Maseka v The People [1972] Z. R. 9 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia Introduction 1. This appeal emanates from the judgment of the High Court (M. Chanda J.), delivered in Livingstone, on 3 rd August 2019. 2. The appellants, appeared before that court on an information containing one count of the offence of murder contrary to section 200 of the Penal Code. The allegation was that on 13 th January 2018, at Livings t one, jointly and whilst acting together, they murdered Edwin Mungala. 3. They both denied the charge and the matter proceeded to trial. At the end of the trial, they were both convicted of the offence and condemned to suffer capi tal punishment. 4. This is an appeal against the convictions. Evidence before the trial court J3 5. On 13 th January 2 018, Alex Muketoi threw a birthday party at the poolside of the Livingstone Royal Golf Club. The host was the 1 st appellant, who worked at the golf club and present with him, was the 2 nd appel l ant, his girlfriend. 6. The party began around 14:00 hours and the persons in attendance included Edwin Mungala, Keagan Alisanda Mlaambo, Leonard Siwale, Alex Muketoi, Ramson Chilu l we and Jeff. Between 18:00 and 19:00, Edwin Mungala was seen in the pool and the 1 st appellant and Alex Muketoi dived into the pool and retrieved him. Thereafter, t h e 1 st appellant applied first aid to resuscitate him, but it was in vein. Keagan Alisanda Mlaambo, Alex Muketoi, Ramson Chilulwe and Leonard Siwale, denied see i ng the appellants assault Edwin Mungala or seeing how he ended up in the swimming pool. 7. Keagan Alisanda Mlaambo, Alex Muketoi, Ramson Chilulwe and Leonard Siwale suggested that they take him to the hospital because he was non-responsive. The 1 st appellant told them that it was not necessary because he was no t J4 dead; he was jus t drun k and was go ing to come aro und . He warned them that taking him to hospital would bring the police into the picture . He also told them that if that were to happe n, he wou l d d eny b eing present at the party or e ven being with Edwin Mungala on t hat d ay. 8 . According to the 1 st appellant , when he sugges ted tha t t hey take him home, Alex Muketoi refused. Since he kne w where Edwin Mungala s tayed, he offered to t ake him home. Afte r he wa s dres sed up, they carried him to where a t axi would pick him as h e was unable to walk on his own. As they did so , two bottles fell out of his pockets . One was of Codei ne , a prescript ion drug and the other was o f a lcohol. 9 . As the 1 s t appellant was looking fo r a taxi , Robert Musazulwa arri ved to p i ck up Leonard Siwale , Keagan Alisinda Mlaambo and Alex Muketoi. He observed that tho ugh Edwin Mungala appea red unwell, he wa s st il l breathing . He o ff ered to ta ke him to the ho spital but the 1 st appe l lant declined the o ff er insisting that he was just drunk and tha t he would t ake him home. He hired Thomas Chirwa 's taxi and they left the go l f club . JS 10. Thomas Chirwa's taxi carried Edwin Mungala, the two appellants, Jeff and Jeff's girlfriend, and they headed for Libuyu Compound. Before they could get to Edwin Mungala' s home, Thomas Chirwa told his passengers to disembark as he had to pick another client, he had a prior arrangement with. Thomas Chirwa's observation at that point, was that Edwin Mungala's condition had not improved. He was shaking but he did not utter a word. He had to be lifted out of his taxi by the 1st appellant and Jeff. 11. According to the 1 st appellant, after they got out of the taxi, they helped Edwin Mungala walk home. On the way, they met 3 men and Jeff excused him, saying the three men, who were friends, where going to help him take Edwin Mungala home. The 1st appellant said he went to his mothers' house. 12. That evening, around 20:00 hours, Edwin Mungala was picked from the road side, near the house where he lived by George Mwila. He was unconscious and bleeding from the nose. His clothes were dirty. They took him t o Libuyu J6 Clinic, where he was ce rti fied d ead . The incidence was then reported t o Libuyu pol ice station. 13 . In the days tha t foll o wed, the two appellant s, Keagan Ali sanda Ml aambo, Al ex Muketo i, Ramson Chi lulwe , Thomas Chirwa and Leona rd Siwale, were a ll detained in connection with Edwin Munga la 's death . The police looked for Je ff and his girlfriend, but never fou nd them. 14. Dr . Taras Soltytsky conducted po stmort em on the body of Edwin Mungala . He obs erved bruises on the face and intracranial haemorrhage in si de the skul l. Also broken ribs a nd rapture of the lun gs. He concl uded that the cause of death was head injuries . Trial judge's findings 15 . The trial judge f o und that Edwin Mungala died a s a res ult a physical attack. Having vi sited the golf c lub during the trial, she too k the view tha t since the party took place in a compact and well-lit pl ace, it i s not possible that all the wi tnes se s could not have seen what happened. She con clude d that Keagan Alis inda Mlaambo, Rams on Chilulwe, Leonar d Siwale and Al ex Muke toi, were not ent irely truthful in their claims that t hey did not J7 know what had happened to Edwin Mungala at the pool that evening. She decided not to attach much weight to their testimony. She accepted Thomas Chirwa and Robert Musazulwa testimony that when they got to the golf c l ub, Edwin Mungala's condition was critical but that t he 1 sL appellant resisted suggestions that he be taken to the hospital. 16. The trial judge also took. the view that the 1 8 t appellant's conduct was not consistent with that of an innocent person. While he claimed that he did not know Edwin Mungala prior to the party, he offered to take him home and settle his taxi bill. Further, while he appeared to be keen to take him home, he left him mid-way in Libuyu, with Jeff and unknown people. She attributed that conduct to that of a person with a guilty mind. 1 7. The trial judge opined that the l-5 t appellant's resistance to taking Edwin Mungala to the hospital and fear of the police getting involved, was because he had inflicted the injuries that caused his death. 18. She concluded that the only inference that could be drawn from the evidence before her was t hat the 1 " t JB appellant played a maJor role in inflicting the injuries Edwin Mungala suffered. After removing h im from t he swimming pool, the 1 st appellant realised that he was dead and decided to cover his tracks by insisting on taking him home when his actual intention was t o dump him elsewhere. 19. As regards the 2~ appellant, the trial judge no t ed that there was no direct evidence of her participation in assaulting Edwin Mungala. However, she was present during the scuffle and in her statement to the pol i ce, she mentioned that a quarrel ensued between Edwin Mungala and some of the attendees at the party. There was no evidence that she discouraged her boyfriend f r om committing the offence. Further, she concealed the fact that the 1 st appellant had dumped the body of Edwin Mungala in Libuyu. On the basis of this evidence, s h e concluded that by omitting to dissuade him, she had a i ded and abated the 1 st appellant's commission o f the offence. Grounds of appeal 20. A total of four grounds have been advanced in support of these appeals. In the main, the ground in support of J9 the 1 st appellant's appeal is that an inference of guilt, is not the only one that could have been drawn on the circumstantial evidence that was before the trial judge. 21. As regards the 2~ appellant, two grounds have been advanced in support of her appeal. The first is that the trial judge should not have placed any re l iance on the contents of a statement she is said to have made to the police because it was not produced in evidence. The second ground is that the evidence before the trial cour t did not prove that she aided and abated the commiss i on of the offence. 22. The fourth ground of appeal, which the appellan t s have termed an "alternative argument" is that the prosecution did not prove, beyond reasonable doubt, that the body that was examined by the pathologist was that of Edwin Mungala. 23. The state does not support the convictions for reasons that will be set out in due course. Did the 2 nd appellant aid and abate the murder? 24. Because it is convenient, we will first deal with the arguments in support of the 2 nd appellant's appeal. JlO The first argument was that in determining the case against her, the trial judge erred when she referred to a statement, she is said to have made to the p olice, which was not produced in court. Mr. Katazo referred to the case of Miyoba v The People1 and submi t ted t h at for depositions to be referred to by any court , they must be formally produced during the trial. 2 5. We accept Mr. Katazo' s argument. In the case of Miyoba v The People1 in which the Supr eme Court he l d, inter alia, that: (1) The general rule is that the contents of a statement made by a witness at another time, whether on oath or otherwise, are not evidence as to the truth thereof; they are ammunition, and only that, in a challenge of the truth of the evidence the witness has given at the trial. (2) Neither the depositions taken at a preliminary inquiry nor statement to the police which in summary committal proceedings are furnished to the court and the defence, are formally before the court, the court is not entitled to have regard to the contents of such depositions or statements." Since the statement that the 2 nd appellant is sai d t o h a ve made to the police was not produced by any witness during the trial, the trial judge should not have r elied on its Jll contents when considering the case against her. The case against the 2 nd appellant must therefore be assessed without any reference to the statement. 26. Without the statement, there was no eviden ce incriminating the 2 nd appellant in a n yway. All the evidence points at, is her presence at the pool and riding on the taxi that was taking Edwin Mungala after he h ad been retrieved from the swimming pool. None of the witnesses point at her doing or saying anything suggesting that she had anything to do with the injuries he suffered. In our view, properly directing herself, the trial judge would have in fact found her wit h no case to answer, at the close of the prosecution's case. Inference of the 1 st appellant being guilty, the only inference? 27. Mr. Katazo pointed out that the trial Judge's finding that the 1 st appellant played a major role in inflicting the injuries sustained by Edwin Mu ngala was not supported by any evidence. That being the case, the r e was no basis on which an inference that he was gui lt y could have been drawn. He referred to the cases of Sakala J12 v The People2 , David Zulu v The People3 , Dorothy Mutale and Richard Phiri v The People4 and Phiri and Another v The People5 , in support of the proposition. State's response to the grounds of appeal 28. As earlier indicated Mrs. G. Mulenga did not suppor t the convictions. She pointed out that some findings on which it was premised, were not supported by the evidence. Particular reference was made to the tri al Judge's finding that Edwin Mungala died as a result of a physical injury, but that did not coin cide with t h e pathologist's evidence that his head injuries were caused by an impact or a blunt or hard surface metal bar. 29. As regards the 1st appellant's resistance to ta ke Edwin Mungala to the hospital, she submitted that in t h e face of evidence that a bottle of codeine fell out of his pocket, it is possible that he would have fea r ed getting in trouble because it was a prescription drug. 30. It is common cause that the case again st the 1 st appellant is anchored on circumstantial evidence because there is no direct evidence implicating him in t h e Jl3 infliction of the injuries that caused Edwin Mun gala ' s death. After accepting the two taxi drivers' evi dence that al though Edwin Mungala was unconscious, t h e 1 st, appellant resisted the offer or suggestion, that he be taken to the hospital, the trial judge concluded that the resistance was because he wanted to dump the body after discovering that he was dead. 31 . In the case of Mbinga Nyambe v The People6 , it was held, inter alia, that: "Where a conclusion is based purely on inference, that inference may, be drawn only if it is the only reasonable inference on the evidence; ............... " Further, in the case of Nkhata And Four Others v The Attorney-General of Zamhia7 , it was held, inter al ia, that: "A trial judge sitting alone without a jury can only be reversed on questions of fact if (1) the judge erred in accepting evidence, or (2) the judge erred in assessing and evaluating the evidence by taking into account some matter which he should have ignored or failing to take into account something which he should have considered, or (3) the judge did not take proper advantage of having seen and heard the witnesses, (4) external evidence demonstrates that the judge erred in assessing manner and demeanour of witnesses. J14 32. Crucial to the conclusion that the 1st a p pellant committed the offence was the finding that he resisted taking him to the hospital because he discovered that Edwin Mugala had died and he decided to dump the body. He appeared to volunteer to take him home, when his intention was actually to dump him before they reache d where he used to stay. 33. The evidence of both Thomas Chirwa and Robe r t Musazulwa was that when they got to t he golf club, they found Edwin Mungala unconscious. According to Robe r t Musazula, he was still breathing when he was taken t o Thomas Chirwa's taxi. They both made no mention of the bruises and bleeding that was observed George Mwila whe n he picked Edwin Mungala, later that evening. 34. This being the case, the trial judge's conclus i o n that the 1 st appellant decided to place Edwin Mungala i n Thomas Chirwa's taxi, to dump him, after he d i scovered that he was dead, is not supported by the evidence. The evidence actually indicates that he was still a l ive a t the point the decision to place him in t h at taxi was being made. J15 35 . Furthe r, from the te s timony o f Thomas Ch irwa , it is clear that the decision not to take Edwin Mungala home was not made b y the app ellant, but Thomas Chirwa. He to l d t he cour t that he d ecided to drop h is pas s enger s b efo r e t he y r eached the ir de s tina t ion i n o rder t o pi c k up another customer . In the face of this evidence, there is no basis on which a conc l us i on could have been arri ved at , t hat t he 1 st a ppe ll an t, intended to dump Edwin Mungal a , a t the time he r esi st ed t aking h im t o the hospital and offered to take him home . 36 . In the case of Maseka v The People8 , the following guide line s were give n on when an infere nce of guilt can b e dr awn where an accus ed per son ha s g iven a n expl a nati o n : " ... . and if an explanation is given , because guilt is a matter of inference, there cannot be a conviction if the explanation might reasonably be true , for then guil t is not the only reasonable inference . It i s not correct to say , as was said i n this case, that the accused mus t give a satisfactory explanation . Absence of an explanation which can be regarded as r e asonably possible is one of the f a cts on which the inference of gui1t may be based. " 37 . In th i s ca s e, h a d t he tri a l jud ge c o nsi de red whet he r Jeff' s disappearance after Edwin Mungala was found J16 injured, h ad a ny i mpl icat ion on the ca se , she would have probably come to the conclusion that the 1 st a ppell ant' s eviden ce tha t he went away with Edwin Mungala, sho rtl y be f ore he was found d ead , could reasonably have been true . Of all p e ople who were at the party and travelled with him, he is the only one who went i nto hiding aft er Edwin Mugala was found dead with injuries. There i s no explanat ion fo r this conduct. 38. Fur the r, the 1 s t appellant ' s reluctance to go to the hospital and get t he "pol ice i nvolved", can, as pointed o ut by Mrs. Mulenga, be at t ribu ted to the discovery that Edwin Mungal a may hav e consumed codeine, a pres cribed drug, on hi s pre mi se s. It c anno t be not wholly b e att ribu ted t o "a guilty knowled ge". 39. Consequent l y , we find that properly d irect i ng hersel f, the trial judge would not h ave come to the conclusion tha t an i nference that the 1 st appellant inf licted the in juries that cased Edwin Mungala' s dea t h, is t he only i nference that could have been drawn on the eviden ce tha t wa s befo re h er. Verdict J17 40. In the circumstances we find that the appellan t s convictions unsafe and unsatisfactory. We accordingly allow their appeals, quash their convictions and set aside the sentences . . F. R. DEPUTY JUDGE PRESIDENT a JUDGE ········;~ ~ ~---··· COURT OF APPEAL JUDGE