Read the question below carefully. Identify the following; i. The facts of the case ii. The issue before the court iii. The ratio decidendi iv. The obiter dictum

SAMMY KAMBILIMA NGATI, MUMBA CHISHIMBA EDWARD AND DAVY MUSONDA CHANDA v THE PEOPLE SCZ Judgment No. 14 of 2003 CHIRWA, J S, delivered judgment of the Court. The three appellants; Sammy Kambilima Ngati, Mumba Chishimba Edward and Davy Musonda Chanda (hereinafter referred to as 1st, 2nd and 3rd appellants), were jointly charged with one other person who died before trial with three counts. The first two counts were of murder, contrary to, Section 200 of the Penal Code, Cap. 87. The particulars of the first count were that the three appellants, on 1st May 1997, within the Pedicle, in the Mokambo District of the Shaba Province of the Democratic Republic of Congo, jointly and whilst acting together did murder Kenneth Chibwe. PW1 testified that his company, AMC Contractors, had been awarded a contract by the National Roads Board of Zambia to work on a road that passes through the Pedicle in Congo, popularly known as the Pedicle road. He had his men in two camps. On 1st May 1997, his son Kenneth Chibwe, set off from Mufulira for the Pedicle road to supervise workers. He left in a Toyota Land Cruiser registration number AAJ 3842, driven by Shadrick Kalenga. Kenneth Chibwe and Shadrick Kalenga are the victims of murder in counts one and two. They left in the morning and were expected back before 1200 hours as he, himself, was to start off for Mansa later for a meeting with the Permanent secretary there, on 2nd May 1997. His son did not come back, and at about 1345 hours he started off for Mansa using the Pedicle road. He did not stop until he reached his second camp where he found his workers who were not working. He made inquiries about his son; the workers told him that they had not seen his son. He got worried, as he never overtook his son on the way. He made a U-turn and got back where he had earlier on passed his grader and inquired from the operator if he had seen his son. He was told that he had not seen his son. However, one of his workers told him that he had observed some tyre marks leading into the bush from the road. He saw the tyre marks. He got more worried as it was unusual for his son to go out of the road where they were working. PW 1 then rushed to Mokambo border post and reported to the Army Officers of the Congo D.R. at the post. He was advised to report to Zambia Police. He reported on the Zambian border where Immigration Officers contacted the Zambia Police. He was given two Zambia Police Officers and two immigration Officers and came back to Congo DR Army border post where he was given some soldiers and came to where he had seen the tyre marks leading into the bush. The Congo army officers advised the Zambians to remain at the road while they went into the bush following the tyre marks. After a short while, the Congolese army officers reported that they had seen a vehicle behind an anthill. They were invited to see the vehicle and he recognized the vehicle as his, used by his son. They were allowed to collect the vehicle and bring it back to Zambia. On 2nd May 1997, PW 1 went back to look for his son and the driver. He was accompanied by Zambia Police Officers and at the scene, they found some Immigration Officers from Mansa.

The Congolese soldiers suggested that they search the other side of the road not searched the previous day and they went with some Immigration Officers. After a short while, the search party came back and reported to have found a body. PW1 went with the soldiers into the bush using his motor vehicle to the place where the body had been found and he identified the body as that of his son. A short distance from where his son's body was found, they also found the body of the driver. Both bodies were naked and the Congolese authorities allowed them to bring the bodies to Zambia. PW9 was D/Sgt. Banda, the investigating officer. His evidence was to the effect that on 7th May 1997, he received three dockets: two for murder. The offences were alleged to have been committed on the Pedicle road. The murder dockets involved Kenneth Chibwe and Shadrick Kalenga as the deceased. In the course of his investigations, he came across some information that the person involved in the crimes was Kaputula Mulenga (the person who died before trial) and his three friends who were in Congo. He approached the Congolese Officer-in-charge of the army at Mokambo who promised to help them. On 8th May 1997, he got a report that the said Kaputula Mulenga had been apprehended and he went to Mokambo and brought Kaputula Mulenga to Zambia and upon interrogating him, Kaputula Mulenga confessed involvement in the crimes together with the three appellants now. The appeal is founded on the lack of jurisdiction of the Zambian criminal courts over the 1st and 2nd appellants on the allegation that they were non-Zambians and the crimes were alleged to have been wholly committed in Congo D.R. In arguing the first ground of appeal, Mr Mwansa for the appellants, submitted that the 1st and 2nd appellants are not amenable to the Zambian Criminal Jurisdiction as they are Congolese and the crimes were committed in the Congo D.R. Reference was made to Section 6 (1) of the Penal Code, Cap. 87. We find that the objection to jurisdiction should have been raised at the start of the trial so that the learned judge could have made an inquiry into the claim by the 1st and 2nd appellants. As it is now, it is raised when there is no evidence on record to prove that the two appellants are non-Zambians. The appellants themselves in their evidence in court never alleged that they were not Zambians. The fact that they were apprehended in the Congo, is not sufficient to found the objection of jurisdiction. We agree with the authorities referred to us by Mr Mwansa that criminal law is of territorial effect at Common Law unless modified by Statute. In agreeing with this general statement of the law, we bear in mind the obiter dictum of Lord Griffiths in the Privy Council decision in the case of Somchai Liangsiriprasert v Government of the United States of America (1), at page 251 where he states: -"Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and Common Law must face this new reality". We note that the case of Liangsiriprasert was concerned with the crime of conspiracy, but the obiter dictum of Lord Griffiths cannot be ignored in this case.

We did indicate earlier in our judgment that we did endeavour to see if there was any Treaty or Agreement between Zambia and the Congo over the use of the Pedicle. Our search has revealed that there is no Treaty or Agreement between the two countries. What is obtaining is comity between the two countries. The records from the National Archives do give some background on this relationship. The records show that previously the Belgian Congo used to charge a toll fee for both motor vehicles and people using the Pedicle road from the then Northern Province (now Luapula), to the then Western Province (now Copperbelt) using the pedicle road and this road was essential to Northern Rhodesia (Zambia), as it was the shortest link between the two provinces. Even as early as 1946, the question of maintenance of this road was a problem because the Belgian Congo government did not see the importance of the road, but at the same time could not give it to Northern Rhodesia. However, in view of the importance of this road to Northern Rhodesia, the two countries agreed on an annual payment by the Northern Rhodesia government to Belgian Congo for the maintenance of the road and the toll fees were abolished. As of now, the Zambian government maintains the road and it is because of this arrangement that AMC Contractors were awarded a contract by the Zambian National Roads Board to work on the road and the two deceased persons left Mufulira on that fateful day to check on the progress of the road. The two deceased persons were Zambians. It is with these sets of factors in the background that we feel the dictum of Lord Griffiths is useful. These are also factors that the learned trial judge would have taken into account when considering the question of jurisdiction if the same were raised at the trial stage. Evidence could have been led on the issue of nationality of the appellants. The objection has come too late in the day on which this appellate court could do nothing, because, even the appellants themselves, never raised the issue of nationality in their evidence. This is, it seems, an afterthought objection. The appellants are Zambians and although the offence was committed out of Zambia, the Penal Code applies to the appellants by virtue of Section 6 (1) of the Penal Code. The defence based on lack of jurisdiction of the Zambian criminal courts cannot succeed in this matter and it is dismissed. The appellants were convicted on the evidence of PW3, Juliet Chilufya. In terms of Phiri v The People, It is settled law that a court is competent to convict on a single identifying witness provided the possibility of an honest mistaken identity is eliminated. The court correctly found the appellants guilty of the three counts as charged and we see no merits in the appeals and they are dismissed. Appeal dismissed