Banda and Anors v People (Appeal 46 of 1991) [1991] ZMSC 28 (1 October 1991)

IN THE SUPREME COURT OF ZAMBIA Appeals no. 46 & 47 of 1991 HOLDEN AT KABWE AND LUSAKA (Criminal jurisdiction) GEORGE PIERE BANDA 1st Appellant FRANCIS ZULU 2nd Appellant , -V- THE PEOPLE Respondent ■ ; i CORAM: Ngulube, D. C. J., Sakala and Chaila, JJ. S. Oq 1st October, 1991. . The first appellant in person. ,, ‘ y,; '■ . A- Mr. F. B. Nanguzyambo, Assistant Senior Legal Aid Counsel for the second appellant, The Director of Public Prosecutions, M. G. S. Phiri and Mr. Sewanyana for the respondent JUDGMENT ‘d* ■ yV’ < Ngulube, D. C. J. delivered the judgment of the court. The appellants were tried and convicted on a charge of aggravated robbery and each received the mandatory minimum sentence.. The particulars of the offence were that the appellants and four others, not now’, relevant, jointly and whilst acting together stole a motor vehicle, the property of B. P. (Zambia) Limited and at the time they used or threatened to use actual violence to PW1 in the case.; The learned trial judge heard the evidence arid he found as a fact: that on the night of the date in question, which was 24th February, 1985, at about, 22.00 hours, the vehicle was stolen from PW1 and thereafter this vehicle was recovered from, among other persons, the appellants, the very next day. The prosecution evidence was that on 26th February, 1985, some paramilitary offices spotted this vehicle and when they - ■■■" > - 2/.... stopped - - stopped it and interviewed the occupants, it was found that one Sikatema who was the first accused was driving it and these appellants were among the persons in the vanette. The appellants had given evidence how they got a lift and that this was an innocent lift which they got from the persons who were driving that vanette and that evidence was rejected by the learned trial judge because he accepted the prosecution evidence which inflated that the appellants were among those who had committed the robbery. On behalf of the second appellant, Mr. Nanguzyambo criticised the identification evidence which was given by the complainant and submitted that it was^unsatisfactory because of the circumstances surrounding the commission of the offence as well as the state of excitement and the duration of the robbery. The learned counsel also submitted that the second appellant had offered an adequate explanation how he came to be in that vehicle that night. On those grounds he urged the court to allow the appeal of the second appellant and to acquit him. He observed also that even the second appellant himself had filed some personal grounds of appeal, the burden of which was that he, too criticised the quality of the identification in the case. We have taken note of those grounds as well. The first, appellant has- i ^rgued his own appeal and has lodged written grounds and arguments. We have read them and they too amount to no more than a submission that the identification of himself by the witnesses was unsatifactory. He has also made some general submissions that some witnesses ought not to have been found to be credible. In conclusion it is the first appellant's submission that the prosecution evidence was unsatisfactory in the extreme and that we should find that they had failed to prove the case against him. We have given careful consideration to the allegation that the identification of the appellants was unsatifactory. Indeed that was the basis of the defence below, coupled with the explanations for being found in the vehicle which were rejected. We note that the first appellant was identified by PWs 1 and 2 who had witnessed the robbery and one of whom was the complainant. In the ' ’ •• • , . * •',V * 3/......... case < case of the second appellant, there was a dispute whether other than 3 - PW1, PW2 had also identified him. We accept the general submission that the circumstances favouring a very reliable identification were missing in this case and that if there was nothing more to support the case than the evidence of PWs 1 and 2 thenzpf course,the evidence £ of identity would not be satisfactory. We note, however, that the learned trial judge did not only rely on the identification by the witnesses but.wo-atee after carefully reviewing the authority on the need for care in these cases, •we'' looked for and found a connecting link when the appellants were found in possession of the stolen motor vehicle in the company of other persons within a period of"^hours, after the offence. It follows, therefore, that even if the evidence by the witnesses could be regarded as being somewhat weak, it was supported by the connecting link as-a^ found by the learned trial judge. The link was sufficient to fortify the poor itentification and to render it safe to conclude that the appellants were indeed shown to have been some of the robbers who took this vehicle from the complainant. That being the case we can see no grounds whatsoever for disagreeing with the learned trial judge or for coming to any other conclusion than the one that he came to. > appeal lies against the comp/lsory sentence. u / ? The appeals against conviction are, therefore, dismissed. No