THE UNIVERSITY OF ZAMBIA

SCHOOL OF LAW

COMPUTER NO: 2020057867.

COURSE: LAW OF EVIDENCE.

COURSE CODE: LPU 3911.

LECTURER: MR F. MUDENDA.

TASK: ASSIGNMENT 1.

DUE DATE: 3RD MAY, 2023.

Question: Advise the director on;

a. The various principles and/or rules of evidence implicated or involved in the case and how
the Court addressed/resolved the same in view of the evidence adduced at trial as captured in
the Judgment.

b. The likelihood of success of the appeal in view of the evidence adduced at trial as captured
in the Judgment.

c. The draft grounds of appeal and brief explanation/justification thereof.

DECLARATION: I Chuulu Godfrey, declare that this discourse represents my own work.

Signature:

1
The academic discourse aims at rendering an opinion on the judgement involving The People
v Shebby Chisenga Chilekwa given by the High Court of Zambia. The discourse will firstly
discuss the various rules of evidence involved in the case and how the Court resolved them in
view of the evidence adduced at trial as captured in the Judgment. The paper will then move to
present the likelihood of success of the appeal in view of the evidence adduced at trial as
captured in the Judgment, the discourse will then present a draft of grounds of appeal and at
same time give a brief explanation or justification of the appeal and finally a general precise
conclusion shall be drawn thereafter.

To begin with, the first issue of consideration in this case was to do with corroboration.
Corroboration is defined as independent evidence which supports the evidence a witness in a
material particular. In the case of Shamwana v The People,1 the court held that, evidence in
corroboration must be some independent testimony which affects the accused by connecting
such a one to the crime.

However, there are cases where corroboration warning is required as a matter of practice e.g.,
accomplices, in Machobane v The People,2 it was stated inter alia that an accused can only be
convicted on an uncorroborated evidence of an accomplice unless it is shown that there are
special and compelling reasons to do so. Further instances where corroboration as a matter of
practice is required is where a witnesses may have a possible self-interest to serve. In the case
of Kambaranje Kaunda v The People,3 it was stated that where a witness has possible interest
to serve, their evidence is also suspect and therefore requires some form of corroboration.

In the case of Shebby Chilekwa, the defence raised the issue about PW 2 and PW 3 of having
a possible interest to serve. This is because they belonged to the current ruling party of which
the deceased was a member and that the deceased was their friends and therefore corroboration
was required. However, the court concluded that PW 2 and 3 were truth in their respective
testimonies, void of any danger of false implication. The court went further stating that, as to
the identity of the gun man by these two witnesses, was authenticated by the testimony of an
independent witness (PW 5). The court held that Direct evidence from these witnesses was
strong enough to secure a conviction.

1
(1985) ZR
2
(1972) ZR 101.
3
[1990/92], ZR 215

2
The other issue that was involved is that to do with Expert opinion evidence relating to medical
examination. As a general rule at common law, a witness is not allowed to give their opinion
when testifying. In the case of Mwelwa v The People,4 it was held that witnesses who do not
qualify as experts should not be permitted to give their opinion on the very issues which the
court is called upon to decide. Similarly, in Blake v The People,5 it was stated that, lay persons
are not entitled to place their opinion before the court. There are exceptions to the general rule,
matters calling for special knowledge or skill such as medical evidence as in the case under
consideration. With regard to medical evidence, in Lupupa v The People,6 the court stated
that, whenever the evidence in question is more than merely formal, the expert witness must
be brought forward before the court to testify on his report.

In the Shebby Chilekwa case, with regard to expert opinion, PW 6, a State Forensic
Pathologist, in his testimony and post-mortem results showed and concluded that the cause of
death was a gunshot wound to the head. Further PW 7, a Health Director and Medical
practitioner also did examine the deceased’s body and concluded that Lawrence Banda died of
a bullet. The court did not dwell much on this in that the defence acknowledged that the
deceased was shot and died in Kaoma.

The other issue that was under consideration in Shebby Chilekwa case is that to do with
admissibility, credibility, relevance and weight of evidence. All evidence that is relevant to a
fact in issue is admissible and all that which is irrelevant is excluded. In DPP v Kilborne, 7 it
was held that, evidence is relevant and admissible if tends to prove or disprove facts in issue.

In the Shebby Chilekwa case, with regard to the credibility, admissibility, reliability and weight
of evidence. It is noted from the case that PW 2 contradicted himself on the statement to the
police to that at trial in court. However, the court stated that, even if it was to exclude PW 2’s
testimony, and render it unreliable and un admissible or attach less weight to it, PW 3 and 5’s
evidence was sufficient to secure a conviction against Shebby Chilekwa.

Moving on, another issue that arose in the case is that which involved the issue to do with
Identification. Identification evidence is relevant where the issue is about the identity of the

4
(1980) ZR 180.
5
(1973) ZR.
6
(1977) ZR.
7
(1973) H.L.

3
accused person. In the case of Chimbini v The People,8 where the evidence in question relates
to identification, there is an additional risk of an honest mistake and it is therefore necessary to
test the evidence of a single witness. The Chimbini case further outlines the major factors to be
considered where identification evidence is concerned. These include; whether the witness
knew the accused prior to the incident. Secondly, is an opportunity by a witness to identify the
witness. Thirdly, whether it was at night or during the day and finally, the circumstances on
which identification was done e.g., fear, stress or confusion.

In the case (Shebby Chilekwa) under consideration, with regard to identification, the court
relied on the principles from the above cited case of Chimbini. The court stated that the crime
happened during daylight and PW 2, 3 and 5 had an impressive opportunity to observe Shebby
Chilekwa. PW 5 even confronted the accused despite the violent atmosphere, making PW 5
having a mentally and emotionally stable state at the time. The court further considered that
DW 2 and DW 3 were considerably incompetent to speak on how the deceased met his death.
This was because the two witnesses were emotionally wrecked and claimed not to have known
who was shooting and who was shot.

Further, an Identification parade was conducted. The case of Toko v The People,9 the court
stated inter alia that, the parade takes into consideration the race of the suspects, height, hair
colour, similar clothing etc. The case of Lungu v The People,10 where emphasis on the need
to conduct a proper identification parade was made. In the case of Peter Yotam Hameenda v
The People,11 the court guided on, inter alia, the need for the trial judge to examine closely the
circumstances in which the identification by each witness came to be made.

In the Shebby Chilekwa case, with regard to identification parade, the accused testified that the
parade was not fair due to PW 5 failing to identify him for three times until the fourth time
after talking to the police officer. The accused further stated that suspects were not of similar
heights. However, the court found nothing compelling to discredit the identification parade as
nothing was done to make the accused too clear and obvious to be easily identified by PW 5.

Furthermore, the issue that arose in the case was that to do with Direct evidence. This type of
evidence refers to evidence of facts that are actually perceived by a witness using one or more

8
(1973) Z.R. 191.
9
(1975) Z.R. 197.
10
(1972) ZR 24.
11
(1977) Z.R. 184.

4
of the witness five senses. Direct evidence by its nature is more reliable than any other
evidence. In practice, it is comparable to circumstantial evidence which is based on an
inference. It is associated with dangers as in David v The People,12 where the court pointed
out inter alia, the dangers of convicting on circumstantial evidence

In the Shebby Chilekwa case, the court relied strongly on Direct Evidence, in that witnesses
(PW 2, 3 and 5) were present at the crime scene and witnessed what transpired. The court had
an opportunity to listen, observe asses the demeanour, truthfulness and reliability of the key
prosecution witnesses i.e., PW 2, 3 and 5. The court was of the view that the witnesses in the
witness box were truthful and corroboratively consistent and for the fact that they severally
saw the accused shoot the deceased.

The other issue that arose in the case was that in relation to Real evidence. Real evidence may
include the following; the murder or assault weapons such as a gun, bullets, an axe, Knives,
bloody clothes and so on. The case of Charles Lukolongo v The People,13 states that failure
to produce material evidence raises a presumption that, the evidence would be favourable to
the accused except where there are compelling reasons.

However, in the Shebby Chilekwa case, no material evidence was placed before the trial court.
However, the court held that, although some cartridges were recovered, the firearm was not,
production of these cartridges would in no way favour the accused with the overwhelming
evidence of PW 2, 3 and 5. Further, the court was of the view that, it was illogical to claim
production of the handbag that was burnt by DW 2 at her own will. Production of the handbag
would also in no way favour the accused on self defence when he denied killing the deceased.

Prospects of the Success of the Appeal.

With regard to the likelihood of success of the appeal in view of the evidence adduced at trial
as captured in the Judgment. In this case, the court heavily relied on the Direct evidence of the
three prosecution witnesses i.e., PW 2, 3, and 5, who were present at the crime scene. As noted
in the discussion on rules of evidence, Direct evidence is the strongest kind of evidence by its
nature. Despite PW 2 and 3 being members of the current ruling party and being friends with
the deceased and of course with a possible interest to serve, there evidence was still reliable in
that it was authenticated by PW 5 who gave an independent testimony that linked the accused

12
(1977) Z.R. 151.
13
(1986) Z.R. 115.

5
direct to the crime. PW 5 confronted the gunman who was Shebby Chilekwa to ask why he
was shooting, making him (PW) having had a better opportunity to observe the accused, in
addition, it was during the day and no mistaken identity would occur in this instance. PW 6, a
forensic pathologist also produced evidence confirming that the deceased died of a gunshot in
the head, this evidence was actually acknowledged by the defence lawyers. The argument by
the defence on the missing part of PW 3’s evidence, and failure of the prosecution to bring
exhibits like the gun, that the court was supposed to presume that had the evidence been
produced it would be in favour of the accused. This however, is less likely to displace the strong
Direct evidence from the trio witnesses (PW 2, PW 3 and PW5). The issue raised by the defence
about the Identification parade being unfair, nothing was shown to have been done to make the
accused clear and easily identifiable by PW 5, therefore no basis on this issue too.

To sum it all, the case of Malawo v Bulk carriers Zambia ltd,14 cited in the case of Tshiabu
Quibila Benos v The People,15 held inter alia that, unless it is clearly shown that the trial court
has fallen in error, the appellate court cannot interfere with the findings of the trial court which
had an opportunity to see and observe the witnesses. Therefore, based on the evidence produced
at trial, the appeal is less likely to succeed.

Grounds of appeal

Ground One: The court errored when it convicted the accused on evidence from witnesses with
possible interest to serve. With regard to ground one, the court errored by convicting an accused
with evidence of PW 2 and PW 3 who were completely partisan and in addition, the deceased
being friends with them clearly indicates possible interest to serve. In the case of Kambaranje
Kaunda v The People,16 it was stated that where a witness has possible interest to serve, their
evidence is also suspect and therefore requires some form of corroboration. This includes
evidence of every friend and relative of the deceased or relative. Therefore, the court ought to
have considered the dangers of convicting on such kind of evidence.

Ground Two: The court errored in law and facts when it convicted the accused on an unfair
identification parade. In regard to the second ground, the accused testified that the identification
was unfair in that he remained on the same position and PW 5 failed to identify him three times
until the fourth time when she talked to the police. Further, that suspects were not of similar

14
(1978) Z.R 185.
15
(2020) Appeal No. 201.
16
Supra 3.

6
heights. These anomalies rendered the identification wholly unfair. In the case of Toko v The
People,17 the court stated inter alia that, the parade must take into consideration the race of the
suspects, height, hair colour, similar clothing. Further, in Peter Yotam Hameenda v The
People,18 the court guided on, the need for the trial judge to examine closely the circumstances
in which the identification is made. Therefore, the court ought not to have disregarded the fact
that identification was not properly conducted.

Ground Three: The court errored in law and facts when it convicted the accused with PW 2
having part of his evidence missing and contradictory statements made to the police and court.
With regard to ground three, PW 2 contradicted himself on the statement to the police to that
at trial in court and the fact that part of his evidence was missing. With this, the court ought to
have assumed that had the missing part been available, it would be in favour of the accused as
per Charles Lukolongo v The People,19 and with contradictory statements, the court ought to
have held PW 2 not credible and attached less weight to this evidence.

Ground Four: The court errored in law and facts when it convicted the accused without
evidence from the prosecution witness that the firearm used was not that which was found with
Chola Simwaba. Similar sentiments made in the third grounds can be made here i.e., had such
evidence been adduced, the presumption is that, it was going to be in favour of the accused.
Therefore, the court was in error to convict the accused, evidence of PW 2, 3 and 5 is cannot
suffice to displace the presumption, in that, credibility of their evidence has been brought to
question in ground one.

Ground Five: The court errored in law and facts when it convicted the accused to twenty-five
years imprisonment with hard labour. Therefore, both the charge and the sentence must be set
aside due to the above grounds outlined.

In conclusion, the discourse has looked at various principles relating to evidence such as
corroboration, identification, direct and real evidence etc. The essay further concluded that
based on the evidence at trial, the appeal is less likely to succeed. Finally the discourse outlined
possible grounds of appeal such as, disregarding evidence from witnesses with possible interest
to serve, unfair identification parade and so on.

17
Supra 9.
18
Supra 11.
19
Supra 14.

7
BIBLIOGRAPHY

CASES

Blake v. The People (1973) ZR.

Bwalya v. The People (1965) ZR.

Charles Lukolongo v The People (1986) ZR. 115.

Chimbini v. The People (1973) Z.R. 191.

David Zulu v. The People (1977) Z.R. 151.

DPP v. Kilbourne (1973) 1All ER 440.

Kambarange Mpundu Kaunda v. The People (1990-1992) ZR 215.

Lupupa v The People (1977) ZR.

Machobane v. The People (1972) ZR 101.

Malawo v Bulk carriers Zambia ltd (1978) Z.R 185.

Mwewa v. The People (1980) ZR 180.

Naweji v The People ((1981) ZR.

Peter Yotam Hameenda v The People (1977) Z.R. 184.

Shamwana v. The People (1985) ZR.

Toko v. The People (1975) Z.R. 197.

Tshiabu Quibila Benos v The People (2020) Appeal No. 201.

BOOKS
Hatchard John and Ndulo Muna. The Law of Evidence in Zambia: Cases and Materials,
Lusaka: Southern African Institute for Policy and Research, 2013.