Mulenga and Anor v People (SCZ Appeal 110 of 1993) [1993] ZMSC 131 (7 September 1993)

IM THE SUPREME COURT OF ZAMBIA SCZ APPEAL NOS. 110 A 111 OF 1993 HOLDEN AT NDOLA (Criminal Jurisdiction) BOSTONI MULENGA AND JOSEPH SIAME Appellants VS THE PEOPLE Respondent Coram: Sakaia, Chai la & Chirva. JJJ. S. 7th September. 1993 Appellants in person. Mr. R. O. Okafor. Principal State ADvocate. for the People. JUDGMENT Sakai a. J. S.. delivered the judgment of the court. The appellants were convicted of aggravated robbery contrary to Section 294(1) of the Penal Code Cap 146 of the Laws of Zambia. The particulars of the offence alleged that, the two appellants, on 31st October 1992 at Kabwe, in the Kabwe District of the Central Province of the Republic of Zambia, jointly and whilst acting together robbed Stanley Lungu of 1 pair of trousers. 1 T-Shirt, 1 Lumber jacket. 1 pair of Canvas. 1 Belt and K1.500 cash and at the time of the robbery used violence against him. They were both sentenced to 15 years imprisonment with hard labour. Very briefly, the case for the prosecution was that the complainant, PW1, on 31$t October, 1992 knocked off from his working place and was on his way home carrying a parcel of meat when he met two people who ordered him to eat his meat and undress himself. The complainant undressed himself remaining only with his underpants. Then one of his assailants took out a knife. A struggle ensued and he managed to free himself and ran to his house. The following day, he went 2/.......... - J2 - to report the incident at the police station. While reporting the incident at the police station, he saw the two appellants being brought to police station. Immediately, he identified the two as the people who had robbed him. One of the appellants according to the complainant's evidence, was wearing a lumber jacket which he identified as one of the items that were stolen from him. This appellant was identified as the second appellant. The evidence of PW3 was that on 1st November 1992, he discovered that his musical instruments had been stolen from the tarven. He then received a report from his employees that they had seen two people whom they suspected had stolen the it®ns- He rushed to the scene and apprehended the people whom the employees had suspected to have stolen the musical isntruments. Thereafter he took them to the police station. The appellants in their defence testified that the first witness had given them the clothes as security for the money which he had extravagantly spent. According to the trial judge the issue before him was one of credibility. He accepted the evidence of the prosecution and found that the appellants were inmediately after the robbery in possession of the items allegedly stolen from the complainant. We have very carefully considered the grounds of appeal submitted before this court. In our view, the evidence against the appellants was overwhelming. The learned trial judge was entitled to accept the prosecution evidence based on the issue of credibility. The appeal against conviction is therefore dismissed. No appeal lies against the mandatory minimum sentence of fifteen years, The appeal against sentence is also dismissed. E. L. Sakala, SUPREME COURT JUDGE M^s/Chaiia*...... SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE