Chilufya v People (SCZ Appeal 43 of 1993) [1993] ZMSC 38 (3 March 1993)

IN THE SUPREME COUNT OF ZAMBIA HOlOEN at hoola (CriMiMl Jurisdiction) SGZ Appeal Ho. 43 of 1993. JACKSOH CHILUFYA Appellant n THE PEOPLE Respondent Coras: Sakaia, Chaila and Chlrwa, J. J. J. S. 3rd March, 1993 For the appellant, io person. For the State, ft*. S-A.6. Twuwasl, Assistant Senior state Advocate. JU0G M EIT Sakala J. S. delivered the Judgment of the court. The appellant was convicted of theft of a motor vehicle contrary to Section 281(A)(1) as amended by Act SO. 2 of 1987 Cap HE of the Laws of Zambia by the Subordinate court of the Second Class ftolden at Isoka. The particulars of the offence alleged that* the appellant, or 4th day of Oecamber 1990 at Luangwa Rest Haase, in the isoka District of the Worthen Province of the Republic of Zambia, stole a motor vehicle namely, Toyota Stout Vanneu, blue in colour, Registration No, ORZ 77O8A, valued at £600,008 the property of the Ministry of Health. After the appellant was convicted the learned trial Magistrate found that the offence attracted a penalty for which he had no Jurisdiction to impose. Accordingly, he committed the case to the High Court for sentence. On committal to the Hiyh Court for sentence, the learned appellate Judge sentenced the appellant to seven years imprisonment with hard labour plus seven strokes with a cane. The prosecution case was that, on the night of 3rd December, 1990, PHI packed the vehicle Registration Mo. uRZ 77OBA at Luangwa Rest House 02. at 1930 hours. He safely secured it by locking the steering wheel against the clutch pedal using a bar lock. He informd the security guard then to look after the vehicle. The next morning, the vehicle was listing. This vehicle hau the emblems of UNICEF and UCJ on both sides of the door. PW2, t watchman at the Rest House, testified that he saw the vehicle being driven out after being pushed but he thought that the person driving was tee owner of the vehicle so he took no action. The evidence of PW3 was that, around u4.00 hours on 4th Osceaber, 1990, the appellant, wnom he had Known while in prison, asked for a hoe to go and clear a place where his vehicle was stuck. He gave nia the hoe and followed him. PW3 said he saw the venIcl* with the emblem iMiCEF on the door. When he asked for the owner, the appellant told him that the owner had remained at the Rest House, In the raomlng of 5th December PW3 learnt of the theft of the motor vehicle at the Rest House. He identified the vehicle at the Police Station, as well as the appellant at an identification parade. PM4 saw the appellant at his house with the vehicle in question on 4th December 1990 at 04.00 hours. PW5 also saw the appellant driving the vehicle at PW4’s house. The appellant denied stealing the motor vehicle in question. In his judgment, the learned trial Magistrate noted that in his plea the appellant while denying the offence stated that he was merely a passenger. The learned trial Magistrate also noted that at the Police Station when the appellant was identified by PW2, the watchman at the Rest House, the appellant reacted that he was merely a passenger. The learned trial Magistrate accepted the evidence of PHs 2,3,4 and 5 that they saw the appellant alone drive the motor vehicle two hours after the theft. The learned trial Magistrate found that the evidence against the appellant was overwhelming and rejected the appellant's contention of being a passenger. Accordingly, ne convicted the appellant. In his appeal the appellant initially filed six grounds. He has now put up five additional grounds all these grounds attack the prosecution witnesses of being of one family and therefore biased and unreliable. 3/.,. js. We have carefully considered all the grounds put forward in this appeal. On the evidence on record, the trial Magistrate cannot be criticized. The appeal against conviction is dismissed. in addition to sentencing the appellant to seven years imprisonment with hard labour, the learned sentencing judge stated that he was imposing Seven strokes with a cane so that the recurrence of the offence is ccxspletely arrested. As it has already been pointed out. this is not the type of offence which warrants corporal punishment. The order for the seven strokes with a cane is quashed but the sentence of seven years is upheld. The appeal against that sentence is dismissed. E. U Sakala, SUPRa^ COURT JUOuE. M. S. Chaila, SUPREME COURT JUDGE. O. K. Chirwa, SUPREME GOURI JUDOc*