Richard Muchaka and Ors v The People (Appeal No. 125,126,127,128/2022) [2024] ZMCA 210 (20 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE AND NDOLA (Criminal Jurisdiction) Appeal No. 125,126, 127,128/2022 BETWEEN: RICHARD MUCHA. KA RICHMOND MUCHA. KA MUNE MUCHA. KA MBULE MUCHA. KA JENNIPHER MUCHA. KA AND THE PEOPLE 'I. 0 FEB 2024 1 st APPELLANT 2 nd APPELLANT 3 rd APPELLANT 4 th APPELLANT 5 th APPELLANT RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga, JJA ON: 25 t h April 2023, 16 th May 2023 and 20 t h February 2024 For the Appellant: 0 . Mudenda, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: S . Mainza, State Advocate, National Prosecutions Authority JUDGMENT Mchenga, DJP delivered the judgment of the court. Legislation referred to: 1 . The Constitution of Zambia , Chapter 1 of the laws of Zambia 2 . The Penal Code , Chapter 87 of the Laws of Zambia 3 . The Criminal Procedure Code , Chapter 88 of the Laws of Zambia J2 Cases referred to: 1. Charles Habenzu v . The People - SCZ Appeal No . 137 of 2020 2 . Victor Moses Sampa v . The People - Appeal No . 133 of 3 . Haonga and Others v . The People [1976] Z . R . 200(SC) 4 . Dorothy Mutale and Richard Phiri v . The People (1997) SJ 51 (SC) 5 . Nzala v . The People [1976] Z . R . 221 6 . Roe v . Kinggerlee [1986] CRIM LR 735 INTRODUCTION r11 This judgment is with respect to the 1 st , 2 nd , 3 rd and 5 th appellants only . r2 1 The 4t h appellant was deemed to have abandoned his appeal following information that he was pardoned prior to the hearing of the appeal . [ 3 J The appellants appeared before the High Court (M . Chanda , J . ) jointly charged with the offences of causing grievous harm with intent to maim , disfigure or disable , contrary to Section 224 (a} (b} of The Penal Code and malicious damage to property , contrary to Section 335(1} of The Penal Code. [4J All the appellants denied both charges , except the 2nd appellant who admitted the charge in the 1 st count . J3 rsi Despite the 2 nd appellant admitting the charge in the 1 st count, the facts of that charge were not read out to him and the trial Judge proceeded to hear the evidence against all the appellants . [6J At the close of the prosecution ' s case , in her ruling on a case to answer , the trial Judge found the 1 st , 3 rd and 5 th appellants , with a case to answer on both counts. [7J In that ruling , no pronouncement was made regarding the 2 nd appellant on both charges . rai However , all the appellants gave their defences on both charges. [9J At the close of the defence ' s case , the trial Judge was reminded that the facts had not been read out to the 2 nd appellant on the charge he had admitted . r10J The trial Judge opined that since the 2nd appellant appeared to have justified his action when he gave his defence , he had in effect repudiated his earlier plea of guilty . r11i That being the case , there was no need to read the statement of facts on the charge that he had admitted . r12i At the end of the trial , the appellants were all convicted for committing both offences . J4 [13 ] The 1 st appellant was sentenced to 20 years imprisonment with hard labour , for the 1 st count and 1 year 6 months with hard labour , for the 2 count . The sentences were to run concurrently from 22 nd February , 2021 . [14J In the case of the 2 nd and 3 rd appellants , they were each sentenced to 20 years imprisonment with hard labour for the 1 st count , and for 1 year 6 months with hard labour for the 2 nd count . The sentences are to run concurrently from 12 th December 20 17. [1s1 The 5 th appellant was sentenced to 20 years simple imprisonment for count 1 and 1 year 6 months simple imprisonment for count 2 . The sentences were to run concurrently from 12 th December , 2017 . [16J All the appellants have appealed against their convictions . CASE BEFORE THE TRIAL COURT [17J The 1 st appellant is 5 th appellant ' s husband , and the 2 nd and 3 rd appellants , are their sons . [lBJ The 1 st appellant is related to Trust Malambo and Derrick Malambo , who are brothers , because their mothers were cousins . Further , the trio leave in the JS same neighbourhood on farms in the Kabanga area of Namwala District . [19J The boundary between the Malambo bothers ' farms and the 1 st appellant ' s farm , have been the subject of a bitter disp u te for some time . [201 On the 24 th November 2017 , Trust Malambo and his brother Derrick Malambo , were ferrying poles to a place on the disputed farm boundary using an ox - cart , when they were stopped and confronted by the 1 st appellant . [211 The 1 s t appellant who was armed with a spear , was joined by the 5 th appellant . The 2~ appellant who was carrying a wood axe handle and the 3 rd appellant who was armed with an axe , also joined him . They assaulted Trust Malambo leaving him unconscious . [221 Derrick Malambo saw the 1 st appellant puncture the tyres of the ox - cart . He also saw 2 nd and 3rd appellant chop the ox-cart using axes . [23J Trust Malambo was eventually taken to the hospital where he was treated . [ 2 4 J The doctor observed that he had suffered a swollen face with bilateral periorbital ecchymosis, laceration on the left helix {ear), a fracture of the skull, scalp J6 laceration of the left parietal of about 2 cm . Multiple bruises on anterior aspect of the chest and severe head injury with concussion. r 2s1 In his defence , the 1 st appellant denied the assault claiming he was not present and that the evidence against him was fabricated . (261 The 2 nd appellant's defence was that on the 24 th of November 2017 , Trust Malambo attempted to evict him from his land and he struck him in self - defence . He also said the 1 st appellant his father , was not present at the time. r211 The 2 nd appellant denied damaging the ox cart during the incident . r2s1 The 3 rd and 4 th appellants denied being present during the assault raising alibis . [29J The trial Judge rejected the alibis raised by the 1 st , 3 rd and 5 th appellants on the ground that they are an afterthought as they were only raised in court. [30J The trial Judge also found that even if the 5 th appellants was not identified as having caused any damage to the ox - cart , she was culpable by virtue of Section 21(1) (b) of the Penal Code. She had aided and J7 abated the damaging of the oxcart by chanting in solidarity 1 st , 2 nd and 3 rd appellant ' s action . GROUNDS OF APPEAL [31J Three grounds have been advanced in support of the appeal . [32J They raise two issues , these being the credibility of the testimony of Trust Malambo and Derrick Malambo , and the propriety of the conviction of the 2nd appellant in the 1 st count . [33J We will first deal with the propriety of the 2 nd appellant ' s conviction . PROPRIETY OF 2ND APPELLANT'S CONVICTION [34J In support of the ground of appeal that the 2nd appellant ' s conviction was irregular , Mr . Mudenda submitted that the 2 nd appellant did not receive a fair trial as envisaged by Article 18 of the Constitution. [3S J He referred to the case of Charles Habenzu v. The People 1 and submitted that having not been placed on his defence , the 2 nd appellant was denied the right to defend himself . [36J Mr . Mudenda also argued that since the trial Judge did not indicate whether she had accepted or rejected J8 his plea of guilty , the 2 nd appellant was prejudiced because he was not given the opportunity to properly address the charges in the 1 st count. [ 37 J In response to these arguments, Mr. Mainza submitted that the trial Judge did not breach the Constitution in the manner she dealt with the 2 nd appellant ' s plea of guilty . COURT'S CONSIDERATION AND DETERMINATION ON THE PROPRIETY OF THE 2ND APPELLANT'S CONVICTION [ 38J As indicated earlier , the 2nd appellant admitted the charge in the 1 st count when he took plea . The facts were not read out and the trial proceeded . [ 39 J At the close of the prosecution ' s case, the trial Judge made no pronouncement on whether the case had been made out against him in both counts . However , she proceeded to call upon him to make his defence . [40J At the close of the defences of all the appellant ' s , the trial Judge was reminded that the facts had not been readout to the 2 nd appellant . [ 41J The trial Judge took the view that it was not necessary to read the facts because going by the J9 testimony in his defence , the 2 nd appellant had in effect denied committing the offence . [ 42 J Section 279 of the Criminal Procedure Code provides that , "If the accused pleads "guilty", the plea shall be recorded and he may be convicted thereon" [43J There is no provision under PART IX of the Criminal Procedure Code, which deals with the " procedure with trials before the High Court ", that sets out what should follow after a plea of guilty . [44J However , the practice has been that a statement of facts is readout and where it is admitted , a conviction follows . [4SJ In this case , soon after the 2 nd appellant had admitted the charge in the 1 st count , the trial Judge should have directed the prosecutor to present a statement of facts before hearing any witness . [ 46J Further , Section 291 of the Criminal Procedure Code, which deals with the procedure on the close of the prosecution ' s case , reads as follows : When the evidence of the (1) prosecution has been concluded, and the statement or evidence the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused (if any) of the accused person before the witnesses for JlO or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit , record a finding. ( i f for When the witnesses the evidence of any) of the accused person before (2) the prosecution has been concluded, and the statement or evidence the committing court has been given in evidence , the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person, who is not represented by an advocate, of his right to address the court, either personally or by his advocate (if any) , to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself . ............. .. [ 47 J From the forgoing , it is clear that it is mandatory for the trial Judge to make a determination on whether the case has been made out against an accused person at the close of the prosecution ' s case . Thereafter , the accused person is called upon to make his defence . [4 BJ No such pronouncement was made with respect to the 2 nd appellant at the close of the prosecution ' s case. That was a procedural irregularity . [ 49 J We agree with Mr . Mudenda that the 2 nd appellant was prejudiced because while his co-accused where informed that a prima facie case had been made out against them , Jll nothing wa s communicated to him . The situation was worsened by the fact that he had pleaded g u ilty earlier on and probably did not think be needed to challenge the prosecution evidence . CREDIBILITY OF PROSECUTION EVIDENCE [50 J Mr . Mudenda pointed o u t that Derrick Malambo , who claimed to have been present when his brother Trust Malambo was being assaulted , gave contradictory evidence . [51J In addition , Trust Malambo ' s testimony in court was inconsistent with what he had told the police . [52 J On the basis of the decisions in the cases of Victor Moses Sampa v. The People 2 , Haonga and Others v. The People 3 , Mr . Mudenda submitted that the credibility of all his testimony was therefore affected . [53J Mr . Mudenda also submitted that because of the differences in their evidence , it is clear that the two witnesses h ad a motive to fa l sely i mplicate the appellants . [54J That being the case , there was need for independent evidence to confirm or corroborate , the claim that J12 Derrick Malambo was present when Trust Malambo was being assaulted. [55J Further , Mr. Mudenda submitted that that since the ox - cart was not produced in court, there was no evidence that it was damaged , which evidence would have warranted the appellant 's convictions for the offence of malicious damage . [ 56J He referred to case of Dorothy Mutale and Richard Phiri v. The People 4 and submitted that two possible inferences that could be drawn on the evidence that was before court , that it was either damaged or not damaged . In the circumstances , the court should have drawn a conclusion more favourable to the appellants and found that it was not damaged . [57J In response to the arguments that the testimony of Derrick and Trust Malambo were not credible, Mr . Mainza submitted that it was not possible to bring evidence rebutting the 1 st appellant's claim that he was not present when Trust Malambo was being assaulted by the appellants because it is only during their defence , that the appellants raised alibis . J13 rss J The case of Nzala v . The People 5 was referred to and it was submitted that had the alibis been raised on their arrest, there would have been an obligation on the police to investigate them . rs9 J In response to the arguments on the effect of the failure to bring the ox - cart to court during the trial , Mr . Mainza referred the case of Roe v . Kinggerlee 6 and submitted that the question whether the ox-cart was damaged or not, was a question of fact that could not solely be determined on the basis of the damaged cart being presented in court . [60J There was credible evidence from witnesses that confirmed that it was damaged . COURT'S CONSIDERATION AND DECISION ON THE CREDIBILITY OF THE PROSECUTION EVIDENCE [6 1 J Our comment on the failure to bring the ox-cart to court , is that the failure to present an exhibit during trial does not automatically render the charge unprovable. Neither does the absence of photographs of such an article . [ 62 J A court is entitled , in appropriate cases , to convict even when no exhibits are tendered , where it finds that J14 there is credible evidence which conclusively proves the disputed fact . [63 J It follows , that the fact that the damaged ox - cart or photographs of it were not tendered into court , cannot in itself be a basis for finding that it was not damaged at all . The trial Judge was entitled to find that it was in fact damaged on the basis of the testimony of witnesses only . [64J We have not found any basis on which the finding that the ox - cart was dama ged , which finding was solely based on the testimony of the prosecution witnesses , can be assailed . [65 J As regards the evidence of Trust Malambo and Derrick Malambo being contradictory , we do not find that it is the case . They both place the appellants at the scene . [66J Trust Malambo ' s testimony was that he was confronted by a group of armed individuals composed of the appellants . Other than say he was held by the 5 th appellant when the 1 st appellant was standing by , he did not set out the details of what each one of them did . [67J It was his brother who was nearby who set out what each one of the appellants did in the assault . We do JlS not think that the provision of detail can be classified as being contradictory . [ 6BJ The difference in their evidence is on the damage to the ox-cart. Trust Malambo did not identify any of the persons who caused the damage because he had lost consciousness at the time . [69J Derrick Malambo gave details of the damage caused by each of the appellants, with the exception of the 5 th appellant, to the ox-cart. [70J Mr. Mudenda ' s submission that the testimony of Trust and Derrick Malambo was not credible because it was contradictory, does not in the circumstances persuade us and we dismiss it. [71J However, there is the question whether there was evidence implicating the 5 th appellant in the damage to the ox-cart. [72J The trial Judge found that the 5 th appellant aided and abated by chanting solidarity . [73J Section 21 of the Penal Code provides that: (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say: J16 every person who actually does the act or makes (a) the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) in committing the offence ; (d) person to commit the offence. every person who aids or abets another person any person who counsels or procures any other (2) [ 74J For a person to aid or abate the commission of an offence under Section 21 of the Penal Code, the support they render must be before or during the commission of the offence. [ 7SJ In this case , Philip Malambo ' s evidence was that when he rushed to the scene and he found his brother unconscious , and that the 1 s t appellant bullied him whi l e t he 5 th appellan t taunted him . [76J S i nce the taunting was after the event , it is our view that it cannot amount to aiding and abetting . That being t he case we set aside the 5 th appellants conviction in t he 2 nd count . VERDICT [77J We set aside the 2 nd appellant ' s conviction on both counts and order a retrial . Jl7 [78 J We dismiss the 1 st and 3 rd appellant ' s appeals against conviction in both counts . [79J We allow the 5 th appellant ' s appeal against conviction in the 2 nd count but uphold her conviction in the 1 st count. [80J The sentences imposed on the 1 st , 3 rd and 5 th appellants are upheld . C. F. R. Mchen DEPUTY JUDGE PRESIDENT P. C. M. Ngulube COURT OF APPEAL JUDGE ······~ ········ COURT OF APPEAL JUDGE