Sitenge Sitenge v The People (Appeal No. 153/2022) [2024] ZMCA 209 (20 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) Appeal No. 153/2022 BETWEEN: SITENGE SITENGE AND THE PEOPLE 2 0 FEB 2024 APPELLANT RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA On 17th May 2023 and 20th February 2024 For the Appellant: Mrs. M. K. Liswaniso, Principal Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. M. C. Chipawa, Senior State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Simon Malambo Choka v. The People (1978) ZR 243 2. Isaa Mwasumbe v. The People (1978) ZR 354 3. Ilunga Kabala & John Masefu v. The People (1981) ZR 102 4. Ngati & Others v. The People - SCZ Judgment No. 14 of 2003 ZR 100 J2 5. George Musupi v. The People (1978) ZR 271 6. Valentine Shula Musakanya v. The Attorney General (1981) ZR 7. Wilson Mwenya v. The People (1990 - 1992) ZR 24 8. Bernedicto Chamata v. The People - Appeal No. 188 of 2022 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellant was charged with one count of the offence of murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. He was subsequently sentenced to death by Chanda J. He has appealed against the conviction and sentence on the basis that the prosecution did not prove its case beyond all reasonable doubt. 1.2 The particulars of the offence alleged that on 15th August 2015 at Mongu in the Western Province of the Republic of Zambia, the appellant murdered one Harry Mukanda. 2.0 EVIDENCE IN THE COURT BELOW 2.1 The evidence of five prosecution witnesses secured the appellant's J3 conviction. The prosecution evidence summarised that the deceased met PWl at Viva nightclub and agreed to go and engage in sexual intercourse. As they were leaving, they were attacked by the appellant and his short friend, whom PWl could not recognise. In the process of the attack, the deceased was stabbed and two phones belonging to the deceased and PWl were taken. 2.2 PWl stopped a taxi which she used to take the deceased to the hospital. At the hospital, the deceased was admitted and PWl went back to Viva night club where the police found her and took her to the police station. PWl had known the appellant for a long time and at some point during that period, he attempted to rape her. She was unable to identify the other assailant because she did not know him. PWl was detained in police custody for two weeks and was released four days after the appellant was apprehended. PW4 the taxi driver told the trial court that the visibility at the place where he had packed his white motor vehicle during the night of the 14th of August, 2015 was very clear. 2.3 All the other witnesses largely repeated what PWl and PW4 the taxi driver said. J4 2.4 This marked the end of the prosecution evidence. The appellant was found with a case to answer and he was put on his defence. The appellant opted to give sworn evidence and called no witnesses. 3.0 DEFENCE 3.1 In his defence, the appellant denied having murdered the deceased. He also accepted knowing PWl. He told the trial court at the time the deceased is said to have been murdered, he was at a funeral. 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4.1 After considering the evidence before her, the learned trial judge found that the facts in this matter were mainly not in dispute. The trial court found that the stab wound inflicted on the deceased by the assailant was done with malice aforethought as defined under Section 204 of The Penal Code. 4.2 The trial court further found that the identification of the appellant by PWl was reliable and solid as there was enough light at the scene where the attack took place. All in all the trial court found that the prosecution had proved its case beyond reasonable doubt. JS 5.0 GROUNDS OF APPEAL 5.1 Crestfallen with the conviction and sentence of the court below, the appellant launched the present appeal fronting two grounds structured as follows: (1) The learned trial judge erred in law and in fact when the court held that the evidence of PW1 regarding the identification of the appellant as the person who stabbed the deceased was credible and that possibility of false or mistaken identity was ruled out. (2) The learned trial court erred in law and fact when the court found that the alibi put forward by the appellant was outrightly untrue and disregarded it. 6.0 THE APPELLANT'S ARGUMENTS 6.1 In support of the first ground of appeal, it was learned counsel's contention that PWl the key witness was a suspect witness as she was the last person seen with the deceased on the material night and she had been detained in police custody in connection with this matter for two weeks. According to learned counsel, PWl's evidence ought to have been corroborated. We were referred to the case of Simon Malambo Choka v. The People 1 where it was held that: "A witness with a possible interest of his own to serve should be treated as if he were an accomplice to the J6 extent that his evidence requires corroboration or something more than a belief in the truth thereof based simply on his demeanour and the plausibility of his evidence. That "something more" must satisfy the court that the danger that the accused is being falsely implicated has been excluded and that it is safe to rely on the evidence of the suspect witness." 6.2 It was contended further that there is evidence that the PWl may have falsely implicated the appellant as during her testimony, she informed the court that the appellant did attempt to rape her at one point. According to learned counsel, there may have been a possibility of an honest mistake on the basis that PWl took a few bottles of Castle Light and may have been somewhat drunk. We were referred to the case of Isaa Mwasumbe v. The People2 where it was held that: "Usually in the case of an identification by a single witness the possibility of an honest mistake cannot be ruled out unless there is some connecting link between the accused and the offence which would render a mistaken identification too much of a coincidence, or evidence such as distinctive features or an accurately fitting description on which a court might properly decide that it is safe to rely on the identification (Bwalya v. The People (3); but where there is good quality identification evidence from a reliable single identifying witness it is competent for a court to convict even in the absence of other evidence to support it." J7 6.3 It was learned counsel's argument that the fact that none of the goods said to have been gotten from the deceased and PWl were not recovered from the appellant's house indicates that it was not the appellant who killed the deceased. 6.4 In support of the second ground of appeal, it was contended that PW2 and PW3 did not rebut the appellant's claim that on the night the deceased in this matter was stabbed, he was attending Mr. Duze's funeral. In support of the argument we were referred to the case of Ilunga Kabala & John Masefu v. The people3 where it was held that "in any criminal case where an alibi is alleged, the onus is on the prosecution to disprove the alibi." 6.5 We were urged to allow this appeal, quash the conviction and set aside the death sentence. 7.0 RESPONDENT'S ARGUMENT 7.1 On behalf of the respondent, the learned counsel in response contended that the trial court was on firm ground when it convicted the appellant of the offence of murder based on the evidence of one identifying witness. We were referred to a case of Ngati & Others v. The People4 where it was held that "it is settled law that the J8 Court is competent to convict on a single identifying witness provided the possibility of mistaken identity is eliminated." It was contended that the appellant was known to PWl and according to her evidence, the appellant did talk to PWl. 7.2 It was the respondent's further contention that PWl did fall within the category of witnesses with an interest to serve and that the trial court properly addressed this issue. We were referred to the case of George Musupi v. The Peoples, where it was held that: "The critical consideration is not whether the witness does have an interest or a purpose of his own to serve, but whether he is a witness who, because of the category into which he falls or because of the particular circumstances of the case, may have a motive to give false evidence." 7.3 In support of ground two of the appeal, it was submitted that the trial court was on firm ground to disregard the purported alibi of the appellant. According to learned counsel, it is settled law that the appellant bore the evidential burden of adducing sufficient evidence to support his alibi. We were referred to the case of Valentine Shula Musakanya v. The Attorney General6 where it was stated that: J9 "Unless a detainee is able to adduce credible evidence of alibi covering the whole period stated in the ground, he cannot be said to have put forward an alibi." 7.4 It was submitted that the appellant failed to provide credible evidence of his alibi and also failed to discredit the prosecution's evidence regarding his alibi. 7.5 All in all, we were urged to uphold the judgment of the lower court and dismiss the appeal. 8.0 HEARING OF APPEAL 8.1 At the hearing of the appeal, learned counsel for the appellant, Mrs. Liswaniso, placed full reliance on the documents filed. On behalf of the State, Mr. Chipawa informed the court that the State would equally rely on the heads of argument filed before the court. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the evidence on the record, the arguments by the parties and the judgment of the court below. We shall consider the grounds of appeal in the order in which they appear. 9.2 In support of ground one, learned counsel for the appellant has contended that PWl was a witness with a possible interest to serve, whose evidence required corroboration. On behalf of the State, JlO learned counsel conceded but submitted that the trial court considered the issue and rightly convicted the appellant. 9.3 The key witness on which the conviction was anchored is PW1. This is a person who was detained by the police for two weeks in connection with the within murder. The detention clearly brings PWl in the scope of a suspect witness, whose evidence requires corroboration (see the case of Simon Malambo Choka supra). Further, in the case of Wilson Mwenya v. The People7 , the Apex Court stated that: "At the outset we would like to indicate that we have no difficulty in holding that PW2 was a person with a possible interest of his own to serve for the simple reason that he had been detained in connection with the same incident and did not earlier on report the incident to required His evidence the police. corroboration." therefore 9.4 The learned trial court found that PWl was a suspect witness on account of being a 'friend' of the deceased, not on account of having been detained. The trial court went further to satisfy itself that the appellant's identification by PWl was reliable. This was a serious misdirection. Jll 9.5 We recently guided, in the case of Bernedicto Chamata v. The People8 , a case where the conviction was equally anchored on a witness who was detained in police custody for 2 days, that: "It is trite that where there is no corroboration, a court must warn itself of the dangers of relying on the uncorroborated evidence of a suspect witness. After doing so, the court must proceed further to look for evidence of something more or what is referred to in the Machobane terms as "special and compelling grounds" (see the case of Machobane v. The People2 ). These are things or evidence, which, though not amounting to corroboration, rule out the dangers associated with relying on the uncorroborated evidence of a witness requiring corroboration." 9.6 We note that PWl informed the police that when the attack occurred, her phone and that of the deceased's were stolen from them by the assailant. We are of the view that there was a dereliction of duty on the part of the police and the prosecution as they could have followed up with MTN Service Provider or got someone from MTN to explain why the results had taken so long. The results could have provided a connecting link. All these lapses weaken further the prosecution case. 9. 7 In the circumstances, there is clearly no corroboration or evidence of something more on the record and we agree with counsel for the J12 appellant that there is no evidence on the record to corroborate PWl 's evidence. As such, her evidence cannot be relied on and must be discounted entirely. We therefore find the conviction to be unsafe. We find merit in ground one. Had the learned trial court properly directed his mind, he would no doubt have reached a verdict as ours. 9.8 Given the outcome of the first ground of appeal, we see no need to address the second ground of appeal as doing so will not have any impact on the outcome of this appeal. 10.0 CONCLUSION 10.1 Having found merit in ground one of the appeal, we allow it. The conviction and the sentence of death are hereby quashed. The appellant is set at liberty forthwith. P. . M. NGULUBE K. ZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE