Simon Siamana and Ors v The People (Appeal 31 of 2017) [2019] ZMSC 369 (10 June 2019)

SELECTED JUDGMENT NO. 19 OF 2019 1st APPELLANT 2nd APPELLANT 3rd APPELLANT RESPONDENT HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: SIMON SIAMANA HAGGAI KUNDA MULENGA CHANDA AND THE PEOPLE Coram: Phiri, Muyovwe and Chinyama, JJS. On 4th June, 2019 and on ... For the Appellants: Ms M. Marebesa, Legal Aid Counsel, Legal Aid Board. For the Respondent: Mrs M. Chilufya-Kabivela, Senior State Advocate, National Prosecutions Authority. JUDGMENT Chinyama, JS, delivered the Judgment of the Court. Cases referred to: 1. Minister of Home Affairs, Attorney General v Lee Habasonda (suing on his own behalf and on behalf of the Southern African Centre for P.610 the Constructive Resolution of Disputes), SCZ Judgment No. 23 of 2. Sikota Wina and Princess Nakatindi Wina v The People, SCZ Judgment No. 8 of 1996 3. Ernest Yombwe v The People, SCZ Selected Judgment No. 15 of 2019 4. Woolmington v DPP [1935] ALL ER 1 5. Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v The People (1988 - 1989) Z. R. 163 6. Sydney Zonde, Aaron Sakala, Edward Chikumbi v The People (1980) Z. R. 337 Statutes referred to: 1. Criminal Procedure Code, Chapter 88, Laws of Zambia, section 169 (1) Background 1. The three appellants were convicted for the offences of murder and aggravated robbery allegedly committed at Chimsoro Polymer Transport Limited (hereafter “Chimsoro Polymer”) premises at Kapiri Mposhi on the 10th August, 2015. The security guard on duty, Francis Mukonka, was found dead having been strangled with a rope around his neck. Various property comprising 1 HP computer monitor, 1 HP laptop, 2 pairs of safety boots, 2 lift pumps, 1 motor vehicle battery, 5 pairs of worksuits, 1 laptop bag, 60 X 50 Kg bags of soya beans, 1 cardigan bomber and cash money amounting to KI,200.00, J2 P.611 all valued at K26,705.00, the property of Chimsoro Polymer, were stolen. The appellants were each sentenced to death on the count of murder and 15 years imprisonment with hard labour on the count of aggravated robbery. The prosecution’s case 2. The three appellants were implicated by PW2, Roden Chishimba Longwe, who testified that on 9th August, 2015 he was hired by a person named Nicholas Mubanga to transport his goods from Chimsoro Polymer premises after 22:00 hours in the night. He drove his Mitsubishi Canter light truck into the premises and parked next to another truck. The place was lit by electricity lighting. 3. PW2 saw four people, who included Nicholas, load soya beans in 50 Kg bags in his truck from the truck near which he had parked. It took 30 minutes to load the soya beans and he clearly saw the people who were loading the soya beans and J3 P.612 identified three of them being the three appellants in this appeal. The fourth was Nicholas Mubanga. 4. When the loading was done, PW2 drove his truck and its load to a place called Chipaka within Kapiri Mposhi where Nicholas and the others offloaded the soya beans. He was paid K400 for the hire and drove back to his home. 5. On 11th August, 2015, which was the day after the killing of Francis Mukonka and the robbery, the 1st appellant sold a computer monitor which was later identified by PW1 as one of the items stolen from Chimsoro Polymer to PW4, Gilliard Kalipenta in Mkushi. He also sold a battery two days later on the 13th August, 2015 to PW3, Pandwe Mwansa Goodson, also in Mkushi. 6. The two items were recovered by police when the 1st appellant was apprehended on or about the 13th August, 2015 at Mkushi with the assistance of PW7, Bernard Swesha, an uncle to J4 P.613 Nicholas. 2 pumps, a pair of safety shoes and the top part of a work suit were also recovered from the 1st appellant when he was apprehended. 7. Coming to the 2nd appellant, he was apprehended by PW8 on 26th August, 2015 in Luanshya and a laptop was recovered from him together with a pair of safety shoes of the same kind as those recovered from the 1st appellant. 8. The 3rd appellant was apprehended by police also with the help of PW7 who knew him as a call boy named “Body”. Nothing was recovered from him. According to PW7, however, the 3rd appellant told him that he was tired of running at the time of his apprehension. 9. All the recovered property was identified by PW1, Alfred Hachibangu, the Transport Inspector at the Company, as the property of Chimsoro Polymer. J5 P.614 10. The prosecution also relied on the confession statements made by the three appellants to the police. The 1st and 3rd appellants’ statements were admitted into evidence after a trial within a trial, which did not seem to have included the 2nd appellant as the ruling delivered after the trial within a trial showed. 11. The learned trial judge, however, proceeded to admit the 2nd appellant’s confession statement along with those of the 1st and 3rd appellants. This was a strange procedure. It was wrong to admit the 2nd appellant’s confession statement in the absence of an inquiry by way of a trial within a trial about its voluntariness. 12. PW9, Mr Rogers Kafula, a scenes of crime officer also testified that on various days, each appellant led him to Chimsoro Polymer where they demonstrated how the crimes were committed. J6 P.615 The defences 13. Only the 1st and 2nd appellants testified. The 3rd appellant elected to remain silent, which he was perfectly entitled to do. In his defence, the 1st appellant who stated that he had previously worked for Chimsoro Polymer in 2013 as a lorry mate, admitted having sold the computer monitor and the battery (to PW4 and PW3 respectively). He also admitted being found in possession of the work suits, a pump, a laptop bag and safety boots. He, however, claimed that he bought the items from Nicholas between 14th and 15th August, 2015 at 14.00 hours. He stated that he sold the two items because they were not working properly. He stated that he did not know his co­ appellants. He stated that police took him to Chimsoro Polymer where he was told to point at places and photos were taken. He denied going to Chimsoro Polymer on 9th August, 2015 or that he was with his co-appellants that night. J7 P.616 14. For his part, the 2nd appellant’s defence was that he bought the laptop from a person he did not know in Kapiri Mposhi on 11th August, 2015 and paid K350 out of the K500 asked for. This was because it was not working well. He was going to pay the balance after charging it. Days later, he went to Luanshya where on 26th August, 2015, police apprehended him and retrieved the laptop. Back in Kapiri mposhi he could not find the person that had sold him the laptop. He was taken to Chimsoro Polymer where police told him to be pointing at places and photos were taken. He did not know how police came to know that he had the laptop. In re-examination, he conceded agreeing that he did those things or participated in the crimes, as we understood him, and that he was not beaten. The judgment of the lower Court 15. The learned trial judge in the court below found overwhelming evidence against all three appellants comprised in the evidence of the various prosecution witnesses as well as J8 the appellants’ confession statements. She, accordingly convicted all three appellants and sentenced them as stated P.617 earlier. The appeal. 16. The appeal cites one ground: that the judgment of the lower Court is defective and does not conform to the requirements of section 169 (1) of the Criminal Procedure Code (CPC). The submissions on behalf of the appellant 17. Relying on the case of Minister of Home Affairs, Attorney General v Lee Habasonda (suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes)1 (hereafter, “the Lee Habasonda” case) as well as section 169(1) of the CPC, it was submitted that a perusal of the judgment of the lower Court will show that it does not contain the point or points for determination and the reasons for the decision. It was therefore J9 submitted, and Ms Marebesa insisted, that we send back the matter for retrial before another judge as the defect cannot be P.618 cured. We were urged to order accordingly. The submissions on behalf of the respondent 18. For her part, Mrs Chilufya-Kabwela contended that the judgment was in line with section 169(1) of the CPC requiring detailing the point[s] for determination, the decision and the reasons for the decision. It was submitted that in arriving at its decision the Court, did analyse the evidence of the prosecution (and the defence) and established the elements of the offence. 19. Citing the case of Sikota Wina and Princess Nakatindi Wina v The People2, we were urged to exercise our power to review the evidence on the record [and render our decision] as it will not be in the interests of justice to order a retrial. Mrs Chilufya-Kabwela’s prayer was that we dismiss the appeal for lack of merit and uphold the findings of the Court below. J10 P.619 The reply on behalf of the appellants 20. Ms Marebesa’s reply to Mrs Chilufya-Kabwela’s response to her submissions was that section 1 69(1) of the CPC was clear and the only recourse for a defective judgment is a retrial especially that the judgment does not contain any observations about the demeanor of witnesses on which we can rely. This closed the submissions. Consideration of the appeal 21. We have considered the single ground of appeal and the submissions on it. We have also read the judgment delivered in the Court below. The fulcrum of the appeal is that the judgment by the trial Court does not conform to the requirements of a judgment as stipulated in section 169 (1) of the CPC and as guided in the Lee Habasonda1 case and is, therefore, defective. 22. The cases that provide guidance on the elements of a good judgment are many but we see no need to recite them besides Jll P.620 our recent decision in Ernest Yombwe v The People3 in which we considered section 169 (1) of the CPC and stated that- This section applies to all criminal case judgments. Therefore, a trial judge or magistrate is required to prepare a judgment at the conclusion of every trial in which the point(s) to be determined should be stated. In order to identify the point(s) to be determined it is imperative that the judge or magistrate takes into account the evidence adduced by the parties. The judgment should then disclose the decision on the point(s) and the reason(s) for the decision. Given the peremptory language of the statute, the requirement must be complied with even in the most obvious case. We reiterate these observations. 23. We did read the judgment of the lower Court, as we have said. We are unable to agree with Ms Marebesa that it contains no findings of fact, or the reasons for the decision. It is clear from the judgment that after reviewing the evidence of both the prosecution and the defence, the learned trial judge started by reminding herself about the burden on the prosecution to prove the guilt of the accused persons beyond reasonable doubt and cited the old English case of Woolmington v DPP4. J12 P.621 24. The learned judge then went on to state the following- I find that according to the prosecution evidence before this Court, there is overwhelming evidence against all the three accused persons to the effect that on the dates in question, they went to Chimsoro Polymer and attacked the deceased who was guarding the complainant’s premises. The learned judge then proceeded to state the factual evidence of the prosecution witnesses which supported the finding comprising the evidence that implicated the three appellants given by PW2 including the confession statements. It is clear that it is on the basis of this evidence that the learned judge became convinced that the prosecution had proved its case beyond reasonable doubt and convicted the appellants. 25. It is quite plain that the learned trial judge had properly directed his mind on the burden of proof based on the evidence that she had reviewed and the implicating evidence which included the identification of the three appellants on the night of the robbery by PW2 as well as their confession statements. It is thus clear that the reasons for the decision were implicit in J13 P.622 the implicatory evidence which the learned trial judge took into account before satisfying herself that the case had been proved beyond reasonable doubt. 26. The learned judge was, of course, quite terse in her findings and could have been more detailed. But this does not take away the fact that she did take into account all relevant evidence before arriving at the conclusion that the evidence was overwhelming and stated the evidence that supported the position. 27. The difference between this case and that of Lee Habasonda1, relied on by Ms Marebesa, is that in that case the judgment of the Court was entirely bereft of any finding of fact on which the judge relied for his decision hence the holding by this Court that- (1) The trial judge made no findings of fact. He simply reproduced verbatim the notice of motion, the affidavits and the skeleton arguments. (2) The court below having not made any specific findings of fact on the grounds raised for judicial review, an appellate court is not in a position to make those findings of fact on the grounds J14 P.623 raised in the application upon which the applicant sought the reliefs. 28. At this juncture, we would like to settle the argument by Ms Marabesa that the only option where a judgment is found defective is to send it back for re-trial. This is not correct. The correct position is that this Court has a discretion to determine the matter on the basis of the evidence on record once it is satisfied that there was no flaw in the record of the proceedings. The case of Sikota Wina and Princess Nakatindi Wina2 cited by Mrs Chilufya- Kabwela is on point. This Court has discretion, which we exercised in that case, to dispose off a case based on the facts and the merits where a judgment is found to be defective and where it is not practicable to order a retrial. 29. In any case, sending a case back for retrial must be assessed against the prospects of doing justice in the matter bearing in mind that (as we pointed out at the hearing of the appeal) because of the passage of time, witnesses may no longer be available for various reasons. This Court, meanwhile has the benefit of utilising the evidence preserved in the appeal record J15 P.624 and there is no claim that the record is flawed in any way apart from the purported defect in the judgment, which as we have demonstrated, is not there. In the same connection Ms Marebesa’s concern that this Court will have no opportunity to observe the demeanor of witnesses, does not hold water because of what we have said which underscores the tenet that every appeal constitutes a hearing on the record and is determined on the basis of the material within the record. 30. The evidence in this case clearly established that the three appellants were implicated by the evidence of PW2 who placed them at the scene of the crime as well as the 1st and 3rd appellant’s confession statements admitted after the trial- within-a-trial. There was no serious challenge to any of that evidence and this is not in issue in this appeal. The defences put forward by the appellants did not even make sense. 31. The 1st appellant claimed that he bought the items he sold in Mkushi and those found in his possession from the elusive Nicholas, a suspect in the crimes, between the 14th and 15th J16 P.625 August, 2009. To the contrary, the evidence of PW4 is that he bought the computer monitor on 11th August, 2009 and PW3 bought the battery on 13th August, 2009. The two witnesses were not challenged on that evidence. 32. For the 2nd appellant, it is interesting that he claimed not to know how the police located him when it is clear that it is partly because of the stolen laptop in his possession that led to his apprehension. We note also the appellant’s conceding in re­ examination that “he did those things” which we understood to mean participating in the crimes. 33. For the 3rd appellant he did not challenge PW5’s evidence that he gave himself up when he said he was tired of running away. 34. We will, of course, not attach any weight to prosecution evidence that each appellant led police to the scene of the crimes because there was no new evidence of value discovered there as we guided in the case of Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v The People5. J17 P.626 35, We should, however, point out also that the 1st and 2nd appellants are easily caught by the presumption that having been found in possession of recently stolen property they are deemed to have stolen it unless they give reasonable explanations as decided in cases such as Sydney Zonde, Aaron Sakala, Edward Chikumbi v The People6. It is clear from the evidence that there is no reasonable explanation offered to displace the conclusion that the two appellants in fact stole the property. 36. All the foregoing matters clearly confirm the learned judge’s finding that there was overwhelming evidence against all three appellants. We are, therefore, satisfied that the judgment by the Court below in this case is not defective in the manner contended by Ms Marebesa and there is no basis for sending the matter back to the High Court for retrial. The decision and the sentence J18 P.627 37. There is, clearly no merit in the appeal and we dismiss it and uphold the convictions. This then brings us to the adequacy of the sentence for the offence of aggravated robbery. It is clear that the robbery was executed with grievous violence which led to the death of the deceased. The sentence of 15 years imprisonment in the circumstances comes to us with a sense of shock, it being the mandatory minimum. We will interfere with it. In its stead, we impose a sentence of 25 years imprisonment with hard labour besides the sentence of death imposed for the murder of Francis Mukonka. The appeal is accordingly dismissed. SUPREME COURT JUDGE SUPREME COURT JUDGE J. CHIN YAM A SUPREME COURT JUDGE J19