,

IN THE SUPREME COURT OF ZAMBIA APPEAL

NO.27, 28, 29{2016
HOLDEN AT NDOLA
(Criminal Jurisdiction)

BETWEEN:

JABULANI KHUMALO 1 ST APPELLANT

CEASER NYENDWA 2ND APPELLANT

MUSANIDE LINDILILANI 3RD APPELLANT

AND

THE PEOPLE RESPONDENT

Coram: Muyovwe, Kabuka and Chinyama, JJJS

On the 6th of September, 2016 and 14th September, 2016

For the Appellant: Mr. A. Ngulube, Director of Legal Aid

For the Respondent: Ms. N.T. Mumba, Deputy Chief State Advocate

JUDGMENT

MUYOVWE,JS, delivered the Judgment of the Court.

Cases referred to:

1. R. v Barnes (1940) 2 ALLE.R. 229

2. Inambao VS. The People (1969) Z.R. 84
3. R. v Coney (1882) 8Q.B.D534
4. Shamwana and 7 Others VS. The People (1985) Z.R. 41
5. Chimbini VS. The People (1973) Z.R. 191
6. Katebe VS. The People (1975) Z.R. 13
7. Mwape VS. The People (1976) Z.R. 160
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 8. Haonga and Others vs. The People (1976) Z.R. 200
9. Simon Malambo Choka vs. The People (1978) Z.R. 243
10. Isaa Mwasumbe VB. The People (1978) Z.R. 354
11. Manyepa vs. The People (1975) Z.R. 24

Legislation referred to:

1. The Penal Code Chapter 87 of the Laws of Zambia

The appellants were convicted and sentenced to death by the

High Court sitting at Lusaka for the offence of murder contrary to

Section 200 of the Penal Code Cap 87 of the Laws of Zambia.

The particulars were that on the 3,d November, 2013 at

Lusaka they jointly and whilst acting together, murdered Lawrence

Mwamba (hereinafter called 'the deceased').

The facts were that on the night of the 2nd November, 2013

around 22:00 hours, Mike Zulu, the eye witness in this case, was

in his house when he heard a person screaming outside that he was

dying. He peeped outside through the broken air vent of the house

and saw the 1" appellant pulling the deceased outside the bar

several times and each time the deceased would stagger back inside

the bar and three men were seen inside the bar assaulting the

deceased. He described the deceased as being light in complexion

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and his hair was in dreadlocks. According to Mike Zulu, he was

able to see what was happening inside the bar as the windows were

broken. At first, he thought that the people were drunkards but

fearing that they were thieves, he decided to go to bed. At that time,

there were no patrons as the bar had closed. Around 04:00 hours

he was woken up by noises of people shouting outside. He rushed

outside only to find the deceased lying on the ground a few metres

from Katete bar. Mike Zulu observed that the deceased was clad in

a short and it appeared that his legs were broken. An hour later,

the deceased passed on.

At this point, Mike Zulu led the people he found outside to

Katete Bar. They tried to get into the bar but the grill door was

locked. The I" appellant initially refused to open the grill door but

eventually he opened for them. Mike Zulu observed that the 1"

appellant's shirt had blood stains. When he questioned the 1"

appellant as to why he had assaulted the deceased, the 1"

appellant implicated the 2nd and 3,d appellants who were in a room

inside the bar. The trio had slept in the bar. Mike Zulu observed

that there was blood on the walls and pieces of dreadlocks strewn

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on the floor. The three appellants were accordingly apprehended

and taken to Chipata Police post.

The evidence of Ackson Banda, the bar owner was that on 2nd

November 2013, he was at his bar. Around 21:00 hours, he went

away leaving behind his workers, the 2nd and 3,d appellants. He

explained that the 2nd and 3,d appellants used to sleep in the bar.

Ackson Banda also confirmed that his brother in law, the 1"

appellant, used to spend time at the bar and sometimes he would

also sleep there. In the early hours of the 3,d November, 2013

Ackson Banda learnt that there was a break-in at his bar and he

rushed to report the matter at Chipata Police Post after hearing that

the situation at the bar was volatile. While he was still there, the

1",2nd and 3,d appellants were brought and taken into custody.

Detective Sergeant Luckson Mwiya the investigations officer

explained that from the investigations conducted, Arnold Mubita

(who was the fourth accused in the court below) was doing piece

work outside the bar at the time the deceased was assaulted. The

postmortem examination that was conducted on the deceased's

body revealed that the cause of death was traumatic shock due to

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multiple sharp force injuries. The appellants were subsequently

charged with the subject offence which they denied.

In his defence, the 1,t appellant said on the night in question,

he went to Katete Bar around 22:00 hours where he found a fight in

progress between Arnold Mubita, the 2nd and 3,d appellants and the

deceased. According to the 1" appellant he tried to stop the fight

but failed and in the process, his shirt was stained with blood. He

acknowledged dragging the deceased and Arnold outside the bar as

a way of stopping the fight. Later, he changed his story and stated

that the persons involved in the fight were the deceased and Arnold

Mubita but that the 2nd and 3,d appellants were also fighting with

an unknown person. The 1" appellant said he observed that there

was blood inside the bar and conceded that he did not report the

fight to the police yet he described it as a bad fight. The 1,t

appellant stated that the next morning, a lot of people came to the

bar and when he opened the door, they started beating him and he

ran to the police post. Whilst there, the 2nd and 3,d appellants were

also brought. It was his evidence that whilst in police custody, he

learnt that the man who was involved in the fight had passed away.

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 As for the 2nd appellant, while admitting that he was at Katete

Bar on the night the deceased was assaulted, he distanced himself

from the assault and alleged that it was Arnold Mubita who fought

with the deceased. According to the 2nd appellant, the next

morning, people stormed into the bar and out of fear he ran to the

police. He admitted seeing the deceased bleeding from the nose

and that he had a cut on his eyebrow.

In his defence, the 3,d appellant also placed himself at the

scene of the assault. He too alleged that Arnold Mubita was the one

who assaulted the deceased with a panga. The 3,d appellant

explained that it was the I" appellant who managed to separate the

fight between Arnold Mubita and the deceased by pushing them

both outside the bar.

In her judgment, the learned judge below relied heavily on the

evidence of Mike Zulu, whom she found to be a credible witness.

The learned judge found that Mike Zulu's evidence was

unchallenged and was corroborated by all the appellants with

regard to the assault on the deceased and the evidence found at the

scene of crime. The learned judge found that the appellants placed

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themselves at the scene of cnme and in their evidence, they

implicated each other. The learned judge also found that the act of

pulling the deceased from the bar was a repeated act and that all

the appellants acted together in assaulting the deceased. She

found that death was the probable consequence of the kind of

beatings inflicted on the deceased. She was of the view that

although the assault took place at a bar, there was no evidence of

drunkenness to afford extenuation and that there was also no

evidence of provocation. She accordingly sentenced each appellant

to the mandatory death sentence.

Before us, the appellants have advanced three grounds of

appeal. In the first ground of appeal, Counsel attacks the finding

by the learned judge that there was unity of purpose among the

appellants in the commission of the offence. The second ground is

to the effect that the trial court failed to properly apply the law on

accomplice witnesses. The third ground attacks the appellants'

conviction as unsafe, alleging that the learned judge relied heavily

on the evidence of Mike Zulu, while disregarding that of the

appellants and the surrounding circumstances.

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 On behalf of the appellants Mr. Ngulube the learned Director

of LegalAid filed heads of argument which he relied on.

In support of ground one, Counsel submitted, inter alia, that

the trial court was wrong to rely on Section 21 and 22 of the Penal

Code although these sections cover situations where more than one

person is involved in the commission of the crime. The gist of the

arguments on this ground is that there was no common purpose

between the appellants. It was submitted that their mere presence

at the scene of crime cannot lead to the conclusion that they

participated in the commission of the crime. Counsel argued that

there was no evidence to show that the trio planned together to

commit the crime and neither was there evidence that they actively

participated in the beating of the deceased. Counsel took the view

that the evidence of Mike Zulu revealed two contradictory positions:

that the appellants attacked the deceased; and at the same time

suggested that they did not beat the deceased.

Specifically addressing each appellant, it was submitted that

the 1,I appellant was merely protecting the deceased by getting him

out of the bar. With regard to the 2nd and 3,d appellants, Counsel

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submitted that Mike Zulu did not point out the roles the two played

during the assault on the deceased.

On ground two, it was submitted that the trial court

misdirected itself when it found that the evidence of the appellants

implicating Arnold Mubita in the court below required corroboration

before it could be relied upon. It was Counsel's position that

evidence of a co-accused implicating another is admissible with or

without corroboration. In the event that there is no corroboration,

the trial court has a duty to warn itself of the danger of convicting

on uncorroborated evidence and eliminate both the danger of false

implication and the possibility that the accused implicating another

may have their own purpose to serve. Counsel referred us to the

editorial note of the case of R. v Barnes' in which it was stated that:

"The necessity for corroboration of the evidence of

accomplices applies only in the case of evidence called by the
prosecution. Where accomplices are called by the defence and
the jury are not asked by the prosecution to act upon their
evidence, there is no need for such corroboration."

In ground three, Counsel contended that the trial court was

wrong to rely heavily on the evidence of Mike Zulu as he

contradicted himself when in one breath he said the deceased was

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being pulled out of the bar by the 1,t appellant; and in the next

breath his evidence was that the deceased was being beaten inside

the bar and that he did not see the appellants beat the deceased.

Further, that Mike Zulu stated that the 1" appellant's shirt had

blood stains yet the shirt was not produced in court. Counsel

argued that failure by the trial court to consider the testimony of

the appellants led to the acquittal of the guilty man (Arnold Mubita)

in the court below. It was submitted that the knife and panga were

not produced in court despite the fact that the 1,t appellant stated

that he was shown the two items.

Counsel urged us to allow the appeal.

At the hearing, Ms. Mumba was granted leave to file the

respondent's heads of argument which she relied on.

In response to ground one, Ms. Mumba submitted that the

learned judge was on firm ground when she found that there was

unity of purpose and that the appellants fell within Section 21 and

22 of the Penal Code and in the ambit of the case of lnambao VS.

The People2 in which Section 21 of the Penal Code was expounded.

Counsel submitted that Mike Zulu's testimony linked the appellants

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 Arnold Mubita was from the appellants whose evidence lacked

corroboration. Consequently, that the danger of a concocted story

designed to implicate Arnold Mubita did exist.

Counsel also referred to the testimony of the I" appellant in

the court below in which he said the fight was between the

deceased on one hand and Arnold Mubita, the 2nd appellant and 3,d

appellant on the other hand. However, the 1" appellant changed

his position In cross examination by removing the 2nd and 3,d

appellants from the fight. It was Counsel's submission that this

clearly showed that the 1" appellant was an untruthful witness who

could have fabricated the story against Arnold Mubita whom he had

no relationship with. That the 2nd and 3,d appellants who were

workers at the 1" appellant's brother-in-law's bar where the fight

took place also implicated Arnold Mubita. Counsel submitted that

from the foregoing, the appellants were witnesses with an interest of

their own to serve and that therefore, their evidence required

corroboration. We were referred to the case of Shamwana and 7

Others vs. The People,4 an authority on accomplice evidence. We

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this was a connecting link that he committed the offence. Counsel

implored us to dismiss this ground.

In reply, the learned Director filed lengthy heads of argument.

The summary of the submissions on all the grounds is that the

evidence of Mike Zulu lacked sufficient detail and did not show a

joint enterprise to assault the deceased. Counsel pointed out that

Mike Zulu did not indicate the role each appellant played and what

weapons were used in the assault. Counsel submitted that even if

evidence of blood and dreadlocks was found inside the bar where

the 1'(,2nd and 3,d appellants spent the night raised suspicion, their

presence inside the bar was explainable so were the blood stains on

the 1,( appellant's shirt and, therefore, there was no evidence

implicating the appellants. Counsel took the view that the need to

report the assault on the deceased to the police did not arise. The

learned Director reiterated his argument that there was no evidence

to implicate the appellants in the death of the deceased.

In his quest to convince us that the evidence of an accomplice

can corroborate the evidence of another accomplice, the learned

Director went to great lengths to try and persuade us on his

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 proposition. According to Counsel, the Shamwana4 case which

was cited by Counsel for the State does not show a pronouncement

by the court that there must be corroboration where an accused

gives evidence which is against a co-accused. In the alternative,

Counsel submitted that should we reject his submission, we should

find corroboration in the evidence of Mike Zulu. We were

specifically referred to Mike Zulu's evidence where he said in cross-

examination:

"I did not know accused one, accused two and accused three
before the incident. I saw accused one pull the deceased. I
saw accused two pulling the deceased. I did not see accused
three assault the deceased".

The learned Director took the vIew that the above statement

from Mike Zulu provided the necessary corroboration to support the

appellants' case that it was Arnold Mubita who assaulted the

deceased. Counsel reiterated his argument that the knife and the

panga which were recovered at the crime scene should have been

produced by the prosecution. He argued that non-production of

the knife and panga left the question hanging as to the infliction of

the injuries found on the deceased.

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•

The learned Director urged us to allow the three grounds of

appeal, quash the convictions, set aside the death sentences and

set the appellants at liberty.

We have considered the evidence on record, the judgment of

the Court below and the submissions by Counsel for the parties.

We will deal with all the grounds of appeal together as they are

inter-twined. The issues raised in the three grounds of appeal are:

whether the appellants acted with a common purpose; whether the

learned judge failed to properly apply the law on accomplice

witnesses and whether she unduly relied on the evidence of Mike

Zulu the eye witness disregarding the evidence of the appellants

against their co-accused Arnold Mubita.

From the outset, we must state that this is a case of a single

identifying witness. There is a plethora of authorities where we

have pronounced ourselves on the evidence of a single identiIYing

witness. In the case of Isaa Mwasumbe VS. The People'o we held,

inter alia, that:

J1G
 (i) Usually in the case of an identification by a single witness
the possibility of an honest mistake cannot be ruled out
unless there is some connecting link between the accused
and the offence which would render a mistaken
identification too much of a coincidence, or evidence
such as distinctive features or an accurately fitting
description on which a court might properly decide that
it is safe to rely on the identification; but where there is
good quality identification evidence from a reliable single
identifying witness it is competent for a court to convict
even in the absence of other evidence to support it.

In the case in casu, we agree with the learned Director that

Mike Zulu did not give clear detail as to the role of the 2nd and 3,d

appellant during the assault of the deceased. We do not, however,

agree with the learned Director that Mike Zulu contradicted himself.

In our view, the learned judge rightly found him reliable in his

observation of the events leading to the death of the deceased. On

the material night, the undisputed evidence is that the appellants

were present at Katete Bar at the time the deceased was assaulted.

According to Mike Zulu, he saw the 1" appellant pulling the

deceased outside the bar and the deceased would stagger back

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inside the bar and he saw the deceased being assaulted by three

persons who were inside the bar.

With regard to the 1" appellant, the learned Director made an

issue out of the fact that the blood stained shirt was not produced

during trial. Our view on this issue is that the failure by the

prosecution to produce the blood stained shirt did not affect the

prosecution's case as it was not disputed by the 1" appellant who

confirmed that his shirt was blood stained in the process of trying

to separate the combatants. If the 1" appellant's story that he was

protecting the deceased was anything to go by, one would have

expected him to alert the owner of the bar or to report the fight to

the police. Better still, he could have made efforts to ensure that the

deceased received medical attention. The same goes for the 2nd and

3,d appellants that if they were mere spectators, they could have

taken action to help the deceased who was severely injured. As it

is, the postmortem report reveals that the deceased had multiple

incised wounds on the face, head, right and left upper chest with

haemorrhage as well as a penetrating wound on his left leg and the

bones were fractured. Clearly, due to the severe injuries, the

JIB
. -

deceased failed to go home as he was found the following morning

lying within the vicinity of the bar from where he had been

assaulted_

From the evidence of Mike Zulu which was definitely

supported by the appellants, Katete Bar was the crime scene_ The

crime scene was littered with pieces of dreadlocks from the

deceased's head and there was blood on the walls, on the braai

stand and on the floor inside the bar. Again, the learned Director

took issue with the fact that the knife and panga were not produced

during trial. Our view is that this did not affect the prosecution's

case. The fact that there was blood on certain items in the bar was

not disputed and in fact, it was not disputed that a vicious attack

had taken place inside the bar going by the dreadlocks and blood

found there. The issue is not about production of the items which

had blood but whether the appellants committed the offence_ It is

not in dispute that the three appellants slept inside the bar and

they were all there the following morning_ No reasonable person or

member of our society can go to sleep in such an environment.

The failure by the appellants to report the matter to the police and

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• •

even to call for help from the neighbours is a clear indication that

there was unity of purpose. The evidence shows that the deceased

was found by members of the public severely injured and battling

for his life and he died an hour later from the injuries. This odd

circumstance of the deceased being found outside a bar in which he

was recently seen being beaten; not reporting to the police and

sleeping in a place splashed with blood and dreadlocks all over the

floor constitutes evidence of something more and is in fact, the link

connecting the appellants to the commission of the offence. We are

inclined to believe as the learned trial judge did, that the appellants

were not mere spectators but active participants in assaulting the

deceased. The passage from the record referred to us by Counsel

for the appellants shows that Mike Zulu saw the 1" appellant and

the 2nd appellant but he did not see the 3,d appellant assault the

deceased. That is not an issue because quite clearly the 3,d

appellant was also present in the bar. Mike Zulu mentioned that at

the time of the assault there were no customers at the bar. We do

not see how the appellants including the 3,d appellant can divorce

themselves from the happenings at the bar that night.

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•

In the case of Haonga and Others vs. The People,8 it was

held, inter alia, that:

(ii) If a death results from the kind of act which was part of
the common design then if the offence be murder in one
then it is murder in all.

This is the position in the case in casu. The appellants

severely assaulted the deceased and they went to sleep inside the

crime scene.

Coming to the issue of accomplice evidence, it is trite law that

evidence of an accomplice requires corroboration before it can be

relied upon. We agree with Counsel for the State and indeed with

the holding of the trial court on this issue. The reason is simple.

Accomplices are in the category of witnesses with their own interest

to serve. In the case of Simon Malambo Choka vs. The People"

we held that:

(i) A witness with a possible interest of his own to serve

should be treated as if he were an accomplice to the
extent that his evidence requires corroboration or
something more than a belief in the truth thereof based
simply on his demeanour and the plausibility of his

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. ,. •

evidence. That "something more" must satisfy the court

that the danger that the accused is being falsely
implicated has been excluded and that it is safe to rely on
the evidence of the suspect witness.

(ii) In the circumstances of this case the evidence of the one

suspect witness could not be corroborated by the
evidence of the other suspect witness.

Further, in the case of Shamwana and 7 Others VS. The

People" which we were referred to by Counsel for the State, we held,

inter alia, that:

(xvi) The evidence of an accused person who testifies on oath

in his own defence which is against the co-accused should only
be taken into account as against the co~accused if it is
corroborated or supported by something more.

Looking at the arguments by the learned Director, it is clear

that he has applied the Shamwana case out of context and we do

not find it necessary to engage in legal gymnastics with him as our

view is that the Shamwana case gives guidance to trial courts as to

how to treat evidence of accused persons against each other. We

cannot accept the argument that the appellants' evidence against

Arnold Mubita did not need corroboration. Counsel for the

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. .
'

appellant cited the editorial note in the case of R. vs. Barnes'

which in our view does not reflect the position of the law in our

jurisdiction and it appears to us that Counsel only extracted out of

the case, what he felt could help his clients. It is settled law in this

country that without corroboration, the danger of false implication

in accomplice evidence still exists whether it is for the prosecution

or defence and a conviction would be unsafe. The learned judge

was, therefore, on firm ground when she acquitted Arnold Mubita

as he was not even mentioned by the eye witness Mike Zulu and he

was not found inside the crime scene. Further, Ackson Banda the

bar owner did not allude to his presence at the bar that night and

he did not confirm that Arnold Mubita used to do piece work for

him. As was submitted by Counsel for the State, the danger to

falsely implicate Arnold Mubita was not eliminated and this left the

trial court with no option but to acquit him.

Further, the learned judge was accused of disregarding the

appellants' evidence. This is not correct. We have perused the

judgment and it is apparent that the learned judge considered the

evidence from both sides and accepted that of the prosecution as

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I " ,

more credible. It is trite law that the trial court has the right to

choose whose evidence to believe. In the case of Manyepa vs. The

Peoplell we stated that:

"this is a matter for the court ... to decide where the

truth lies as between witnesses for the prosecution and

the defence."

In sum, the evidence against the appellants was overwhelming

and a guilty verdict was unavoidable. Consequently, all the

grounds of appeal fail for lack of merit. We uphold the mandatory

death sentence passed by the court below and the appeal is

dismissed accordingly.

,,- ..
............................................. .
E.N.C. MUYOVWE
SUPREME COURT JUDGE

......................................... .
L 'I .
. ~
.
J.K. KABUKA
J. CHINYAMA
SUPREME COURT JUDGE
SUPREME COURT JUDGE

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