Kabamba and Anor v People (Appeal 8 48 of 2006) [2007] ZMSC 177 (7 June 2007)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 47 & 48/2006 HOLDEN AT LUSAKA/KABWE (Criminal Jurisdiction) BETWEEN: ENOCK KABAMBA SAM BANDA - VS - THE PEOPLE 1st Appellant 2nd Appellant Coram: Sakala, CJ. Chibesakunda and Chitengi JJS on 7th November, 2006 and 7th June, 2007 For the Appellant : Capt. F. B. Nanguzyambo, Director - Legal Aid For the People : Mr. P. Mutale Principal State Advocate JUDGMENT Chitengi, JS, delivered the judgment of the court. Cases referred to:- 1. Mukwaka V The People (1978) ZR 347 2. Bwalya V the People (1975) ZR 227 The two Appellants were convicted of the offence of Aggravated Robbery contrary to Section 294(1) of the Penal Code Chapter 87 of the Laws of Zambia and each sentenced to 20 years imprisonment with hard labour. : J2 : The particulars of the offence alleged that Sam Banda, Peter Mpinga and Enock Kabamba on 5th March , 2001 at Lusaka in the Lusaka district of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown and whilst being armed with a firearm did steal from Phyllis Sinyangwe, 1 colour Television Set, 1 Pioneer 100 CD Loader, 1 Sony Amplifier, 1 Sony Tape Deck, 1 Nokia Cellular Phone, 3 Gold Neck Chains, 1 Cream Duvet, 1 set of Maroon Curtains, 2.5 litres of Cooking Oil, 4 Black Suitcases, 3 Wall Rags and US $3,800 all valued at K23,738,000 and at or immediately before or immediately after the time of stealing, did use or threaten to use actual violence to Phyllis Sinyangwe in order to prevent or overcome resistance to the property being stolen. After trial, the learned trial Judge found that robbery while armed had not been proved. Hence, the conviction for Aggravated Robbery contrary to Section 294(1) of the Penal Code and a sentence of imprisonment. Peter Mpinga was acquitted at the close of the prosecution case. The facts of this case can be briefly stated. On the 5th of March 2001 at about 18:00 hours the complainant, Phyllis Milimo Sinyangwe, PW1, was in her house with her niece. The first Appellant and three other persons entered the house from the kitchen door. The house was lit. The intruders ordered : J3 : PW1 and her niece to lie down, which they did. Later, the intruders asked PW1 to sit up so that they could get her gold chains. One of the intruders pointed an AK47 rifle at PW1 while her gold chains were being removed. Thereafter, the intruders ordered PW1 to lie down again and proceeded to ran sack the house and took the items particularized in the information. According to PW1, the robbery was not committed with violence and the intruders were talking to them nicely. The robbery took up to 20:00 hours when the intruders left. When the intruders left, Pwl went to report the matter to the Police. Of the stolen property a rag, one gold chain, Cassette Deck and Pioneer CD Loader were recovered (See Exhibits Pl to P4). In July 2001, the first Appellant approached John Kapula (PW2) and said he had earlier sold PW2’s cousin who was in Kasama a CD loader and wondered whether PW2’s cousin in would not also be interested in a tape deck. PW2 gave the first Appellant his cousin’s telephone number in Kasama. Later, PW2’s cousin in Kasama telephoned PW2 to say he had spoken with the first Appellant and that they had agreed on the price. Thereupon, PW2 got the deck from the first Appellant and sent it to his cousin in Kasama. Later, PW2’s cousin sent K500,000.00 which he gave to the first appellant. : J4 : In September, 2001, PW1 after receiving information from her sister in Kasama, went to Kasama with Sergeant Mukaluka (PW3) where the CD loader (P2) and Cassette Deck (Pl) were recovered from a Disco House called Sparks Disco House operated by one Monday, PW2’s cousin. As a result of this, Monday was brought to Lusaka together with the property. After interview, Monday led PW3 to PW2. PW3 picked up PW2 and one Mike Phiri and interviewed them about the property (Pl) and (P2). PW2 and Mike Phiri led PW3 and other Police Officers to the Appellants and the other man who was acquitted and searched their houses. Nothing was found in the first Appellant’s house. But in the second Appellant’s house were found the complainant’s ring and gold chain, among other things. PW1 identified the ring and gold chain as hers. When questioned about the property found in his house and that recovered in Kasama, the second Appellant said the CD loader and the Deck were brought to him by Peter Mpinga Phiri (acquitted) and others. But when Peter Mpinga Phiri was apprehended he denied giving the items to the second Appellant. The first Appellant was apprehended by PW1 and taken to the Police Station. In October, 2001 the complainant attended an identification parade at Emmasdale Police Station where she identified the second Appellant. When arrested the Appellants denied the charge. : J5 : The first Appellant’s defence was that he knew nothing about this offence. He did not sell anything to anybody. He was surprised to be charged with aggravated robbery together with people he did not know. He said although PW2 and him know each other, PW2 told lies against him. The second Appellant’s defence is that in March, 2003 he was serving a sentence at Lusaka Central Prison. On 24th March he was called to the reception where he found four people in plain clothes and one of whom he identified as a Police Officer (PW3). He was taken to Emmasdale Police Station and interviewed about an aggravated robbery. He denied this charge and he knows nothing about 5th March, 2001. Although PW1 said in Court that she identified him at the Police Station, he was never put on an identification parade. PW2 said he did not know him. PW3 said there was a person who led him to his (Appellant) house where he searched and recovered a gold chain and rag. The Police did not go to search his house. He only saw the gold chain and the rag in court. He only saw the Cassette here in court. PW2 and PW3 told lies to court but he did not know why these witnesses lied. On this evidence the learned trial Judge found the Appellants guilty and convicted them of aggravated robbery contrary to Section 294(1) of the Penal Code and sentenced each Appellant to 20 years imprisonment. : J6 : Dissatisfied with the judgment of the Court below, the Appellants now appeal to this Court against their convictions and sentences. The first Appellant Enock Kabamba filed one ground of appeal which is that the learned trial Judge erred in convicting Enock Kabamba for aggravated robbery solely on the basis that he sold two items stolen from the complainant’s house to a Kasama businessman thereby drawing an inference that he must have participated in the robbery in the absence of any explanation when in fact the said items may have come into his possession other than by theft. Captain Nanguzyambo, the learned Director of Legal Aid filed written heads of argument on which he relied and made no oral submissions to court. In his written submissions, Captain Nanguzyambo said that the learned trial Judge did not consider the fact that this Appellant could be a receiver and not the robber. He pointed out that this appellant was not identified at the identification parade and in court. Curiously, it was also the submission of Captain Nanguzyambo that although this Appellant denied selling the items to a Kasama businessman the evidence of PW1, PW2, PW3 had not been challenged. The Captain Nanguzyambo further submitted that although this Appellant lied that he did not sell the items to the Kasama businessman, it does not : J7 : follow that he was one of the robbers. Captain Nanguzyambo then referred us to the case of Bwalya V The People!2) where we said, inter alia, that a man charged with an offence may well seek to exculpate himself on a dishonest basis even though he is not involved in the offence. He said that although the robbery took place on 5th March, 2001 and the two items were sold to one person in Kasama on two different dates, it does not follow that this Appellant could not be an innocent receiver. Captain Nanguzyambo then went on to suggest other ways of how the Appellant could have come about the items in question. We do not intend to go into the details of these submissions on the suggestions because they are not based on evidence but they are merely speculations. The second Appellant filed three grounds of appeal. The first ground of appeal is that the learned trial Judge fell into error when he convicted and sentenced the Appellant to 20 years imprisonment with hard labour for aggravated robbery contrary to Section 294 of the Penal Code Cap 87 of the Laws of Zambia regard being hard to all the attendant circumstances of the case. The second ground of appeal is that there were conflicting statements by the prosecution witnesses on how Appellant was apprehended. : J8 : The third ground is that the learned trial Judge erred in law when he convicted the Appellant for the offence of simple aggravated robbery and sentenced him to 20 years imprisonment with hard labour when no gun was recovered though some ammunitions were recovered but were not linked to the offence nor were they produced in court. Mr. Sikazwe, the learned Deputy Director of Legal Aid filed written heads of argument in support of the grounds of appeal. The thrust of the submissions on ground one is that there was danger of an honest mistaken identity by PW1 which the learned trial Judge did not consider. The second ground of appeal deals with the apprehension of this Appellant. In this ground, it is alleged that the evidence as to how this Appellant was apprehended is conflicting. We do not see the import of this ground of appeal in so far as the conviction of this Appellant is concerned. What is clear to us is that this Appellant was arrested for this offence. In any case, whether the Appellant was arrested or not is immaterial at this stage. The appellant subjected himself to the jurisdiction of the trial court. Further, this is not an issue that was argued before the trial court. So we say no more of this ground of appeal. : J9: The third ground of appeal relates to the sentence imposed on the Appellant. The argument, which is contradictory in itself, is that although the sentence of 20 years does not come to court with a sense of shock, it is rather on the high side all the attendant circumstances considered. Mr. Mutale, the learned Principal State Advocates, supported the convictions. As regards the first Appellant, Mr. Mutale submitted that there was evidence to support the charge. He said this Appellant on his own confessed having earlier on sold part of the stolen property; the property was later found with the purchasers and the property was identified by the complainant. About the second Appellant, Mr. Mutale submitted that this Appellant was positively identified at the scene and at an identification parade and that property stolen during the robbery was found with this Appellant. He ended by saying that possession of stolen property by this Appellant confirmed the identification. In reply, Capt. Nanguzyambo submitted that in this case the doctrine of recent possession does not apply. The robbery took place in March and the sale took place in June. J10 : We have carefully considered the evidence that was before the learned trial Judge, the submissions of counsel and the judgment appealed against. We first deal with the first Appellant, who was the third accused during the trial. The thrust of Capt Nanguzyambo’s submissions on behalf of this Appellant is that the doctrine of recent possession does not apply to this case because much time had passed and that there are many other explanations as to how this Appellant could have come about the property. On the other hand, Mr. Mutale, the learned Principal State Advocate, argued that the evidence connected this appellant to the offence. This Appellant denied any dealings with the items connected to him. This Appellant’s denial itself breaks down Capt. Nanguzyambo’s submissions and speculations that this Appellant could have come about the property by other means than stealing them. The learned trial Judge believed the prosecution evidence that this Appellant on his own volition approached PW2 saying he had earlier on sold PW2’s cousin one Monday Bwembya a CD loader and wanted to know whether Monday would also be interested to buy a tape deck. After considering the evidence, the learned trial Judge found that the Appellant was not a : JI 1 : receiver. It is, therefore, not correct to say as, Captain Nanguzyambo submitted, that the learned trial Judge did not consider the fact whether this Appellant was not in fact an innocent receiver. The learned trial Judge did. The learned trial Judge found that it could not be a mere coincidence that both items sold by this Appellant to PW2’s cousin in Kasama at different times but stolen at the same should belong to the complainant. For these reasons the learned trial Judge concluded that this Appellant was one of the robbers. On the evidence that was before the learned trial Judge, we cannot fault his finding that this Appellant was one of the robbers. Taking and considering all the evidence together and the fact some three or four months had elapsed from the date of the robbery to the date the tape deck was found in possession of this Appellant, we find no any other reasonably possible explanation as to how this Appellant came about the property than the inescapable inference that he stole it with the others during the robbery. We are satisfied that this Appellant was properly convicted. We now deal with the second Appellant who was the first accused during the trial in the Court below. The force of Mr. Sikazwe’s submissions on behalf of this Appellant is that PW1 ’s evidence of identity did not exclude the ; J12: possibility of an honest mistake. On the other hand, Mr. Mutale submitted that the evidence sufficiently connects this Appellant to the offence. He said that this Appellant was positively identified at the scene and at the identification parade and was found with some of the stolen property, which confirms the evidence of identity. The learned trial Judge believed the prosecution evidence that an identification parade was held at which this Appellant was identified and a rag and gold chain were found in this Appellant’s house. These are findings of fact. None of the grounds upon which we can interfere with findings of fact by a trial court exists in this case to entitle for us to interfere with these findings of fact. Having made the above findings the learned trial Judge found that possession by this Appellant of the stolen property corroborated PWl’s evidence of identity. We cannot interfere with this finding because it is amply supported by evidence. As we said in Mukwakwa V The People (1978) ZR 347W possession of property stolen from the scene strengthens weak identification. Indeed, as far this Appellant is concerned the critical issue, as counsel pointed out, is whether the possibility of an honest : J13 : mistake was completely excluded, the identification being done by a single witness. The robbery took place in a lit house starting from 18:00 hours or 18:30 hours and lasted about two hours. PW1 picked this Appellant at an identification parade even after passage of sometime. In these circumstances, even without the property stolen from scene of the crime being found with this Appellant, we would still confidently say that the possibility of an honest mistake had been excluded. However, in this case, there is also the evidence that some of the property stolen during the robbery was found in this Appellant’s house. This evidence further strengthens the evidence of identity by PW 1. In the event, we are satisfied that this Appellant was also properly convicted. The last ground of appeal by this Appellant relates to sentence. Mr. Sikazwe submitted that although the sentence of 20 years does not come with a sense of shock, it is on the higher side given the attendant circumstances. We have considered these submissions. This offence was committed by a gang that ran sacked the complainant’s house in the evening. The complainant was a woman. These were aggravating circumstances. The sentence of 20 years with hard labour does not come to us with a sense of shock and we have no reason to interfere with this sentence. J14 The result of our judgment is that the appeals are dismissed. E. L. SAKALA CHIEF JUSTICE L. P. CHIBESAKUNDA SUPREME COURT JUDGE PETER CHITENGI SUPREME COURT JUDGE