Mulangi and Anor v People (Appeal 1 of 1986) [1988] ZMSC 60 (14 June 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal Nos. 1 and 2 of 1986 HOLDEN AT NDOLA . ! z i t»^er . (Criminal Jurisdiction) ? , ‘ j "■ n :: . .. . f ■> md On his boh.nl'' Mr, BLACKSON MULANGI ' EVANS MWALE ’ Appellant. ■ |&d^^ ■ VS* *;6 C 11'1'51?' S’Vt'p '. Cl. FjSSj i f' ' ‘ Ci*; Y t ?>•'>> I.?'-? WSt ,ir THE PEOPLE ; Respondent: CORAM: Ngulube, Ag. C. J., Gardner, Ag. D. C. J.,■ Bweupe, Ag. J. S. ■ J? r:? ; r' ... .... -• ' ... ■ r C/-. V n ..... ' -;-r. I C S. K. Munthali, Senior Legal Aid Counsel, for the appellants R. O. Okafor, Senior State Advocate, for the respondents 14th June,d988 ‘ / • ••. cf ; ' JUD G MEN T Ngulube,' Ag. C. J. delivered the judgment of< the court i : < -y ; I/'.- . r . .... U't? • ’• •1 : .-.;h .. :: . : .1 Cases referred to:. . ... <^v;. < •.,r.-; (1) Choka -v- The People (1978)I ZR:‘243;: r . (2) Emmanuel Phiri -v- The People (1978)<Zlji^ -J9 li The first appellant: was sentenced to’undergo thirty "years imprisonment with hard labour following upon his conviction on too counts of aggravated robbery while the second appellant was1sentenced to 15 years on one count of aggravated robbery; The. particulars of the case on the first count wherethe first appellant only was convicted were that he and another ^originally said to have been the second ■ ■ appellant) on the 22nd September, 1984 at Ndola, jointly and whilst acting together robbed PW2 of a motor vehicle and'then on the second ' count that both appellants on 3rd October,. 1984^at-Nddla'jointly and whilst acting together robbed PW7 of his motor-vehicle:and some money;• Tb£ evidence from the complainants established'beyond any doubt • that the robberies took place as alleged by them. -The evidence against j : •• J3 J2 , : the first'appellant oh the^ffrst Cdunt'-came frt>mealriumber(6^ and prosecution witnesses notably PWs 3, 4p 5i-6?'8^ands9Ju'!0n hlV’dehalf Mr. Munthali has advanced a ground-of appeal^ to! thepeffeet'that the'‘learned trial judge was in error in relying ■■Upor^the-evidericeto^ tnat witnesses when they were witnessesiWith1a’possibte^ own to serve and when there was no corroboration forttheirrevidenceih*The brief argument in this regard was that these^ere witnesses-who ata one stage or another had possession; ofor ca'meointoicontactwith'itthe stolen vehicle and that, on the authority of Choka -v-*ThePeople"(1), these witnesses had to be supported by other’evidence. -In reply,’on . Mr. Okafor has submitted that’whatever may^be said of the rest ofvthe witnesses who were7villagers and 'who had assisted!fhe first apjbpilant either to keep the vehicle or to push the vehicle or repair it, the mechanic PW4 could not be said to have been a suspect witness and that, therefore, his evidence^corroborated-that bf-the othersyhlch was to the c. Trrr. thu in that case could, very well have made an '' We have given(careful •cdnSlderatlontto the^sul^issfOristrais^by Mr. Munthali and we are quite satisfied "that*ln tfaCt theiwitnesses or air gave their evidence:from idifferentcpoints'lof ^iew<and^from different circumstances? <The^danger'WhichaiS,itd^beRgiiardedf'against’in«^ the: case:of evidence’ coming^f^omssuspect witnesses' IStthat<the«aCcuiedg person may be falsely implicated and^ln^pantlcutar^thatvthe suspect witndsses may have-jointly^fabricated Itheir^evidencetagainst the Chimed part icul ar< accused: person; at wenare^qu Ite nsati sf fed ’-that p- even । had ‘4hedce wi tnesses been regarded as suspect ^Itnessdssand ve^ehniad•the 1judge and not specifically warned himself- inSrelatlonntoithemptthe witnesses- were sin fact suspect for- different*reasons -andrspoke from such’diverse positions that there was no‘possibility -in factrof -any ijolht^fabrication on their • part. Later authorities? :of <this '.court’csubsequent to’Choka (1) have decided that It is competentTforrsuch’Witnesses' to^corroboratei- each other despite that each is suspect ^for^thein’own sepaaate’reasons. But we in fact agree with the submission>by' Mr. -Okafor that PW4 the ? ? mechanic and possibly -PW3 the’clady;^/ho?was ’approached for help by the appellant stood in a diff erent 'position and'iprovidedcthe necessary corroboration.: That ground pt appeal <can ^therefore>not* Java ill the ug , first appellant, is even n<or£ conclusive Is the fact that ths appellants, 3/.............. The 4/.?^.. t..in : J3 The second ground of appeal related to the evidence of PW5 and PW6 who were husband and wife and'wtose evidence the jddge fourid'wre not ; : » 5 ,7*^* • •• ( 1 i r» pi/ { | i •J .« i-% *• it .n • established that the first appellant brought the vehicle to their house. We have scrutinised their1evidence arid'while it is true'that i T 5 H they said a relation of theirs called Ngosa brought*'the vehicle withJ' other persons, monetheless they did also say that the next day’they saw the owner of this vehicle and this person was identified as the first appellant. That ground of appeal'is,1of8no?avaii! either??rWithJ.on regard to the confession statement of the'first appellant in relation to the first count, we consider that it is unnecessary to rely upon the confession statement having regard to the rest of the evidence' coming from the witnessess and which ’ was1 quite8suffi'cfent; to' sustain the convicW1;"’^"' can be no appeal gainst that. With regard to the fir$t. appellant,, the learned trial. There was an argument related tothe second’ count which was to the effect that the complainant in that case could very Weir have made an t • ■ f’; ’j •• .t- 4 r c^r- t pA ...... I i - - •- honest mistake in the identification of’the appellants^and that the items which the learned 'trial1judge corisiderbd’tb'beccorrbb^ ‘ ~7|, r- ... . O-i, A A +. A j Ah ' (•if something more were in fact incapable of providing the support necesssary to rule out the possibility of a mistaken identification. We again addressed our minds to these submissions1 arid1'nbte that f according to the prosecution evidence, the.appellants ‘were’identified by the . ’ •••• --J'S ’ . </ r\. r < va 3 i" .nsrr.i‘.\ : i • J.' complainant PW7 who narrated in detailthe opportunity which he claimed to have had to make observations^on1 the'ihghtcih~^ 1 : ' 1 ■ .• r ;■ i - f. .it n fsyi <• i r t.' t " (" iV'i'i t1 ■. - ■ ■ < ; ■ was further that the very next day the police found the appellants and another of stheir colleagues at a Bar very near Which was parked the stolen vehicle. The first appellant had the car keys which',) operated this particular vehicle while the second appellant was simply in his company. The learned trial judge considered that it was too much of a coincidence that the persons identified by the complainant as the robbers who took the car frofy him the’(pteyj£^^ together with the vehicle the very next day.u. We agree.with the learned trial judge that, on the principles enunciated in the case of Emmanuel Phirl -v- The People : ,7?? with regard to the requirement for something more, that- odd coincidence was such something, more. But what is even more conclusive is-the fact,that .the.; appellants, f < f.- ;■ .. u > ACTING SUPR^IE COURT JUGGE ........ .................... ....................... J4 . L2? I v 1 ? £f j in1 relation to this count, made statements to the police which were not objected to and which were admitted in evidence in which they admitted stealing the vehicle but denied the allegation that they were armed with a firearm. These admissions,jcoupled with the identification by the complainant and the corroborative evidence, lead to oplyione:. conclusion and that is that the ground in relation to the second count cannot assist either. To sum up, the appeals against conviction must be dismissed and they are1 dismissed. /Ar a a .. Gardner, Ag. D. C. J.. Svmfpe., Ag^J. S. In relation to the appeals against sentence, although Counsel has not addressed us thereon, we note that’the ’second appellant 'received the mandatory (minimum sentence and there'canJbe^no appeal against that. With regard to the first' appellant,’the leanned trial judge imposed sentences of fifteen years on each count-but ordered---- that they run consecutively.making a total of thirty years. We have "considered the formula applied In sentencing the~first~appe11ant and we are satisfied that the order that the sentences run consecutively ..in that manner results in a sentence which comes to us with a sense of •' S I !. ■ ’ * : ‘ ' l ■"shock." We propose to set aside the effective sentence of thirty jy^ars7' As for ^suitable; sub^ fiy^t appellant, we take Into account that he committed two offences of aggravated robbery and for that reason he must r^ssaCi1y’received somewhat beyond the mandatory minimum.' "We° imposed sentence'’ of* eighteen''years imprisonment with hard labour'on each cbunt jto run' concurrently, u0 which means he will serve eighteen years'ImprisbnmeetP with’ hard labour with effect from 4thonly was ' - A . r (original lys-sld to have been the second app-it/wU on A-.- ri^-- Sep••oai\ 198^ at at Jointlywhilst A. Acting t >r rybl>::d PW2 of a motor vobicH on the second tAurst tint iw'.h ■■ y c" 3rd October .•> Hdoiajointly and whilst ar* : znbrd ; W7 o; MJM^S'^W.v. NgUlUbmnd some money. ACTING CHIEF JUSTICE Ida evidence frv;’ the complainants established beyontfany doubt that the t; a- place as alieged’by tiw. The evidence against B. T. Gardner ACTING DEPUTY CHIEF JUSTICE 2/-........ .the B. K. Bweupe ACTING SUPREME COURT JUDGE