James Mutambo and Jairos Kafunda v The People (Appeal No. 83, 84/ 2022) (23 February 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 83,84/2022 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: JAMES MUTAMBO 1 APPELLANT ST JAIROS KAFUNDA 2ND APPELLANT 2 3 FEB 2024 AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Majula and Muzenga, JJA On 17th January 2023 and 23rd February 2024 For the Appellants: Mr. I. Yambwa, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. M. Hakanseke, State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Yokoniya Mwale v. The People - SCZ Appeal No. 285 of 2014 2. Crispin Soondo v. The People (1981) ZR 302 (S.C.) Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. J2 1.0 INTRODUCTION 1.1 The appellants were sentenced to death by Limbani, J following a conviction of murder in the High Court. 1.2 The particulars of the offence alleged that on 19th February 2021 at Mafinga in Muchinga Province of the Republic of Zambia, the appellants did murder Feckson Mutambo. 2.0 PROSECUTION EVIDENCE BEFORE THE TRIAL COURT 2.1 The appellants' conviction was secured by the evidence of three prosecution witnesses. The evidence implicating the appellants was given by PWl and PW2 the wife and son of the deceased respectively. A summary of the prosecution evidence was that around 18:00 hours on 19th February 2021, PWl and the deceased received three visitors, shortly after an evening meal was served for the deceased. At this point, PWl picked her food to go and eat with someone at the nearby hut. The deceased beckoned her to return and attend to the visitors, but she indicated that she would return as soon as she leaves the food she was carrying. 2.2 This prompted the deceased to come out of the hut to meet the visitors at his house. It was then that PWl heard his call for help. When she J3 rushed back she found the appellants dragging the deceased and when she tried to intervene, the 3rd person whose identity she did not know hit her on her arm and chased her. She stood at a distance, calling for help as the appellants dragged the deceased. Their son, PW2 came through and equally saw the appellants dragging the deceased. The deceased was then axed twice on the head by the appellants. PWl could not tell who among the two axed the deceased. 2.3 On the other hand, PW2 stated that it was the second appellant who axed the deceased. He confirmed that the deceased had differences with the second appellant as the deceased was said to have killed Stanley Kafunda, the brother of the second appellant and PW2 was not happy with the allegation against the deceased. PW2 reported the incident to a Community Crime Prevention Unit (CCPU) member by the name of Tamu Ngambi who in turn, called the police. On their way to the hospital with the deceased, they met the police. PW3 with other officers rushed to the scene and the appellants were later apprehended. PW2 told the court that the appellants were well known to him as they were his grandfather and uncle respectively. J4 2.4 This marked the end of the prosecution case. The appellants were found with a case to answer and were put on their defence. 3.0 THE DEFENCE 3.1 The appellants denied having killed the deceased and called five witnesses to support their defence. The first appellant stated that on the fateful day, he went to the farm in the morning with his wife and children. When they returned around 17:00 hours, he never left home, until the following morning around 06:00 hours when he was informed of the death of the deceased. He left the field and went to the funeral house. When he arrived around 08:00 hours, he found a lot of people and no one accused him of killing the deceased. He was among the people who received the body around 23:00 hours and dug the.grave the following morning. He was only asked to accompany a CCPU officer during the burial when the pastor was preaching. His account that he was home at the time when the murder took place was supported by DW3. 3.2 The second appellant's evidence was to the effect that he was drinking beer with his friends on the material day from 10:00 hours in the morning to around 19:30 hours when he stopped because he was JS drunk, and went to sleep. In the morning when he went to a village close to where the deceased was staying to collect money, he learnt of the deceased's death. When he returned to his house to have a change of clothes and go to the funeral house, he found CCPU officers who informed him that he was wanted at the police station. 3.3 He informed them that there was a funeral in the village and requested that he goes to the funeral house first and he could go to the police station later. The CCPU officers agreed and he went with them to the funeral house, where they were up until 12:00 hours when the appellant suggested they go to the police considering that it was during the rainy season. At the police station, he was informed that he had killed the deceased. He was surprised because he never did that and no one at the funeral accused him. He was subsequently detained. His account that he was drinking beer on the material day was confirmed by DW4 who the second appellant was drinking beer with and DWS who saw him drinking beer at the named bar. 3.4 DW6, the owner of the bar where the second appellant was drinking beer on the material day, testified that he was with the second appellant at his bar until around 19:00 hours when he closed the bar. J6 He told the court that he even held the second appellant's phone as security for the last beer supplied to the second appellant and also confirmed that the second appellant in the company of the police came to his bar to collect his phone. The second appellant's defence was further confirmed by DW7 who escorted him from the bar to his house around 19:00 hours as he was quite drunk. 3.5 This marked the end of the defence case. 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4.1 After evaluating the evidence, the learned trial Judge found as a fact that the deceased suffered severe head injuries and penetrative skull trauma which he succumbed to. The trial court also found that the prosecution witnesses were related to the deceased and he warned himself on the dangers of convicting on the uncorroborated evidence of such witnesses. The court went on to find that the appellants had the opportunity to commit the offence as they lived in the same village. 4.2 The trial court disbelieved the witnesses for the appellants on inconsistencies in the timeline. The trial court also considered that there was no motive to implicate the appellants. Further, the trial court found that the prosecution had proved its case beyond all reasonable J7 doubt and concluded that on the totality of the evidence on the record the appellants acted with malice aforethought when they caused the death of the deceased. Accordingly, the appellant was convicted and sentenced to death. 5.0 GROUNDS OF APPEAL 5.1 Disconsolate with the High Court judgment, the appellants launched the present appeal against conviction and sentence, fronting two grounds structured as follows: (1) The learned trial court erred in law and in fact when it relied on uncorroborated evidence of witnesses with their interest to serve to convict the appellants. (2) The learned trial court erred in and in fact when it rejected the evidence of the appellants which was reasonably possible and corroborated. 6.0 THE APPELLANT'S ARGUMENTS 6.1 The gist of the appellant's argument in support of ground 1 was that the witnesses who implicated the appellants were related to each other and to the deceased and that, as such they were suspect witnesses whose evidence required corroboration. It was contended that the Court below fell in error both in law and in fact by convicting the appellants on uncorroborated evidence of suspect witnesses. In J8 support of this argument, we were referred to the case of Yokoniya Mwale v. The People.1 6.2 With regard to ground two of the appeal, it was contended that the appellants gave truthful accounts of what transpired on the material day. It was further contended that they gave explanations regarding their whereabouts at the time the offence was committed and called witnesses whom they were with on the material day and time. We were referred to the case of Crispin Soondo v. The People2 where it was held that: "Even if an alibi was a deliberate lie on the part of the appellant the inference cannot be drawn that he did it because he had been involved in the offence. A man charged with an offence may well seek to exculpate himself on a dishonest basis even though he was not involved in the offence." 6.3 We were urged to allow the appeal and acquit the appellants. 7 .0 RESPONDENT'S ARGUMENT 7 .1 On behalf of the respondent, learned counsel submitted that the trial court was on firm ground when it convicted the appellants on the evidence of PWl and PW2, who are the wife and son of the deceased respectively as they were the only eyewitnesses. It was contended J9 that the law is very clear on how to deal with witnesses who are relatives of victims. It was submitted that despite being no evidence to corroborate the evidence PWl and PW2, there must be evidence ascertainable on record, that PWl and PW2 did have an interest to serve, possible bias or motive to falsely implicate the appellants. 7.2 According to counsel, no evidence on the record shows that PWl and PW2 may have had any wrangles with the appellants hence being witnesses with an interest to serve for their evidence to require corroboration. 7.3 In regard to ground two of the appeal, it was contended that the trial court was on firm ground when it rejected the appellants' defence. According to counsel, the appellants raised their alibi late in the day giving the prosecution no chance to investigate the alibi. It was argued that the trial court had an opportunity to see and hear the appellants and clearly made a ruling on their credibility. It was contended further that the trial court's finding on the credibility of the appellants was not perverse and was supported by the evidence on record. We were urged to dismiss this appeal against conviction and sentence as it lacked merit. JlO 8.0 HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1 At the hearing of the appeal, learned counsel for the appellant, Mr. Yambwa, placed full reliance on the documents filed. On behalf of the State, Ms Hakasenke informed the court that the State would equally rely on the heads of argument filed before the court. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the evidence led in the court below, the trial court's judgment and the arguments advanced by the parties. 9.2 The first ground of the appeal seeks to assail tihe conviction of murder by the trial court on account of the evidence of a suspect witness. The eyewitnesses were PWl, the deceased's wife, and PW2, the deceased's son. Counsel for the appellants submitted that the trial court erred when it convicted the appellants on the evidence of PWl and PW2 in the absence of corroboration. 9.3 The law on this subject is well-settled in our jurisdiction. In the celebrated case of Yokoniya Mwale supra/ the Apex Court stated that: " .... The point in all these authorities is that this category of witnesses may, in particular circumstances, ascertainable on the evidence, have a bias or an interest of their own to serve, or a motive to falsely implicate the J11 accused. Once this is discernable, and only in these circumstances, should the court treat those witnesses in the manner we suggested in the Kambarange case. A conviction will thus be safe if it is based on the uncorroborated evidence of witnesses who are friends or relatives of the deceased or the victim, provided the court satisfies itself that on the evidence before it, those witnesses could not be said to have had a bias or motive to falsely implicate the accused, or any other interest of their own to serve. What is key in our view, is for the court to satisfy itself that there is no danger of false implication." 9.4 What we discern from this authority is that by merely being a relative or friend to the deceased, one does not automatically become a witness with an interest of his own to serve thereby requiring his or her evidence to be routinely corroborated. Corroboration is only required where there is evidence ascertainable on the record to show that a friend or relative may have a bias or an interest of their own to serve, or a motive to falsely implicate the accused. We agree with counsel for the respondent that there is no evidence on the record to suggest that PWl and PW2 had an interest of their own to serve or any motive to falsely implicate the appellants. We therefore find no merit in this ground and we dismiss it. J12 9.5 We now turn to consider ground two. Learned counsel contended that the appellants gave explanations regarding their whereabouts at the time the offence was committed and called witnesses whom they were with on the material day and time. Counsel seeks to fault the rejection of the appellants' explanation by the trial court. We have stated in a plethora of cases that an appellate court should sparingly interfere with findings of fact by the trial court based on credibility as it does not stand on the same footing as the trial court. The trial court received the evidence from all the witnesses and had the opportunity to assess their credibility and made findings of fact, which opportunity an appellate court is starved of. In this case, the trial court analysed the evidence for the prosecution and that of the defence, found the prosecution evidence to be credible and rejected the defence evidence. We see no reason to interfere with the findings. We therefore cannot fault the learned trial court for so finding. This ground too, lacks merit and we dismiss it. ft ••• J13 10.0 CONCLUSION 10.1 Having found no merit in both grounds of appeal, we dismiss the appeal. We uphold the convictions and sentences imposed by the trial court on the appellants. DEPUTY JUDGE PRESIDENT K. MUZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE