Michael Kamwanga v the People (APPEAL NO. 3/2020) (7 December 2021) – ZambiaLII

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 3/2020 HOLDEN AT LUSAKA (Criminal Jurisdiction} BETWEEN: MICHEAL KAMWANGA ELLANT AND THE PEOPLE RESPONDENT Coram: Muyovwe, Hamaundu and Chinyama, JJS. On 2nd June, 2020 and on 7th December, 2021. For the Appellant Mrs. MK Liswaniso, Legal Aid Counsel, Legal Aid Board For the Respondent Mrs. NT Mumba, Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT Chinyama, JS, delivered the Judgment of the Court. Cases referred to: 1. Emmanuel Phiri v The People (1 982) ZR 77 2. Emmanuel Phiri and Others v The People (1978) ZR 79 3. Gilbert Chileya v The People (1981) ZR 33 4. Peter Yotamu Hamenda v The People (1977) ZR 184 5. Yokoniya Mwale v The People, SCZ Appeal No. 285 of 2014 6. Joseph Mulenga and Albert Phiri v The People (2008) ZR 1 7. Joseph Mulenga v The People, SCZ Appeal No. 128 of 2017 8. Webster Kayi Lumbwe v The People (1986) ZR 93 Jl 1) We heard this appeal together with Justice Muyovwe who regrettably passed on before judgment could be delivered. This judgment is, therefore, that of the majority. 2) The appellant was convicted by Kamwendo J in the Solwezi High Court for the murder of his wife, Fides Kalusa (the deceased), at Mwinilunga, on 4th September, 2012. He was sentenced to death. 3) The material evidence came from PWl, Fines Matamba wife to the deceased's uncle and her daughter PW2, Exildah Shindola. The incident took place at Kajima village in Mwinilunga district where the witnesses lived. PWl and PW2 stated that they had known the appellant for many years. 4) The evidence given was that the deceased person together with PWl and PW2 were seated at their homestead in the village when the appellant arrived on a bicycle and demanded that the deceased should go back with him to their matrimonial home. The deceased refused to go back upon which the appellant got onto his bicycle and rode away. He returned not too long after, without the bicycle. When he reached where the three women were seated, he got a child from the deceased and put it aside. He then pulled an axe from his back under the clothes he was wearing and struck J2 the deceased with it on the left arm. As the deceased tried to stand up, the appellant struck her again, this time on the right side of the face near the ear. He struck her again in the mouth area. The axe blade got stuck in the head and the appellant was not able to pull it out. He left it there. According to PWl, after failing to pull out the axe the appellant said that he would also be buried in the same grave as Fides. He then ran away. 5) The matter was reported to police and PW4 with other police officers went to the village where they found the deceased with the axe stuck in her head and took photographs. The body was taken to Mwinilunga Hospital Mortuary where the axe was removed. The appellant was apprehended by members of the public and handed over to police. According to PW4 he interviewed the appellant who told him that he was drunk and he did not know what he was doing. When warned and cautioned the appellant admitted the charge. 6) A post-mortem examination of the deceased's body was conducted where PW3, Abel Machele, an uncle to the deceased, identified the deceased. The cause of death was found to be severe head injuries. The summary of significant abnormal findings was: J3 "Deep cut on the back of the head with open fracture of the occipital bone exposing the brain matter, deep cut in the jaw with open fracture of the mandible. A deep cut on the left arm." 7) PWI and PW2 stated in cross examination that the appellant was not drunk at the material time. PW4 also stated in cross examination that the appellant was not drunk when he apprehended him later that day. 8) In his defence, the appellant denied that he inflicted the injuries sustained by the deceased. His evidence was that on the fateful day he had been invited to Kajima Village to drink beer by his wife's brother, Abyudi Kalusa and he went there. During their drinking, Abyudi asked the appellant what he was thinking about his wife. When they were drunk, Abyudi spilled beer on him and they started to fight. Four other people named Edson, Loka, Knox and Indivah were present. Abyudi then came with an axe and missed him twice with it. He run away in the direction where his wife was which was about 500 metres away and he fell down with his wife. Abyudi again tried to strike him but missed and struck the deceased instead. The appellant managed to run away. Later, his family's property was extensively damaged by angry villagers. In J4 cross-examination, the appellant stated that the fight started because he slapped Abyudi for spilling beer on him. 9) The trial judge accepted the evidence that the appellant went to Kajima village twice, firstly to ask the deceased to return home and secondly when he hacked the deceased; that the appellant axed the deceased 3 times. He found the evidence of the prosecution witnesses (PWl and PW2) to be credible and corroborated by the photographs taken by police showing the injuries sustained and the axe stuck in the head, as well as the post-mortem report indicating the cause of death. The learned judge disbelieved the appellant's defence holding that it was inconsistent especially on the point that if Abyudi had accidentally struck the deceased, then only one injury would have manifested instead of three. Further, that the villagers would not have attacked the appellant (instead of the brother-in-law, Abyudi whom he alleged to be the one that had struck the deceased with the axe). The judge also discounted the evidence that the appellant was drunk as he found no evidence to ascertain that there was beer being drunk. 10) The appeal is on two grounds thatJS 1. The Court below erred in both law and fact by convicting the appellant on the suspect evidence of PWl and PW2 without any corroborative evidence linking the appellant to the commission of the offence. 2. The trial Court misdirected itself when it failed to make a finding that failure to test the axe, Pl, for finger prints was a dereliction of duty. 11) Both advocates relied entirely on their written heads of argument. 12) In support of the first ground of appeal, it was submitted on behalf of the appellant that PWl and PW2 were suspect witnesses because they were not only related to the deceased person but were also the last persons who were with her. Therefore, that their evidence required corroboration as regards the commission of the offence and the identity of the offender on the same footing as in sexual offences in line with the case of Emmanuel Phiri v The People1 It was conceded that there was, in this case, . corroboration as to the commission of the offence in the form of the photographs showing the injuries, the axe imbedded in the head and the post mortem report confirming the cause of death. There was, however, no corroboration with regard to the identity of the appellant as the offender. It was contended that the lower Court did not give any reason why it believed PWl and PW2 that it was the appellant who struck the deceased with the axe. Counsel JG regarded the finding of the Court on the issue to be a misdirection. Citing the case of Emmanuel Phiri and Others v The People2 it was submitted that there ought to have been reasons consisting of something more than a (mere) belief in the truthfulness of the two witnesses' evidence based simply on their demeanour and plausibility; that in the absence of evidence other than a belief in the witnesses' truthfulness based on their demeanour and plausibility the Court had no option but to acquit. 13) Turning to the second ground of appeal, the argument focused on the lack of evidence that the axe with which the deceased was hacked was tested for finger prints. That the availability of this evidence would have resolved who the perpetrator of the crime was, especially in the light of the appellant's defence that the deceased was struck by her own brother. It was submitted, therefore, that the failure to uplift fingerprints amounted to dereliction of duty and could result in a presumption that the appellant may not have committed the crime in line with the decision in the case of Gilbert Chileya v The People3. Further, citing the case of Peter Yotamu Hamenda v The People4, that the appellant was prejudiced in view of his defence as to who injured J7 the deceased. We were urged in terms of section 15 (1) of the Supreme Court of Zambia Act to find that the conviction was unsatisfactory and unsafe. Ultimately, that we should uphold the two grounds of appeal, set aside the conviction and acquit the appellant. 14) The response on behalf of the State to the arguments in the first ground of appeal is in the alternative. Firstly, that although PWl and PW2 were related to the deceased, there was nothing on record to suggest that they had a motive to falsely implicate the appellant. Therefore, that their evidence did not require corroboration. The case of Yokoniya Mwale v The People5 was cited in support. Secondly, in any event, that there was corroboration of the identity of the offender in that the appellant placed himself at the scene of crime; that the axe and the post mortem report corroborated the narration of events by PWl and PW2 in terms of who and how the offence was committed. It was pointed out also that the appellant was not consistent in his defence, stating in one moment that he was inebriated and could not remember what happened; then that, the deceased's brother, Abyudi, had struck his own sister with the axe in the quest to hit him; later, in cross examination, that he did JS not see Abyudi hit the deceased with the axe because he, the appellant, had ran away. It was contended further, that the appellant had the motive to kill his wife for refusing to return to the matrimonial home; that Abyudi could not have struck the deceased three times if it was by mistake. 15) In the case of the second ground of appeal, the response was that there was no dereliction of duty for not testing the axe for finger prints. This was on the account that the only credible evidence discovered by police during the investigations was that it was the appellant who killed the deceased after she refused to return home with the appellant. That evidence to this effect was not discredited during cross examination of the prosecution witnesses. The case of Joseph Mulenga and Albert Phiri v The People6 was cited for the adjunct that parties must challenge the evidence of a witness on the stand during cross examination as failure to do so diminishes the efficacy of challenges on appeal on issues not raised at the trial. 16) We were urged to dismiss the appeal and uphold the conviction and sentence. J9 17) We are grateful for the submissions and have considered them together with the evidence adduced in the Court below as well as the judgment of the trial Court. 18) In relation to the first ground of appeal, there can be no doubt that the critical evidence upon which the case for the prosecution depended is that of PWl and PW2 who gave eye witness accounts of how the deceased was killed. By their own evidence, the two witnesses were related to the deceased through marriage. As we explained in the case of Yokoniya Mwale v The People5 cited on behalf of the respondent, which we have acknowledged in later cases such as Joseph Mulenga v The People7 the mere , relationship of a witness to the victim of a crime is not sufficient ground to treat the witness as a suspect witness. There must be other circumstances present which tend to show that the witness was biased or had a motive to falsely implicate the accused or had some other interest of his own to serve. 19) In the case before us, it has not been argued or shown that PWl and PW2 where biased or had motives to falsely implicate the appellant. Rather, what we have is a finding by the trial Court that the evidence of the prosecution witnesses, PWl and PW2, was JlO credible; further, that the evidence that the crime was committed by the appellant was in fact corroborated by the photographs taken by Police showing the injuries sustained and the axe stuck in the head, as well as the post-mortem report indicating the cause of death. The learned judge disbelieved the appellant's defence holding that it was inconsistent especially on the point that if Abyudi had accidentally struck the deceased, then only one injury would have manifested instead of three. Further, that the villagers would not have attacked the appellant (instead of the brother-in law, Abyudi whom he alleged to be the one that had struck the deceased with the axe). 20) In the case of Webster Kayi Lumbwe v The People8, this Court reiterated the principle that where questions of credibility are involved, an appellate court which has not had the advantage of seeing and hearing witnesses will not interfere with findings of fact made by the trial judge unless it is clearly shown that the judge has fallen into error. We have stated already that it has not been argued or shown that the prosecution witnesses were biased or had motives to falsely implicate the appellant. In arriving at the decision to accept the prosecution witnesses' evidence and to Jll reject the accused person's defence the learned judge had clearly considered the two sides of the story and gave his reasons in the manner we have summarised in paragraph nine above. It is, therefore, not true that the learned trial judge did not give reasons for accepting the evidence of the prosecution witnesses and did so because of a mere belief in their truthfulness based on their demeanour and plausibility as contended by Counsel for the appellant. Quite clearly, there is no basis on which the learned trial judge's finding on the witnesses' credibility can be reversed. 21) Having concluded in the foregoing manner, it follows that the testimony of PWl and PW2 as to how the appellant conducted himself and fatally injured the deceased on the fateful day is, in our view, in fact, mutually corroborative. We also agree with the submission that the identity of the appellant as the offender is corroborated by the fact that he placed himself at the scene of the crime and his story as to how the deceased sustained the injuries which he tried to blame on the deceased's brother was so inconsistent that it cannot be believed. We are satisfied that the learned judge did not misdirect himself in accepting the evidence of the prosecution and rejecting the defence story based on the J12 evidence tendered by PWI and PW2. We find no merit in the first ground of appeal and we dismiss that ground. 22) In view of the conclusion that we have reached with regard to the first ground of appeal, it is not necessary to deal with the second ground of appeal. This is because even if we were to agree that there was dereliction of duty by the Police in not examining the axe for finger prints to rule out the possibility of the appellant to have handled the item, the evidence of the prosecution witnesses which the Court below found to be unassailable clearly implicated the appellant as the one who struck the deceased with the axe leading to her death. The two cases cited on behalf of the appellant viz: Gilbert Chileya v The People3 and Peter Yotamu Hamenda v The People4 support the principle that the occurrence of dereliction of duty will operate in favour of an accused person and may lead to an acquittal where there is no other evidence implicating the accused. That is not the position in the case before us. There is ample evidence which implicated the appellant. On that score, therefore, there would be no point in considering the merits of the ground. Consequently, the second ground of appeal is unsuccessful. J13 23) The entire appeal has, therefore, collapsed. We uphold both the conviction and the sentence. E. N. C. MUYOVWE SUPREME COURT JUDGE J,C;:1~ E. M. ~LLY,&;ru,1 SUPREME COURT JUDGE SUPREME COURTJUDGE J14