Samson Musenge and Philimon Daka v the People (HPA/39/2024) [2025] ZMHC 50 (14 July 2025)

I IN THE HIGH COURT FOR ZA1W1:UD~pU~B~LiiilC;;:O~F~ ~COURT OF AT THE PRINCIPAL REGIS HOLDEN AT LUSAKA (Criminal Jurisdiction) jW PRINICIPAL 1 t, JUL t025 HPA/39/2024 V THE PEOPLE Before the Honourable Lady Justice S. Chocho, on July 14th, 2025. For the Appellant: Mr. L K Phiri of Messers Lucky, Lloyd and Newman Legal Practitioners. For the Respondent: Mr. D. Mukelelabo of Messrs National Prosecution Authority. JUDGMENT Cases referred to: 1. R v Boyesen (1982) 2 All E. R 161-163. 2. Emmanuel Phiri v The People (1978) ZR 79. 3. Webster Kayi Lumbwe v the People (1986) ZR 93 SC3. 4. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172. 5. Madubula v the People SCZ N0.11 of 1994. 6. Mavuma Kambanja Situna v The People (1982) ZR 115. 7. The People v Austin Chisangu Liato v Appeal No. 291/2014. 8. Charles Lukolongo and Others v. The People SCZ No. 26 of 1986. ·--------------------------- : Scanned with ! Li} CamScanner· ·---------·-······----------- J2 9. Chimbini v. The People (1973) ZR 1919. 10. Madubula v The People S. C. Z. JUDGMENT NO. 11 OF 1994. 11. Andrew Mwenya v The People SCZ Appeal No. 640 of 2013. Legislation and other authorities referred to: 1. Section 130(1) of the Zambia Wildlife Act No.14 of 2015 of the Laws of Zambia. 2. Zambia Wildlife (Protected Animals) Order, SI No. 42 of 2016. 3. Section 4 of the Penal Code, Chapter 87 of the Laws of Zambia. 1. INTRODUCTION 1.1. This is an appeal against the decision of the Court below in which the Appellants Samson Musenge (A3) and Philimon Daka (A4) were convicted on December 8th , 2021 for the offence of Unlawful possession of a protected animal contrary to Section 130(1) of the Zambia Wildlife Act No.14 of 2015 of the Laws of Zambia. 1.2. The Appeal is based on the following grounds: i) The Trial Court erred in fact when it did not take account of the fact that the apprehending officer failed to recite or give the phone number which the 1st Appellant allegedly used to call the apprehending officer, and that the 1st Appellant denied ever calling the officer at all. ii) The Trial Court erred in fact when it disregarded the evidence of A4 that he was in the company of A3 only because he had asked to use A3's motor vehicle, a fact A3 confirmed. Scanned with Ci Ca mSca nne r- J3 iii) The Court erred in both in fact and law when it held that the 1st and 2 11d Appellants were in possession of a Pangolin together with Al(who admitted that it was his) and A2 when they did not know what was in the bag in which it was in, as they only learnt about it being in the bag at ZAWA offices when they were being questioned. iv) The learned Magistrate erred both in law and fact when she relied on the evidence of the ZA WA officers who were witnesses with a possible interest to serve without corroborative evidence particularly PWl as to the facts that the Appellants knew that Al carried a Pangolin when the actual fact is that A 1 himself stated that it was his. 2. EVIDENCE IN THE COURT BELOW PWl - NOWANGA MUBITU 2.1. PWl was NOWANGA MUBITU, a Wildlife Police Officer aged 36 years old of Lusoke Village, Chongwe. Her testimony was that on October 10th , 2019, she received a call from two Investigations Officers from Chirundu with the information that they were people selling a live Pangolin. 2.2. PWl testified that around 01:00 AM along with other Officers namely; Lumemba, Mooya Mwadumina, Francis Machabwe, Samuel Simbao and two other unnamed officers from Chirundu; they led an ambush at the filing station. : Scanned with ! Li} CamScanner· ·---------·-······----------- J4 2 .3. PW J further testified thul they purkcd u vehicle driven by one of the lnvestigntions Officers who pretended to be a buyer and thal 30 minutes later, she suw a grey Toyota Corolla with Vehicle registration number ACM 3992 heading towards the parked vehicle. 2 .4 . PW 1 testified that she saw three men come out of the vehicle carrying a Pangolin in a white sack. 2.5. PWl testified that the whole team went closer and pounced on the persons and as they were trying to hand cuff the Appellants, the one person who was standing by the car run away. 2 .6 . PW 1 testified that they took the Appellants to Chongwe police station and they got a hold of the Pangolin the moment they pounced on the Appellants. 2.7. PWl testified under cross examination that the found Al at Mukambilo waiting for his money but did not find Al with the Pangolin. 2.8. PW 1 testified under cross examination that he was led to A 1 by A3 who also stated the A 1 was the owner of the Pangolin. 2.9 . PWl testified under cross examination that they found A2 at Mukambilo and that A2 stated that he did not know anything. 2, 10. PW 1 testified under cross examination that the she saw three person coming out of the Toyota Corolla carrying a sack but she could not tell who was carrying the sack. Scanned w ith Ci} CamScanner- JS 2.11. PW 1 testified under cross examination that she found the Appellants in the car in which the transaction of the pangolin was being done. There was nothing in re-examination. PW2: DANIEL LUNGU 2 . 13. PW2 was DANIEL LUNGU, Investigation Officer at Chirundu aged 29 years old. His testimony was that on October 4th, 2019, he was in Chongwe having an operation with one Nickson Shakantu, Mr. Mooya, Mr. Mibita and two other unnamed officers. 2.14. PW2 testified that he received a call from a concerned member of the public that had been approached by some person concerning the sale of a live pangolin in Chongwe. 2.15. PW2 testified that he told the person to give them his number so that he could pretend to be a buyer. 2 . 16. PW2 testified that a few minutes later, he received a call from an unknown number and the person introduced himself as Philemon Daka (A4) who wanted to sell a Pangolin and asked if he was the buyer. 2.17. PW2 testified that the said Philemon Daka suggested that they should meet at Chongwe around O 1 :00 AM so that they could negotiate the price and proceeded to inform his colleagues that he had information the there were people selling a live pangolin. 2.18. PW2 testified that A4 called him to ask if he was in Chongwe and they agreed to meet at Mt. Meru filling station and when they arrived, the person who went to talk to PW2 was A3. : Scanned with ! Li} CamScanner· ·---------·-······----------- J6 2.19. PW2 testified that A4 introduced him to A3 as the person h e was doing business with and said the were six in this business and were selling the Pangolin at K55,000.00. 2.20. PW2 testified that they settled for K35, 000.00 and they said they did not carry it and asked for 35 minutes to bring it. 2.21. PW2 testified the A3 stated that they could not do business at a filing station so he drove across the road, parked were it was dark and called his colleagues to lay an ambush. 2.22. PW2 testified that after sometime, A3, A4 and the one person who run away came with a silver Toyota Corolla vehicle registration number ACM 5992 and when they arrived, they brought the Pangolin to his car in what appeared to be a white sack. 2.23. PW2 testified that A3 and A4 entered his car and the third person they came with remained standing outside and that A4 opened t he sack to show him the Pangolin, he signaled his colleagues who came from hiding and apprehended A3 and A4 who were in the car while the one who was standing outside run away. 2.24. PW2 testified that they got into the vehicle they came in and A3 informed them that they were others at Makambilo bar who were waiting for the money from the business and he was ready to take them there. 2.25. A3 stated that it was agreed that when they see the Toyota Corolla, they would go towards he car, so they went in the said motor vehicle and three persons approached the vehicle after which A3 stated they were the ones. Scanned with Ci CamScanner· J7 2 .26. PW2 testified that they apprehended two persons as one escaped and the persons were; Aaron Zimba (Al) and Jeremiah Mubayiwa (A2). 2.27. PW2 testified under cross examination the he did not find A2 with anything but apprehended him because A3 said he was part of the transaction. 2.28. PW2 testified under cross examination that they apprehended A3 because they found him with the Pangolin. 2.29. PW2 testified under cross examination that A3 got the Pangolin from the Corolla and put in in his car. 2 .30. PW2 testified under cross examination that he left the phone which had the number A4 used to call him. 2.31. PW2 testified under cross examination that A4 introduced A3 to him and that he does not remember talking to A3 about the price of transport but business only. 2 .32. There was no re-examination. PW3- JANE MUNANGISA 2.33. PW3 was JANE MUNANGISA Investigations Officer Chongwe aged 38 years old. She testified that on October 7 th , 2019, she received four male suspects (Al-A4) with a live Pangolin and a Toyota Corolla. 2.34. PW3 testified that she went ahead to interview Al-A4 in connection with the Pangolin but they did not give satisfactory answers so she decided to charge them for possession of a protected trophy. Scanned with ~ CamScanner- JS 2.35. PW3 testified that the four suspects denied the charge and she brought the suspects she arrested to Court. 2.36. PW3 testified that she sent the animal for identification to the Department of National Parks and Wildlife. 2.37. PW3 testified that A3 was the driver of the car. 2.38. PW3 testified under cross examination that she believes that every item has an owner. 2 .39. There was no re-examination. Al- AMON ZIMBA 2.40. Al was AMON ZIMBA in his defence, Al gave evidence under oath. He testified that on October 5th , 2019, it came to him as a surprise when he was apprehended whilst he was drinking with his friends at Ngombe ilede. 2.41. Al testified under cross examination that when he was picked up by A3 in the Toyota Corolla, he was in the vehicle as a lift. 2.42. Al testified under cross examination that when they got to ZAWA, the officers asked the owner of the Pangolin to come forward and he cut the rope with his teeth because he was forced to do it and he did not say the animal was his and neither did he pick it. 2.43. A 1 testified under cross examination that he did not organize with anyone for A3 to pick him up and that he was apprehended because he did not know the people he was with too well. Scanned with I} CamScanner- J9 A2-JEREMIAH MUBAYIWA 2.44. A2 was JEREMIAH MUBAYIWA a Farmer aged 44 years old, his testimony was that in October 2019, he left home for Lusaka as he ordered some charcoal and sent his wife with the charcoal to Lusaka and that on the said date, he was following her. 2.45. A2 testified that he went to the roadside where he saw a vehicle and asked to be dropped off at Chongwe and he was dropped at Makumbilo where he stayed for a while looking for an Ox- cart to use at home. 2.46. A2 testified that he left home around 17: 00 hours and had a plan of spending a night in Chongwe and to his surprise, he was apprehended around 04:00 hours together with Al and when he asked why he was apprehended, he was advised that he would be told. 2.47. A2 testified that when they were inter_viewed, Al stated that the things were his. 2.48. A2 testified under cross examination that at the time he was apprehended and taken to the office, he was not found with anything. 2.49. A2 further testified under cross examination that while at ZAWA offices, he did not know whether the Pangolin was in a bag or sack and A 1 is the one who said that the Pangolin was his. Scanned with ~ CamScanner- JlO A3- SAMSON MUSENGE 2.50. A3 was SAMSON MUSENGE a Driver aged 29 years old. His testimony was that on October 4t11, 2019 around 20:00 hours, while at Chalimbana station seated in the car with A4, he was approached by a person he did not know so well seeking to hire a taxi to pick up people from Mulamba area. 2.51. A3 testified that they agreed on a fee of KS00.00 and since it was late, he asked his friend A4 to accompany him. He testified further that when he got to Mulamba, he found about 7 people but could not carry them all as the Toyota Corolla could only carry a maximum capacity of five people. 2.52. A3 testified that out of the seven people, he only carried four and when he demanded payment, the person who hired him said they would meet the boss at Chongwe as he was coming from Lusaka and the one bringing the money. 2.53. A3 testified that he carried Al, A2 and the man who approached him who was an Albino. He further testified that he asked them to put their bags at the back together with a black laptop bag and a bucket of dry fish. 2.54. A3 testified that the person they were supposed to meet was contacted and they agreed to meet at Mt. Meru feeling station. 2.55. A3 testified that when they reached at Njombe ilede night club, the Albino told A 1 and A2 to remain at the club and that once he got the money, he would share with them. 2.56. A3 testified that he refused and asked that they all go to the filing station, and they did. Scanned with ~ CamScanner- Jll 2.57. A3 testified that 5 minutes a fter they got to the filing s tation, a silver Toyota Surf approached and the person in the vehicle spoke to the Albino who said h e was in a Toyota Corolla vehicle registration number ACM 5992 which was his car. 2.58. A3 testified that the Albino the carried the items he had put in his car to the Toyota Surf and after he saw that the Albino was not returning, he decided to follow him as it was late and he needed his money. 2.59. A3 testified that he was supposed to be paid kS00.00 but they did not want to pay him as they were of the view that the money was too much. He further testified that he called A4 to confirm that he was supposed to be paid kS00.00 and the driver of the Surf said to him that he should go anywhere he wanted, he was not going to give him anything. 2.60. A3 testified that to his surprise, two vehicles blocked then and the person in the Toyota Surf jumped and run away and the people who got out of the two cars were six in number and had guns and tear gas. 2.61 . A3 testified that they started beating him and tear gassed him in his face then he pleaded with the officers that he did not know anything and they should ask the albino and his friends before he discovered that they had run away. 2.62. A3 testified that he was hand cuffed and was taken to Ngombe ilede were the Albino, A 1 and A2 approached the car and A 1 and A2 were subsequently apprehended. Scanned with Ci CamScanner· J12 2.63. A3 testified that they were then taken to the Police Station where they were asked if they knew why they were apprehended and his response was that he did not know. 2.64. A3 testified that the laptop bag was then opened and they found a white sack which contained a live Pangolin. 2.65. A3 testified that the officers asked who the owner of the Pangolin was and A3 did not know as he had just discovered that there was live Pangolin. 2.66. A3 testified that the officers beat them up and asked that the owner of the Pangolin should untie it and then Al said the animal was his and that he picked it from were he was picking charcoal. 2.67. A3 testified that Al was told to untie the Pangolin and he did it with his teeth. 2.68. A3 testified under cross examination that he knew Al after the incident. 2.69. A3 testified under cross examination that he was with Al at the filing station but Al run away and was later apprehended at Ngombe ilede. 2.70. A3 testified under cross examination that A2 was apprehended at Ngombe ilede and the nothing was found with him. 2.71. A3 testifies under cross examination that after A2 was apprehended, he was not found with anything and it was A 1 who said the Pangolin was his. 2.72. A3 testified under cross examination that A2 called him on October 4 11i, 2019 asking for a vehicle to go and get material from Lusaka. Scanned with ~ CamScanner- J13 2. 73. A3 testified under cross examination that he told A2 that he would find him at the station around 20:00 hours after he knocked off. 2.74. A3 testified A2 met him and told him to wait because he did not have fuel and told A2 that if he had money, he could get the car. 2. 75. A3 testified under cross examination that Albino came and said he had people to pick up in Mulamba. 2.76. A3 testified under cross examination that A3 was not found with anything when he was apprehended. 2.77. A3 further testified under cross examination that he was booked by a person he just knows as an Albino. 2. 78. A3 testified under cross examination that from the taxi station to Mulamba, he was with the Albino and A4 and that when they got to Mulamba, he found 7 people he did not know but came to know Al and A2. 2. 79. A3 testified under cross examination that the laptop bag belonged to A 1 and he was the one who put it in the car. 2.80. A3 stated that the officers said they wanted himself and A4 to be witnesses. 2.81 . The was no re-examination. A4- PHILEMON DAKA 2.82. A4 was PHILEMON DAKA, aged 35 years old of Libuko Village who testified under oath that on October 4th , 2021 he called A3 who was his friend asking for his car so that he could go to town and purchase something. Scanned with Ci Ca mSca nne r· J14 2.83. A4 testified that A3 told him that he was using the car and advised him to the go the following day. 2.84. A4 testified under cross examination that A3 told him that he would call him once he was done to and collect the car. 2.85. A4 testified that later in the evening, A3 called him to go and collect the vehicle and that when he got there, A3 asked him to wait a little as he had been booked to go to Mulamba. 2.86. A4 testified that A3 asked him to escort him as he did not know the place and that he would later drop off A3 and collect the car. 2.87. A4 testified under cross examination that it was discovered that A3 did not have fuel so he asked for Kl00.00 which he was supposed to repay once he was paid. 2.88. A4 testified that at Mulamba, they found 7 people and they picked up Al and A2. 2.89. A4 testified that they started off from Mulamba to Chongwe and the Albino was communicating with his boss who told them to go to Chongwe and that when they got to Mt. Meru, the Albino made a phone call. 2.90. A4 testified that after a short while, a Toyota Surf approached and the Albino took the laptop bag and entered the Toyota Surf. 2. 91. A4 testified that the owner of the Surf asked who the owner of the Corolla was and A3 said he was the owner and A3 went to the vehicle and he did not hear what they discussed. Scanned with a, CamScanner- Jl5 2.92. A4 testified that A3 then called him and asked how much the booking was and in response, he stated that it was KS00.00 and the went back to A3's car. 2.93. A4 testified that after a short while, a vehicle approached, apprehended A3 and they were tear gassed and the others run away. 2.94. A4 testified that A3 said to the officers that the other suspects were at Makumbilo and the he remained at ZAWA while A3 went with the officers and after a while they came back with Al and A2. 2.95. A4 testified that officer opened the laptop bag and they found a tied Pangolin and when the officers asked who the owner was no one answered. 2.96. A4 testified that the officer then said the owner of the animal should come forward and untie it and Al stood and untied it. 2.97. A4 testified under cross examination that he came to know Al the day they were apprehended. 2.98. A4 testified under cross examination that A3 was not apprehended at the filing station and he did not know were A3 was apprehended as he was not there. 2.99. A4 further testified under cross examination that he did not know were A2 was apprehended and that he was not apprehended with anything. 2.100. A4 testified under cross examination that when A3 was apprehended at the filing station, he was not apprehended with anything. 2.101. A4 testified under cross examination that Al untied the animal with his teeth. Scanned with Ci CamScanner· J16 2 . l02. A4 testified under cross examination that he went to Mula mba with A3 and the A3 was booked by a 'yellow mwabi' (Albino) . 2.103. A4 testified under cross examination that when going to Mulamba, they were three of them with A3 and the Albino then the picked up A 1 and A2 and that the 3 persons run away at Mt. Meru filing station. 2. 104. A4 testified under cross examination that the persons they found ay Mulamba had a laptop bag and bucket of fish. The laptop bag was with Al and the Albino had the bucket of fish. 2.105. A4 testified under cross examination that the owner of the bag that contained the animal was Al. 2.106. A4 testified under cross examination that he came to know that they carried a Pangolin when they got to the offices. 2. 107. A4 testified under cross examination that from Mulamba, they went straight to Chongwe. 2.108. There was no re-examination. DWl- FRIDAY ZIMBA 2.109. DWl was FRIDAY ZIMBA a Farmer aged 49 years old. His testimony was that on October 9th, 2019, he received a call from his in-Jaw stating that his brother Al , was in police custody. 2.110. OW 1 testified that he did not know what his brother was doing Chongwe as he stated that he was going to Nyimba and he did not know what kind of business Al was involved in. 2.111. There was no re-examination. Scanned with Ci} CamScanner· J17 DW2: ESNART NANKAMBA 2 .112. DW2 was ESNART NAMKAMBA, aged 48 a Farmer who testified under oath that she was the wife to A2 and that they ordered charcoal and agreed to buy an Ox-cart after selling the charcoal. 2 . l 13. DW2 testified that on October 4th she left for Lusaka, Mtcndere and left A2 at home and it was agreed that A2 would be in Chongwe finding out prices of an Ox-cart. 2.114. DW2 testified that they agreed that after finding out the prices, he would find her in town and that it was Saturday and she still did not see A2. 2.115. DW2 testified that she called her friend to check the Police station who later informed her that A2 was in Police custody and she went to the Police station. 2.116. DW2 testified under cross examination that she asked the friend to check the Police Station because the children informed her that A2 left home. 2.117. DW2 testified that she did not have anything to say in A2's Defence as she did not know why he was before Court. 2.118. There was no re-examination. 3. DECISION BY THE TRIAL COURT 3 . 1. The Trial Court examined the testimonies of the witnesses before the Court and addressed its mind to various evidential principles which I shall not reproduce verbatim as the same are on record . Scanned with Ci CamScanner- Jl8 3 .2. The Court below addressed its mind to the ingredients that must be established in order for the prosecution to prove its case beyond reasonable doubt stated that the following ingredients must be proved that the Accused persons: i) ii) Had in their possession the live Pangolin; That the live Pangolin is a protected animal; and iii) That the said possession is in contravention of the Act. That is to say, they did not have a certificate of ownership issued in accordance with the Act, or did not have a licence or that they were not exempt from such requirements. 3.3. The Trial Court stated that the identity of the animal in question as a Pangolin is not in question as an identification certificate was exhibited and neither did the Accused persons dispute that the animal in question was a Pangolin. It is in light of this that the Trial Court held that that animal in question was indeed pangolin. 3.4. The Trial Court further stated that Statutory Instrument No. 42 of 2016 lists a Pangolin as a protected animal and held that a Pangolin is a protected animal. 3.5. The Trial Court stated that the Accused persons did not in any way seem to have a licence or certification relating to the Pangolin and that at no point did the Accused persons state or prove that they were exempt from obtaining a licence or certificate from the necessary Authorities . 3.6. The Trial Court addressed its mind to the question of whether the accused persons were in possession of the Pangolin. Scanned with Ci} CamScanner· J19 ·7 - ln defining the term possession, the Trial Court relied on Section 4 of the Penal Code, Chapter 87 of the Laws if Zambia which provides as follows: "possession", "be in possession of' or "have in possession"- (a) includes not only having in one's own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to, or occupied by oneself or not) for the use or benefit of oneself or of any other person; (b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them;" 3 .8 . The Trial Court stated that it is very clear that you cannot possess a thing unless you know you have it. Reliance was placed on the case of R v Boyesen (1982) 2 All E. R 161-163 in which it was stated that: "Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control. You may possess a thing without knowing or comprehending its nature but do not possess the thing of know you have it". 3.9. The Trial Court stated that to prove possession in the circumstances of the case, the prosecution must establish that the accused persons either had immediate control of the said Pangolin which was concealed in a Scanned with Ci} CamScanner· J20 sack and a bag, or although not in immediate control but that the accused persons were in the company of someone who had possession of the Pangolin and that the accused had knowledge of the said contraband and consented to that other person possessing it. 3.10. The Trial Court stated that the positions given by the accused persons were completely opposed and that the accused persons were clearly not telling the truth. If they were telling the truth, their stories would have been consistent with minor variations based on their individual comprehension. 3.11. The Trial Court warned itself against the dangers of convicting on uncorroborated evidence of an accomplice and placed reliance on the case of Emmanuel Phiri v The People (1978) ZR 792 and after examining the testimonies of the witnesses and evidence before Court found that the dangers espoused in the case of Emmanuel Phiri v The People (1978) ZR 792 were excluded. 3 . 12. The Trial Court found that the State's evidence against all the accused persons was cogent and could have only been discarded or doubted if the accused persons offered an explanation that stirred up doubt in the Trial Court's mind. 3.13. The Trial Court found all the accused persons guilty of the offence of unlawful possession of a protected animal contrary to Section 130 of the Zambia Wildlife Act No. 14 of 2015 as read with Statutory Instrument No. 42 of 2016 and convicted accordingly. The Accused persons were Sentenced to 5 years imprisonment, with hard labour. Scanned with Ci Ca mSca nne r· 4. APPEAL TO THIS COURT J21 4.1. The Appellants has appealed to this Court on four grounds which are reproduced 1.2 above. 4 .2 . In relation to ground one, the Appellants submit that whenever an accusation is made, it has to be backed up by evidence and that the PW2 stated that the day he was called by the 2 nd Appellant who refused ever calling PW2. 4.3. The Appellant submits that PW2 did not prove that the call was made or show evidence of the call ever being made to him by the 2nd Appellant and that the Investigations Officer did not carry out any investigations from the service provider to link the 2nd Appellant to the number PW2 claims to have made the call. 4.4. The Appellant submits that the onus rests on the asserter of facts to prove beyond reasonable doubt the occurrence of certain facts and that the evidence given by PW2 that the 2nd Appellant called him to ask where they should meet is not found on cogent evidence. 4.5. The Appellant further submits that the finding of fact by the Trial Court that the 2nd Appellant called PW2 was erroneous as it was made in the absence of credible evidence and placed reliance on the case of Webster Kayi Lumbwe v the People (1986) ZR 93 SC3 in which the Court stated that an Appellate Court wilJ not interfere with a Trial Court's finding of fact on issues of credibility unless it is clearly shown that the finding was erroneous. Scanned with Ci CamScanner· J22 4.6. The Appellants also relied on the case of Masauso Zulu v Avondale Housing Project Limited (1982) ZR 1724 which I have taken note of. 4.7. The Appellant submits that PW2 did not provide proof that the 2nd Appellant made a call to him. 4.8. In relation to ground 2, the Appellants submit that it is clear from the record and Judgment that there was a person who was with the Appellants at the filing station whom the Appellants suggest booked them along with his other friends Al and A2 and that the said person run away and the officers were unable to arrest him. 4 .9. The Appellants submit that they only came up to the vehicle which came with the arresting officer because they wanted their money which the person who booked them was supposed to give them and were only entangled in this mess because Al, A2 and the person who run away booked them. 4.10. In relation to ground 3, the Appellants submit that the Appellants testified that they were only conducting lifts and that they did not know A 1, A2 and the person who run away and they they only gave them a lift in exchange of payment of the sum of ZMW 500.00 which was to be pa id by the persons who booked them after meeting their boss. 4.11. The Appellants submit that the Appellants refused having ever seen a Pangolin and it was the Courts duty to deduce as to whether the Appellants had possession or had knowledge of possession of a s provided under Section 4 of the Penal Code. Scanned with Ci CamScanner· ( r J23 4.12. The Appellant further submits tha t there is an assertion on page 3 of the Judgment that 3 persons disembarked from the ca r with a white sack but there is no indication as to who carried the white sack. 4.13. The Appellants place reliance on the case ofMadubula v the People SCZ N0.11 of 19945 and submit that the Appellants did not know that Al and the other person who fled carried a Pangolin as they only discovered after being apprehended by the officers. 4. 14. In relation to ground four, the Appellants submit that PWl and his colleagues alleged that the Appellants were the ones in possession of the Pangolin in their motor vehicle while the evidence of the Appellants is to the effect that they only gave transport to the Al, A2 and the Albino who runaway and that it was the said Albino who carried the bag were the Pangolin was and went in to negotiate with the officers whilst the Appellants followed to go and claim their money for the transport service they offered. 4.15. The Appellants submit the Al admitted that the Pangolin belonged to him and one would wonder why criminal liability should still be imposed on the Appellants who knew nothing about the existence of the Pangolin and placed reliance on the case of Mavuma Kambanja Situna v The People (1982) ZR 1156, 4 .16. The Respondent did not file heads of arguments and wa s not present a t the hearing of the appeal. As the record will show, the Respondents advanced no excuse despite reaching out to them. Scanned with Ci CamScanner· 5. COURTS DECISION J24 5.1. I have had occasion to review th e Appeal having hea rd Counsel for the Appellants, having read th e submissions in support of the Appeal for which I am g rateful. 5.2 . I shall first d eal with the grounds 1 and 2 of the appeal as the they raise issues of w hether the evidence on which the Trial Court based its conviction of the Appellants was credible and cogent and whether an Appellate Court can reverse a finding of fact made by a Trial Court. 5 .3 . The Appellants rightly submit that the onus rests on the asserter of facts to prove beyond reasonable doubt the occurrence of certain facts. It is an established principle of law that that the burden of proof in criminal cases lies with the Prosecution. The Supreme Court in the case of The People v Austin Chisangu Liato v Appeal No. 291/20147 stated as follows: "We agree that burden of proof in criminal proceeding lies and remains through out on the prosecution to prove its case against the accused person beyond reasonable doubt ... " 5.4. In order for a Court to establish the guilt of Accused persons, the Court must satisfy itself that the Prosecution has provided sufficient evidence which points to the guilt of the Accused and no other inference can be drawn from the facts and evidence before the Court, but an inference of guilty. 5.5. In convicting the Appellants, the Trial Court stated as follows : Scanned with ~ CamScanner- J25 "Coming now to A3 and A4. It has been established by the Prosecution's evidence that A4 actually called PW2 and telling him that he had a Pangolin for sale. Further, A4 introduced A3 to PW2 as the person he conducts business with among others. A3 is the one that revealed the Pangolin to PW2 just before, the two were found in the car with the said Pangolin. I must add that the two failed to refute the Prosecution's evidence. Further, I find no motive for the Prosecution witnesses to make false allegations against A3 and A4; additionally, the Accused persons themselves have provided no such reason". 5.6. In light of the above, I am of the considered view that the Trial Court convicted the Appellant's based on the testimony of PW2. On perusal of the record and evidence before Court, it can be noted that PW2 did not adduce evidence before Court to establish/prove that it was indeed the 2nd Appellant who called him stating that he had a Pangolin for sale. 5. 7 . PW2 even failed to produce evidence to show that a call was made to him by the 2nd Appellant and let alone even produce the phone number of who called him. I find PW2's failure to provide such evidence to be a dereliction of duty and negligence on the part of PW2 as an officer of the law. 5.8. In the case of Charles Lukolongo and Others v. The People SCZ No. 26 of 19868 , the Court set out that the effect of d e re liction of duty as follows: "Where evidence available only to the police is not placed before the court, the court must presume that, had the evidence been produced, it would have been favourable to the accused." Scanned with Ci CamScanner· J26 5.9. PW2 also stated that the 2 nd Appellant, introduced the 1st Appellant as the person he conducted business with among other people but did not specify or prove which kind of business the 2nd Appellant was referring to. It was the testimony of the 2nd Appellant that while they were at Mt. Meru, the 1s t Appellant called him and asked how much the booking was. The Prosecution did not discredit this evidence during cross examination. Two inferences can be drawn from the circumstance; firstly, that the business referred to was the 'Pangolin transaction' and secondly that it could have been the 'taxi business' being referred. 5.10. The law is clear that an inference of guilt may not be drawn unless it is the only inference which can be drawn from the facts. The case of Chimbini v. The People (1973) ZR 1919 refers. It could very well have been that the 1st Appellant was indeed undertaking business of a taxi. 5.11. The Trial Court after examining the testimonies of the parties was faced with two conflicting positions and believed the Respondent's version of the story. The case of Wilson Masauso Zulu v Avondale Housing Project Ltd4 is instructive on when an Appellate Court can reverse a finding of fact, the Court stated as follows: "Before this court can reverse findings of fact made by a trial Judge, we should have to be satisfied that the findings in question were either perverse, or made in the absence of any relevant evidence or upon mi.sapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make". Scanned with Ci Ca mSca nne r- J27 5.12. I have reviewed the Judgement of the Trial Court in which it convicted the Appellants. The Trial Court did not address its mind to that fact that Prosecution gave testimony which was not supported or corroborated by independent evidence. The Trial Court also neglected to consider the testimonies of the Appellants from which inferences other than guilt can be drawn and were never discredited by the Respondent. 5.13. I am of the considered view that the findings were made in the absence relevant evidence and I reverse the finding of fact made by the Trial Court. 5.14. I shall now deal with Ground 3. The Accused persons were convicted of an offence under Section 130 of the Wild life Act which provides as follows: "A person who is in possession of, sells, buys, imports or exports or attempts to sell, buy, import or export, a protected animal or trophy or meat of a protected animal in contravention of this Act commits an offence and is liable, upon conviction, to imprisonment, without the option of a fine, for a term of not less than five years but not exceeding ten 5 .15. Section 4 of the Penal Code defines possession as follows: ''possession", "be in possession of' or "have in possession"- (a) includes not only having in one's own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to, or occupied by oneself or not) for the use or benefit of oneself or of any other person; Scanned with Ci} CamScanner· J28 (b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them; 5.16. According to the above provision, in order for a Court to find that an Accused person was in possession. Any of the following must be proved: i) ii) That an Accused had the subject in his/her personal possession; That the accused knowingly had the subject in the actual possession of custody of another person; iii) That the Accused had knowledge and consent that another person had the subject in their custody or possession. 5.1 7 . I am of the considered opinion that the Prosecution in the Trial Court did not prove beyond reasonable doubt that the Appellants were in possession or attempted to sell the protected animal. No proof was adduced to show that the Appellants had actual possession or knew that the Pangolin was hidden in a sack/bag and was put in the boot. 5.18. I am fortified by the authority in the Supreme Court in the decision of Madubula v The People S. C. Z. JUDGMENT NO. 11 OF 199410 stated as follows: "In view of our comments on the question of possession it is necessary to consider whether the evidence indicates that the appellant was aware that he was carrying illegal trophy. If he was so aware it matters not whether the trophy belonged to Scanned with Ci Ca mSca nne r· ( J29 him or to his passengers; his knowledge of its presence in the car would render his guilty of possession of the trophy". 5.19. Ground 3 succeeds as the Prosecution in the Trial Court failed to prove that the Appellants were in possession of the Pangolin. 5.20. In Ground 4 of the Appeal, the Appellants state that the ZAWA officers were witnesses with an interest to serve. There is a Plethora of authorities regarding when a witness can be considered as a witness with an interest to serve. The Supreme Court in the case of Andrew Mwenya v The People SCZ Appeal No. 640 of 201311 held as follows: "Something has to be presented that would warrant the court to classify a witness as one with an interest of his own to serve; a motive to give false evidence against the accused on the part of the witness has to be revealed, in the absence of this, there is no need to treat a witness with caution." 5 _2 1. 1 do not agree with the Appellants assertion that the Prosecution witnesses were witnesses with an interest to serve and I cannot see any motive to give false evidence against the Appellants on the part of the witness. I have dealt with the issue of whether or not the Prosecution evidence proved guilt beyond reasonable doubt. s.22. In light of the foregoing, the Appellants appeal succeeds on grounds 1,2 and 3 and the conviction of the Appellants is quashed. : Scanned with ! Li} CamScanner· ·---------·-······----------- J30 6 . CONCLUSION 6.1. Th e Appeal s u cceeds and I HEREBY ACQUIT the Appella n ts forthwith . ( 6 .2. Leave to appeal is granted . Delivered at Lusaka on 14th July, 2025. . REPUBLIC OF ZAMBIA HIGH COURT OF ZAMBIA [ 1 4 JUL 1015 ]~ S. CHOCHO . J P. 0. BOX 50067, LUSAKA S . CHOCHO JUDGE Scanned with Ci CamScanner-