Mukwamba Nathan Bowamoka and Mwapuamela Nathalie v The People (APPEAL NO. 63/2023) (8 May 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 63/2023 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: MUKWAMBANATHANBOWAMOKA APPELLANT MWAPUAMELA NATHALIE AND THE PEOPLE RESPONDENT CORAM: NGULUBE, MUZENGA AND CHEMBE, JJA. On 30th April, 2024 and 8th May, 2024. For the Appellant: Mr. D. Mazimba - Messrs. Douglas & Partners. For the Respondent: Mrs. M. D. Lungu, -Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Woolmington vs The DPP [1935] AC 462 2. Phiri & Others vs The People (1973) Z.R. 4 7 3. Simon Malambo Choka vs The People (1978) Z.R. 344 4. Mwewa Murono vs The People (2004) Z.R. 207 5. Saluwema vs The People (1965) Z.R. 4 6. Andrew Mwenya vs The People -Appeal No. 640 of 2013 (SC) 7. George Musupi vs The People (1978) Z.R. 271 8. Malambo Choka vs The People (1978) Z.R. 243 9. Patterson Ngoma vs The People (1978) Z.R. 369 1 0. Mwaimu Mohamed Baraka vs The People - Appeal No. 215 of 2020. Legislation referred to 1. The Anti-Human Trafficking Act No. 11 of 2008. 1.0 INTRODUCTION 1.1 Mukwamba Nathan Bowamboka Mwapuamela Nathalie, the appellant appeared before the Subordinate Court of the Second Class, sitting at Mufulira charged with ten ( 10) counts. The first being Smuggling of Persons contrary to Section 9(1) of the Anti-Human Trafficking Act No. 11 of 2008 of the Laws of Zambia. The particulars of the offence are that the appellant, being a Congolese National on 10th May, 2022 at Mufulira jointly and whilst acting together with other persons unknown did participate in smuggling of Divine Shukuru Mapembo, Kaleba Faile Suzanne, Makosa Masandi Merville and Mukosa Tambwe Charles into Zambia without authority. 1.2 The second count is that of Aiding and Abetting Illegal Immigrants, contrary to Sections 46 (l)(a)(2) of the Immigration and Deportation Act No. 18 of 2010 of the -J2- Laws of Zambia. The particulars of the second count are that the appellant being a Congolese National on 17th May, 2022 at Mufulira, jointly and whilst acting together with other persons unknown knowingly did aid Divine Shukuru Mapembo, Kaleba Faile Suzanne, Makosa Masandi Merville and Mukosa Tambwe Charles to enter Zambia without authority. 1.3 In Counts three (3), four (4), five (5) and six (6), the appellant was charged with using a forged visa contrary to Section 52(4)(c) as read with Section 56(1) of the Immigration and Deportation Act No. 18 of 2010 of the Laws of Zambia. 1. 4 The particulars of offence in counts 3, 4, 5 and 6 are that the appellant, a Congolese National on 10th May, 2022 at Mufulira did use forged visas with numbers VOA00146390-5-2, VOA00 146391-5-22, VOA00 146393-5-22 and VOA00 1463885-22 purporting to be issued from Sakania Border Control when in fact not. 1.5 In counts seven (7), eight (8), nine (9) and ten (10) the appellant was charged with Altering an Immigration Receipt contrary to Section 52(4)(d) read with Section 56(1) of the Immigration and Deportation Act No. 18 of 2010 of the Laws of Zambia. 1.6 The particulars of offence are that the appellant on 10th May, 2022 at Mufulira did alter Immigration receipt numbers -J3- V400146388-5-22, V400146390, V400146391-5-22 and V400146393-5-22 to Shadreck Muwowo purporting to be an Immigration Receipt of the Republic of Zambia when in fact not. 1. 7 The appellant denied the charges and the matter proceeded to trial. 1.8 After hearing the prosecution witnesses, the trial Court considered the evidence before it and came to the conclusion that the prosecution had proved the charges that were levelled against the appellant. He was accordingly convicted of the offences as charged. 1. 9 When the matter was remitted to the High Court for sentencing, the Honourable Mr. Justice D. Musonda confirmed the appellant's convictions in counts 1, 2, 6, 7 to 10 and sentenced him to fifteen ( 15) years imprisonment with hard labour in the first count. In Count two, he was sentenced to pay a fine of K6,000.00 while he was sentenced to pay a fine of Kl,000.00 in counts 6, 7, 9 and 10, in default of which he was sentenced to nine(9) months simple imprisonment. 2.0 EVIDENCE IN THE LOWER COURT 2.1 The prosecution called five (5) witnesses in support of its case. The first witness Lisholo Jackson, an Immigration Officer told the Court that on 9th May, 2022, he and his colleagues mounted -J4- a checkpoint along Mokambo Road in Mufulira. That about 10 minutes later, a vehicle pulled up with five passengers, which included the appellant. He asked the appellant and the other persons in the vehicle to produce their identity documents. After hesitating, the accused produced four documents for PW2, PW3 and two children aged 8 years and 3 years old. 2.2 He discovered that the documents had a stamp from Sakania Border Control but nothing was written on it as per practice. He checked for the details in the system and there was nothing to indicate that the appellant entered Zambia through the immigration office. That he also checked the appellant's details which were on his passport but it showed that the owner of the details was a female who entered Zambia through Kasumbalesa border. That when the passport was placed against a light on the accused's portrait, he saw a woman's picture behind it. It appeared that the accused had forged an expired passport. 2.3 PW2's new passport did not have a stamp from the Immigration Office. That the appellant initially stated that he was going to Mufulira but later changed and said he was going to Zimbabwe for his child's funeral. That later, the appellant stated that he was going to South Africa with PW2. -JS- 2.4 The witness explained that a person coming into Zambia, needs to obtain a Visa at the border and the passport is stamped by the immigration office. 2.5 PW3 and the two children were using forged passports, visa receipts which had the same number as opposed to different case numbers. 2.6 PW2, a girl aged 16 years told the Court that on 9th May, 2022, she was on her way to South Africa to visit her aunt and she travelled from Kinshasa to Lubumbashi by air. That she linked up with a person named Danny who picked her, PW3 and two children from Lubumbashi to Kasumbalesa. She met PW3 and the two children for the first time on the material day and she used her passport to go to Kasumbalesa. That she, PW3 and the two children travelled from Kasumbalesa to Mokambo where she met the accused (her uncle) whom she gave her passport. She stated they never passed through any immigration office and they got into a taxi at Mokambo border until they met Immigration Officers. 2.7 PW3 stated that her son organized for her travel arrangements and he arranged for her to meet Danny. That she handed him her passport and the children's passports and they went to Kasumbalesa. They went to Mokambo the following day but -J6- Danny remained at Kasumbalesa. She later linked up with the appellant and they travelled together until they were intercepted at a checkpoint by immigration officers. That she did not know the appellant prior to the incident and was surprised how the accused got her and the children's documents when she left them at Kasumbalesa border with Danny. 2.8 PW4's evidence was similar to PWl's evidence. He added that the appellant also had a refugee card and when the details on the card were compared with what was in the system, they differed from what appeared on his passport. The appellant stated that the details were different because the name Pierro which appeared on the card was for his twin brother. That he discovered that the appellant used different names when crossing the border. 2.9 The witness stated that he warned and cautioned the appellant for the subject offences and he gave a free and voluntary reply denying the charges. 2.10 PWS's evidence was that he is an Immigration Officer stationed at Sakania Border Control and he was on duty on the material day. He stated that the revenue cashbook did not show any transaction relating to the appellant. That Sakania Border -J7- Control did not have the person named as the issuing officer of the receipts which were in possession of the appellant. That the disputed receipts had anomalies as they were purportedly issued by Sakania Border instead of Sakania. Border Control. He stated that the receipts found in the appellant's possession were fake because they were not issued by his station. 2.11 In his Defence, the appellant stated that his sister made the travel arrangements as he was supposed to go South Africa for a wedding. That his sister arranged for him to meet Danny Amisi whom he gave his passport size photo to help him get his passport. That he later met Danny in Lubumbashi and then went to Mokambo Border. The appellant later met Danny's brother who was with PW2, PW3 and the two children. He stated that when they reached the check point the immigration officers asked for his passport and then the appellant asked PW2 to give him the envelope Danny gave her, which had the travel documents. He stated that he saw his passport for the first time at the check point mounted by immigration on the material day. He was apprehended for having a fake passport and when he phoned Danny and inquired over the visas, he cut the call. -J8- 3.0 CONSIDERATION OF THE MATTER AND VERDICT OF THE SUBORDINATE COURT 3.1 The learned trial Magistrate found the appellant guilty of the offences proffered against him. The trial Court found that the appellant together with PW2, PW3 and the two children did not enter Zambia through the border as the prosecution witnesses showed that the Immigration Office did not have a record of their entry into Zambia. 3.2 The learned trial Magistrate also found that the appellant facilitated or procured the illegal entry into Zambia of PW2, PW3 and the two children because he did not challenge the evidence that he was given the passports before entry into Zambia. The trial Court also noted the evidence that only the appellant knew where PW2, PW3 and the children were going which meant that the appellant worked together with others and had knowledge of what was going on. 3.3 Further, the trial Court found that the procurement of illegal entry into Zambia was for financial gain because the evidence of PW3 showed that her son who made the travel arrangements gave Danny the sum of US$ 250 dollars. That in any event, such a transaction ends after crossing the border and it may not be known at what point the appellant was going to be paid. The trial court found the appellant guilty as charged in all ten (10) -19- counts. The matter was remitted to the High Court for sentencing. 4.0 THE APPEAL 4.1 Dissatisfied with the conviction and sentence, the appellant filed four (4 ) grounds of appeal couched as follows1. That the Judge in the Court below erred at law in upholding the conviction, and sentencing the appellant to 15 years imprisonment for smuggling persons when the elements of the offence were not proved; 2. That the Judge misdirected himself when he upheld the appellant's conviction for smuggling persons based on the uncorroborated evidence of PW2 and PW3 and also that the weight of the evidence in totality did not prove the offence of smuggling; 3. That the Judge in the Court below erred at law and/act when he upheld the conviction of the appellant and that he was working with other unknown individuals to smuggle persons in other states when no evidence was tendered to that effect and PW2 and PW3 had started off their own journeys. 4. That the Judge in the Court below erred at law and/act when he upheld the conviction of the appellant for -JlO- smuggling persons for financial or material gain without proof thereof of the financial gain. 5.0 APPELLANT'S HEADS OF ARGUMENT 5.1 Both parties filed heads of argument which were entirely relied on at the hearing. The gist of the appellant's arguments in support of ground one is that the burden of proof lay on the prosecution to prove every element of the offence as held in the case of Woolmington vs The DPP.l It was argued that in accordance with Section 9 of the Anti-Human Trafficking Act No. 11 of 2008, the prosecution needed to prove that the appellant procured the illegal entry of another person into Zambia and that the purpose was for financial or material gain. That the lower Court did not establish whether there was any financial gain on the part of the appellant. 5.2 Counsel drew our attention to page J21 - J22 of the judgment of the Subordinate Court and argued that the trial Magistrate did not have any evidence before her to support her finding that there was financial gain on the part of the appellant, but filled in the gaps by making assumptions. 5.3 We were referred to the case of Phiri & Others vs The People2 where it was held that- -Jll- "The Courts are required to act on evidence placed before them. If there are gaps in the evidence the courts are not permitted to fill them by making assumptions adverse to the accused. If there is insufficient evidence to justify a conviction the courts have no alternative but to acquit the accused." 5.4 It was accordingly argued that there was no evidence placed before the Court as to the financial gain of the appellant. 5.5 In support of ground two, it was submitted that the trial Court placed heavy reliance on the evidence of PW2 and PW3 who were witnesses with a possible interest to serve and should therefore have been treated as accomplice witnesses. For this argument, we were referred to the case of Simon Malambo Choka vs The People.3 5.6 It was submitted that the trial Court' finding that the evidence of PWl and PW4 corroborated the evidence of PW2 and PW3 cannot be relied on because PW 1 and PW4 are immigration officers and that PW2 and PW3 stated that they did not transact with the appellant as they met him along the way. That the trial Court ignored the fact that the witnesses implicated Danny and not the appellant. 5. 7 It was argued further that the trial court made conflicting findings as to whether PW2 was the appellant's niece. That it is -J12- on this basis that the totality of the evidence did not prove the appellant's guilt. 5.8 In support of ground three, Counsel submitted that the trial Court made an assumption that the appellant worked with others unknown to commit the subject offences when there was no evidence on record to support that finding. That it is for this reason that the lower Court should not have upheld the Judgment of the trial Court. To buttress this argument, reference was made to the case of Mwewa Murano vs The People.4 5.9 The arguments advanced in support of ground four were materially the same as those advanced in support of ground one. Save to add the argument that PW2's evidence exonerated the appellant because she stated that she only met the appellant at Mokambo border and never saw him with Danny. 5.10 In relying on the case of Saluwema vs The People5 it was submitted that the Court below erred in upholding the conviction and sentence because the prosecution did not prove its case. Counsel urged us to allow the appeal and acquit the appellant. -J13- 6.0 RESPONDENT'S HEADS OF ARGUMENT 6.1 On the other hand, the respondent submitted in response to ground one that the prosecution proved all the elements of the offence because the evidence revealed that the appellant was the one who had the passports, and that he and the people he smuggled did not pass through the immigration office. That further PW3 's evidence that she was surprised to learn that her passport and that of her grandchildren were found with the appellant when she had left them with Danny, proved that the appellant and Danny worked together to commit the offence of smuggling. 6.2 Counsel on behalf of the prosecution conceded that PW2 and PW3 were suspect witnesses in accordance with the principle enunciated in the case of Andrew Mwenya vs The People.6 That however, the trial Court treated their evidence with caution and found that their evidence was corroborated 1n accordance with the guidance of the Court in the cases of George Musupi vs The People7 and Malambo Choka vs The People.s 6.3 It was submitted that the evidence of the prosecution was corroborated because there was no danger that the appellant was falsely implicated. That further, the fact that the appellant -J14- was in possession of all the passports despite not knowing PW3 who testified having left her passports with Danny is evidence of "something more" and therefore amounting to corroboration. That the evidence of PW2 that the appellant did not pass through the immigration office was corroborated by PW5 who testified that there was no entry in the system of the immigration department relating to the appellant, PW2, PW3 and her grandchildren. Further, it was argued that the fact that the appellant used a forged passport and told immigration officers that it was for his twin brother Pierro, which PW2 stated was the appellant's Christian name, also amounted to corroboration. 6.4 In response to ground two, it was submitted that the appellant ought to have known that the people he supposedly smuggled were illegal immigrants because the visas and receipts were fake. That his explanation that he did not know about the irregularities on the documents cannot reasonably be true. 6. 5 We were referred to the case of Patterson Ngoma vs The People9 where it was held that a person in possession of a forged document and who actually utters a forged document, either forged it or was privy to the forgery and can be convicted of forgery. -JlS- 6.6 In response to ground three, Counsel submitted that the element of material or financial benefit was proved by the prosecution because there was evidence from PW3 that her son gave Danny the sum of US$250.00. That the appellant himself confirmed that Danny gave him US$30.00 for accommodation and 25 Franc for -transport. That therefore, the appellant's explanation that he did not know what was happening cannot reasonably be true. 6. 7 Counsel urged us to uphold the Conviction and sentence. 7.0 HEARING 7.1 At the hearing of the appeal, Mr. Mazumba, on behalf of the appellant submitted that he would rely on the grounds of appeal and heads of argument filed with brief augmentation. The learned Deputy Chief State Advocate submitted that she would rely on the heads of argument filed in response. 8.0 CONSIDERATION AND DECISION OF THE COURT 8.1 We have carefully considered the evidence and the Judgment appealed against. Grounds one and four can be addressed collectively as they relate to the same issues. While the other two grounds can be determined separately. -J16- 8.2 In grounds one and four of the appeal, the appellant contends that the conviction in count one was not proper because the element of the appellant obtaining financial benefit was not proved by the prosecution. The offence of smuggling persons is created in Section 9(1) of the Anti-Human Trafficking Act which provides as follows- "Subject to subsection (2), a person who smuggles another person into or out of Zambia, participates in smuggling or who consents to being smuggled commits an offence and is liable upon conviction, to imprisonment for a term not less than fifteen years and not exceeding twenty years." 8.3 In interpreting the above Section, we held in the case of Mwaimu Mohamed Baraka vs The People10 that the offence of smuggling is comprised of procuring the illegal entry of another person into another state for purposes of financial or material gain. We also stated that smuggling involves entry into a country to which the smuggled is not a national or permanent resident. 8.4 In the present case it is not in dispute that the appellant and the four people he allegedly smuggled into Zambia are Congolese nationals. Further in determining whether the appellant had illegally procured the entry of these persons into -J17- Zambia, the trial Court stated at page J 19 of the Judgment that the appellant facilitated or procured the illegal entry because he did not challenge the evidence that Danny facilitated the movement of PW2, PW3 and the two children to Mokambo border where they met the appellant who got PW2's passport. The trial Court stated that in fact it was Danny's brother who inforn1ed the appellant that travel documents were in the car. 8.5 The lower Court cannot be faulted for making these findings especially because it was clear that the appellant and the four people he was with did not enter Zambia through the Immigration office. Further, the appellant did not dispute that he met Danny and later his brother, which corroborated the evidence of the prosecution witnesses (PW2 and PW3). 8.6 However, the question is whether the appellant did so for material or financial benefit. The trial Court noted that it was done for financial gain because there was evidence from PW3 who stated that her son who made her travel arrangements gave Danny the sum of US$250.00. Further, as seen on page 28 of the record of appeal, the appellant admitted that he was given the sum of US$30.00 and 25 Franc by Danny. -J18- 8. 7 We are of the considered view that all elements of the offence in Count one were proved. Therefore, grounds one and four of the appeal fail. 8.8 In ground two, the appellant contends that the trial Court relied on the uncorroborated evidence of PW2 and PW3. On page J20 of the Judgment, the trial Court rightly warned itself that PW2 and PW3 were witnesses with an interest of their own to serve and their evidence needed corroboration. The trial Court found that the evidence of PW2 and PW3 was corroborated by the evidence of PW 1 and PW 4 whose evidence was that when they intercepted the vehicle, the appellant produced his passport and that of PW2, PW3 and the two children. That their evidence also corroborated the evidence of PW2 who stated that she gave her passport to the appellant at Mokambo border. The Court also found that there was no reason for PW2 to falsely implicate the appellant who is his uncle. 8.9 The finding of the lower Court cannot therefore be faulted. Besides the evidence pointed out above by the lower Court, there was also unchallenged evidence which showed that PW2, PW3 and the two children had to be returned to the immigration offices where the appellant was because they did not know where to go once they crossed the border. This was evidence of -J19- 'something more' and amounted to corroboration. This ground of appeal therefore fails. 8.10 In ground three, the appellant contends that there was no evidence to show that the appellant was working with unknown persons, which goes to the weight of the evidence adduced by the prosecution. 8. 11 We are of the firm view that this finding of the trial Court was not erroneous because it is clear from the evidence on record that there were other persons who were involved in the commission of the offences. As seen from the evidence, PW3 left her travel documents and the children's travel documents with Danny in Kasumbalesa but was surprised to find that the appellant had their documents Mokambo Border. The evidence also shows that the appellant met Danny's brother at Mokambo border before entry into Zambia. This implies that the appellant was well aware of what was happening and worked with other persons in committing the offences. 8.12 This ground of appeal also fails. 8.13 With regard to the appeal against sentence in the first count, it does not come to us with a sense of shock because the sentence meted out to the appellant was the mandatory minimum sentence. -J20- .. - 9.0 CONCLUSION 9.1 In view of the foregoing, we find no merit in the appeal and it is accordingly dismissed. The conviction and sentence of the lower Court are upheld. P. C. M. NGULUBE COURT OF APPEAL JUDGE c------- ~ K. MUZENGA Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J21-