Robert Wakale Edwad Mushalisha Cheleka v The People (Appeal No 117/2022) [2023] ZMCA 320 (20 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) . ,. BETWEEN: / Appeal No 117 /2022 ROBERTO WAKALE EDWAD MUSHALISHA CHELEKA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA On 22nd March 2023, 20th November 2023 For the Appellant: Mr. K Katazo- Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. J. Phiri Banda Senior Stated Advocate/ National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Nyambe v The People (1973) ZR 228 2. Phiri and Others v the People 3. Mavuma Kambanja Situna v The People (1982)ZR 115 4. Molly Zulu and Others v The People (1978) ZR 227 (SC) 5. Madubula v The People (1993-1994) ZR 91 6. Minister of Home Affairs, Attorney General v. Lee Habasonda (2007) ZR 177 SC Legislation referred to: 1. The Penal Code Chapter 87 of the laws of Zambia. 1.0. INTRODUCTION. J2 1.1. The appellant was charged with three counts of the offence of aggravated Robbery contrary to Section 294 (2} of the Penal Code Chapter 87 of the Laws of Zambia . The particulars of the offence in count one alleged that the appellant on 23 rd August 2018 at Mufumbwe in the North Western Province of the Republic of Zambia being armed with a pistol, stole fifty-five cell phones, 280 SIM cards, 1 laptop bag, assorted MTN talk time cards and K 9,781.00 cash, altogether valued at K 110,289.5, the property of Shepherd Ngona (S/N) Suppliers and Distributors and at or immediately before or immediately after the time of such stealing, did use actual violence to Dabby Kabwiku in order to obtain or retain the things stolen or to prevent or overcome resistance to their being stolen or retained. 1.2. The particulars of the offence in count two allege that the appellant on 23rd August 2018 at Mufumbwe in the North Western Province of the Republic of Zambia being armed with a pistol, did steal 1 cell phone valued at 1000 kwacha, the property of Systever Mushitu and at or immediately before or immediately after the time of such stealing, did use actual violence to the said Sylvester Mushitu in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. 1. 3. The particulars of the offence in count three allege that the appellant on 23rd August 2018 at Mufumbwe in the North Western Province of the Republic of Zambia being armed with a pistol, did steal two cell phones, 1 pair of J3 headsets and 2500.00 kwacha together valued at K 3,625.oo the property of Kasoka Shemi and at or at or immediately before or immediately after the time of such stealing, did use actual violence to Dabby Kasoka Shemi in order to obtain or retain the things stolen or to prevent or overcome resistance to their being stolen or retained . The appellant was convicted and sentenced to death by Mulenga D, J. 2.0. EVIDENCE IN THE COURT BELOW 2.1. The appellant's conviction was secured by the evidence of five prosecution witnesses. A summary of the prosecution evidence was that the appellant was given a lift by PW2, PW3 and PW4, when they were on their way to Zambezi to sell sim cards, phones and scratch cards. At the time, the appellant was given a lift, he was with a lady who was known to PW2 as his talk time customer. This was around Mutanda area after Solwezi, the town where their journey started. PW2 and PW3 were employees of PWl the proprietor of a company called S/N Suppliers & Distributors) . 2.2. The lady dropped off at a place called Kankolonkolo. The appellant remained in the car as he indicated that he wanted to go up to Kabompo. When they reached a place called Kachima East, the appellant asked PW2, PW3 and PW4 if they could go up to the school where he wanted to catch people who had swindled him of $500.00 dollars which he had sent to them to buy groundnuts. 2.3. When they branched off to the road leading to a school, the appellant asked J4 them to stop. PW2 was the first to disembark as he wanted to ease himself. Upon disembarking, he heard a gunshot and noticed that the appellant pointed a pistol at him. The appellant went on to threaten each one of them and got various items, belonging to the company as itemized in count 1, belonging to PW3 as itemized in count 2 and belonging to PW4 as reflected in count 3. The appellant then ran off into the bush. 2.4. PW2, PW3 and PW4 rushed to the nearest village in search of CCPU officers. They found PWS who mobilized members of the community to search for the appellant and also informed the police. They followed footprints and caught up with the appellant who fired some shots in the air to scare them. They finally apprehended him after someone sneaked behind him and hit him with a stick on the hand causing the gun to fall off. PWS picked up the gun and assorted stolen items were found in a bag which was in the possession of the appellant. 2.5. On their way from apprehending the appellant, they met the police and the appellant was handed over to the police. 2.6. This marked the end of the prosecution evidence. The appellant was found with a case to answer and was put on his defence. 3.0. DEFENCE. JS 3.1. In his defence, the appellant opted to give sworn evidence and called no witnesses. He told the trial Court that he was wrongly apprehended by a mob as he was in the area going about his business. 3.2. This marked the end of the defence case. 4.0. FINDINGS AND DECISION OF THE TRIAL COURT 4.1. After a careful consideration of the evidence before him, the trial court found that the State had proved all three counts beyond all reasonable doubt, convicted the appellant on each count and sentenced him to death. 5.0. GROUNDS OF APPEAL 5.1. Unsettled by the conviction and sentence the appellant launched the present appeal fronting four grounds structured as follows: (1) The trial court erred in law and in fact when it convicted the appellant on evidence of identification which was not satisfactory. (2) The trial court erred in law and in fact when it convicted the appellant based on the particulars of the offence which he was not charged with in count one (3) The trial court erred in law and in fact, when it failed to properly evaluate the evidence of PW2, PW3 and PWS it came to the wrong conclusion that the prosecution had proved its case beyond all reasonable doubt. J6 (4) The trial court erred in law and in fact when he passed a judgment which had no points for determination, the reasons for the decision and also finding of facts. 6.0. THE APPELLANT'S ARGUMENTS 6.1. Learned counsel for the appellant in support of ground one, submitted that the trial court did not warn itself on the dangers of honest mistake as to the identity of the offender before relying on the evidence of identification in convicting the accused. According to counsel, the evidence of identification from PW2, PW3 and PWS was questionable and very weak to link the appellant to the offence as they did not give any descriptions of the body features of the person they had given a lift to who later attacked them. We were referred to the case of Nyambe v. The People1 where it was held that: "There is great danger of honest mistake in identification, particularly where the accused was not previously known to the witness. The question is not one of credibility in the sense of truthfulness, but of reliability. The greatest care should be taken to test the identification. The witness should be asked, for instance, by what features or unusual marks, if any, he alleges to recognize the accused, what was his build, what clothes he was wearing, and so on; and the circumstances in which the accused was observed - the state of the light, the J7 opportunity for observation, and the stress of the moment should be carefully canvassed." 6.2. It was contended that an identification parade was supposed to be conducted given that the appellant was not known to the victims. We were urged to allow this ground of appeal. 6.3. In support of ground two, it was contended that the particulars of the offence in count one in the information did not include fifty-five cell phones and 280 sim cards. 6.4. According to counsel, the particulars of the offence on the information and the one on page 153 of the record of appeal are different, in that the fifty five cell phones, 280 SIM cards, and the total of Kl 10, 289.00 do not appear in the particulars on the information, the appellant pleaded to. It was contended that the value of properties was K104, 089 and not K105, 385.50. it was the counsel's contention that it is not the duty of the court to fil l up the gaps for the prosecution to the detriment of the accused person. We were referred to the case of Phiri and Others v. The People2 where it was held that: "The Courts are required to act on the evidence placed before them. If there are gaps in the evidence the courts are not permitted to fill them by making assumptions adverse to the accused. If there is insufficient evidence to justify a J8 conviction, the Courts have no alternative but to acquit the accused." 6.5. We were urged to quash the conviction in ground two and set the appellant to liberty. 6.6. In support of ground three of the appeal, it was the learned counsel's contention that PW2, PW3, and PWS were traumatized during the attack and there is no way they could have managed to pursue the attacker. It was contended that the trial court should have taken into consideration the contradictions in the evidence of PW1 and PW2 regarding the property given to PW2 by PW1. 6.7. It was submitted that no attempt was made by the court or the prosecution to clarify the evidence and that had the trial court taken time to evaluate the evidence before it, could have come to the conclusion that the evidence of PW2 was unreliable to secure a conviction. 6.8. It was counsel's further submission that the evidence of PW3 and PWS regarding the value of their phones was not given to the trial court hence making their evidence unreliable. 6.9. We were urged to allow this ground of appeal. 6.10. In support of ground four of the appeal, it was submitted t he judgment of the trial court did not meet the criteria of what a judgment must contain. It was pointed out that no finding of facts was made and there was no point of determination. Counsel went further to state that there was no analysis J9 of the evidence of the prosecution witnesses and no comment on the demeanour of the prosecution witnesses. We were referred to the case of Mavuma Kambanja Situna v. The People3 in which the Supreme Court held that a judgment of the trial court must show on its face that adequate consideration has been given to all relevant material that has been placed before it, otherwise, an acquittal may result where it is not merited. 6.11. In summation, it was contended that the judgment of the trial court fell short of the requirement stipulated in Section 169(1) of the Criminal Procedural Code Chapter 88 of the Laws of Zambia and that we should allow the appeal. 7.0. RESPONDENT'S ARGUMENT 7.1. On behalf of the respondent, learned Counsel contended that the trial court was on firm ground in convicting the appellant as the identification evidence was sufficient to implicate the appellant in all three counts of aggravated robbery. It was contended that despite the trial judge not warning himself on the dangers of an honest mistake as to the identity of the offender, before convicting, the trial judge court addressed his mind to the danger of honest mistake as to the identity by alluding to authorities on the said subject matter in his judgment. 7.2. It was further averred that although PW2, PW3 and PWS failed to give a detailed description of the features that enabled them to identify the appellant, the evidence on record discloses that the appellant spent a J10 considerable amount of time in broad daylight with them in the motor vehicle from Mutanda to Kachima West where the attack occurred. It was pointed out that the appellant conversed with the said witnesses and as such they were able to see and later identify him. 7.3. Counsel went on to contend that even if we find that the evidence on identification was weak, there are odd coincidences which ruled out the possibility of an honest mistake in identification. Counsel pointed out t he odd coincidences to be that the appellant who was in the same vehicle with PW2, PW3, and PWS was found in possession of the goods belonging to PW2, PW3 and PWS which were reported to have been stolen. Another odd coincidence is that the P9 a gun which the appellant was said to have used to threaten the victims was recovered from him when he was subdued. We were referred to the case of Molly Zulu and Others v The People4 where it was held that: "Odd coincidences may well provide supporting evidence of poor quality identification to the extent that it renders such identification reliable. The finding of the gun in the possession of the father of the first appellant was such a coincidence, as was the knowledge of the second appellant of the whereabouts of the stolen gun." 7.4. In light of the foregoing, we were urged to dismiss this ground of appeal as it lacks merit. Jll 7.5. In responding to the second ground of appeal, it was submitted that the appellant's argument is erroneous and not supported by the evidence on the record. According to counsel, the particulars of the offence on page 153 of the record of the appeal read as follows: The accused person herein on 23rd August 2018, at Mufumbwe in the Mufumbwe District of the North-Western Province of the Republic of Zambia, being armed with a pistol, did steal fifty-five (55) cell phones, 280 SIM cards, two (2) cell phones, one (1) laptop bag, assorted MTN talk time cards and K9, 781.00 cash all together valued at K110, 289.00 the property of SN suppliers and Distributors and that at or immediately before or immediately after the time of such stealing did used actual violence to Daddy Kabwiku in order to obtain or retain the things stolen or to prevent or overcome resistance to their being stolen or retained. 7.6. It was contended that on page 96 of the record of appeal, it is clear that the information was amended in the first count in line with Section 137 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia and the appellant retook plea. 7.7. We were urged to dismiss this ground of appeal and uphold the conviction. 7.8. In responding to the third ground of appeal, it was submitted that the trial court evaluated the evidence of PW2, PW3, and PW5 and came to the J12 conclusion that the prosecution had proved its case beyond all reasonable doubt. It was submitted that PW2, PW3 and PWS did not pursue the appellant on their own. They engaged PW4 as well as other members of the community who assisted them. 7.9. Regarding the discrepancies in the evidence of PW1 and PW2, it was learned counsel's submission that the said discrepancies are minor and do not go to the root of the matter as the total value by both witnesses was K104,089.00. we were referred to the case of Madubula v. The People5 where it was held that "minor discrepancies in the prosecution evidence that do not go to the root of the case are not fatal to the prosecution case" 7.10. We were urged to dismiss this ground of appeal as it equally lacks merit. 7.11. In responding to the last ground of appeal, it was counsel's submission that the judgment of the trial court met the requisite standard required by the law. The trial court set out the elements of the offence and the requirement for the prosecution to discharge its burden of proof. In addition, the trial court did a review and gave adequate consideration, to all the relevant evidence that was before it, both that of the prosecution witnesses evidence as well as the appellant's evidence and found that the evidence of the prosecution witnesses was more credible than that of the appellant. 7.12. In summation, it was contended that the trial court was on firm ground when it convicted the appellant on all three counts of aggravated robbery. We were implored to dismiss this appeal for lack of merit and uphold the J13 conviction of the lower court. 8.0. CONSIDERATION AND DECISION OF THE COURT 8.1. We have carefully considered the evidence on record, the arguments by counsel and the judgment under attack. 8.2. The first ground of appeal seeks to assail the judgment of the lower court on the ground that the trial court did not warn itself of the dangers of convicting the accused on the evidence of identification. Indeed we have perused the trial court's judgment and we note that the trial court did not warn itself of the danger of a possibility of mistaken identification, although it did refer to a few cases which touched on the same subject matter. 8.3. It is our considered view that the failure to do so is not fatal, especially that the trial court was alive to the principles surrounding evidence of identification. In any case, this was not a case where there was a single identifying witness because the appellant was identified by three witnesses who spent a lot of time with him. There are also odd coincidences which ruled out the possibility of an honest mistake in the identification such as being found in possession of the goods belonging to PW2, PW3 and PW4 at the time of apprehension. Another odd coincidence is that a gun which the appellant was said to have used to threaten the victims was recovered from him when he was subdued. The trial court cannot thus be faulted for holding that the appellant was properly identified. We find no merit in this ground J14 of appeal. 8.4. In support of ground two of the appeal, the learned counsel for the appellant contended that the appellant was convicted on the particulars of the offence which he was not charged with in count one. Upon perusal of the record, we agree with learned counsel for the respondent that the state applied for an amendment of the information, which application was granted and plea was retaken. This ground is thus bereft of merit. 8.5. Ground three attacks the trial judge's evaluation of the evidence of the prosecution witnesses. The gist of counsel's argument was that PW2, PW3 and PWS were too traumatised during the attack and there is no way they could have managed to pursue the attacker. We note that the victims got help from the villagers and did not pursue the appellant on their own. The inconsistencies learned counsel alluded to in respect with the date of the offence and the value of the items were inconsequential as they were settled by the evidence on record. The trial court came to a conclusion that the offence was committed on the 23rd August 2018 as reflected in the particulars of offence. We see no reason to interfere with the finding as the trial court was entitled to do on the totality of the evidence. This ground too, has no merit. 8.6. In the last ground of appeal, the appellant attacks the judgment writing style of the learned trial judge. We are at pains to appreciate the grievance JlS learned counsel for the appellant has with the judgment of the lower court. The judgment of the court below had a summary of the evidence, findings of fact, the reasoning of the Judge and conclusions. This, in our view, is in line with the case of Minister of Home Affairs, Attorney General v. Lee Habasonda in which the Supreme Court guided that: "Every judgment must reveal a review of the evidence where applicable, a summary of the arguments and submissions if made, finding of fact, the reasoning of the court on the facts and the application of the law and authorities if any, to the facts. 8. 7. We therefore agree with the submission by counsel for the respondent that this ground too is bereft of merit. 9.0. CONCLUSION 9.1. Having found that all the grounds of appeal are devoid of merit, this appeal is accordingly dismissed. The conviction and sentence are upheld. P. C. M. NGULUBE COURT OF APPEAL JUDGE . . . . . . . . . . ...... ¼, .......... . K. MUZENGA COURT OF APPEAL JUDGE