Justine Chama and Anor v People (Appeal 10 of 2000) [2000] ZMSC 102 (5 September 2000)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 10/2000 (CRIMINAL JURISDICTION) BETWEEN JUSTINE CHAMA LIFA MUSONDA MW ANSA 1st appellant 2nd APPELLANT Vs THE PEOPLE RESPONDENT Coram: Ngulube, CJ, Chirwa and Chibesakunda, JJS 7th June 2000 and 5th September 2000 For the Appellants: Mr Moono of Messrs. Hanglala and Company For the Respondent: Mr Okafor Principal State Advocate JUDGMENT Chibesakunda JS, delivered the judgment in Court These two appellants appeared before us in our June session at Ndola appealing against a conviction by the lower court on one account of aggravated robbery contrary to Section 294(1) of the Penal Code Chapter 87 of the Laws of Zambia. The particulars are that the two appellants on the first day of May 1998 at Kitwe, Kitwe District, Copperbelt Province in the Republic of Zambia jointly and whilst acting together with other persons unknown and whilst armed with iron bars did steal one pair of shoes worth KI 20,000.00 and cash of K25,OOO. OO the property of Mr James Musenga and at or immediately before or immediately after the time of such stealing did use or threatened to use actual violence to the said James Musenga in order to retain or prevent or overcome the resistance to its being stolen or retained. J2 The evidence before the court was that on 30th April 1998 at around 20.00 hours James Musenga was walking home and passed at Bamwansa bar on his way home. Around 21.30 hours when he decided to go home he passed through some ablution block when he heard somebody calling him. As he stopped to respond to this call he saw about 10 or so people with their faces covered with masks. He was ordered to sit down. They demanded money from him and when he responded that he had no money, one of them hit him with an iron bar on his left eye and on his right leg. At that point in time they removed his brown shoes which he later recognized when the appellants were arrested. These are the same shoes which were found with the same appellants the same night three hours later. The prosecution evidence also say that PW2 one of the neighbourhood watch patrollers saw the appellants walking in Church road at about 01.00 hours. The appellants were accosted and asked what they were doing at 01.00 hours. PW2 when the accused did not give a good explanation seized that pair of shoes and handbag from the appellants. These are the shoes which PW1 the complainant identified as the shoes robbed from him the same night of 30th April 1998. PW2 with other police officers apprehended the appellants and took them to Wusakili Police Station. The learned trial Judge accepted that evidence as overwhelming and convicted them of the subject offence. Now before us Mr Moono, the learned counsel for the appellants has argued intriguingly that the lower court erred in convicting the appellants on the evidence of recent possession of that pair of shoes because according to him the appellants gave reasonable explanation of their being found in possession of that pair of shoes. He submitted that since the appellants informed the Police and repeated the same story before the court that they had been given that pair of shoes by one of their debtors Kennedy Musonda and that they had informed the Police officers that although they did not know Kennedy Musonda well but knew where to find him at the market as they did not know where he lived, it was a dereliction of duty on the part of the police not to have investigated the existence or otherwise of this Kennedy Musonda and as such this court should quash the findings reached by the lower court. - Jj - We have looked at the evidence and the arguments before us. We are dumb founded by the arguments of the learned Counsel for the appellants especially when he is trying to persuade us that we should take judicial notice of matters likely to offend the very basic rules of the nature. For instance, the claim by the appellants that they were busy late at night, around 01.00 hours in the morning, carrying on norma! commerce of debt collection, no reasonable man can expect the court to take judicial notice of such unreasonable activities at awkward hour. We cannot accept such reasoning. It is devoid of common sense. All we can say is that Mr Moono was very courageous in making untenable submissions. We find that there was overwhelming evidence on which the lower court perfectly rightly convicted the appellants. We confirm the conviction. The appeals are dismissed. M M S W Ngulube CHIEF JUSTICE D K Chirwa SUPREME COURT JUDGE L P Chibesakunda SUPREME COURT JUDGE