Happy Kenie Siwale v People (Appeal 141 of 194) [1988] ZMSC 55 (6 December 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 141 OF 1984 HOLDEN AT NDOLA --------------------------------- ■ ■■■ . .■ . . , r (Criminal Jurisdiction) ' ; x,..: > --videoce ■ ■ - - .■ . Uv r, , i er ^sistln HAPPY KENIE SIWALE Appellant CORAM: Ngulube, D. C. J., Gardner, J. S. and Bweupe AJ. S. *’ lL‘“ THE PEOPLE Respondent •; ■ ' J j 6th December, 1988 i j ; Mrs I. Kunda, Legal Aid Counsel, for the appellant Mr. J. Mwanachongo, Senior State Advocate, forthe respondent J U D G M E N T“ ' ■ ; - ■ 4,1 \ -(.m ji-. • ■ ’ j/5 ight Ngulube, D. C. J. delivered the judgment of the ‘court ’ -^gh ■■ , _:p-- /'-d feFtiCh The appellant was tried and convicted on a charge of'aggravated - ■>h robbery for which he received the mandatory minimum sentence. ‘The particulars were that on 12th October, 1983, at Ndola, jointly and whilst acting together with another person, he robbed the complainant of his K150 cash and at or inmediately before or immediately after such said robbery did use actual violence to the said complainant in order to obtain or to retain the cash. The evidence in the case showed that, the day before the robbery alleged in this case, the complainant was at a garage in town in Ndola looking for spare parts when he came across the appellant. When the appellant discovered that the complainant had a vehicle, the appellant requested that'the complainant allow him to hire the vehicle, to transport some goods. This was agreed and the appellant was given the residential address of the complainant and asked to call there the next day. On the following day the appellant and another arrived at the complainant's house. They had a discussion first with the complainant's $onnwho then referrred them to the complainant who readily agreed to go and collect and transport the property. The appellant and his confederate were said to have used a ploy by firstly suggesting that ' the complainant should not take his son along because there was a lot* 2/V,........ of dZ : - of property to be carried and there would not be room if an additional person came along. When the vehicle had gone past Lubuto compound,'' the complainant was asked to stop, which he did. There was evidence that the vehicle had problems in starting and on the pretext of assistinc the complainant to repair the vehicle the appellant asked the^{ complainant to open the bonnet. As the complainant was in the process of doing so, the appellant's confederate suddenly and very firmly grabbed the complainant and pinioned his arms so that he could not move. The appellant then took the cash from the complainant's pockets and the two then ran away. On his on behalf the appellant had filed some grounds of appeal in which, among other things, he alleged that he was the victim of mistaken identity. The offence occured in broad daylight and both the complainant and his son had more than ample opportunity to make a reliable observation. We therefore have no hesitation in rejecting such a ground of appeal. He also raised a ground which was also taken up by Mrs Kunda on his behalf. It was submitted that the learned trial judge misdirected himself when he held that there was violence used which induced fear in the mind of the complainant when in actual fact the holding of arms could not amount to violence. It is Mrs Kunda's argument that, since the complainant did not mention that he was afraid, the mere fact'that one of the robbers firmly held and pinioned his hands to the sides is not the type of violence referred to in the section. She pointed out that the complainant was not even betten. We have addressed our minds to1 the submission and we dojiote also that the learned trial judge dealt with the matter in some detail. After setting out the terms of section 294(1) of the Penal Code wiich creates the offence, the learned trial judge then considered whether the pinioning of the arms was sufficient violence. The learned trial judge was not wrong when he found that the actions of the appellant and his confederate in this case, namely, the pinioning of the complainant's arms to prevent him from resisting the theft, was a sufficient display of violence to sustain the charge. We confirm also that under the terms of the section, it is not always necessary that 3/ the the complainant should be beaten. Mere threats would be sufficient. As we say, the pinionlnff.ef the complainant's arms so that his money could be taken without his permission was an act of violence against his person. The argument so valiantly put forward by Mrs Kunda cannot succeed. There are no other grounds of appeal.--- The appeal against conviction is dismissed. M. S. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner'' SUPREME COURT JUDGE .iK a o? aggravated ■■■■"'v-l- ■ Ar .-^eJJa-toryThe ■” ” '"'-h ■<■■ ■ '•, at ifeoH. joinUy B. K. Bweupe"1*'1'*'--’ 1 ACTING;SUPREME. COURT JUDGE : r-r.,r h t ./ in- : ■- i-’d ;vi I-?,'CaSX! ■' rnt’bvy aitec&is’ Jn'-tMs c«5&,’die .? :r. <n h’doii ‘spare parts • - " - %;■• :/>■' .<le. tiife -sppsi -■ th? vehicle, '<£ try .'Uiat th/.' sere tccds. ■ n.-oaHf??'; g’v^n ch^ rMidentfal fe^di'ess .■.y.r. G to tai; the -JA-y. v;< trie '''■ ■■ rfl.i sir-pivarj ot the c-T’pJafnani’s ■ ; ;; - 1 ‘ "r <*■■■ y.:‘ ti -y with,the sun ■'» ’ •-*’> ”*•: "h*. cenpiah^rrt who.re-*-dity a-jro&i to*'«o and ^•.nEu-.-i ■ property. The <-*>ilent'^r;': Ms ’ ••• ■■ ••’• £ rir,y by f irstiy that/. •* - - 'L ’’ ■ ■ !*u*-. son along hectuse tn^re ^es a lot’ \ ■ £/............. Of