Sambwa and Anor v People (Appeal 102 of 1998) [1999] ZMSC 91 (19 January 1999)

Appeal No. 102a & 102b of 1998 SUPREME COURT FOR ZAMBIA HOLDEN AT KABWE AND LUSAKA (Criminal Jurisdiction) BETWEEN: BRIGHTON SAMBWA ELASTROS KAI RA and THE PEOPLE APPELLANTS RESPONDENT Coram: Chai la, Chirwa, Lewanika, JJS. 3rd November, 1998 and 19th January, 1999 For the Appellants: In person For the Respondent: J. Mwanakatwe, Principal State Advocate JUDGMENT Lewanika, JS. delivered the judgment of the court. The appellants were convicted of the offence of aggravated robbery contrary to Section 294 of the Penal Code. The particulars of the offence being that the two appellants on the 5th day of August, 1997 at Ndola in the Ndola District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together and whilst armed with pangas, did rob Lawrence Lombe of his 1 pressing iron, 1 wall clock, 1 knife and 1 bottle of body lotion altogether valued at K35,000.00 and at or immediately before or immediately after the time of such robbery, did use or threatened to use actual violence to the said Lawrence Lombe in order to obtain or retain the said property. The appellants were sentenced to 15 years imprisonment with hard labour and they appeal to this court against conviction and sentence. The evidence before the trial court was that the complainant PW1 was on the night of the 5th day of August, 1997 asleep in his house with J2 his brother-in-law when at around 01:30 hours he heard a noise which caused him and his brother-in-law to wake up. When they woke up, they saw two men one of whom was armed with a panga inside the sitting room of the house. The complainant and his brother-in-law were in the bedroom where there was no light but in the sitting room where the two assailants were, the light had been left on and the complainant was able to see and actually recognise his two assailants as they were well known to him. He knew them by name and he also rented a house from the mother of one of the two assailants. He said that one of them just stood armed with a panga and hurling insults at them whilst the other one collected the wall clock, the pressing iron, a knife and a bottle of body lotion as well as all the keys for the house. After collecting these items they left and on the following morning the complainant went to Twapia Police where he made a report giving the names of his two assailants to the police. The complainant was given a police call-out by the police which he was told to give to their ward chairman and on his way to the house of the ward chairman he met his two assailants and he followed them to a grocery where he apprehended them and took them to the police station. The complainant identified the 1st appellant as the one who was armed with a panga and he identified the 2nd appellant as the one who was collecting the goods that were stolen. The 1st appellant in his defence gave evidence on oath and said that on the day in question he had travelled from Kitwe and gone to a grocery in Twapia where he found the 2nd appellant. Whilst in the grocery he saw a person who was armed with a panga who accused them of having robbed him and he apprehended them and took them to the police. The 1st appellant said in his evidence that he did not know the complainant and he had not seen him before and he denied having robbed the complainant of the items that are set out in the indictment. He further said that he only knew the 2nd appellant slightly because he used to see him around in the compound although they stayed in different sections. The 2nd appellant made an unsworn statement and said that on the 5th day of August, 1997 at around 13:00 hours he had gone to a grocery to buy some fish when somebody whom he did not know accused him and the 1st appellant to have robbed him. This person apprehended them and took them to Twapia Police Station. He said that he did not know the complainant before and that the complainant shifted to his mother's house whilst he was in remand prison. He denied having robbed the complainant. The learned trial Judge in his judgment quite properly directed his mind to the fact tnat this was a case involving a single identifying witness and he warned nimseif of the possibility of a mistake in identify­ ing the appellants bur he was satisfied that on the evidence before him that possibility die not exist. The appellants who appeared in person said that they were relying on their grounds of appeal which they had filed against both conviction and sentence. I*‘e have considered the grounds of appeal as well as the evidence on record and we are satisfied that the learned trial Judge came to the right conclusion as the two appellants were well known to the complainants to the extent that he even knew ent-ir names which he was able to give to the police on the same day of the roooery and it was the complainant nimseif who apprehended the appellants a few hours after the robbery and although none of the stolen items were recovered from the appellants, we are satisfied on the evidence on record that it was the appellants who robbed the complainant and that the possibility of an honest mistake having been made by the complainant in identifying the appellants does not exist. In the circumstances, we find no merit in the appeal against J4 conviction which we dismiss accordingly and as the appellants were sentenced to 15 years I. H. L. which is the minimum penalty for this offence we cannot interfere with the sentence as well. M. S. Challa SUPREME COURT JUDGE D. K. Chirwa SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE