Tikhani Prince Nkhowani v People (Appeal 74 of 1999) [2003] ZMSC 138 (7 October 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 74 of 1999 HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) BETWEEN: TIKHANI PRINCE NKHOWANI APPELLANT AND THE PEOPLE RESPONDENT CORAM: Chirwa, Chitengi and Silomba JJs on 7th October 2003 For the Appellant: Mr N. Chanda, of Nicholas Chanda & Associates For the Respondent: Mr. C. F. R. Muchenga, Chief State Advocate JUDGMENT Chirwa, JS delivered judgment of the Court: - The appellant TIKHANI PRINCE NKHOWANI was originally jointly charged with four others on one count of aggravated robbery contrary to Section 294 (2) of the Penal Code, Cap. 87. The particulars of the offence alleged that the appellant with four others named, on 28th October 1997 at Livingstone in Livingstone District of the Southern Province of the Republic of Zambia jointly and whilst acting together with other persons unknown and being armed with a firearm, namely an AK47 did rob WEBSTER MOOMBA, of one motor vehicle, namely a Toyota Hilux registration No. AAL 6170, one trunk and K117,292,850-00 cash all together valued at K166,609,001-00 the property of FINANCE BANK and at or immediately before or immediately after such stealing used actual violence to the said WEBSTER MOOMBA in order to obtain or retain or overcome resistance of its being stolen. During the : J2 : course of the trial nolle prosequis were entered in respect of other co-accused persons for various reasons and the third accused ALBERT KAPAKALA, was found with no case to answer and was acquitted. The appellant after the conclusion of the trial was convicted as charged and sentenced to the mandatory death sentence. It is against this conviction that the appellant has appealed to this court. The prosecution evidence, which is common cause, was that PW1 who is the complainant on behalf of Finance Bank,his employers, was on 28th October 1997 on duty at the Livingstone Branch of Finance Bank with other employees who were prosecution witnesses number 2, 3, 4 and 9. Whilst on duty around 0930 hours as they were preparing to leave the bank, having decided to close early in view of the announced coup de-tat, were pounced upon by four armed men who entered the bank premises through he back door. Of these men, one was armed with a rifle, the second with a pistol and the third with a knife. The men wore masks with the exception of the man who was armed with a pistol. PW1 and his friends were harassed at gunpoint and money was demanded from them. PW1 and his friends were forced to open the strong room where money was kept and the assailants got the cash available which they loaded into the bags they brought and also took a trunk containing money which had been received the previous day from the Monze branch of the Bank. PW 1 and his friends were locked in the strong room, fortunately only using the cage door and the assailants left the bank with the money and the bank motor vehicle parked at the back of the bank whose keys they had earlier demanded and obtained at gunpoint from the witness. PW1 and his friends managed to break the lock of the cage with a hammer they found in the strong room and managed to get out of the bank and reported the matter to the Police. On receipt of the report, the Police amassed their logistics and commenced inquiries. On the same day, the Police managed to get some information from members of the public and apprehended one JACK MALAMBO one of the co-accused who escaped from custody and in respect of whom the State entered a nolle prosequi in the course of the trial on account of his escape. Jack Malambo led the police to the home of PW6, : J3 : Ellinah Haambulo where the appellant and one other man were found and apprehended. The police on the same day received further information from members of the public and managed to recover the motor vehicle registration number AAL 6170 in the bush along Sesheke/Kazungula road. According to the prosecution evidence upon the appellant’s apprehension in the house of PW6 two carton boxes were recovered in which some money was recovered and in a carton box next to where the appellant was sleeping they found K24,215,000-00 in various denominations. They also recovered a pistol which was later found to be a starter pistol upon examination by the ballistic expert. Further, according to prosecution evidence, the appellant and one of his friends, led the police into the bush along the Sesheke/Kazungula road where a trunk earlier stolen from the bank was recovered. It is also on record that after the recovery of some money from the home of PW6 and whilst the police and PWs1 and 2 were counting the recovered money the appellant was brought into the room at the police station. After further investigations which included the holding of an identification parade, the appellants and his co­ accused in the court below were arrested for the subject offence. When put on his defence, the appellant told the court that he was ordinarily resident in Lusaka but on 27th October 1997, he travelled to Livingstone by train with his friend Charles Maambo to receive his goods he was expecting by rail. After checking for their goods at the Railway station, they were informed that the train that might have their goods had not arrived and they were asked to wait. His friend Charles Maambo suggested that they go to Dambwa to the house of PW6, Ellinah Hammbulo. He had been to this house before. On arrival at PW6’s house in Dambwa, they did not find her, they were informed she had gone to the hospital. They waited until when she came back and she welcomed them to her house. Since the appellant felt tired having travelled by train the whole night, he asked PW6 for a room to rest and he was offered a spare bedroom. As he was sleeping he felt a blow on his stomach and when we woke up he saw that he was surrounded by Police Officers. He and his friend, together with the owner of the house, were taken to the Police Station. At the Police Station, they were taken to the : J4 : Office of the Officer Commanding where they found some people, including some witnesses like PW1, 2 and 3 counting money and they were introduced as the people who had just robbed the bank. He denied being involved in the robbery. He denied that any carton boxes containing money were recovered from the house where he was apprehended from. He denied leading the police to a bush where a trunk was recovered; he instead said that his friend . Charles Maambo, led the Police to the recovery of the trunk. He admitted attending an identification parade but said he was not happy with it as he had already been seen by the witnesses in the office of the Officer Commanding. On the evidence before him, the learned trial judge found the following facts as being established: - (a) That on 28th October 1997 Finance Bank, Livingstone Branch (b) (c) was robbed of some K117,292,850-00 plus. That the thieves were armed with firearms. PW1 and his members of staff were put into fear and in fact were locked up in a strong room. (d) The robbers took a trunk containing money from the bank and a motor vehicle belonging to the bank which they abandoned along Kazungula/Sesheke road and the learned trial judge finally found that the appellant with others did rob the bank whilst armed with a rifle, an AK47, and a starters pistol. It is against the finding of guilt that the appellant has appealed. On behalf of the appellant, the Directorate of Legal Aid, who originally represented the appellant filed two grounds of appeal and these were: - (1) Thai the trial judge misdirected himself when he held the appellant was identified as the leader of the group which staged the robbery as evidence does not support the finding. (2) The trial judge misdirected himself when he glossed over the total weight of the evidence on record. The Directorate of Legal Aid also did file heads of arguments supporting these two grounds of appeal. At the hearing of the appeal, Mr. Chanda who actually represented the appellant, supplemented the arguments : J5 : in the grounds of the appeal. His detailed and learned submission centred on the identity of the appellant as one of the robbers. It was argued that the circumstances of the robbery did not give sufficient opportunity to the witnesses to properly identify the appellant as one of the robbers so as to eliminate an honest but mistaken identity. The manner in which the identification parade is done has nothing to do with deciding the issue of elimination of an honest mistake. It is not practical for the Police to arrange a parade of people with similar features to the extent that if a witness says that the assailant had a scar on the forehead, police must go and look for people with scars on the forehead. If there were such a stringent requirement suspects would be kept in custody for unnecessarily too long a period. What is generally required is that if the suspect was white, the parade should have whites, if of Indian, it must have Indians. To attack the manner of the conduct of an identification parade on appeal without proper foundation at the trial is a futile exercise. To condemn the manner of the identification parade, the unfairness must be shown at trial through cross-examination. Looking at the evidence of PW11 the Officer who conducted the identification parade, we see no suggestions or questions put to him as to the manner in which he conducted the parade. The witness fairly did tell the court that the appellant complained that the witness had previously seen him prior to the parade and this is an issue that goes to the weight to be attached to such identification. It does not go to the manner of the parade. The attack on the manner in which the identification parade was conducted is completely misplaced in this appeal. The legitimate issue is the proper identification of the appellant by the witness bearing in mind circumstances such as the state of the light, the amount of violence applied, the time taken for the attack and the number of attackers. There are other factors that have to be taken into account in assessing the ability of a witness to observe the assailants. Our authorities are abundant and they instruct that it is not the honesty of the witness on test; it is his ability to properly observe the assailants as to avoid an honest but mistaken identification. : J6 : It is the general prosecution evidence from the witnesses who were at the bank that the attackers who entered the bank were three. One was armed with a long gun, the other with a pistol and the third with a knife. Out of these attackers, two had masks on their faces, only one had a clear face. The evidence of PW1 was to the effect that the one who had no mask on had an outgrowth on the forehead and he was the man who had a pistol. The evidence of PW4 was that the unmasked man who was armed with a pistol had a spot on the side of the forehead where hair did not grow. The common factor of these two witnesses is that the unmasked man armed with a pistol had a peculiar feature on him. These witnesses saw this man under different circumstances. PW2 was a security guard at the bank and he was at the rear of the bank which had a fence with a gate. Whilst at the gate waiting for PW1 and others to come out of the bank for him to lock the gate, he heard a voice ordering all of them to go back into the bank. The man who came ordered him not to shout or he would shoot him. When he joined his friends in the bank he found his workmates lying down and he saw some other men wearing woollen masks. PW5 was a general worker at the bank and he was waiting for PW1 to answer the telephone when he felt someone holding his shoulders and pushing him inside the bank and ordering him to lie down. He was searched for the keys and none were found. He then saw the guard and the driver (PW2 and PW9) being brought into the bank. They were all sherparded into the strong room and the man with a pistol told them that he had six bullets in the pistol and that he was going to shoot each with one bullet and the manager with two bullets. This man was putting on a jacket and after this episode and after a few days he identified the appellant at an identification parade. The evidence of PW9, who was the driver was to the affect that he was outside the bank near the bank's motor vehicle and he had just put a brief case for the manager, (PW1), in the car when he was approached by a short man. This man told him that his boss (PW1) was calling him. PW9 faced this man and observed that he was short and had a pistol and was ordered to get inside the bank and inside the bank he found that his workmates were lying down. : J7 : It is against this background that Mr. Chanda submitted that the identification of the appellant was poor and that the possibility of mistaken identity had not been eliminated and that the learned trial judge had not adequately warned himself of this danger and had not considered the possibility of mistaken but honest identity of the appellant. On the other hand Mr. Muchenga, for the State submitted that the identification of the appellant cannot be faulted. It was not a question of one identifying witness with no proper opportunity to observe. Mr. Muchenga prayed that this ground of appeal be dismissed. As we have already stated, the manner of conducting an identification parade should not be confused with the issue of identifying the assailants at the scene of the crime. We have observed that there was no unfairness in the manner the identification parade was conducted. We should therefore only concern ourselves with the identification of the appellant at the scene of the crime. This is not a case of a single identifying witness. There are five witnesses who alleged that they were able to see the assailants especially the short unmasked man who was armed with a pistol. From the description of the incident, this robbery was not committed in a flick or glimpsing moment. The witnesses had good opportunity to observe their attackers. The allegation that the appellant and other suspects were shown and introduced to PW1 and 2 in the office of the Commanding Officer was denied by the two witnesses. Even if their evidence of identifying the appellant at the parade may be watered down or even disregarded, the remaining evidence of prosecution witnesses numbers 2, 5 and 9 is very strong and cogent. These witnesses had good opportunity to observe their assailants even under trying circumstances. The learned trial judge considered their evidence not on the basis of truthfulness but on reliability. All these witnesses cannot come up with a story that only the appellant was unmasked and had a pistol. The evidence of identity of the appellant is overwhelming; we cannot, therefore, fault the learned trial judge on this issue. This ground of appeal is dismissed and on dismissing this ground of appeal, the rest of the appeal cannot stand. The second ground of appeal is based on the finding by the : J8 : learned trial judge that PW14 fabricated evidence to strengthen the prosecution case when he found this witness wanting on the issue of who led the police to the recovery of the trunk. Had it not been very good evidence of identification of the appellant, we would have had serious consideration of the witness's evidence, but then, some coincidences do support his other evidence. The appellant does not dispute having been apprehended from the house of PW6 together with his friend. There was no comment from the appellant on the evidence of PW6 that the appellant and his friend gave her a lot of money for the help rendered to them. The fact that the prosecution case was poorly led on the evidence of PW6 does not weaken the prosecution case against the appellant. On the totality, therefore, this appeal must fail and it is dismissed. D. K. CHIRWA SUPREME COURT JUDGE P. CHITENGI SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE