Mulenga v The people (SCZ/73/199O) [1991] ZMSC 56 (5 March 1991)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NpOLR (Criminal Appellate Jurisdiction) BETWEEN: SCZ/73/199O ■„ ... . "■ • ..i ‘ ■ w .. . " 7 i 7 • ‘ » 4, GODFREY MULENGA Appellant and • ' ; 4 ... ... . THH PEOPLE Respondent Coram Saka la, Chai la and Chirwa JJS on 5th March, 1991* For ths Appellant: For the Respondent: In Paraon Mr. R. Okafor, Assistant Principal State Advocate JUD G RENT ■ . - • j:/ CHIRWA J. S. DELIVERED THE JUDGMENT OF THE COURT. S ’ '■ 'X. The appellant, GODFREY KJ LENGA was convicted on one count of aggravated robbery contrary to section 294 (1) of the Penal Coda and upon hia conviction use sentenced to the minimum Mandatory sentence oi ISyears Imprisonment with Hard Labour with effect from 21st September( 1966. He is now appealing against both conviction and sentence. The grounds of appeal wore filed by the Directorate of Legal ■ ■ . • ■ ■ ••• ■. ;; Aid but they did not argue the appeal on behalf of the appellant. The appellant adopted the ground of appeal filed by Legal Aid and he had nothing to add. • • ' ” ?? ’’ ' ’ --' • , ‘ ' 7 ‘ ’ _• In the first ground of appeal, it was stated that from the evidence on record the only common intention of the appellant and hie friends was merely to beat the complainant and not to rob his of •>.«J2 ■ : □2 - • •' . . tV J? ' . . ; ... - -rig $ . hi property. If this was accepted, it naans that whoever got - ' ' the property went beyond the common intention* In easencd it was eubmltted that the charge of aggravated robbery cannot stand but only a minor offence of assault* The second ground of appeal was that the circumstances of the ' assault, a described by the complainant, he was not in a position to tell who took his K50.00 from his pocket as he was being assaulted by five people and the only source of light that night was the moon* light* For these reasons it was submitted that the conviction cannot stand* ‘ Hr, Okafor for the State'supports the conviction. In deciding ‘1 .<• this case, the learned trial judge recognised thst the whole cess depended on the credibility of the witnesses before him* Ha further k * I ./ ■ ' ■ T' ' 1 • i ‘ \ * recognized ths possibility of the complainant making an honest ' . ■■ :.r mistake of identity* The evidence before the court below was that the complainant PW1, end his friend Ketanl Banda, PW2, are vigilantes In the Site and Service Compound in Chingole* On 18th September, 1988 they were on an assignment to apprehend someone* Thia was around 22.00 hours* However, after they had a short meeting amongst ■ thomaelves they decided to carry out their assignment around C *00 hours* As the complainant was going home ho mat a group of five youngmen who stopped him and asked him where he was going* Ha asked these youngmen why they were asking him* He was then ••.**•*•*.*•□3* attacked, knocked down and kicked about ell over his body* As he was on the ground he blew hie whistle for assistance. One of the attackers then grabbed a lady’s wrist watch he was wearing and he saw the appellant fish out K5Dw00 from his shirt pookstand the appellant end his friends ran away* In response to the whistle blown by the complainant! hla ' ■> ■ ■ v. ..: ' • fellow vigilantes and with whom he had been earlier on, came to his rescue, tie saw the appellant and hla friends run away and he and the complainant chased the appellant and caught him without :: losing eight of him as he wap about to enter his father’s yard* A .. The appellant was handcuffed and was being Taken to the Police Station when the complainant and hie friend were attacked by a group of people and in the process the appellant ran away, the handcuffs were still on him* The complainant and his friend. proceeded to the Police Station to make a report end whilst there the appellant came to the PoVne station accompanied by hla mother* He wee still In handcuffs* He was then arrested for the aubject offence* " ; . ■ / - A ® In hie defence the appellant denied robbing the complainant of hla money and wrist watch but agreed that he was apprehended that night* He told the court that he was returning home around 20*30 ho when he saw ahead of him a group of vlgilentaa end aa he was afraid them he made detour in order to reach his father's house. ab he wee about to open the gate he heard foot«stepa and he turned round end sew people who asked hip why he was loitering at night* *«*****34 • He was then handcuffed and led to the Police Station* On way he was left alone as the vigilantes went to check on some v noise* He proceeded to the Police Station on hla own end hie mother followed him late#* He was arrested for the subject offence but • A ; '* ■ j.»y , • ■ ■, . . . , ' denied the charge* v . - ' • v. ' ; . -5 .'-J Ab we have said already* in considering this matter the / \ learned trial judge in our view properly put forward the issueeA before him* namely*the ortdibility of the witnesses and ths j possibility of an honest mistaken identity of ths attackers*. On 5 .iW\ A’. r '* 'V- ’ the question of credibility the trial judge had the advantage thatv.. ’ 1 • ~ ■ ' ■ we don' t have of seeling the witnesses in the witness box .to judge } their,demenour* Ue can see nothing In his judgment that can, lead us think that he misdirected himself on this issue and we would dismiss this;ground of appeal* On the question of the possibility of honest mistake on ' . , , \ 1 - J-V; • J- ldsntityf the learned trla’ A.dge held'that this use not a cass " of one identifying witness* He held that ths evidence of the - ■' ' r ■ ' 5, complainant was supported by that of PU2 and that both witnesses < had ample opportunity to see the attackers because of the moonlight end when chasing the appellant they nevery lost sight of him* Ue' 0 r»not fault this finding end we would also dismiss this ground* The appeal against conviction therefore fnils* , J5 •• ' ■ ■ ■ - o Coming to aentEncar the appellant was sentenced to the ' minimum mandatory sentence of 15 yeara X«H*U There can be no ai against the minimum mandatory sentence* Thia appeal against sentence is also diamlaaed* E* U Sakais SUPREME COURT JUDGE M. 6, ChaIla SUPREME COURT JUDGE . .. -; ■ • ? • • . D* K« Chirwa T. 'a, SUPREME COURT JUDGE