Alex Silubonde v The People (Appeal No. 100/2005) [2006] ZMSC 70 (6 June 2006)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 100/2005 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: ALEX SILUBONDE Appellant AND THE PEOPLE Respondent Coram: Sakala, CJ. Chitengi and Mushabati, JJS on 7 th March, 2006 and 6 th June, 2006. For the Appellant : Mr. E. M. Sikazwe, Deputy Director - Legal Aid For the Respondent: Mrs. J. C. Kaumba, Chief State Advocate JUDGMENT Chitengi, JS, delivered the judgment of the court. The Appellant and another man called Joseph Mumba were tried and convicted of aggravated robbery contrary to Section 294(2) of the Penal Code, Chapter 87 of the Laws of Zambia and sentenced to the mandatory sentence of death. The particulars of this offence alleged that Alex Silubonde and Joseph Mumba on 2 nd day of May, 2003 at Ndola in the Ndola District of the Copperbelt Province of the Republic of Zambia ,jointly and whilst acting together and whilst armed with an AK . j - J2 - 47 rifle did rob Lenton Chisembe of K27,000,000.00 and two crates of beer altogether valued at K27,105,999, the property of Northern Breweries Limited. The appeal is only against sentence. Indeed, on the evidence we are satisfied that the Appellant was properly convicted of Aggravated Robbery. For the purpose of this appeal it is necessary to recount the evidence of the events that took place . at the time of the robbery. The only witness who testified to the robbery was Lontia Chisembe PWl, the driver, who was robbed of the money and beer. He testified that when he and his helper, one George Mwanza, reached a place called Mandondo at about 18:45 hours, a car started trailing them up to Tug Argan turn off where the people in the car ordered them to stop. The people in the car deflated the tyres of the truck PWl was driving by shooting in the tyres with AK rifles. After immobilizing the truck the people in the car then staged the robbery. Sergeant Robert Kaunda (PW6) who went to the scene on 8 th May, 2003 picked two spent cartridges. The ground of appeal is that the learned trial Judge erred by convicting the Appellant under Section 294(2) of the Penal Code and sentence him to death in the absence of evidence • that the Appellant was armed with a firearm within the - J3 - meaning of Section 2 of the Firearms Act, Chapter 110 of the Laws of Zambia. Mr. Sikazwe, the learned Deputy Director of Legal Aid, submitted that there was no firearm; that the punctured tyres should have been exhibited and that the spent cartridges were in fact found some six days later as per page 6 of the record of appeal lines 23 to 30. We have considered the evidence and the submissions of counsel. We do not accept Mr. Sikazwe's submissions that no firearm was used during the robbery. The evidence that a firearm was used is overwhelming. While it is true to say that the firearms were not recovered, there is evidence on record that the firearms were in fact used to shoot the tyres of the truck in order to immobilize it and that empty cartridges were found at the scene. Mr. Sikazwe said that the empty Q cartridges were picked some six days later and in this respect Mr. Sikazwe referred us to Page 6 of the record of appeal at lines 23 - 30. We have read page 6 of the record of appeal but we have found no evidence to show that the empty cartridges swere picked from the scene some six days after the robbery and not earlier. In any case, even if the spent cartridges were picked from the scene some six days later, it would not make any difference. There is no evidence on record that • subsequent to the robbery there was a shoot out at the scene ' ' - ]4 - of the robbery. In fact, the issue of the empty cartridges being found at the scene was not even a matter of cross examination. If Mr. Sikazwe's submissions are suggesting that the empty cartridges were planted at the scene of the crime in order to implicate the appellant in the capital offence, then, we are bound to say that such suggestions are far fetched. O There has also been a complaint about the failure to exhibit the tyres that were shot at. Failure to exhibit the tyres that were shot at is not fatal to the sentence because as, we have said, the evidence that firearms were used in this robbery is overwhelming. In the event, we cannot fault the learned trial Judge when he found that the Appellant committed the robbery while armed with a firearm and sentenced him to death. We find no merit in this appeal and we dismiss it. .•••.•..... ~ •..........•..•.• E. L. SAKALA CHIEF JUSTICE . ··;;~~NGi ........ . SUPREME COURT JUDGE • C. S. MUSHABATI · SUPREME COURT JUDGE