Munkoyo and Ors v People (SCZ Appeal 160 of 1985) [1987] ZMSC 81 (15 September 1987)

IN THE SUPREME COURT OF ZAMBIA 8. G. Z. APPEAL NOB. 160- 163 OF 1905 -------- HOLPEN AT NDOLA (Criminal Jurisdiction) BETWEEN: FRANCIS MUNMOYO DIMAS MAKESA AND SHADRECK MULENBA Appellants ----- ------ vs THE PEOPLE Respondent CORAHi Ngulube, D. C. J., Gardner and Sakais JJ. S 15 September* 1907 For the Appellants : Mr. S. K. Munthali, Senior Legal Aid Counsel For the Respondent i Mr* F* Mwanoohongo* Senior State Advocate JUDBMENT Sakais* J. S., delivered the judgment of the court. Ceos referred to: (1) Patrick Honda and Robertson Mulews Chieengo vs The People (19BO)ZR 105 The three appellants were each sentenced to twenty five years imprisonment with hard labour following upon their convictions for the offence of aggravated robbery. The particulars of the offense alleged that the three appellants on 11th January 1961 at Ndola, jointly and whilst noting of together robbed Petrick Arthur Cohery/one wristwatch, one radio, K400. Q0 cash, three pairs of glasses, two belts, three calculators and one camera ell valued at K1,030.00 and used violence at the time of the robbery. The prosecution evidence conclusively established that there was an aggravated robbery nt thn house sf the complninant during the evening of 11th January 1981 and that the items subject of the charge were stolen from the - complainant. It was also not in dispute that the items subject of the charge ware subsequently recovered by the police on 18th February, 1981 at the house of the first appellant and identified by the complainant. The police also led by a constable known as Chimuxazu sold they recovered a firearm from the house of the first appellant. It was common cause that constable Chimuxazu had been convicted of theft of the firearm recovered from the firet appellant*a house. The prosecution introduced in evidence statements recorded from the three appellants after a trial within a trial. The ruling in a trial within a trial consisted of four lines and givea no reasons why the learned trial judge accepted the prosecution evidence* The ftrst appellant gave evidence in his defence oontending that the items found in his house had been brought by constable Chimuzazu for safe keeping* The second and third appellants in their defence denied being Involved in the robbery. The second appellant explained that he was arrested at the time he went to the polioe station to check for his uncle who had been apprehe­ nded by the police. Th$ third appellant explained that he was arrested because he witnessed the first appellant buying a cloth material from his friend. The learned trial judge identified the issue in the case to be whether the three appellants were the perpetrators of the robbery* The trial judge found that on the basis of the warn and caution statements and the finding of the stolen items and the firearm in the first appellant's house he must hove been one of the perpetrators of this robbery. The evidence against the second end third opponents was found to be in their warn and caution statements. The lesrned trial judge found no reason to doubt the voluntariness of these statements. Mr* Muanaohongo appearing for the state informed the court, properly so incur view that he was not supporting the conviction against ths second and third appellants* MtwMunthali argued only the appeal against oonviotion of the first appellant* The major ground advanced by Mr. Munthall was that the learned trial Judge misdirected himself by not considering the explanation given by the first appellant* He submitted that the first appellant explained how the property mas found in his house and the explanation was supported by 0U4, hie wife. Mr* Munthall pointed out that the polios witnesses agreed that when they went to the first appellant*s house Bhimuzazu had bean apprehended as a suapeot This Chimuzazu, ha went on, we eventually convicted sf a firearm found in the house of the first appellant* He submitted that had the learned trial Judge aeneidered the explanation given by the flrat appellant he should have found that It might have reasonably been true* Mr. Munthall agreed that although the first appellant oould not be oonvioted of the major charge he might have been a receiver of the Items but not a robber* On behalf of the state Hr, Mwanaehongo submitted that the Items subject of the charge did not come from a suitcase allegedly brought to ths first appellant's house by Chimuzazu He referred the court to page It of the record where It is suggested that these items were not In the suitcase* He quickly conceded that the trial Judge did not in his judgment consider this matter but asked the court to apply the proviso He also pointed out that if the first appellant could not be found guilty on the main charge he could be found guilty □u of receiving the property. He contended that even excluding the warn and caution statements, which he conceded were wrongly admitted, there was overwhelming evidence supporting the conviction against the first appellant* We have very carefully examined the evidence on record We note fromm the trial judge's judgment that he did not deal with the question of the ownership of the suitcase found at the first appellant's house containin the stolen items* The case for the first appellant was that the items found at his house were brought to his house by Chimusazu, Xt is quite clear to us that all the appellants' convictions were based on their confessions in connection with which we have observed that the ruling was too short and contained no reasons* The question of the brevity of a ruling was consi­ dered in the case of Patrick Hunds and Robertson Mulewa Chi Benge vs The People (l). A trial within e trial was held in that case to determine whether to admit the statements allegedly made by the appellants. The learned trial commi­ ssioner ruled that he did not believe the appellants without setting out in detail the reasons for his ruling. He admitted the statements in evidence* This court held, inter alia, that the result of such brevity is that there is no judgment on a trial within a trial end the appellants are deprived of their opportunity to appeal against it* On the sirmciz&$y of that case the ruling by the learned trial judge in the trial within a trial in the present case was no judgment at all* These convictions can only stand if there is any other evidence to support them* □ 5 In view of the evidence establishing that Chimuzazu was the owner of the stolen items and had been convicted of theft of s firearm; also found nt ths first appellant's house we find it unsafe tn uphold ths appellants' convictions* In these circumstances the convictions are quashed and the sentences are set aside. The appeals are accordingly allowed. Me do not think that on ths evidence that Chimuzazu had taken the property to the appellant1s house we could consider the question of the first appellant*s being a guilty receiver* Fur these reasons his appeal is also allowed* M. H. S* Ngulube DEPUTY CHIEF JUSTICE B* T* Qardner SUPREME COURT JUDGE E* L* Sakais SUPREME COURT JUDGE