Victor Chilala v The People [2019] ZMCA 350 (25 October 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) APPEAL 82/2019 BETWEEN: VICTOR CHILALA AND THE PEOPLE (cid:9) APPELLANT ``-Z so. RESPONDENT 'cr CORAM: Mchenga DJP, Sichinga and Majula, JJA On 15th October 2019, 17t October 2019 and 25t October 2019 For the Appellants: H. M. Mweemba- Principal Legal Aid Counsel, Legal Aid Board For the Respondent: M. Hakasenke-Simuchimba- Senior State Advocate, National Prosecutions Authority JUDGMENT Mchenga, DJP, delivered the Judgment of the Court. Cases referred to: 1. Wilson Masauso v Avondale Housing Project [1982] Z. R. 172. 2. Muyunda Muziba, Itumbi Sitai v The People SCZ Appeal No. 26 of 2012. 3. Webster Kayi Lumbwe v The People [1986] Z. R. 93. 4. Mwansa Mushala v The People [1978] Z. R. 58. (cid:9) J2 5. Yokoniya Mwale v The People SCZ Appeal No. 285 of 2014. 6. Patrick Tambwisha and Elvis Shamboko v The People CAZ Appeal No. 56 and 57 of 2016. Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 2. The Zambia Police Act, Chapter 107 of the Laws of Zambia 3. The Animal Identification Act, Act No. 28 of 2010 Introduction 1. The appellant, initially appeared in the Subordinate Court (Honourable Chilingala), charged with the offence of stock theft contrary to sections 272 and 275 (2) of the Penal Code. At the end of that trial, he was acquitted. 2. Following his acquittal, the State appealed to the High Court. In a judgment delivered on 12 February 2019, the High Court (Chitabo J.), set aside the appellant's acquittal by the Subordinate Court, and convicted him for the offence of stock theft. He was then sentenced to 5 years imprisonment, with hard labour. J3 3. He has now appealed to this court, against that conviction. Charge and prosecution evidence before the Subordinate Court 4. The allegation in particulars of the offence, was that that on 24 December 2015, at Chikankata, in Nazabuka District, the appellant stole two herds of cattle, belonging to Zim-Zam Farm. 5. The prosecution evidence was that in the very early hours of 24 December 2015, Grant Nwiinga, the Chief Security Officer of Zim-Zam Farm, saw the appellant dropping three men near their farm. Around lam, the same morning, he informed Tapiwa Shayawabaya, a manager at Zim-Zam Farm, of what he had seen. 6. Tapiwa Shayawayaba picked up Grant Mwiinga and they patrolled areas surrounding the farm, but they did not find anybody. They went to the appellant's bar, where they found the van Grant Mwiinga had seen the appellant use to drop off some men, earlier on, 4 (cid:9) J4 parked outside. They also saw the appellant. Both witnesses knew the appellant prior to that day. 7. They left the bar, went back to the farm and parked near the main gate. Not long thereafter, they saw the appellant's van drive through the main gate. They trailed it and at some point, drove parallel to it. Tapiwa Shayawayaba observed that it was the appellant who was driving and he had two passengers. When the van turned into a road heading away from the farm, they decided to return. 8. Later that morning, Tapiwa Shayawayaba left the farm heading for Lusaka. When the bus he was in, stopped at a layby at Munali Hills, he saw the appellant's van parked there. In it, were two herds of cattle bearing their farm brand mark, "Zim-Zam". The appellant was standing outside the van and talking on the phone. 9. Tapiwa Shayawayaba phoned Vice Gone, the Farm manager, and advised him to dash to Abidon Mine layby. Vice Gone, in the company of Grant Mwiinga, 4 (cid:9) J5 drove to the layby. They got there at around 07:30am and found the appellant and two other persons offloading an ox. When he asked them where they were taking the animals, they did not respond. The appellant and one of the men, got into the appellant's van and drove off. They left the animals behind. 10. When questioned, Baxton Mombelela, the man who was helping the appellant offload the animals, said he was hired, at a fee, to help by the appellant. He said he knew the appellant as he used to drink from his bar. 11. Thereafter, Vice Gone called the police at Mazabuka Central Police Station, who went to the layby and collected the animals. He identified the animals through the Zim-Zam brand mark, which was unregistered. The animals were subsequently released to Vice Gone through a court disposal order. The appellant was subsequently arrested and charged with the subject offence. A (cid:9) J6 12. In court, Vice Gone said the appellant was wearing a red checked shirt and blue jeans, while Baxton Mombelela, said it was a black shirt and a hat that he was wearing. Defence evidence 13. In his defence, the appellant told the court that on 24t December 2015, he went and opened his bar at 7am, in the morning. He remained there until 6am, the following morning, when he closed the bar. On that day, he was wearing a khaki short and a white short- sleeved shirt. 14. He went straight home and when he got there, he called Ely Chibale to go and collect his van for repairs. He also said Ely Chibale was tall and light in complexion, like him. 15. Between 7am and 8am, Ely Chibale arrived at his house and collected the van. He returned the van at 5pm and found him at his bar. He remained at the bar until 5am, the following morning. J7 16. He denied knowing Baxter Mombelela or that he was a customer at his bar. He said he was falsely implicated by Vice Gone after he confronted him for making unsolicited advances towards his wife. 17. Queen Mweemba, the appellant's wife, confirmed the appellants story that on 24 December 2015, the appellant left home in the morning and went to their bar. He returned home the following morning and remained there the entire time. On 25t December 2015 at about 07:00 he gave his van to Ely Chibale. She also confirmed his story that Vice Gone had proposed love to her and that the appellant confronted him. Findings of fact by the trial magistrate 18. The trial magistrate considered the circumstances in which Vice Gone, Tapiwa Shayawayaba and Grant Mwiinga, said they identified the appellant. He wondered why Tapiwa Shayawayaba did not confront the appellant, when he said he saw him at the layby, at Munali Hills and instead, chose to call Vice Gone. He also wondered why Vice Gone and Grant Mwiinga, did not confront the appellant, when they found him at the same place. 19. The trial magistrate then noted that the three witnesses did not give details of the appellant's physical appearance, facial appearance and clothing, in their testimony. He opined that since Vice Gone, Tapiwa Shayawayaba and Mr Graat Mwiinga, never confronted the appellant at any given point, their observation of the appellant, was unreliable. It was his view that the possibility of an honest, but mistaken identification of the appellant, could not be ruled out. Consequently, he found that the appellant's identity, had not been proved, beyond reasonable doubt. 20. As regards the ownership of the recovered animals, it was the trial magistrate's opinion that evidence should have been led proving that Zim-Zam Farm was a legal entity, and that the brand mark Zim-Zam, was registered. In the absence of evidence that the brand mark was registered, he found that the prosecution had not proved that the animals belonged to Zim-Zam Farms. 21. Having found that the identification evidence was of poor quality and that the ownership of the animal was not proved, the trial magistrate acquitted the appellant. States appeal to the High Court against appellant's acquittal by the Subordinate Court 22. Dissatisfied with the Subordinate Court's acquittal of the appellant, the state appealed to the High Court. Three grounds were advanced in support of the appeal and it was contended that: 22.1. The trial magistrate erred when he held that the circumstantial evidence linking the appellant to the offence was weak, when there was direct evidence implicating him; 22.2. The trial magistrate did not properly evaluate the identification evidence against the appellant; and 22.3. The trial magistrate did not properly assess the implication of the non-registration of the Zim-Zam brand mark. Consideration of appeal by the High Court 23. First of all, the judge in the court below, referred to the case of Wilson Masauso v Avondale Housing Project, and recognized thaL being an appellate court, he could only reverse findings of fact, made by a trial magistrate, if he was satisfied that they were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts. 24. He then considered the evidence that was led proving ownership, opining that whether the farm was a registered entity or not, was immaterial to the question of was the owner of the animals. Further, he observed that from the evidence on record, it was apparent that the ownership of the animals was not in dispute because there was no objection, when they were released to Vice Gone, before the trial. J 11 25. It was also the view of the judge, in the court below, that the fact that Vice Gone was complainant, was proof enough of ownership and it was a misdirection to question the ownership of the animals solely because the brand mark was not registered. Since the registration of a brand mark was not an ingredient of the offence of stock theft, the failure to register it, could not lead to a conclusion that Zim-Zam Farms were not the owners of the animals. 26. As regards the identification of the appellant, the judge, in the court below, observed that Baxter Mombelela's testimony that he was hired to offload the stolen animals was not considered. That evidence and that of Vice Gone, Tapiwa Shayawayaba and Grant Mwiinga, implicated the appellant, by placing him at the place where the stolen animals were recovered. 27. Further, Vice Gone, Tapiwa Shayawayaba and Grant Mwiinga, all identified the appellant, in broad day light. Their identification evidence was corroborated J12 by the testimony of Baxter Mombelela, that the appellant hired him to offload the animals. 28. He concluded that the trial magistrate came to the wrong conclusions on the identity of the appellant and the ownership of the animals, because of not considering key evidence. As a result, he arrived at findings of fact that were perverse. 29. He set aside the finding that the identification evidence of the appellant was weak and that the ownership of the animals was not proved. In their place, he found that the prosecution had proved that Zim-Zam Farms were the owners of the stolen animals and that they were found with the appellant. Accordingly, he set aside the acquittal and convicted the appellant for the subject offence. 30. Displeased, with the High Court's decision, the appellant appealed to this court against conviction. S (cid:9) fl J13 Grounds of appeal in the Court of Appeal 31. Two grounds have been advanced in support of the appeal before us. They are as follows: 31.1. The judge in the court below erred when he disregarded the reasoning of the magistrate on identification of the appellant without excluding the dangers of false implication: and 31.2. The judge erred when he found that ownership of the stolen animals had been proved. Arguments in support of 1st ground of appeal 32. Mr. Mweemba referred to the case of Muyunda Muziba, Ituinbi Sitai v The People2 and submitted that the evidence of Vice Gone, Baxter Mombelela, Tapiwa Shayawayaba and Grant Mwiinga, who were all suspect witnesses, ought to have been treated with caution, to exclude the danger of false implication. Vice Cone was a suspect witness because of having proposed the appellants wife. In the case of Baxter Mombelela, it was because he was found with the stolen animals, while Tapiwa Shayawayaba and Graat Mwiinga, were J 14 suspect witnesses because they were Vice Gone's friends. 33. Mr.. F4weemba also pointed out that there was a contradiction in the evidence of Vice Gone and Baxter Mombelela, regarding what the appellant was wearing, on the material day. Vice Gone said that he wore a red checked shirt and blue jeans, whilst Baxter Mombelela said that he wore a black shirt and a big cow boy hat. He submitted that the contradiction was a sign of possible false implication of the appellant. 34. He ended by submitting that the trial magistrate, who . saw the demeanour and credibility of the witnesses, rightly rejected the prosecution witness' testimony. States response to the 1st ground of appeal 35. In response to the 1st ground of appeal, Mrs. Hakasenke-Simuchimba submitted that the appellant was well known to the prosecution witnesses. She argued that while it is settled law that an appellate court J16 Should the evidence of Vice Gone, Baxter Mombelela, Tapiwa Shayawayaba and Grant Mwiinga have been treated with caution? 38. In our view, the starting point is the trial magistrate's basis for finding that Vice Gone, Baxter Mombelela, Tapiwa Shayawayaba and Grant Mwiinga's evidence did not prove the appellant's identity beyond reasonable doubt. It was not because he found that their testimony was not credible, but because he doubted that they had the opportunity to sufficiently observe the appellant. He also took the view that their failure to describe his built and appearance, raised doubt on their observation. 39. The trial judge pointed out the evidence in fact established that the witnesses had sufficient opportunity to identify the appellant. It was in broad day light and Baxter Mombelela was with him, for a while. The judge, in the court below, recognised that Baxter Mombelela was a suspect witness and found that his evidence was corroborated. J 17 40. In the circumstances, we find that the judge in the court below cannot be faulted for arriving at the conclusion that trial magistrate's finding that the appellant was not sufficiently identified was perverse. 41. The fact • that Vice Gone, Baxter Mombelela, Tapiwa Shayawayaba and Grant Mwiinga, were witnesses who have had a possible interest on their own to serve was not dealt with by the trial magistrate. However, the judge in the court below, did deal with it and in our view, arrived at the right conclusions. 42. He found that there was no basis on which Tapiwa Shayawayaba and Grant Mwiinga, could be said to have had a possible interest of their own to serve. That finding is supported by the case of Yokoniya Mwale v The People, where it was held that a witness, does not become suspect, merely because he is a friend or relative. 43. In the case of Baxter Mombelela, the judge, in the court below, recognised that was a suspect witness Jig because he was found with the stolen animals. He opined that his evidence was corroborated by that of Grant Mwiinga, who was with Vice Gone, when they found the appellant offloading the animals. 44. As regards the contradiction in the testimony of Vice Gone and Baxter Mombelela, on what the appellant was wearing, we agree with Mrs. Hakasenke-Simucbimba that it must be considered in context. All the witnesses who identified the appellant, at the scene, did not have a fleeting glance of him. Baxter Mombelela spent a considerable time with him, while Vice Gone and Grant Mwiinga, approached him and posed questions to him, before he drove off. 45. It is our view that had the issue been raised with the trial magistrate, properly directing himself on both the evidence that was before him, he could not have come to the conclusion that all the witnesses, were witnesses with a possible interest of their own, to serve. We find no merit in this ground of appeal and we dismiss it. J 19 Appellants arguments in support of the second ground of appeal 46. In support of the 2nd ground of appeal, Mr. Mweemba pointed out that section 24(1) of the Animal Identification Act, requires owners to register an identification mark. He argued that the judge, in the court below, erred when he found that the ownership of the animals, was not in dispute, because the appellant did not oppose the disposal of the animals. He referred to the case of Patrick Tambwisha and Elvis Shainboko v The People in which sections 43 and 44 of the Zambia Police Act were used. State's response to the 2' ground of appeal 47. In response to the 2nd ground of appeal. Mrs. Hakasenke-Simuchimba submitted that the position by the appellant that a person who is gifted or buys an animal is not an owner prior to registration under section 24(1) of the Animal Identification Act, was misleading. She argued that the prosecution witnesses J 20 lay sufficient evidence to identify and establish that the animals belonged to Zim-Zam farm. Was the ownership of the animals in dispute? 48. The first issue we will deal with is the Animal Identification Act. The relevant part of that Act, is section 21, which reads "burden of proof", in the marginal notes and provides as follows: "On the trial of a person who is apprehended in possession of an animal marked with a registered identification mark, a carcass or parts of a carcass without any identification and upon proof being given of the ownership of such animal and that a theft thereof has been committed, the onus of proof that such animal was lawfully or innocently in that person's possession shall rest upon the accused person." Our understanding of this provision, is that, where a person is found with an animal bearing a registered brand mark, there is a presumption that the animal belongs to the registered owner of the brand mark. We see nothing in this provision, suggesting that the ownership of an animal, can only be proved, through a J 21 brand mark, that it may bear, if that brand mark is registered. 49. Further, it is our understanding that the opinion of the judge, in the court below, that the ownership of the animals was not in dispute, is based on the evidence that was before the trial magistrate. The appellant did not claim to be the owner of the animals, he in fact denied being found with them or being anywhere near where they were found. Other than Vice Gone, who claimed them on behalf of Zim-Zam Farms, no one else claimed to be their owner. 50. In the circumstances, the judge, in the court below, cannot be faulted for having the opinion that the ownership of the animals, was not in dispute and that, in fact, Zim-Zam Farms were the owners. We equally find no merit in the second ground of appeal and we dismiss it. Verdict J 22 51. Both grounds of appeal having been unsuccessful, this appeal fails and it is dismissed. The conviction and sentence imposed on the appellant, by the High Court, are upheld. . F. R. M.! enga DEPUTY JUDGE PRESIDENT D. Y. chinga SC COURT OF PEAL JUDGE I B.1-M. Majula COURT OF APPEAL JUDGE