Siwa Nyambe and Ors v the People (Appeal No. 98, 99,100,101, 102, 103/2021; Appeal No. 98, 99,100,101, 102, 103/2021; Appeal No. 98, 99,100,101, 102, 103/2021; Appeal No. 98, 99,100,101, 102, 103/2021; Appeal No. 98, 99,100,101, 102, 103/2021; Appeal No. 98, 99,100,101, 102, 103/2021) [2022] ZMCA 214 (15 June 2022)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 98, 99, HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: SIWANYAMBE SIMASIKU LUNGOWE LUTANGU NYAMBE MUBUKWANULUNGOWE LIKEZO SIYANGA JOSEPHINE SIY ANGA AND THE PEOPLE 100,101,102,103/2021 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT 5TH APPELLANT 6TH APPELLANT RESPONDENT CORAM: Makungu, Sichinga and Muzenga, JJA On 17th February, 2022 and 15th June, 2022 For the Appellant : Mrs. L. Tembo-Ti.ndt Legal Aid Counsel of Legal Aid Board For the Respondent: Ms. P. Nyangu - Senior State Advocate- National Prosecutions Authority JUDGMENT Sichinga, JA, delivered the judgment of the Court. Cases Referred to: 1. George Musupi v The People (1978) ZR 271 2. Simon Malambo Choka v The People (1978) ZR 243 3. Peter Yotamu Haamenda v The People (1977) ZR 184 4. Kalebu Banda v The People (1977) ZR 169 5. Mwewa Murono v The People (2004} ZR 207 6. Haonga & others v The People (1976) ZR 200 7. Dorothy Mutale & Another v The People (1997) SJ 51 8. Ernest Mwaba and Others v The People (1987) ZR 19 9. Chitalu Musonda v The People SCZ Appeal No. 38 of 2014 (unreported} 10. Kahilu Mungochi v The People CAZ Appeal No. 58 of 2016 11. Benwa and Another v The People (1975} ZR 1 Legislation Referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia 1.0 Introduction 1.1 This appeal is against the Judgment of the High Court at Mongu (Chinyanwa-Zulu J.) delivered on 11 th December, 2019. The appeal is against conviction and sentence. The appellants -J2- were convicted of one count of murder contrary to Section 200 of the Penal Code 1 and were each sentenced to death. 1.2 The particulars of the offence alleged that Siwa Nyambe, Simasiku Nyambe, Litangu Nyambe, Mubukwanu Lungowe, Likezo Siyanga, and Josephine Siyanga on 26 th December, 2018 at Kaungangombe Village in the Kalabo District of the Western Province of the Republic of Zambia, jointly and whilst acting together did murder one Monde Mwangala. 2.0 The prosecution's case 2.1 In brief, the evidence in support of the prosecution's case was that on 25th December, 2018 (Christmas day) there was an initiation ceremony taking place at Kaungangombe Village which the deceased attended in the company of Simasiku Muyapekwa (PWl), Simaloya Muyapeka, and Kahilu Siyoto around 21 :00 hours. On arrival at the venue, they went to where one Mubuka was sitting on a stool facing down. The deceased then questioned Mubuka as to why he did not go home to sleep if he was dozing. Incensed by this question, Mubuka got up and hit the deceased on the eye. -J3- 2.2 According to Muyapekwa Simasiku (PWl), on 26th December, 2018, around 09:00 hours, he, in the company of the deceased, returned to the venue of the ceremony, which had carried on. Upon seeing Mubuka, the deceased asked him if he had been offended the previous day. Mubuka was not impressed by this and stated that the deceased had come to fight. The deceased responded to the effect that if his intention was to fight he would have carried it out the previous day. Upon hearing this, Mubuka removed his shirt, picked a stick and begun hitting the deceased. Simasiku Lungowe (A2) equally got a stick and joined Mubuka in hitting the deceased. PWl narrated to the court that Josephine Siyanga (A6), Likezo Sianga (AS), Mubukwanu Lungowe (A4), Lutangu Nyambe (A3), one Nalishebo and one Mukelabai all joined in the affray in quick succession in hitting the deceased with sticks on his head, ribs, and chest. Then Siwa Nyambe (Al) came with a hoe and hacked the deceased on the head, fatally wounding him. PWl said the same people turned on him and beat him until he lost consciousness. -J4- 2.3 Simaloya Muyapekwa (PW2) recounted similar evidence as PW 1 as he was also in the company of the deceased. He told the court that he escaped the beating and reported to his parents that the deceased had been killed. He testified that he knew all the assailants prior to the material day. 2.4 PW3, Detective Sergeant Imanga told the court that upon receipt of the report of murder on 27th December, 2018, he went to check on the deceased's body at Kalabo District Hospital. He observed that the deceased's body had a deep cut on the head and the body was swollen. He told the court that he apprehended A3, A5 and A6. A2 reported himself to the police. Al and A4 were picked up from the chiefs palace at Kaungangombe Village where they had reported themselves too. PW3 tendered into evidence the postmortem report which revealed that the cause of death was head injury. 3.0 The defence 3.1 The appellants 1n their defences all denied assaulting the deceased. They pointed to Mubuka, who had initially fought with the deceased, and was on the run. -JS- 3.2 Al told the court he was at Kaungangombe Village on the material day but he retreated to his girlfriend's house when the fight erupted. 3.3 A2 testified that he was at AS's house where he was operating the music system for the ceremony. He denied any knowledge of the fight. He said he was only informed about it by his wife. 3.4 A3 told the court that on the material day, he got drunk and went to his house to sleep. As a result, he did not even witness the presentation of the girl who was being initiated at the ceremony. He said his girlfriend informed him about the fight. 3.5 A4 told the court that he was in the house where the ceremony was taking place watching over the beer. He said he heard the noise outside and by the time he went to see what was happening the fracas was over. 3.6 AS narrated to the trial court that she hosted the ceremony. That she went to sleep after the girl was presented at the ceremony. When she woke up, her child informed her that Mubuka was fighting with the deceased. She said she was drunk and had no idea what transpired. -J6- 3.7 A6 told the court that after the presentation of the girl she took food to her herdsmen, then she went home. She said that she was only informed that the deceased had been taken to one Grace Kachana's house, where he remained until he was picked up by his parents. 4.0 The decision of the court below 4.1 Upon analysing the evidence before her, the learned trial Judge found that it was not in dispute that the deceased had been assaulted as stated by PWl and PW2, and as revealed by the postmortem report. The court found PW 1 and PW2 to be reliable witnesses as there was no motive on their part to falsely implicate the accused persons. The learned trial judge rejected the defence of intoxication as put up by A2, A3 and AS because they each logically explained the roles they played on the material day before they retired to sleep. 4.2 The learned trial Judge found that the accused persons acted in concert with a common purpose, and jointly with others to commit the offence. She accordingly convicted all of them and sentenced them to death. -J7- 5.0 The appeal 5.1 The appellants have raised the following grounds of appeal: 1. The learned trial court erred in law and fact when the court failed to take into account all the circumstances of the case and convicted the appellants for the offence of murder based on insufficient evidence; and 2. The learned trial court erred in law and in fact when the court convicted the 3 rd, 5 th and 6 th appellants for the offence of murder without considering the fact that the cause of death was head injuries. 6.0 Appellants submissions 6.1 Mrs Tembo-Tindi, learned counsel for the appellant, relied on heads of argument filed on 17th February, 2022. Under the first ground of appeal it was submitted that PWl and PW2 who alleged that they saw the appellants beat the deceased are witnesses with an interest to serve for the reason that they were both related to the deceased, being his biological brothers. Reliance was placed on the cases of George Musupi -JS- v The People1 and Simon Malambo Choka v The People2. In the latter case the Supreme Court held that: "A witness with a possible interest of his own to serve should be treated as if he were an accomplice to the extent that his evidence requires corroboration or something more than a belief in the truth thereof based simply on his demeanor and plausibility of his evidence. That "something more" must satisfy the Court that the danger that the accused is being falsely implicated has been exchtded and that it is safe to rely on the evidence of the suspect witness." 6.2 It was submitted that it is evident from the record that the only evidence that connects the appellants to the commission of the offence is the evidence of PW 1 and PW2 who were witnesses with an interest to serve whose evidence must be received with utmost caution to eliminate every possibility of false implication. It was argued that the trial court did not -J9- completely rule out the danger of false implication by PWl and PW2 especially that PWl explicitly stated in his testimony that he felt bad that the deceased was beaten by Mubuka at the appellants' village and that he wanted the appellants to be punished. Further, that he would say anything to ensure that they are punished. It was submitted that the fact that the appellants, PWl and PW2 had no antagonistic relationship did not completely absorb the danger of false implication. More so in this case where the facts clearly show that there was a ceremony at the village where the deceased was assaulted which ceremony was attended by a lot of people. It was submitted that the prosecution only called two (2) witnesses, out of all the people present at the ceremony. This goes to show that the investigations into the matter could have revealed that no one else who was present at the ceremony saw the appellants herein commit the offence and that PW 1 and PW2 were simply falsely implicating the appellants. 6.3 It was submitted that the aforesaid could also mean that the police were remiss in their duties. Reliance was placed on the -JlO- • case of Peter Yotamu Haamenda v The People3 which states that: "Where the nature of a given criminal case necessitates that a relevant matter must be investigated but the investigating agency fails to investigate it in circumstances amounting to a dereliction of duty and in consequence of that dereliction of duty the accused is seriously prejudiced because evidence which might have been favourable to him has not been adduced, the dereliction of duty will operate in favour of the accused and result in an acquittal unless the evidence given on behalf of the prosecution is so overwhelming as to offset the prejudice which might have arisen from the dereliction of duty". 6.4 The case of Kalebu Banda v The People4 was also cited where the Supreme Court held that: -Jll- "i) Where evidence available only to the police is not placed before the Court it must be assumed that, had it been produced, it would have been favourable to the accused. ii} In this context "available" means "obtainable", whether or not actually obtained. iii) The first question is whether the failure to obtain the evidence was a dereliction of duty on the part of police which may have prejudiced the accused. When evidence has not been obtained in circumstances where there was a duty to do so - and a fortiori when it was obtained and not laid before Court - and possible prejudice has resulted, then an assumption favourable to the accused must be made" 6.5 It was submitted that the results of the aforestated dereliction of duty cannot be borne by the appellants because the burden falls on the prosecution to prove an offence against an accused -Jl2- person beyond all reasonable doubt. In support of this preposition, reliance was placed on the case of Mwewa Murano v The Peoples. 6.6 That the trial court did not take into account the fact that there were a lot of people at the time of the fight between the deceased and Mubuka. Under the circumstances, when the deceased had gone to confront Mubuka with his brothers, there is a possibility that there was confusion in the midst of the fight which the deceased's brothers join in. Further, that there could have been even more confusion when other people joined the fracas which led to PWl and PW2 not properly observing who was involved in the fracas. It was argued that the fact that PWl and PW2 were also involved in the fight, lessened their ability to properly observe the others who were involved. It was contended that PWl and PW2 painted a picture that these were merely observing the fight. That their version of events was possible but not probable as they are the deceased's biological brothers, who most likely were involved in the fight. This on its own takes away from the fact that they -J13- had the opportunity to properly observe the fight. It was submitted that one of the inferences that could be drawn from their specific and detailed testimony is that they were coached. 6. 7 That the record shows that during the fight between the deceased and Mubuka, the deceased was aided in the fight by PWl, PW2 and two others. That the trial court failed to take into account the fact that the appellants could merely have been observing the fight and not participating in it. It was argued that the court below failed to take into account all the circumstances of the case. It was also contended that there was a possibility that the deceased was injured in another fight which erupted after his confrontation with Mubuka. 6.8 It was submitted further that there was no malice aforethought on the part of the people who went to the aid of Mubuka whether or not those people were appellants. That the prosecution did not prove common purpose with regard to the appellants. Counsel contended that the court below erred when it failed to address its mind to this aspect. In support of -J14- this proposition, the case Haonga & others v The People6 was relied upon. 6. 9 That the facts in this case lend themselves to more than one inference that can be drawn, and as such, the appellants ought not to have been convicted. In support of this submission, reliance was placed on the case of Dorothy Mutale & Another v The People1 in which the Supreme Court held inter alia that: "Where two or more inferences are possible, it has always been a cardinal principle of criminal law that the Court will adopt the one that is more favourable or less favourable to an accused if there is nothing to exclude that inference. Where there are lingering doubts, the Court is required to resolve such doubts in favour of the accused." 6.10 It was submitted that there is no evidence proving that the appellants committed the offence of murder, and as such, the convictions cannot stand. We were urged to allow the appeal, -JlS- • quash the convictions and sentences, and set the appellants at liberty. 6.11 The second ground of appeal was argued in the alternative. That in the event that this Court accepts the evidence of the prosecution that the appellants participated in the beating of the deceased, then it is submitted that the prosecution evidence is not supported by the postmortem report which reveals the cause of death. The postmortem report indicates that the deceased died as a result of a deep cut on the parietal region of the head, two fractures on the skull bone, deep cut and hematoma in the brain. It was submitted that if PWl and PW2's evidence is accepted, this Court should note that their detailed testimonies, which are very similar, indicate that it is the 1st , 2nd and 4 th appellants who inflicted injury to the deceased's head and not the 3rd , 5 th and 6 th appellants. That the postmortem report shows that the deceased died from head injuries and not any other injuries. 6.12 In view of the forestated, it was submitted that there is no evidence proving that the 3rd, 5 th , and 6 th Appellants -J16- • committed the offence of murder. That a conviction against the 3 rd , 5th and 6 th appellants cannot stand. Counsel urged us to allow the appeal in respect of the 3 rd, 5 th, and 6th appellants, quash their convictions and sentences, and set them at liberty. 7.0 Respondent's submissions 7.1 Ms Nyangu, the learned senior state advocate, relied on heads of argument filed on 17th February, 2022. The state submitted that the trial court was on firm ground when it convicted the appellants for the offence of murder as there was sufficient evidence adduced by the prosecution witnesses. However, the state conceded that the convictions of murder in respect of the 3rd, 5th and 6th appellants could not stand based on the holding of the Supreme Court in the case of Ernest Mwaba and Others v The People8 that: ''i)Where joint adventurers attack the same person then, unless one of them suddenly does something which is out of line with the common -Jl7- scheme and to which alone the resulting death is attributable, they will be liable. ii) Where the evidence shows that each person actively participated in an assault then they were all criminal participles. The fact that other persons may have also assaulted the deceased at one stage can make no difference where the nature of the assaults was such that their cumulative effect overcame the deceased". 7.2 It was submitted that in casu the postmortem report at page 183 of the record of appeal reveals the cause of death as head injury. That the evidence of PWl and PW2 as stated by the appellants was to the effect that the 1st, 2 nd and 4 th appellants inflicted injury to the deceased's head. Therefore, the actions of the 1st, 2nd and 4th appellants can be attributed to the deceased's death in accordance with the holding in the above cited case. 7.3 The evidence of PW3, the. arresting officer, was to the effect that the deceased's body was still swollen when he saw it at -J18- Kalabo District Hospital. Counsel contended that the 3 rd , 5 th and 6 th appellants participated in the beating of the deceased notwithstanding that they did not hit him on the head as stated by PWl and PW2. The state submitted, in the alternative, that A3, AS, and A6 be convicted of the offence of assault occasioning actual bodily harm contrary to section 248 of the Penal Code which provides as follows: "Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for 5 years". 7.4 The state's submissions ended abruptly on this point. 80 The decision of the Court 8.1 We have carefully considered the judgment appealed against, the grounds of appeal, and the written arguments advanced by both parties. We shall address the two grounds of appeal together as they are interrelated. The main issue to be determined, as we see it, is whether it can be said on the basis -J19- • of the evidence on record that there was sufficient evidence to convict all the appellants' for the offence of murder. 8.2 Mrs Tembo-Tindi's first contention is that PWl and PW2 were suspect witnesses because they were closely related to the deceased and had their own interests to serve. In the case of Chitalu Musonda v The People9 the Supreme Court had the opportunity to pronounce itself on the law in our jurisdiction regarding suspect witnesses. At page J2 l the Court stated the following: "In the Kambarage case we regarded the witnesses who were friends or relatives of the deceased as having a possible interest of their own to serve, not merely because they were friends and relatives of the deceased, but because they fell into the category of witnesses who were subject of a complaint lodged by the appellant." 8.3 The Supreme Court further stated that: -J20- "As we explained in the Mwambona case in regard to an employee ... " " ... Although an employee may in appropriate cases be regarded as a witness with a possible bias, just as one might so regard a close relative, and in such cases, one would approach his evidence with caution and suspicion, but this is not to say that one would not normally convict on such evidence unless it were corroborated." 8.4 In the case of Kahilu Mungochi v The People10 we stated inter alia that: " ... The case of Yokoniya Mwale v The People does not depart from the Supreme Court's earlier position on who is a witness with a possible interest of his own to serve. It simply relates the law by clarifying that a relative is not automatically a suspect witness, it is the -J21- • circumstances of the case that render a relative to be a suspect witness." 8.5 In this case, we are of the view that PWl and PW2 fell into the category of suspect witnesses whose evidence required caution, and not necessarily corroboration before being confirmed. At page J 19 of its judgment, the lower court stated: "I adopt the position taken by the Supreme Court in Yokoniya Mwale v The People that it is not cast in stone that relatives and friends of the deceased or victims are always treated as witnesses with an interest to serve. As was stated in the case of Guardic Kameya v The Peop1.e, Appeal No. 84 of 2015 the evidence of PWl and PW2 was cogent and I ru1.e out any element of falsehood or bias. There was nothing that was established as a motive on the part of PWl and PW2 to falsely implicate the accused persons." -JZZ- • 8.6 Having regard to all the circumstances of this case, we are of the view that PWl and PW2 could be regarded as witnesses with possible interests/bias to serve by virtue of being brothers to the deceased. However, we are of the view that the trial Judge took this issue into account and ruled out the issue of bias. We cannot fault her for the considerations he made. 8. 7 As regards the issue of common purpose we revert to the case of Haonga and Others v The People supra where the Supreme Court in giving guidance held as follows: (i) Where persons are engaged together in the commission of a felony and a death results from an act of those persons which goes beyond the common design to which the others were parties, those others cannot be convicted of the offence of which the one is guilty. (ii) If a death results from the kind of act which was part of the common design then if -J23- • the offence be murder in one, then it is murder in all." 8.8 The evidence on record is that PWl saw 2nd to 6 th appellants all hitting the deceased with sticks. PWl said Al came with a hoe. and cut the deceased on the head. PW2 gave similar testimony to the effect that he saw 2nd to 6 th appellants hitting the deceased with sticks. In addition, he said he saw Al hack the deceased on the head with a hoe after which the deceased fell to the ground and lost consciousness. 8.9 We have examined the postmortem report and it clearly gives the cause of the deceased's death as "Deep cut on the parietal region of the head. (2) Fractures on the skull bone. Deep cut and hematoma in the brain." From our examination of the report, these findings are conclusive as to the cause of death attributable to the hacking that the deceased suffered. In our view, these injuries as highlighted by the postmortem report and the hacking of the deceased with a hoe as seen by PWl and PW2 in and of themselves demonstrate that A 1 caused the death of the deceased. We say so because the cause of death is -J24- • not attributed to the assault with sticks that the deceased suffered at the hands 2nd to 6 th appellants. 8.10 In coming to the conclusion that it did, the learned trial court relied on the direct evidence from PW 1 and PW2 who both witnessed the appellants' beating the deceased. Had the trial court taken into account that 2 nd to 6 th appellants hit the deceased with sticks and that 1st appellant hacked the deceased with a hoe which caused the injuries recorded in the postmortem report, it would have come to a different conclusion. We find this to have been a misdirection on the part of the trial court as there was no common design between the 1st appellant of the one part and the 2 nd to 6 th appellants of the other part. 8.11 We are alive to section 181(2) of the Criminal Procedure Code2 which provides as follows: "When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he. was not charged with it." -J25- I 8.12 In the case of Benwa and Another v The People11 the Supreme Court held: "The test to be applied by the court in considering the exercise of its discretion to substitute a minor offence is whether the accused can reasonably be said to have had a fair opportunity to meet the alternative charge." 8.13 In casu, we have no doubt that the 2 nd appellant to the 6 th appellant did have a fair opportunity to meet an alternative charge. We have already found from the evidence on· record that they assaulted the deceased and occasioned him actual bodily harm as revealed by PW3 who physically inspected the body and found it swollen. We accordingly set aside the 2 nd to 6 th appellants' conviction for murder and instead convict them of assault occasioning actual bodily harm contrary to section 248 of the Penal Code. -J26- • 9.0 Conclusion 9.1 In view of the forestated, we have found merit in this appeal in favour of the 2 nd to 6 th appellants, and we allow it. We therefore set aside the convictions of murder contrary to section 200 of the Penal Code and quash their sentences. Instead, we find them guilty of assault occasioning actual bodily harm contrary to section 248 of the Penal Code. We have taken into account the fact that they are first offenders and the circumstances of the case. The offence attracts a maximum penalty of five (5) years imprisonment. We impose sentences of six (6) months each with hard labour for the 2 nd appellant (Simasiku Lungowe), the 3 rd appellant (Lutangu Nyambe), and the 4 th appellant (Mubukwanu Lungowe), effective from the date of arrest. We impose a sentence of six (6) months simple imprisonment each in respect of the 5 th appellant (Likezo Sianga) and the 6 th appellant (Josephine Sianga), effective from the date of arrest. -J27- l 9.2 We find the 1st appellant's (Siwa Nyambe) appeal bereft of merit. His conviction and sentence are therefore upheld. C. K. Makungu COURT OF APPEAL JUDGE D co c---- i!J;zenga COURT OF APPEAL JUDGE -J28-