Thomas Gershom Chibuye v People (APPEAL/79/2019) [2019] ZMCA 439 (25 October 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA APPEAL/ 79 /2019 (Criminal Jurisdiction) THOMAS GERSHOM CHIBUYE APPELLANT vs THE PEOPLE RESPONDENT Coram: Mchenga DJP, Sichinga and Majula, JJA On 24t h September, 2019 and 25t h October, 2019 For the Appellant: Mr. H . M. Mweemba, Principal L egal Aid Counsel, Legal Aid Board. For the Respondent: Ms. N. T. Mumba, Acting Chief State Advocate, National Prosecutions Authority. JUDGMENT MAJULA JA, delivered th e Judgment of the Court. Cases referred to : 1. Fawaz (Shawaz) and Another vs The People (1995) SJ (SC). 2. Shamwana & Others vs The People (1985) 41. 3. Nzala vs The People (1976) ZR 221 . 4. Gideon Hamaundu Millard vs The People (1998) SJ 34 (SC). 5. Chimbini vs The People (1973) ZR 191. 6. Chitalu Musonda vs The People SCZ APP/ No. 138/2 014. 7. Kambarange Mpundu Kaunda vs The People (1992) SJ 1. SC. 8. Zulu vs The People (1973) ZR 326. J2 9. Kahilu Mugochi vs The People Appeal 58 of 2016. 10. 11. 12. 13. 14. 15. Bwalya vs The People (1975) ZR 175 Kenneth Chisanga vs The People Appeal No.20 of 2004. Kateka vs The People (1977) ZR 35 (SC). Hamaundu vs The People (1977) ZR 184. Mauma Kabanje Situna vs The People (1973) ZR 191). Samy Kambilima Nyati & Anothe r vs The People SCZ No.14 of 2003. Legislation referred to: 1. The Penal Code Chapter 87 of the Laws of Zambia. 2. The Juveniles ' Act Chapter 53 of the Laws of Zambia. Introduction Thomas Gershom Chibuye, the appellant herein, appeared before the High Court (C. Zulu J.) charged with two counts. The first one was murder contrary to section 200 of the Penal Code. The particulars of the offence alleged that on 24th August, 2018 at Serenje in the Serenje District of the Central Province of the Republic of Zambia, he murdered Maria Mupila. The second count was for the offence of attempted murder contrary to section 215 (a) of the Penal Code. The particulars were that the appellant, on 24th August, 2018 at Serenje, did attempt to murder Lawrence Mukosha. The appellant denied the charges and the matter proceeded to trial. The prosecution called 8 witnesses in support of their case while the appellant testified in his defence . The Evidence in the High Court J3 Joyce Kunda (PWl) testified 1n the court below that on 23rd August 2018 she was at her brother's house, Bibian Kalunga, where her mother Damaless Chanda was selling a local brew. The appellant went there and demanded for money from Damaless which she owed for some iron sheets. He suggested to her that if she did not have the money, she could instead give him a bucket of the brew she was selling. In response Damaless declined and told the appellant she would give the money to his mother. Infuriated by this response, the appellant told Dameless that he was going to burn her inside the house before sunrise. PWl went on to testify that around 20:00 hours she heard the appellant shouting from the top of his house with the words; "I will burn you in the house." On 24th August, 2018 while asleep around 03.00 hours, PWl heard her mother screaming for help. She rushed towards her mother's house which was about 8 metres from hers. She found the house burning. She also saw the appellant standing by the door to Damaless's house. PWl testified that she was able to identify him because there was light from the fire and h e was also wearing the same clothes h e h ad worn the previous day. The appellant subsequently ran away when he was accosted regarding his actions and his earlier threats. J4 It was her evidence that Damaless and Lawrence managed to escape from the burning house while Maria Mupila was burnt to ashes. Bibian Mukosha (PW2) confirmed the evidence of PW 1 to the effect that he heard the appellant threaten Damaless after the latter refused to give him cash or alcohol equivalent to the value of the iron sheets she got on credit. It was his evidence that the appellant told Damaless that she would see what would happen to her before sunset. PW3 was Mwape Sombe who averred that on 23rd August, 2018 around 20.30 hours whilst at his house, he heard the appellant pestering his daughter Petina Mwape over a K20.00 she owed him. The appellant then told Petina that he would burn her inside the house if she did not pay him the money. PW3 rushed to a neighbour and got a K20.00 note which he later gave to the appellant for the money, he was owed by Petina. It was then that the appellant informed PW3 that he would now proceed to go and burn Damaless Chanda. PW3 thereafter reported the threats to the village headman. Damaless Chanda PW4, the victim of the arson, repeated the evidence of PWl as to what transpired on 23rd and 24th August, 2018. She confirmed that around 03 .00 hours while in her house she woke up and found the house burning. She screamed for help and later manage to escape through a small opening with her grandchild Lawrence. Unfortunately, her granddaughter Maria Mupila died in the inferno. She stated that she did not see the appellant during the JS fire but she heard her daughter PWl reminding him of the threat he had made the previous day. Mathews Mupila was PW6, he identified the body of his daughter to the pathologist for purposes of a postmortem examination. The seventh witness for the prosecution was Lawrence Mukosha of unknown age, a grandchild of Damaless, PW4. He lived together with PW4 and the deceased. His evidence was that he was burnt on his legs and was taken to hospital. The deceased was burnt to ashes. When the house was burning, this witness was asleep and therefore did not see anyone set the house on fire. PW8 was Inspector Esther Mwanza a Police officer based at Serenje Police Station. She gave evidence that on 3 rd September, 2018, she was assigned two dockets to investigate involving murder and attempted murder, respectively. She visited the crime scene and collected statements from witnesses and thereafter arrested and charged the appellant for the subject offences. Appellant's defe n ce The appellants evidence was that on the material day he was woken up by his wife who had heard someone calling outside. Together with his wife they proceeded outside and heard a cry for help from Damaless Chanda's house. Upon reaching there they found her house was burning and the roof had collapsed. The appellant tendered some help by removing the drum which was on J6 the verandah and he was assisted by Kelvin. The appellant denied seeing Joyce Kunda (PWl) on that day and paying a visit at Mwape Sombe's house (PW3) and telling him he was going to burn down Damaless's house. He also refuted the assertion that he threatened Damaless in the presence of Kelvin Kalunga (PW5) The long and short of the appellant's defence was that he denied being at the crime scene prior to the arson. He also disaffirmed the evidence from the prosecution witnesses that he had visited Damaless Chanda on 23rd August, 2018 where he allegedly issued threats. In sum, he denied all the allegations levelled against him. Findings of the Trial Judge The trial Judge concluded that the observation of the accused by PW 1 was plausible in that she was able give a description of the clothes the appellant was wearing which coincidentally were the same clothes he wore when he was drinking at PW2 's house the previous day. He went on to add that the recognition of the appellant by PWl as the perpetrator of the offence could not be faulted. On the aspect of identification, he concluded by ruling out the danger of honest mistake on the part of PW 1 as regards identifying the appellant at the crime scene as the perpetrator. Turning to the aspect of the key prosecution witnesses being related to PW4 and her grand-children, the trial Judge addressed his mind to the possibility of possible bias by the witnesses and J7 specifically dealt with this issue. He found that PW4 and her grandchildren had no ulterior motives or biases or self-interest of their own to serve by falsely implicating the appellant. He accepted the evidence of the se prosecution witnesses and found them to be truthful and reliable. He rejected the appellant's version of what transpired. He found that the explanation given by appellant that he only went to Damaless Chanda's house with his wife to help when the house was on fire to not only be false but unbelievable. Judge Zulu dismissed the appellant's story in total. It was on the basis of the aforementioned findings, the trial Judge found that the prosecution had proved its case on both counts and convicted the a ppellant accordingly. He also held that the killing of Maria Mupila was without extenuating circumstances. He ordered the appellant to suffer the death penalty in respect of count one and life imprisonment for count two. Grounds of Appeal 1. The trial court erred in law and fact when it convicted the appellant hereto on the evidence of a single identifying witness and evidence of accomplices or witnesses with a bias or an interest to serve, in the absence of corroboration. 2. The learned trial Judge erred in law and in fact in receiving the evidence of PW7 a child of tender years on oath after a defective voire dire and ruling thereof. 3 . The trial court erred in law and in fact when it dismissed the appellant's defence of alibi. J8 4 . The trial court erred in law and in fact when it sentenced the convict to life imprisonment, a sentence that is harsh and should come to the court with a sense of shock in the light of the existing mitigatory factors. Appellant's arguments In arguing ground one, learned defence Counsel submitted that the evidence regarding the identification of the appellant from PWl was unreliable. Counsel submitted that this witness did not state the time she took to confront the person she allegedly saw at the door or how quickly he responded to her, thereby creating a possibility for imperfect observation. Counsel went on to argue that there is no detailed description of the clothes the witness claimed belonged to the appellant and that there was no evidence that the person at the door had any instrument that could make a fire. We were referred to the case of Fawaz (Shawaz) and Another vs The People1 where it was held that in single identification corroboration or something more is required. According to Counsel, the threats made on the roof top for the second time were only heard by PWl and there was no independent witness to corroborate this claim. Quoting the case of Shamwana & Others vs The People2 , Counsel asserted that the danger of false implication was therefore not ruled out. J9 In relation to ground two, learned defence Counsel found it remarkable that PW7 who was ajuvenile witness was sworn in by the court and thereafter proceeded to hold what seemed like a voire dire. It was contended that this was in breach of the procedure set out in section 122 of the Juveniles Act. He implored us to exclude the testimony of PW7 entirely. Moving to ground three, learned Counsel impeached the trial court's rejection of the appellant's alibi despite the fact that this was the same position he had intimated to the police station when he was apprehended. The case of Nzala vs The People3 was called in aid for the proposition that where an accused person on appre}:i.ension puts forward an alibi it is the duty of the police to investigate it. In relation to ground four, it was the submission of Counsel, that the principles of leniency which should be afforded to a first offender who has shown contrition were not applied to the present case. To support his proposition counsel found solace in the case of Gideon Hammond Millard vs The People4 where it was held that an appellate court should only interfere with the discretion of a trial on sentence if it comes with a sense of shock. It was argued that the life sentence imposed by the lower court was excessive given that the convict is a first offender. We were urged to allow the appeal and set aside the judgment of the lower court. JlO Respondent's arguments In response to the 1st ground of appeal, it has been submitted that the trial court was on firm ground when it relied on the prosecution evidence and when it found that PW 1 was reliable in her observation of the events of the material night leading to the trial court ruling out the danger of an honest mistake on the part of PW 1. That this was in line with the case of Chimbini vs The People5 which guides the court or the factors that have to b e taken into account before the court is satisfied that the witness is reliable in their observation. It has been strongly contended that PWl observed the appellant 1n conditions that was favourable for observation and there is no possibility for an honest mistake. Further that, she was able to give an accurate fitting description of what the appellant was wearing at the material time. He was wearing shoes, a pair of trousers and a belt at the time she saw him standing at PW4's burning house. She went on to testify that the clothes the appellant was wearing on the material time were the same ones he was wearing the previous day, which fact was not disputed or challenged by the appellant. According to the respondent, this buttresses the fact that this particular witness was r eliable. In addition to PWl 's observation, it has been contended that there is a connecting link between the appellant and the commission of the offence which would render a mistaken identification too much of a coincidence. It is threatening words uttered by the appellant before the burning of PW4's house Jl 1 which is an item of evidence which in the respondent's view supports PW l's identification. The case of John Mkandawire and others vs The People was cited which espouses the principle that in single identifying cases there is the possibility of an honest mistake and this can only be ruled out if there is some "connecting link" between the accused and the offence which would render mistaken identification too much of a coincidence. The respondent reiterated that the trial court under the circumstances could not be faulted for finding that PWl was a reliable witness and that the possibility of an honest mistake had been ruled out. And we were t h us urged not to disturb the said findings. In responding to the question of the court having relied on the evidence of PWl, PW2, PW4, PWS, PW6 and PW7 who were relatives and thus might have had an interest of their own to serve, the respondents have conceded that ideally these would fall into that category of witnesses. However, that notwithstanding, it is trite law that when a court is faced with such a situation where witnesses are related or friends of the deceased, the court shou ld approach such evidence with caution in line with the case of Chitalu Musonda vs The People. 6 That this is what the trial court addressed its mind to by placing reliance on the case of Kambarage Mpundu Kaunda vs The People7 wherein it cautioned itself and went on to exclude this danger by finding that in the case at hand there was "no basis upon which to hold that given their proximity to PW4 and her J12 grandchildren they had ulterior motives or biases or self-interest of their own to serve by falsely implicating the appellant." It was submitted that the circumstances do not lead to the conclusion that these witnesses are in fact suspect witnesses. Going by the case of Kahilu Mugochi vs The People9 it was argued that a relative is not automatically a suspect witness unless the circumstance of the case renders it so. It was contended that notwithstanding the fact that PWl, PW2, PW4 and PWS gave slightly different versions of the threatening words uttered by the appellant on the material day, does not in itself show that they were biased. It was further submitted that the evidence of PWl, PW2, PW4 and PWS as to the threatening words being uttered had been corroborated by the evidence of PW3 who also heard the appellant utter similar threatening words. That PW3 was as a matter of fact an independent witness unrelated to the deceased and his family and there was therefore no reason for him to falsely implicate the appellant. It is against this background that the respondent is contending that the trial court was on firm ground when it relied on the evidence on record as being truthful, reliable and sufficient to justify the conviction of the appellant. We were thus called upon to dismiss this ground of appeal. In relation to ground two, it was the position of the respondent that the evidence of PW7 was properly received by the trial court. We have been urged not to disturb the reception of this evidence by the trial court after successfully holding a voire dire. According to Ms. J13 Mumba, although the ruling on the voire dire was defective, the trial Judge was alive to the need to establish that the child possessed sufficient intelligence and also understood the duty of telling the truth. In line with the guidance of the Supreme Court in the case of Zulu vs The People. 8 That this was clear from the questions that the trial court put to the witnesses. Learned Counsel further submitted that the failure by the court to make a finding expressly stating that the juvenile witnesses possessed sufficient intelligence and understood the duty of telling the truth was therefore not fatal. Moving to ground three, Ms. Mumba agreed with the trial Judge for dismissing the appellants alibi as it was not validly raised at the earliest possible time. She pointed out that through the prosecution's evidence, the issue of alibi was never raised by the appellant. Adverting to the case of Bwalya vs The People10 the learned Acting Chief State Advocate argued in order for the prosecution to negative an alibi, it must be raised at the earliest possible time and details of names of the people the appellant is alleged to have been supplied with. Counsel urged us to uphold the findings of the lower court that the alibi was an afterthought and was properly dismissed. In relation to ground four Ms. Mumba vehemently argued that there were aggravating factors in the matter to justify the imposition of a harsh sentence in count two. She pointed out that the appellant planned the commission of the offence and took steps to ensure that the occupants of the house could not escape by tying the door with J14 wires before setting it ablaze. That such conduct deserves a severe sentence such as t h e on e imposed by the court below. As support for the propositions, Ms. Mumba referred us to the case of Kenneth Chisanga vs The People11 where it was held that an appellate court will not interfere with a sentence as being too high unless the sentence comes to the appellate court with a sense of shock. Counsel beseeched us to dismiss the appeal. Verdict. We are grateful to learned Counsel for their spirited submissions. We shall deal with each ground as they were presented. Ground one The main issue that arises for determination in ground one is whether the appellant was properly identified as the perpetrator of the arson which unfortunately resulted in the death of Mary Mupila. The evidence of identification came from PWl Joyce Kunda, who in her evidence told the court that she saw the appellant standing by Damaless's door immediately the house caught fire. It is of course competent for a trial court to convict on the evidence of a single identifying witness provided that such evidence is clear and satisfactory in every respect. For this position we stand guided by the holding of the Supreme Court as stated in the celebrated case of Chimbini vs The People5 when it stated thus: J15 "It is always competent to convict on the evidence of a single witness if that evidence is clear and satisfactory in every respect; where the evidence in question relates to identification there is the additional risk of an honest mistake, and it is therefore necessary to test the evidence of a single witness with particular care. The honesty of the witness is not sufficient; the court must be satisfied that he is reliable in his observation." A few years later similar sentiments were echoed by the Supreme Court in the case of Kateka vs The People12 where is was held: "The question is not one of credibility in the sense of truthfulness, but of reliability, and the greatest care should be taken to test the identification. " Further in the case of Hamaundu vs The People13 it was held as follows: "where the quality of the identification is good and remains so at the close of the defence, the danger of mistaken identification is lessened; the poorer the quality, the greater the danger. In the latter event the court should look for supporting evidence of identification. Odd coincidence can provide corroboration." The evidence on record reveals that PWl solely identified the appellant in support of the conviction. She accosted him and reminded him of his threats which he made the previous day at the crime scene before he ran away. The identification was of a person Jl6 • she had known previously as they used to reside in the same village. She also recognized him through the clothes that he wore the previous day. The trial Judge upon scrutinizing the evidence before him found that the appellant was not a stranger to PWl and she recognized him from the flame of the inferno and also from the clothes he was wearing at the material time which were the same ones he had worn the previous day when he was making the utterances. The trial Judge was satisfied with the identification of the appellant by PWl which he called "impeccable." He ruled out the danger of honest mistake on the part of PW 1. We note further that the learned Judge was alive to the danger inherent in relying on the evidence of a single identifying witness and the need for something more before convicting the appellant for the offences charged. In sum we are of the firm view that the learned trial Judge did subject the evidence of identification to proper evaluation. We do not find anything untoward from the position taken by the trial Judge. We say so because apart from the identification by PWl through observing the appellant whom we have stated she knew prior to this day, the additional element which is the smoking gun in this case is the utterances made by the appellant threatening to burn PW4's house down. These utterance which were heard not just by PWl but were also confirmed by other prosecution witnesses, do lend credence to PWl 's observation. In other words this is supporting evidence of Jl7 identification. It is against this backdrop that the court was satisfied that PWl was reliable in her observation and we hold that we cannot fault the court below for having arrived at this finding after ruling out the possibility of honest mistake. It is on account of the foregoing that we do not see any basis for assailing the findings of the court below. Ground one is therefore found to be bereft of merit and is dismissed. Ground two Turning to ground two, the contention raised by counsel for the appellant is that PW7 who was a child of tender age gave evidence on oath. It was argued that the judge fell in error by accepting the evidence of PW7 on oath notwithstanding that the voire dire was defective. For ease of reference we shall reproduce an excerpt of the proceedings in the court below pertaining to the voire dire that was conducted. "Juvenile witness sworn by Holy Bible Court: What are your full names? Ans: Lawrence Mukosha Question: How old are you? Ans: I don't know. Question: Do you know the place you are in? Jl8 Ans: Yes Question: Where are you? Ans: Kabwe Question: This building? Ans: I don't know Question: Do you know why you are here? Ans: Yes Question: why? Ans: Because Gershom set our house on fire. Question: Did you see him? Ans: No. Question: Who told you? Ans: I heard my mother to Gershom that, is it now true you had set the house on fire for Damaless Chanda? Question: Do you go to church? Ans: Yes. Question: Where? Ans: At Baptist Church. Jl9 Question: Do you know the name of your Sunday School teacher? Ans: Yes, his name is Bugi. Question: What are some of the teachings you learnt? Ans: I can't remember. Question: Are you taught about lying at church? I Ans: Yes, that liars will be punished by God. Question: So you will be punished by God? Ans: So you will tell us the truth? Question: Yes. Question: And if you don't tell us the truth what will happen to you? Ans: God will burn me. Court: The child is competent to give testimony on oath. The law regarding the procedure to be adopted by the court is set out under section 122 of the Juveniles Act which provides at follows: "(a) The court must first decide that the proposing witness is a child of tender years; if he is not, the section does not apply and • • J20 the only manner in which the witness's evidence can be received is on oath. (b) If the court decides that the witness is a child of tender years, it must then inquire whether the child understands the nature of an oath; if he does, he is swam in the ordinary way and his evidence is received on the same basis as that of an adult witness. (c) If, having decided that the proposing witness is a child of tender years, the court is not satisfied that the child understands the nature of an oath, it must then satisfy itself that he is possessed of sufficient intelligence to justify the reception of his evidence and that he understands the duty of speaking the truth; if the child is satisfied on both these matters then the child's evidence may be received although not on oath, and in that event, zn addition to any other cautionary rules relating to corroboration." Having examined the record, it is clear that PW7 was sworn in before the purported voire dire. His evidence was received on oath and looking at the law set out in the preceding paragraphs which pertains to the procedure to be adopted when receiving the evidence of juveniles, we hold that the procedure followed in this case was wrong in law. PW7 did not know his age and the court did not go any further into assessing his age and the court fell in error in not investigating further the child's inability to truthfully testify. Even though the questions put across suggest that the trial court sought • J21 to establish whether or not the child met the threshold that this child (PW7) was possessed of sufficient intelligence warranting the reception of his evidence in line with the provisions of section 122 highlighted above, the court did not clearly pronounce itself or reveal its mind regarding whether or not it was satisfied that the threshold was met. The trial judge after concluding the voire dire simply stated that "the child is competent to give testimony on oath." We take the view that the trial court fell in error when it did not specifically state in no uncertain terms that the threshold set out in section 122 of the Juveniles Act which is that the court must satisfy itself that a child of tender years understands the nature of an oath and is possessed of sufficient intelligence warranting the reception of his evidence. The court ought to have made a finding as to whether PW7 understood the duty of speaking the truth. We cannot at this stage make assumptions based on the questions and answers put and arrive at the conclusion that the judge had satisfied himself. There is a requirement or need for the trial judge to expressly state so. We totally agree with the arguments advanced by the appellant's Counsel that this child witness's evidence was wrongly received on oath by the trial court. Ground two therefore succeeds. Ground three Turning to ground three where the appellant's Counsel faults the Judge for dismissing the appellant's defence of alibi, we have perused the said alibi which is at pages 51 to 53 of the record. • J22 After considering this alibi put forth by the appellant the trial Judge made the following observation at page Jl 1 of the Judgment: "The accused's narration that he and his wife went to the house of Damaless Chanda to help is false and unbelievable. In the maze of his false testimony, it was intriguing to hear that the only help he purportedly rendered when the house was on fire was to shift the drum in the verandah from one end to the other, and ask PW4 the goods she had managed to recover. Anyway, given his false story, it was not surprising to hear his rehearsed fantasy." It is our considered view that the Judge was on firm ground in rejecting the alibi in light of all the other evidence that was before him. He addressed his mind to the totality of evidence on record and cannot be faulted from finding that the alibi could not hold water given the particular circumstances of this case. There is therefore no basis to assail the findings of the trial Judge. We uphold them accordingly. The third ground is devoid of merit and we dismiss it. Ground four On this ground the appellant is aggrieved that the learned trial Judge proceeded to impose a life sentence on count two despite the fact that he is a first offender who is entitled to some leniency. On the other hand, the respondent takes the view that the sentence which was imposed was justified given the aggravating factors. The law regarding the approach that an appellate court should take when confronted with an appeal against sentence has been ably • • J23 set out in a plethora of cases. For instance, in the case of Gideon Hamaundu Millard vs The People4 it was held: "an appellate court should not lightly interfere with the discretion of the trial court on the question of sentence but that for the appellate court to decide to interfere with sentence, it must come to it with a sense of shock." In a nutshell, the authorities have guided that as an appellate court we cannot simply interfere with the lower court's sentence unless it comes to us with a sense of shock. We therefore are constrained to interfere, only for good cause, where the sentence is wrong in law, in fact or in principle or where the sentence is manifestly excessive to induce a sense of shock. In addition the other consideration warranting interference of a sentence is where exceptional circumstances exist. In the case at hand we do not find that the sentence falls within the afore-cited stipulated situations. The sentence in our view does not greet us with a sense of shock and we do not find it manifestly excessive given the grave circumstances of this case. The argument that the victims of the fire suffered superficial burns and therefore the sentence was excessive is hollow. We say so because the evidence reveals that the victims had to flee from a house which had been set ablaze and given the state of affairs, the incident itself was horrific. And this is what must have compelled the trial Judge to give a maximum sentence. We cannot, for the foregoing reasons, interfere with the discretion of the • J24 trial court on sentence. Ground four is equally devoid of merit and is dismissed. We have found no merit in grounds 1, 3 and 4. Notwithstanding the fact that ground two has succeeded in that that voire dire was defective. The evidence of PW7 was therefore not evidence at all, it does not change materially the decision that the appellant is found guilty of the charges against him. The success in ground two therefore does no in anyway assists the appellant. All in all, we have found that the appeal has no legal leg to stand on and we dismiss it for want of merit. Consequently, both the conviction and sentence are upheld. C. DEPUT ··········~~i;··········· COURT OF APPEAL JUDGE