Douglas Mulenga v People (Appeal 32 of 2000) [2000] ZMSC 97 (9 August 2000)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA AND KABWE (CRIMINAL JURISDICTION) APPEAL NO.32/2000 BETWEEN: DOUGLAS MULENGA APPELLANT Vs THE PEOPLE RESPONDENT Coram: Sakala,Acting D. C. J., Muzyamba, Lewanika,JJS. On 6lh June, 2000 and at Kabwe on 9th August, 2000 For the Appellant: Mrs. J. C. Kaumba, Assistant Principal State Advocate. For the Respondent: C. F. R. Mchenga, Senior State Advocate. ____ _______________ JUDGMENT________ Lewanika, JS. delivered the Judgment of the court. _ The appellant was convicted of the offence of aggravated robbery contrary to Section 294(1) of the penal code and sentenced to 20 years imprisonment with hard labour. The particulars of the offence were that the appellant on 24th September, 1996, at Kitwe in the Kitwe District of the Copperbelt Province of Zambia, jointly and whilst acting together with other persons unknown and whilst armed with pangas and iron bars did steal one motor vehicle namely a Toyota Corolla bearing registration No. ACB 8253, one travelling bag, one ladies' bag, two fans, one food processing machine, clothing material, one fridge, one motor vehicle tyre, one book and a pair of bed covers altogether valued at K7,547,500.00 the property of CHABALA MWEWA and at or immediately after the time of such stealing did use or -J2- threatened to use actual violence to the said Chabala Mwewa in order to obtain or retain or prevent or overcome resistance to its being stolen or retained. The appellant has appealed against conviction only. The facts as found by the learned Trial Judge are not really in dispute and they were that on the night of the 23rd and 24th September, 1996, the complainant, P. W.l, and his family had retired to bed when at about 02:00 hours they were awakened by some noise outside the house. The complainant woke up and left the bedroom to check in the sitting room where he was confronted by four masked men who were armed with iron bars and other weapons. He rushed back to the bedroom and tried to lock the door but his assailants pushed the door and entered the bedroom. The assailants started beating him and his wife and as they were screaming for help, they were told to keep quiet and lie down or else they would be killed. They complied and the assailants started ransacking the house. After a while, they asked P. W. 1. for the car keys which he gave them. They then locked P. W.l., his wife and a boy in the wardrobe. After they had driven away in his car, he went out of the house to seek for assistance from the neighbours. He phoned the Police from a neighbour’s house and when the Police came, he gave them the particulars of the items that were stolen by the assailants. The Police also took him and his wife for treatment for the injuries they sustained during the robbery. The stolen vehicle was recovered on the same day between Nkana East and Ndeke village although the rear wheel, spare wheel, lock nuts and other accessories that were in the boot were missing. The following day the -J3- appellant went to Chisokone market where he found a person selling tyres which he identified as the ones that were stolen from him and he went to the Police who apprehended the person who was selling the tyres. Four days after the robbery he was called to Kitwe Central Police Station to identify some of the goods which were stolen from him and recovered by the Police. In August or September, 1997, he was called to Wusakile Police Station where he identified six pieces of upholstery material and a table fan and he also accompanied the Police to Chimwemwe township where they recovered a food processor. P. W.3. testified that in September, 1996, he bought a food processor from the appellant which was recovered from him by the Police in August, 1997. P. W.4. testified that on 26th September, 1996, he bought two tyres from the appellant on 27th September, 1996, the Police came to his premises in the company of the appellant and recovered one tyre from him as he had fitted the other tyre on a customer's motor vehicle. The appellant in his evidence denied any involvement in the robbery whilst admitting that he sold the food processor to P. W.3. and the tyres to P. W. 4. But that he did so on behalf of one Kangwa Monta who had been apprehended by and escaped from the Police. The learned trial Judge in his judgment considered the appellant’s explanation as to how he came to be in possession of the stolen goods and rejected it and found that the appellant was one of the persons who had participated in the robbery. It is against this finding that the appellant has appealed. Counsel for the appellant has filed only one ground of appeal -J4- namely:- 1. That the learned Trial Judge erred in law and on the facts by not applying the doctrine of recent possession to this case. In arguing this ground Counsel stated that the only evidence linking the appellant to the commission of the offence was that he sold the food processor exhibit P.9 and the tyres exhibit P.7 to P. W.3. and P. W.4. respectively within the same month that the robbery was committed and that he later led P. W.6. to the recovery of the same. She said that the appellant in his defence testified that the property in question were given to him by Kangwa Monta to either sell them on his behalf or buy them himself. She said that there is evidence on record that the said Kangwa Monta was later apprehended and charged with this offence. She said that P. W.6. had said that Kangwa Monta confirmed to him that he was the one who gave the properties in issue to the appellant to sell on his behalf She said that the learned trial Judge ought to have considered the possibility that the stolen property came into the appellant's possession otherwise than by the commission of the offence he was charged with. That the lower court therefore erred by not applying the doctrine of recent possession and gone further to determine whether or not such recent possession may have been the result of the receiving of stolen property as opposed to the guilt of the major crime during the commission of which the stolen property was obtained. She submitted that since the appellant gave an explanation which might reasonably be true, we should allow the appeal and acquit the appellant. In reply Counsel for the respondent said that he supported the conviction as it was based on the doctrine of recent possession. He said that the learned trial Judge considered the explanation given by the appellant and rejected it as the appellant was evasive in his replies. We have considered the submissions made by Counsel for the appellant and for the respondent as well as the evidence on record. The evidence on record is that the appellant sold the tyres to P. W.4 two days after the robbery. The doctrine of recent possession requires that if an accused person who is found in possession of property that has been recently stolen gives an explanation as to how he came to be in possession of that property, the trial court is required to consider whether or not that explanation could be reasonably true. If the explanation could reasonably be true, then the trial court is obliged to acquit the accused person. In the case now before us, the learned trial Judge considered the explanation given by the appellant and rejected it and in rejecting it the learned trial Judge made the following comments on the demeanor of the appellant: - "when cross-examined he was hesitant, evasive and uneasy in answering questions." -J6- The learned trial Judge had the advantage of listening to the evidence of the appellant and observing his demeanour and as an appellate court we do not have this advantage. We are satisfied that the learned trial Judge was on firm ground in arriving at his decision and find no merit in the appeal against conviction which we dismiss accordingly. E. L. SAKALA W. M. MUZYAMBA AG. DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE