Paison Twezi Chilufya and Ors v The People (Appeal No 111, 112,113/2022) [2023] ZMCA 317 (20 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No 111, 112,113/2022 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: PAISON TWEZI CHILUFYA MWABA MUPESENI SAMUEL KALONDA AND THE PEOPLE , l - 1st APPELLANT 2nd APPELANT 3 rd APPELLANT RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA On 22nd March 2023 and 20th November 2023 For the Appellant: Ms. M. Marebesa - Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Ms J. Phiri Banda State Advocate/ National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Simon Miyoba v the People (1977) ZR 218 2. Boniface Chola & Others v the People (1988-1989) ZR 163(SC) J2 3. Dickson Sembauke Changwe and !fellow Hamuchanje v the People (1988-1989) ZR 144 (SC) Legislation referred to: 1. The Penal Code Chapter 87 of the laws of Zambia 1.0. INTRODUCTION. 1.1. The appellants were charged with one count of the offence of vandalism contrary to Section 314 d (1) (2) (i) of the Penal Code as read together with Act No. 17 of 2007 of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of the offence allege that the appellants on the 8th of December 2019 at Ndola in the Copperbelt Province of the Republic of Zambia jointly and whilst acting with other unknown persons, did vandalise a 120mmq x 12 meters x 3core cable valued at K 6,171.60 the property of ZESCO Limited, property essential for or incidental to the provision of necessary supply of electricity to the public. 1.2. The appellants were convicted and sentenced to ten years with hard labour by Mulanda J. 2.0. EVIDENCE IN THE COURT BELOW 2.1. The appellant's conviction was secured by the evidence of four prosecution witnesses. A summary of the evidence incriminating the appellant was that PWl found ZESCO cables which pass through his field had been dug up. J3 Fearing that he may be suspected of having something to do with it, he reported to the guards at the nearest ZESCO substation. He returned with one guard (PW2) to the field, where they found fresh footprints, which they trailed. They saw four people, two of whom were carrying what they later came to discover were wires/ cables covered with tree leaves. 2.2. When they got to about 4 meters nearer, the four men scampered. After pursuing them, they only managed to apprehend the 3rd appellant, who they took to the substation. His phone was switched on and a call from the pt appellant came through, which they put on loudspeaker. He enquired if the 3rd appellant had managed to escape. They advised the 3rd appellant to tell the 1st appellant that the ones who had apprehended them were not ZESCO people but a guard who wanted K600.00 in order for him to be released. 2.3. The 1st appellant thus turned up in the company of the 2nd appellant to bail out the 3rd appellant upon which they were both apprehended. PWl recognized the two appellants as persons who were among the four people they earlier chased. They were subsequently jointly charged for the subject offence. 2.4. This marked the end of the prosecution case. The appellants were found with a case to answer and were put on their defence. Each of the appellants opted to give sworn evidence and called no other witnesses. J4 3.0. THE DEFENCE 3.1. In his defence, the first appellant explained that he had initially gone to the scene with a customer who told him that he was selling scrap metal as he was a scrap metal dealer. When he saw that it was wires, he told the client that he deals in metals and not wires. As he was trying to relieve himself in the field, he saw two people carrying something and a mob shouted "Thief." That is how he took off. At the time he was apprehended, he had gone back to bail out the 3rd appellant as he was worried about his parent's reaction as they knew he was with him given the fact that he asked him to accompany him earlier that morning to buy scrap metal. 3.2. In his defence, the second appellant told the trial court that he lent the first appellant K600.00 which was required for the release of the 3rd appellant. He escorted the appellant to witness the payment, hence his apprehension. 3.3. The account of events given by the third appellant is materially the same as that given by the first appellant. 3.4. This marked the end of the defence case. 4.0. FINDINGS AND DECISION OF THE TRIAL COURT 4.1. After careful consideration of the evidence before her, the learned trial Judge accepted the evidence of PWl and PW2 and found the recognition of the first and second appellant reliable. The trial court disbelieved the appellants' explanations and concluded that on the totality of the evidence the JS prosecution had proved their case beyond all reasonable doubt and convicted them and sentenced each of them to 10 years imprisonment. 5.0. GROUNDS OF APPEAL 5.1. Disconsolate with the High Court judgment, the appellants launched the present appeal against conviction and sentence, fronting three grounds of appeal structured as follows: {i) The learned trial judge erred in law and in fact when she convicted the appellants for vandalism when she failed to find the appellant's explanation in court to be reasonably possible and therefore cast reasonable doubt on the prosecution case. {ii) The learned trial judge erred in law and in fact when she convicted the appellants of the subject offence in the absence of proof beyond a reasonable doubt given the nature and quality of the evidence adduced. {iii) The learned trial judge erred in law and in fact when she convicted the appellants without analysing and evaluating the evidence on the record. 6.0. THE APPELLANT'S ARGUMENTS 6.1. In support of the appeal, all the grounds of appeal were argued together. The gist of the appellants' arguments was that the appellants' explanation as to how they found themselves in the field where the ZESCO cables were J6 vandalized was reasonable. It was the counsel's contention that the evidence of the prosecution against the appellants was characterized by contradictions and inconsistencies, in material facts. We were referred to the case of Simon Miyoba v. The People1 where the Supreme Court held that: "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. It is necessary for the trial court to have before it the previous statement so that it can compare it with the evidence given in court and assess for itself the seriousness of the alleged discrepancies." 6.2. It was the appellant's further submission that PWl and PW2 were witnesses with an interest of their own to serve and as such their evidence posed a danger of fa lse implication. In support of this argument, we were referred to the case of Boniface Chola & Others v. The People2 where it was held that: "where the witnesses are not necessarily accomplices, the critical consideration is not whether the witnesses did, in fact, have interests or purposes of their own to serve, but J7 whether they were witnesses who, because of the category into which they fell or because of the particular circumstances of the case, may have had a motive to give false evidence. Where it is reasonable to recognize this possibility, the danger of false implication is present and it must be excluded before a conviction can be held to be safe. Once this is a reasonable possibility, the evidence falls to be approached on the same footing as for accomplices." 6.3. It was further contended that the court below should have discounted the evidence of leading by PW4. We were again referred to the case of Boniface Chola supra in which it was held that: "The leading by an accused of the police to a place they already knew and where no real evidence or fresh evidence is uncovered cannot be regarded as a reliable and solid foundation on which to draw an inference of guilt." 6.4. In conclusion, it was submitted that in light of the contradictions, the fact that PWl and PW2 were witnesses with an interest of theirs compounded with the fact that there was no evidence directly linking or placing the appellants to the actual vandalism, a conviction is not safe. 6.5. We were urged to al low the appeal to set aside the conviction and acquit the appellant. J8 7.0. RESPONDENT'S ARGUMENT 7 .1. On behalf of the respondent, learned Counsel informed the court that he would respond to all the grounds of appeal collectively. Learned counsel noted that the trial court properly convicted the appellants on circumstantial evidence as the said evidence was cogent enough to prove the case beyond reasonable doubt. It was submitted that the evidence of the key witness, PWl was corroborated by the evidence of PW2 and that of the third appellant. 7.2. It was the learned counsel's further contention that while there is no dispute that the appellants were found at the field, where the ZESCO cables were vandalized, what seems to be in dispute however is the lower court's failure to find the appellants' explanation reasonably possible. It was submitted that the trial court had the advantage of observing the demeanour of the witnesses to determine who was telling the truth. Thus was on firm ground when she failed to find the appellant's explanation to be reasonably possible. 7 .3. Learned counsel further observed that while there may be a small discrepancy in the testimony of PWl and PW2 with respect to the number of people who were carrying the vandalized ZESCO cables, we were referred to the case of Dickson Sembauke Changwe and Ifellow Hamuchanje v the People3 where it was held that: J9 "These were minor discrepancies and in this, he did not misdirect himself. For discrepancies and inconsistencies to reduce or obliterate the weight to be attached to the evidence of a witness, they must be such as to lead the court to entertain doubts on his reliability or veracity either generally or on particular points" 7.4. On the issue of identification, it was learned counsel's submission that the appellants were positively identified and were seen by PW1 and PW2 during broad daylight who were approximately 4 meters away. In summation, we were urged to dismiss this appeal as it lacks merit. 8.0. HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1. At the hearing of the appeal, learned counsel for the appellant, Ms. Marebesa, placed full reliance on the documents filed. On behalf of the state, Ms. Phiri informed the court that the state would equally rely on the heads of argument filed before the court. 9.0. CONSIDERATION AND DECISION OF THE COURT 9.1. We have considered the evidence led in the court below, the trial judge's judgment, and the submissions advanced by the parties. 9.2. In this appeal, there is no dispute that the offence of vandalism was committed. The issue is whether the appellants were among the people who vandalized the cables. JlO 9.3. We wish to note that the evidence against the appellants is circumstantial as no one saw them digging out or cutting the within cables. The Rules relating to circumstantial evidence are well settled and even though the trial court did not note in its judgment that the evidence was circumstantial, the manner in which the court analysed the evidence showed that it was alive to that fact. 9.4. The circumstantial evidence is mainly that PWl found ZESCO cables had been dug up in his field, he went to report and upon return with PW2 they saw fresh foot prints which they followed, upon which they saw 4 men, two of whom were carrying concealed cables. When they approached them, the 4 men scampered and only managed to catch the third appellant who they told to switch on his phone. The First appellant called him and the phone was put on loud speaker and enquired from the third appellant if he managed to escape. He was thus tricked that he was caught by the guards who wanted K600 in order to be bailed out. The first and third appellants then turned up and were apprehended, upon which PWl recognised them as being part of the four men he saw earlier. This is the circumstantial evidence. 9.5. Learned counsel for the appellants has argued that the trial court failed to take into account their reasonable explanations regarding their presence in the field in which cables were vandalized. On the contrary, the learned trial Jll court considered the explanation given by the first appellant that he went there as a buyer of scrap metal, taken by a client and upon discovering that it was cables and not metals, he told the client that he did not deal in that and as he was relieving himself, he saw two men who were pursued by a mob which shouted thief, prompting him to run away. The trial court discounted his version as not being true as running away in the circumstances was not consistent with an innocent mind, also in the light of the phone conversation with the third appellant and his turning up to bail him out. The second appellant explained that he lent the first appellant bail money and he merely escorted the first appellant to bail out the third appellant. He was recognized despite his denial by PWl. The trial court believed the evidence of PWl and PW2 over the appellants' evidence. The trial court was entitled to discount their explanation in the circumstances and we see no reason to interfere with this finding. We find no force in this argument and we dismiss it. 9.6. Coming to the argument that PWl and PW2 were suspect witnesses whose evidence required corroboration, we are at pains to understand the efficacy of this argument. PWl was the owner of the field, who upon discovery of diggings reported to the nearest substation where PW2 was a guard. How does this make them suspect witnesses? We find this argument misplaced and we dismiss it. J12 9.7. Learned counsel argued that there was an inconsistence in the evidence of PW1 and PW2 on how many people were carrying the cable in question. PW1 said he saw 4 men carrying the cable whereas PW2 said he saw 4 men, two of whom were carrying the concealed cable. We agree with learned counsel for the respondent that this difference in perception is inconsequential as it has no bearing on the decision of the court below or this appeal. This argument too suffers the same fate as the ones above. 9.8. We consequently find no merit in the appeal. 10.0. CONCLUSION 10.1. Having found no merit in the appeal, we dismiss it. The conviction and sentence of the court below are confirmed . P. C. M. NGULUBE COURT OF APPEAL JUDGE ...... .......... ~ .............. . K. MUZENGA COURT OF APPEAL JUDGE