Joseph Mwape v The People (SCZ Appeal No. 127 of 1985) [1991] ZMSC 59 (15 March 1991)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 127 of 1985 HOLDEN AT NDOLA (Criminal Jurisdiction) JOSEPH MWAPE y THE PEOPLE Appellant Respondent CORAM: Sakaia, Chaila and Chirwa, JJJS 15th March, 1991 Appellant appeared in per^pn. Mr. R. Okafor, Assistant Principal State Advocate appered for the respondent J U D G M E N ----------------—------------------ Chirwa, J. S delivered the judgment of the court The appellant, Joseph Mwape, was convicted on one count of aggravated robbery contrary to section 294 (1) of the Penal Code, Cap. 146 and upon his conviction he was sentenced to ,16 years imprisonment with hard labour with effect from 7th December, 1984. The particulars of the offence were that Joseph Mwape and Dony Mpundu, on the 24th day of November, 1984 at Mufulira in the Mufultra, District of the Copperbelt Province of the Republic of Zambia, > jointly and whilst acting together did steal, K26.00 Cash, National Registration Card and 1 wrist watch, altogether valued at K69.00* from Damson Lombe and at or immediately before or immediately after the time of such stealing the said property did use actual violence to the said Damson Lombe in order to steal the said property. / The evidence accepted by)the learned trial judge was that the complainant Damson Lombe on 24th November, 1984 went to Tuleumfwana tarven in Mufulira at about 14.00 hours. In the tarven he found .. the appellant with his friend drinking. The appellant was known to the complainant before as he was the complainant's step-son having been married to the appellant's mother before. The complainant joined the appellant and his friend and they drunk together until around 13.00 hours when he left for Twatasha tarven. Whilst in Twatasha tarven the complainant was joined by the appellant and his friend again. They drunk together again unit 22.00 hours when the complainant left the appellant and his friend. On his way home the complainant heard a voice calling him and he recognised it as that of the appellant and he turned round and confirmed that it was the appellant and the appellant was still with his friend. The complainant stopped to wait for the appellant and his friend. When the appellant caught up with the complainant, without saying anything, he grabbed the complainant by his shirt on the pocket side and took K26-00 and National Registration Card^which were there. The appellant also grabbed a wrist watch from the complainant with a trade name of Mortimer. The appellant and his friend then ran away. He valued th« wrist watch at K30-00. The following day the complainant reported the matter to the police and was given a Medical Report which he took to the hospital. Three days after the' commission of the offence* the appellant sold the wrist watch to one Rainford Ng'uni. The matter having been reported to the Police, the appellant was on 7th December, 1984 arrested for the subject offence and the wrist watch recovered from Rainford Ng'uni. In his defence, the appellant agreed having been with the complainant in the two tarvens but denies that he robbed the complainant of his money and wrist watch. He says that when he found the complainant in Twatasha tarven, the complainant was drunk and when talking to him he (appellant) saw a wrist watch under a table where the complainant was and he picked it and sold it to Rainford Ng'uni. We have carefully considered the evidence on record and have found that the learned trial judge carefully evaluated the evidence before him and came to the right conclusion that the appellant with somebody unknown robbed the complainant of his property on the day in question. Violence was used on the complainant in obtaining the property. The evidence supporting the conviction is overwhelming and we dismiss the appeal against conviction. to Coming/sentence, on sentencing the appellant, the learned trial judge indicated that he would give the appellant the minimum sentence. However, the learned trial judge sentenced the appellant to 16 years imprisonment. As we have said there is nothing in evidence to warrant more than the minimum sentence and as it was the wish of the learned trial judge to sentence the appellant to the minimum mandatory sentence,"we allow the appeal against sentence. We set aside the sentence of 16 years and in its place we impose a sentence of 15 years imprisonment with hard labour with effect from 7th December, 1984. To this extent only the appeal succeeds. E. U SAKALA SUPREME COURT JUDGE M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE