Poli Henry Maleza Kahare and Ors v The People (Appeal No. 58/59/60/61/62/2022) [2023] ZMCA 352 (23 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA and NDOLA (Criminal Juri s dict i on ) Appeal No.58,59,60, 61 , 62/2022 BETWEEN: POLI HENRY MALEZA KAHARE DERRICK KAFUNDA MILTON MULOWA JOSEPH MULOWA CHEELO KASHEBA LINGWANYA AND THE PEOPLE 1 ST APPELLANT 2 ND APPELLANT 3RD APPELLANT 4TH APPELLANT 5TH APPELLANT RESPONDENT CORAM: Mchenga DJP , Chishimba and Muzenga JJA ON: 15 t h November 2022 and 23 rd November 2023 For the Appellant : M. Makayi, Legal Aid Counsel, Lega l Aid Board For the Respondent : M. G. Libakeni , State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgmen t of the court. Legislation referred to: 1. The Penal Code , Chapter 8 7 of The Laws of Zambia Cases referred to: J2 1. Nyambe v. The Peop le [1973] Z . R. 228 2. John Mkandawire v. The people [1978 ] Z . R . 46 3 . Mwansa Mushala and Others v . The People [1978] Z . R . 58 4. George Musupi v. The People [1978 ] Z. R . 27 1 5 . Saluwema v. The Peop le [1965] Z . R 4 6. Imusho v. The People [1972] Z . R . 77 7. Lastone Nyirongo v . The People SC Z Appeal No . 246 of 8. Nyambe v . The People [1973] Z. R . 228 9 . Chimbi ni v . The People [1973] Z. R . 191 10 . Joseph Mulenga and Another v . The People [ 2008 ] Z. R.l Vol . 2 11. Yokon yia Mwale v . The Peop le SCZ Appeal No . 285 of 12 . Bwalya v. The People [1975] Z . R . 125 13. Director of Public Prosecut ion v . Risbey [ 1977 ] Z . R . 14. Charles Ph iri v . The Peop le SCZ Judgeme nt No . 53 of 15. Love Chipulu v . The People [1986 ] Z . R. 73 INTRODUCTION [l J This judgement is in respect of the 1 st. , 2 nd , 3 rd and 5 th appel l ants, only . [ 2J The 4 th appel lant ' s appeal was dismissed, follo wing its withdrew , just be fore we heard the ma tter . J3 [3J The appellants appeared before the High Court (Chitabo , J.) , charged with the of f ence of murder contrary to Section 200 of the Penal Code. [4J They denied the charge a nd t h e matter proceeded to trial . [SJ At the end of the trial , wi th the exception of the 4 Lh appellant , they were al l convicted · and condemned to suffer capital punishment . [6J The 4 th appellant , who was a juvenile , was committe d to a reformatory , following a finding of gui lty . EVIDENCE BEFORE THE TRIAL JUDGE [7J In the afternoon of the 7 th of December 2016 , Joseph Kazuma, set off from the palace of the Mwene Kahare , the local chief , in the Njojolo area o f Kaoma , driving a minibus . [SJ At the time , there was a dispu te on whether the 1 s t appellant or Edward Kahare , shou ld be on the throne . [9J With Jose ph Kazuma in the minibus, was Mike Kazuma Ngango, Alfred Mbunda Mungandu , Lac kson Shamanga , Imbila Selelmani Wamuluma, Jo seph Kubana , Frackson Wayanda and Brighton Kakinda Shando l a . J4 r1 01 Just 700 meters from the palace , they found the road blocked with a log . r111 Joseph Kazuma slowed down and the 3 ~ appel l ant, who was part of a crowd of agitated people , ordered him to stop and come out of the minibus . r121 When he came out of t he min ibu s , the 3 rd appellant started questio n ing him . [ 13J The minibus was surrounded by a mob of between 15 and 30 persons armed with stic k s, and the 2 r.d appellant , who was part of the group , struck Joseph Kazuma with a stick . [14J That group also assaulted the occupants of the minibus . r1s1 On being struck , Joseph Kazuma l ost strength and fell to the ground . He remained there unti l his assailants left , be l ieving he was dead . [ 1 6J When he regained his streng th , Joseph Kazuma f l ed from the area . [17 J Alfred Mbunda Mungandu , Lackson Shamanga and Imbila Selelmani Wamuluma, i denti fi ed t he 1 sl and appel l ants , as being part of the group that assaulted them . JS [ 18J In addition , they all said the 1 st appellant appeared to be in charge of the group . [19J The witnesses also testified on the roles tha t each of the appellants played. [2 0J Alfred Mbunda Mungandu , Lackson Shamanga and Imbila Selelmani Wamuluma , suffered mult iple injuries from the beatings inflicted by the group . [211 The 5 th appellant was iden tified as having struck Brighton Kakinda Shandola on the head, with a s tick , during the attack . [221 As the incident was unfolding , the pol ice where informed. [ 2 31 When they got to the scene , they found Alf red Mungandu with multiple injuries . Th ey also fou nd Fuckson Wayanda and Brighton Kakinda Shandola , who were both unconscious . [24J The police officers took Fu cks on Wa yanda and Brighton Kakinda Shandola to Kaoma District Hospital , where Brighton Kakinda Shandola was pronounced dead . c2 s1 A post - mortem conducted on the body of Br i ghton Kakinda Shandola found the cause o f his death to b e multiple injuries . J6 [ 26 J The pa t holog i s t who conducted the p ost - mo r t em observe d t he following injuries: "a fracture of the skull, bruises on the upper right eye , swollen eyes , fracture of the neck , cut on the right waist , bruises on the left and right side of the neck , bruises on the hand, fracture of the left ulna and dislocation of the right shoulder". [ 27 J Following t he arrest of the appe ll an t s , t hey were placed on an identification parade . r2s 1 Alfred Mbunda Munga ndu, Lackson Shamanga and I mbi l a Se l elman i Wamu luma i denti fi e d the 1 st and 5 ui appe l lan t s at that parade . [29J In addition , Mike Kazuma Ng ango ident i fied the 1 sL app ellant . [30J The 2 nd and 3 r d appellants were iden t if i ed by Joseph Kazuma at t he same parade . [ 3 1 J In his defence , the 1 st appe llant denied being part of the group that as sa ulted and ki l l ed Bri ghton Kakinda Shandola . [32J He said having been a p poi n ted chi e f , he k ept away fr om the public . His sister gave evi denc e in s u ppor t of his a l i bi . J7 [ 33J He also told the tria l J udge th a t th e p oli ce assisted Mike Kazuma Ngango to iden tif y hi m dur ing t he identification parade . [ 3 4] The 2 nd and 3 rd appellants ele c t e d to rema in s i l en t . [ 35 J In the case of the S Lh appe lla n t , he al s o s ai d he was not present on that day , havi ng tra ve l led t o a n area called TBZ wi thin Kaoma Di s tri c t . He admit ted knowing Imbila Sele l mani Wamuluma . FINDINGS BY THE TRIAL JUDGE [ 36 J The trial Judge found that the injuries suf fe red by Brighton Kakinda Sha n dola i nd i c a t e d t ha t hi s ass a il an t s had malice afterthought, as they intended to caus e him grievous harm . [ 3 7 ] The trial Judge a l s o fo un d that t he 1 st appel l ant was incriminated by the i dentification evi den ce o f Mike Kazuma Ngango , Al fred Mbunda Mungandu , Lackson Shamanga, and Joseph Kubana. [ 38 J He found that t hese witn e ss e s ha d s u ffi cient opportunity to ide nt i fy him i n c ircums tance s in wh ich he ruled out the poss i bili t y of an hones t bu t mi s t aken identif i c at i on. JS [39J As regards the 2 nd and 3 rd appellants, the trial Judge found that they were incriminated by the identification evidence of Joseph Kazuma . He identified both of them at an identification parade . [40J In the case of the 5 t h appellant , he was identified by Alfred Mbunda Mungandu , Lackson Shamanga , I mbi la Selelmani Wamuluma and Joseph Kubana . [41J The trial Judge dismissed the alib i ' s raised by both the 1 s t appellant and 5 th appellants. This was after fi nding that they were not cred ible wi t nesses . (42) Further , having dismissed the i sl appellant ' s complaint on the manner in which the identification parade was conducted, the trial Judge concluded that the appel lants were identified in circumstances in which he ruled out the possibility of an honest but mistaken identification. (4 3 1 Finally , the tria l Judge found t ha t eve n t h ou gh it is only the 5 th appellant who was ide ntifi e d as having struck Brighton Kakinda Shandola on the head , all t h e appellants were culpable for his d e ath because they were acting with a common purpose. SOLE GROUND OF APPEAL J9 [44J One ground has been advanced in support of the appeal. It is contended that the trial Judge erred i n l aw and in fact , when he conv icted the appellan ts o f the charge of murder , in the absence of e v idence provi ng the case a gai nst t hem beyond all r easonab l e doubt ARGUMENTS IN SUPPORT OF THE SOLE GROUND OF APPEAL [4SJ Reference was made to the case s of Nyambe v . The People1 and John Mkandawire v. The people2 , and it was submitted that sinc e Jo seph Ka zuma d i d not know t h e 2 nd and 3 rd appellants before the incident , and in the face o f evidence from t h e 1 st appe llant that witnesses were assisted to identify suspects on the parade , the trial Judge erred when he found that the identification evidence was cr edible . [46J As regards the i dent ification of the 1 s._ and 5 ui appellants , the cases of Mwanza Mushala and Others v. The People 3 and George Musupi v . The People 4 , we re referred to and it was subm i t ted t ha t even though Alfred Mbunda Mungandu , Lackson Shamanga , I mb il a Se le lman i Wamu luma and Joseph Kubana , knew the 1sL and JlO 5 t h appellants before the in cident , th e c ir cumstances in which they were ide nt ified , we re su ch tha t the possibility of an honest but mi sta ken identific at ion , could not be ruled out . [47J It was also submitted that t h e evidence of the prosecution witnesses was no t credible because they deni ed supporting Edward Kahare , wh en t hey wen t t o the pa lac e for that pu r pose . That be i ng t h e case , t he possibi l ity of them falsely incrimina t ing the appellants could not be ruled ou t . [ 48 J In closing , counsel submitted tha t the trial Judge erred wh e n he d i smissed the alibis raised by the pL and 5 t h appellants. He r eferred to the case of Saluwema v . The People5 , and submitted that the trial Judge erred when h e found th at they cou l d not stand because they were not cred ibl e . ARGUMENTS AGAINST THE APPEAL [49 J Our attention was brough t to t h e cases o f Imusho v . The People 6 and Lastone Nyirongo v. The People 7 , sett in g o ut the circumstances in wh i ch an appe l late can set aside a finding of fact . Jll f 50J Counsel referred to the case of Nyambe v. The People8 and submitted that the trial Judge cannot be faulted for ruling out the possibility of a mistaken identification given the circumstances that were prevailing during t h e incident. f51J The attac k was between 14: 00 and 15 : 00 hours , and the witnesses had su f fic i ent opportunity to identify their assailants . [52] In relation to the 2 nd and 3 rd appe ll ants , the case of Chimbini v. The People9 was refe r red to , and it was submitted that even if they we re i nc r imina te d by a single identifying witness , the tria l Judge considered the circumstances of the identification and rightly ruled out the possibility of a mistaken identif ication. [53J As regards t h e fairness of the i den tification parade , counsel referred to the case of Joseph Mulenga and Another v. The People1 0 and pointed out t ha t fairness of the parade was not r a i sed wh e n th e prosecution witness gave evidence . That b ei ng the case , the trial Judge was en t i t led to conclude t hat the allegation that witnesses were assisted , was no t credible . J12 [ 5 4J I n response t o t he argument that the prosecution witnesses cou l d have had a possible in t e r est of t he i r own to serve , couns e l referred to the case of Yokonyia Mwale v. The People 11 and submitted that t he mere fact that a witness is a relation or friend , does not render them a suspect witnesses . [ 55J He argued that i n t his case , t here was no evidence to s upport the alle gat i on t ha t the pros ec u ti on witnesses had an interest of their own to se rve . [56J The final argument re lated to the a ppellants ' submi ssions on the alibis . [ 57J The cases of Bwalya v. The People12 , Director of Public Prosecution v. Risbey13 and Charles Phiri v. The People14 , we re r e ferre d t o and it was submi t ted t ha t t h e trial Judge was entitled to come to the conclusion that the a l ibis could not stand b ecause the 1sL and SLh appellants , were not c r e dib le witnesses . CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT [5BJ Th e first issue we wi l l de al with , is the submiss ion that the evidence of the prose c u tion wit n esses , should ha ve b ee n t r ea ted with cau tion because they we re s u spect wi tnesses . Jl3 [59J They were said to be suspect , on a c count o f be i ng close to one of the parties in the chieftaincy dispute. [ 6 0 J In the case of Yokonia Mwale v. The People 11 , i t was held that the mere fact that a wi t ness i s a r el at i on or friend , does not warrant t h eir categorisation as suspect witnesses . Instead , it 1 s t h e parti cula r circumstances of each case that may ne c e ssit ate t h e classification of relations or fr i ends , as suspect witnesses. [ 6 1J In this case , as the trial J udge assess e d the veracity of the prosecution evidence , h e considered the p ossibility t h at t h e prosecution witnesses may h ave had the motive to falsely incrimi nate the appe ll ants. He found that it was not the cas e . [ 62 J From the evidence on record , it is obvious that this case is connected to a success i on d i spu te . Fu r t her , the prosecution witnesses and the appe l lants , b el onge d to two opposing groups. (63 J However , from the evidence that was before the trial Judge , there is no apparent reason why they coul d have f a l sely incriminated the appella n ts . J14 [64J All the 7 identifying witnesses gave detailed accounts of the roles played by each of the appellants . With the exception o f two of t he m, t he re ma in de r d i d not ident i fy any of t he appellants as having assaulted Brighton Kakinda Shandola . [6SJ It is our view tha t , that would no t h ave b ee n the case had these witnesses set out to falsely incr i minate the appellants . [66J In the circumstances , we are satisfied that the trial Judge was entitled to come t o t he conclu s i on th a t the witnesses had no motive to falsely i ncriminate the appellants . [67J As regards the a l ibis , the 1 st a p pella n t cl aimed that following his selection as chief, he was secluded and he never left his house . The tria l Judge found that the claim was not credible following his admi ss i on t hat he left for Lusaka at some point . [6BJ In any case , the house in which the 1 s t appe l lant claimed to have been confined to , was i n the vicinity of the place where the deadly assa ult to o k p l ac e . [69J In the face of the overwhelming identification evi dence by 4 prosecution witnesses , who knew him prior JlS to the inc ident , we can find no reason for faul tin g t h e trial Judge ' s dismissa l of t he i sl app ellant 's alibi . [? OJ The 5 th appe ll ant ' s alibi was dismissed because his defence was equally found not to be c re dib le . In one breath he claimed t o have bee n wit h the i sl appe ll ant , while in another, he said he lef t t h e area be fore the deadly assaults . Con fro nted with s uch contradictory evidence , it is our view t hat t he tr i al Judge was ent i t l ed to come to that conc l usion . [ 71J Coming to the allegation t h at t h e parade was n ot fair , it probab l y relates to the 2 nd and 3 rd appe l lants . This is because it is not in dispute tha t the i sl and 5 th appellants were previous l y known to Alfred Mbunda Mungandu , Lackson Shamanga and Imbil a Selelmani Wamuluma , and conduct ing a parade for their ident i f i cation , was in the circumstances , not necessary . [72J The a l legation that t he witnesses were assisted was only raised by the 1 s t appellant i n his de fe nce . Going by the dec i sion in the case of Joseph Mulenga and Another v. The People10 , we are sat isf i ed that t he trial J16 Judge was entitled to come to the concl us ion that the allegation was an afterthought and not credible . [73 ) We will now deal with the case against the 2 nd and 3 rd appellants. [74 J Both the 2 nd and 3 r:d appellants were in c ri mi nated by the identification evidence of Joseph Kazuma , a single ident ifying witness. [7SJ His evidence was that he was i nstruc ted to s top t he minibus he was driving by the 3 r d appellant . The 3 rd appellant also ordered h im t o d i sembark and he complied . [ 7 6) They then started conversing and the 2 nd appellant appeared and struck Joseph Kazuma with a stick . Joseph Kazuma met the 2 nd and 3 r:d appellants for the first time during that incident . [ 7 7 J In the case of Love Chipulu v. The People 15 , it was held that: "Where the circumstances of an attack are traumatic and there is only a fleeting glimpse of an assailant, the fact that an appellant had been patronising the same bar as an accused for the past nine months does not render an identification safe" [7 BJ In this case , even though the trial Ju dge ruled out the possibility of Joseph Kazuma ho nes tly but Jl7 mistakenly identifyi ng the 2 nd and 3 rd appel l ant, it is our view that had he ca r efully considered the circumstances in which the 2 nd appellant was identified , he would not have to that conclusion . [79J In the case of the 3 rd appellant , J·oseph Kazuma ' s evidence was that they talked to each o ther after he was stopped and came out of the minibus. Joseph Kazuma theref o re had an opportunity to observe and identify the 3 ~ appella nt. (80) As for the 2 nd appellant, while Jose p h Kazuma was talking to the 3 r d appel l ant , the 2 nd appellant i s said to have emerged and struck him with a stick . (811 It ca nno t , in the circumstances , be said t h at Joseph Kazuma had the opportunit y to properly identif y the 2 nd appellant , because he had n o more than a fleeti n g glance of him . (821 It i s our view t hat Joseph Kazuma identified the 2 r.d appellant in circumstances where the possibility o f an honest but mistake n ide n tification was erroneously ruled out by t he trial Judge. [8 3 ) We therefore find the 2 nd appe l lant ' s conviction to be unsatisfactory. VERDICT Jl8 [841 Having found the appellant ' s conviction unsatisfactory , we set aside his conviction and quash the sentence . [8 5 ) We find no merits in the 1 st , 3 rd and 5 th appe l lants ' a p peals and we dismiss them . We uphold their convictions and the sentences imposed on them . . . DEPUTY JUDGE F. M. Chishimba COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE