Lungu v People (Appeal 79 of 2006) [2007] ZMSC 167 (6 March 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN ATKABWE AND LUSAKA APPEAL NO. 79/2006 (CRIMINAL JURISDICTION) BETWEEN: STEPHEN LUNGU APPELLANT AND THE PEOPLE RESPONDENT Coram: Sakala, CJ, Chibesakunda and Chitengi, JJS on 7th November 2006 and 6th March, 2007. For the Appellant: Mr. A. C. Nkausu, Principal Legal Aid Counsel For the Respondent: Mr. P. Mutale, Principal State advocate JUDGMENT Chibesakunda, JS, delivered the Judgment of the Court The Appellant was convicted on two counts. The first Count was Aggravated Robbery contrary to Section 294 (1) of the Penal Code. The particulars were that the Appellant with Gift Tembo (now deceased) on the 30th of October, 2002 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together did steal from BUPE STEVEN MWAIPANYA, 2 cartons of glycerin, 3 boxes of sweets and other assorted groceries all valued at K42,750,000.00 and at or J2 immediately before or immediately after the time of stealing did use actual violence to BUPE STEVEN MWAIPANYA in order to obtain or retain the said property or prevent or overcome resistance to its being stolen. The second count was of Murder contrary to Section 200 of the Penal Code Cap 87 of the Laws of Zambia. The particulars were that the Appellant and GIFT TEMBO (now deceased) on the 30th of October, 2002 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together did murder BUPE STEVEN MWAIPANYA The Appellant was convicted and sentenced on both counts, to 20 years on the 1st Count and to death on the 2nd Count. He is appealing against both conviction and sentence. The evidence for the prosecution on which he was convicted, on these two counts, is that the deceased, a young lady from Tanzania, came to Zambia on or about 30th October, 2002, on a business trip, an assignment given to her by her elder sister, PW 1. She came to buy an assortments of groceries to be sold in Mbeya, Tanzania. She was supposed to go back the following day, 1st of November, 2002. She came with K42,750,000.00 to purchase all these groceries. She never returned to Tanzania. J3 PW 1 the deceased’s sister on discovery that her sister never returned home came to Zambia on or about 7th November, 2002. She in the course of making inquiries of the whereabouts of her sister (deceased) approached PW 3 who was a loader at Kamwala Shopping Centre. She had known PW 3 as he used to assist her in loading groceries whenever she, PW 1, came to Zambia to purchase groceries. She also had approached PW 6. PW1 together with PW 3 and PW 6 approached the Appellant at Kamwala Shopping Centre as the last person who had been seen in the company of the deceased. He ran away from PW 1, PW 3 and PW 6. He was later apprehended by PW 3 and taken to Kamwala Police Post. She in the course of making these inquiries on or about 7 November, 2002 saw the body of her deceased sister at the University Teaching Hospital in the Mortuary. PW 3’s evidence is that he had known PW1 as she used to come from Tanzania to purchase various groceries to re-sell in Tanzania for two years prior to this incident. His evidence also is that he had known the deceased before 30th October 2002. The deceased had come on more than two occasions to buy groceries on behalf of her sister PW 1. He testified that on or about 30th October, 2002 he saw the deceased in the company of the Appellant and the Appellant’s young brother loading groceries in a Nissan Datsun yellow in colour van, which the Appellant used to drive. According to him, he saw the Appellant and the deceased loading groceries and sweets J4 in the morning. He testified that, when PW 1 asked him about the whereabouts of the deceased, he volunteered to take her and PW 6 to the Appellant as he was the last person he (PW 3) saw the deceased with. They found the Appellant at Kamwala Shopping Centre. When they asked the Appellant about the whereabouts of the deceased, he offered to take them to his co-driver of the yellow Nissan Datsun, Gift Tembo (now deceased), whom he claimed, knew the whereabouts of the deceased. On the way the Appellant suddenly disappeared. They had to look for him. That is when they apprehended him. He testified that he knew the Appellant well before this incident. PW 4’s evidence was that he was a Police Officer stationed at Kamwala Police Post. He received a report about a missing person from PW 1 and PW 3. He testified that when he received this report he and other Police Officers launched investigations. He testified that during the investigations, he, with other Police Officers, went to the Appellant’s house in the company of PW 3 and PW 6. They found the Appellant was not at his house. Later PW 3 came back to the Police Post having apprehended the Appellant. When the Appellant was apprehended he gave the name of the other driver as Gift Tembo (now deceased). After interviewing the Appellant, Gift Tembo (now deceased) was apprehended. Gift Tembo informed the Police Officers that they (he and the Appellant) had left the J5 deceased in Makeni. Gift Tembo (now deceased) and the Appellant led the Police Officers to the scene of the crime. That is the same scene where the body of the deceased was picked up and taken to University Teaching Hospital Mortuary. Later on Gift Tembo (now deceased) confessed that they (he and the Appellant) had killed the deceased and dumped her body in Makeni. Gift Tembo (now deceased) told the Police Officers in the presence of the Appellant that the Appellant is the one who strangled the deceased. The Appellant remained silent. PW 5 testified that on the 31st of October, 2002 three men approached him. One of the three men was the Appellant. He knew the Appellant very well. He testified that he had known the Appellant because they lived in the same neighbourhood. The Appellant’s parents and his parents used to congregate at the same church. In fact, PW 5 recognized the Appellant’s brother who was sitting in the gallery during the hearing of this case. PW 5 went on to tell the court that on 31st October, 2002, when the Appellant came with his two colleagues, the Appellant and his two colleagues offered to sell him groceries and sweets. He informed them that he was unable to purchase those goods as he could not afford it. However, he was going to assist by approaching an Indian businessman who operates at Soweto Market. This Indian businessman was approached by PW 5. He agreed to purchase these groceries. This same businessman bought those groceries J6 from the Appellant and his colleagues in the presence of PW 5 at the cost of K2,850,000.00. The Appellant then in the presence of his colleagues gave K30,000.00 to PW 5 as a sign of gratitude after this transaction. PW 5’s evidence is that the Appellant and his colleagues came driving a yellow Nissan Datsun when they asked him to purchase those goods. When asked where they got those groceries, their response was that they had been given these goods to sell by an Indian gentleman who was closing his shop. PW 6 testified that on 30th October, 2002, he saw the deceased whom he knew very well as he was a conductor on the Tanzanian Buses. The deceased had come to Zambia before this incident on a shopping spree on more than one occasion. On 30th October, 20002, when he last saw the deceased, the deceased was in company of the Appellant and another person. He testified that he had known the Appellant even before this date. According to him this is when he last saw the deceased. He noticed that the Appellant was assisting the deceased in loading a consignment of groceries in a yellow Nissan Datsun van. They were loading the groceries which the deceased had bought. He talked to the deceased who informed him that the Appellant’s charges were lower than other carriers and that she was going to J7 stick to the Appellant whenever she came to Zambia on business for transportation of her merchandise because of the Appellant’s low charges. PW 6 testified also that about two weeks later, he was approached by PW 1, who again he knew very well, as she used to frequent Zambia on business trips. PW 1 asked him the whereabouts of her sister (the deceased). He offered to take PW 1 to the Appellant as the last person he saw with the deceased. He accompanied PW 1 to Kamwala Shopping Centre. He with PW 1 and PW 3, saw the Appellant at Kamwala Shopping Centre. They talked to the Appellant and asked him the whereabouts of the deceased. The Appellant then informed them that he was going to take them to another person whom he claimed knew the whereabouts of the deceased. This person was Gift Tembo (now deceased), whom he claimed was the driver of the van on the day in question. The Appellant then offered to take them and the Police Officers to Gift Tembo’s house. On their way to Gift Tembo’s house, the Appellant escaped from PW1, PW 3, PW 6 and the Police Officers. This group again started looking for the Appellant. The Appellant was finally apprehended in connection with the missing of the deceased. PW 9 testified that after Gift Tembo (now deceased) was apprehended, he implicated the Appellant and they led the Police to the scene of the crime that is the same scene where the body of the deceased had J8 been earlier on picnicked up by the Makeni Police and taken to the University Teaching Hospital Mortuary. PW 4 and PW 9, Police Officers, testified that when Gift Tembo (now deceased) incriminated the Appellant at the Police Station, the Appellant was present and that his reaction to this incriminating statement was total silence. The Appellant was found with a case to answer. The Appellant opted to give evidence on oath. In his evidence before the court, the Appellant testified that he knew nothing about the commission of the two offences. He testified that from the 4th of November, 2002 he had been unwell. So he was at home in his house when he was informed that a group of people were outside his house. According to him, when he came out, he found two men with Gift Tembo (now deceased), the co-driver of the yellow van. Of the three people, he only knew Gift Tembo and a young man referred to as lorry boy. He described the vehicle they were driving as a Nissan Datsun yellow in colour having a broken window screen. When he was asked why the van had a window screen, broken Gift Tembo explained that they had been hit by a truck which was coming behind as they came from a funeral. He, Gift Tembo, then left KAO,000.00 with him. According to the Appellant on a Thursday in November, 2002 a lady came with PW 3. They were asking J9 about Gift Tembo. He then took these people to Gift Tembo’s house, which house, he claimed, he did not know its number. It was in Chawama. According to him, he, in company of Brian Chisenga, PW 3, and this lady then came to Kamwala Police Post. There at this Police Post PW 3 told the Police Officers that the house they had been to was the Appellant’s house. He testified that after he was apprehended by the Police they asked him about the deceased. According to him, he told the Police Officers that he knew nothing about the deceased. He testified that in the questioning the Police referred to the deceased as the person who booked Gift Tembo (now deceased). In his evidence, he accepted that he worked with Gift Tembo (now deceased) in co-driving the yellow Nissan Datsun in turns. In cross-examination, he accepted that he and Gift Tembo (now deceased) went with the Police Officers to Makeni but he denied that he led them to the scene where the deceased’s body was dumped. He also accepted that in a conversation with Gift Tembo (now deceased), Gift Tembo told him that the deceased was murdered On the evidence before the court, the court convicted the Appellant on two counts and sentenced him as already stated. The Appellant is now appealing against both conviction and sentence. J10 Mr. Nkausu, counsel for the Appellant, argued only one ground of appeal. He argued that the learned trial Judge misdirected himself when he convicted the Appellant solely relying on the inference as the only reasonable inference to be drawn from the fact that the Appellant with the help of PW 5 sold various groceries to an Indian businessman operating at Soweto Market. He argued that, the sole premise for convicting the Appellant, was the belief by the learned trial Judge, that the groceries which the Appellant and his two colleagues later sold, answered the description of the groceries which the deceased was seen buying and later loading in a yellow Nissan Datsun assisted by the Appellant and another person. He argued very forceful that groceries are goods sold almost everyday by anybody. He went on to point out that there is no evidence on record that any of the goods which were later sold to this Indian businessman were traced to the deceased. Neither was there any evidence from any witness who saw the items bought by the deceased, to say that these were the same goods which were sold to the Indian businessman. He argued that there is no evidence which can rule out the possibility of goods coming from some other source other than the deceased. According to him the court relied solely on the fact that the Appellant and his two colleagues sold the groceries to an Indian businessman a day or so after the deceased was last seen in the company of the Appellant loading the groceries in the yellow Jll truck which the Appellant and Gift Tembo (now deceased) used to drive in turns. He argued that this is not the only reasonable inference to draw from these facts. Mr. Mutale, on the other hand, supported the conviction. He pointed out to us that it could not have been a coincidence that PW 3 and PW 6 saw the Appellant in the company of the deceased loading groceries and sweets on 30 October, 2002 and for the Appellant on the following day to be seen selling groceries giving an excuse that an Indian businessman was closing his shop. He argued that PW 3 and PW 6 knew the Appellant very well. PW 5 equally knew the Appellant very well. He even knew his family. There was no possibility of mistaken identity. He argued that it could not have been coincidence that the Appellant on 31st October, 2002 when he approached PW 5, was again driving a yellow Nissan Datsun which he had been driving the day before and in which he was seen loading groceries. He argued that this evidence was overwhelming and that this court should not disturb the findings of the lower court. This court should dismiss the appeal. We have seriously looked at the evidence before this court which evidence was before the lower court. We have addressed our minds to the points raised by the counsel for the Appellant. We, however, are satisfied that there was strong and unshaken evidence by PW 3 and PW 6 that the J12 deceased whom they knew well was last seen alive in company of the Appellant, whom they knew well and another person on the 30th of October, 2002. PW 3 says that the other person was the young brother of the Appellant. PW 6 on the other hand says the person was Gift Tembo (now deceased), a co-driver of the yellow Nissan Datsun van with the Appellant. This discrepancy does not throw any doubt on the fact that both PW 3 and PW 6 saw the deceased last alive in the company of the Appellant. What is important is that the two witnesses knew the Appellant very well before this date. PW 3 saw the Appellant in the morning and PW 6 saw the Appellant in the day and as such there was no possibility of mistaken identity. They both testified that that was the last time they saw the deceased alive. The Appellant did not refute this evidence. We are alive to the fact that he Appellant has no onus to prove himself not guilt. But the evidence from the two witnesses was that they knew him very well. There was also unshaken evidence from PW 5 who also testified that he knew the Appellant very well. In fact, he identified the Appellant’s brother in the public gallery in court as the case was going on. His evidence again which was not shaken, is that a day or so after the Appellant was seen in the company of the deceased, the Appellant in company of two other colleagues approached him. This time the Appellant was once again driving J13 a Nissan Datsun van, yellow in colour, the vehicle similar to the one PW 3 and PW 6 saw him loading groceries in it with the deceased the day before. This time the evidence was that the Appellant approached PW 5 and asked him PW 5 to purchase various groceries amount to K2,850,000.00. Can this be coincidence? Mr. Nkausu has argued that the groceries are not special. They can be sold by anybody. We accept that. But the evidence we have catalogued, which evidence the learned trial Judge accepted, is such that it leads irresistibly to the conclusion that the Appellant was giving a false story to PW 5 as to how he found himself in possession of the groceries. It irresistibly leads to the only conclusion that the Appellant knew what happened to the deceased. We are satisfied that the only reasonable inference to draw from the totality of the evidence, especially taking into account the sequence of the events, as told to the lower court, is that the Appellant stole from the deceased the groceries and subsequently took part in murdering the deceased in the course of stealing from the deceased. We are even fortified in this conclusion taking into account the reaction of the Appellant when Gift Tembo (now deceased) was apprehended and made certain incriminating statements of the Appellant. J14 We are alive to the position at law that any incriminating statement made by a co-accused is only evidence against the maker of that incriminating statement. However, in this particular case the fact that when Gift Tembo (now deceased) was making these statements to the Police Officers, the Appellant was present and even participated in leading the Police Officers to Makeni, the scene where the body of the deceased had been picked up earlier by Makeni Police, lends credence to this inference as the only reasonable inference that the Appellant with other persons unknown stole from the deceased Bupe Steven Mwaipanya, using violence and that in the course of stealing from her murdered her. Having looked at all the evidence in totality we are satisfied that the prosecution proved its case beyond all reasonable doubt. We find no reason to disturb the findings of the lower court. We, therefore, confirm the conviction and uphold the sentence. The appeal is therefore dismissed. E. L. Sakala CHIEF JUSTICE. L. P. Chibesakunda SUPREME COURT JUDGE SUPREME COURT JUDGE. ..............