Banda and Anor v People (Appeal 106 of 1986) [1987] ZMSC 64 (29 July 1987)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 1Q6 OF 1986 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: BLACKWELL BANDA AND ISAAC NGULUBE APPELLANT vs THE PEOPLE RESPONDENT CORAM: Ngulube, D. C. J. Gardner and Sakala JJ. S. 29th July, 1987 For the Appellant : In person For the Respondent : Mr. N. Sivakumaran, Assistant Senior State Advocate JUDGMENT Ngulube, D. C. J., delivered the judgment of the court. The appellants received eighteen years imprisonment with hard labour in consequence of their conviction on a charge of aggravated robbery. The particulars of the case were that the appellants on 20th June, 1985 at Chipata in the Chipata district in the Eastern Province jointly and whilst acting together stole from the complainant a gents wristwatch and all his clothing-including underpants-altogether valued at K116.00. The brief facts of the case were that the complainant had gone to the bush to cut some poles; he was in company of a Mr. Mwanza. He said that while they were returning home they met three young men who were previously known to him. These, according to the complainants included the two appellants. The complainant's story was that the appellants then stopped him and demanded money. The appellant Ngulube was then said to have taken an axe which the complainant was using to support the poles on his shoulder, and used the handle to beat the complainant who Cell down. The complainant was stripped naked and these are the properties which were taken away. The complainant also said that, after he had 2/...................... been been beaten and stripped naked, the first appellant forced him to be the victim of an unnatural offence upon himself, that is to say, the first appellant committed buggery. The appellants have appealed to this court against both their conviction and sentence. One of their complaints is that the evidence of the complainant should not have been relied upon because it was uncorroborated and may have been made up. We find that there is no merit in this line of argument. The witness was found to be a credible witness and no basis has been shown to us why the findings, which rested on an issue of credibility, should be interfered with. In their eatlier grounds of appeal the appellants had also raised the issue of identification. We find that there is no merit in such a ground. The appellants were persons the complainant knew before and the offence was committed in broad daylight. Quite apart from the evidence of the complainant, there were warn and caution statements which were admitted in evidence without any objection and which placed each appellant squarely at the scene. There was thus no question of mistaken identity. The appellants have argued that the warn and caution statements could not corroborate the evidence of the complainant. The appellants obviously could not cite any authority for this bold proposition. We find that there are no grounds upon which we can interfere with the conviction. The appeals against conviction are accordingly dismissed. With regard to the appeals against the sentence of eighteen years we agree entirely with the learned trial judge that the circumstances of this case warranted a sentence slightly higher than the minimum mandatory sentence. We note that there was actual violence used against the complainant in this case which consisted of the assault with the axe handle as well as the assault against the dignity of the complainant. Eighteen years imprisonment with hard labour was entirely appropriate. We dismiss the appellants appeals against sentence as well. - J3 - M. S. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE