Lazarous Yombwe and Anor v People (SCZ 143 of 2003; SCZ 144 of 2003) [2003] ZMSC 105 (4 December 2003)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA SCZ Appeal No. 143 & 144/2003 (Appellate Jurisdiction) BETWEEN: LAZAROUS YOMBWE MARTIN SILUMBWE 1st APPELANT 2nd APPELLANT AND THE PEOPLE RESPONDENT Coram: Lewanika, D. C. J., Chibesakunda JS, Munthali Ag. JS on 3rd September 2003 and 4th December 2003 For the Appellants: Mr. D. B. Mupeta, Senior Legal Aid Counsel. For the Respondent: Mr L. E. Eyaa, Senior State Advocate CASES AND LEGISLATION REFERRED TO: (1) ELIAS KUNDA V. THE PEOPLE (1980) Z. R. 100 (2) GEORGE NSWANA V. THE PEOPLE (1988/89) Z. R (3) PENAL CODE CAP 87 S. 4 (4) SUPREME COURT ACT CAP 25 S. 15(1) "" JUDGMENT Munthali Ag. JS, delivered judgment of the court. The appellants together with one GIGI MPINGA were convicted of the offence of aggravated robbery and sentenced to 15 years imprisonment with hard labour. The particulars of the offence are that the three on 17lh August, 2001 7 at Ndola in the Ndola District of the Copperbelt Province of the Republic of Zambia jointly and whilst acting together did rob DICKSON MUTOFWE of an assortment of groceries valued at KI,628,880-00. The facts alleged by the prosecution were that on 17 August 2001 DICKSON MUTOFWE (PW1) was asleep in his father’s house. He heard noises from people who claimed to be police officers. They asked him to open the door. Later these people, seven of them, who were armed with iron bars broke the lock and entered the bedroom where he and his brother LUKWESA were sleeping. They demanded for keys to where the groceries were. When PW1 failed to oblige, these people broke the lock to the room. . They threatened to kill him and his brother if they shouted for help. The intruders stole an assortment of groceries which were identified by PW2. PW4 apprehended the first appellant and GIGI MPINGA on 21st August 2001 from a house in Nkwazi compound where the stolen properties were recovered. The second appellant (third accused in the court below) was apprehended in Overspill compound. When PW4 asked the first appellant who the owner of the house where he was found was, he retorted to say he had ran away. When PW4 ■ asked him to show him where he lived he failed to do so. The second appellant was identified by PW1 at an identification parade held on 22nd August 2001 which was conducted by PW3. Mr Mupeta learned counsel for the appellants has filed two main grounds of appeal which are challenging the conviction of the two appellants. These grounds centre onjhe IDENTIFICATION PARADE in respect of the second appellant and the application of the doctrine of RECENT POSSESSION in respect of the first appellant. On the identification of the second appellant Mr. Mupeta submitted that since PW1 said he saw two people at the C. I. D offices he must have seen the second appellant before the day of the parade. Consequently PW1 ’s evidence of identification should have been doubted. He further submitted that the fact that PW1 did not identify the first appellant on the parade that in. itself affected his credibility and the court misdirected itself in ignoring this fact. On possession in respect of the first appellant, Mr Mupeta submitted that the trial court extended the doctrine of recent possession as there was no evidence that the first appellant was the owner of the house although he was found in the house where stolen goods were found. Mr Mupeta further took issue with the court below and submitted that it was a misdirection for the court to hold that the appellants were either thieves or receivers. Mr Mupeta argued that the two are not the same and the court ought to have made a definitive finding. Mr Eyaa, learned counsel for the state supported the convictions of the appellants. Mr Eyaa submitted that PW1 identified the second appellant because of the electric light in the house and that the second appellant is the one who entered the house first. It was only after he identified him that he . went under the bed. Mr Eyaa submitted that PW1 did not see the second appellant before the parade and that his evidence is supported by PW3 who conducted the parade. On the issue of possession Mr Eyaa submitted that the first appellant together with two other persons were found in the house where the stolen property was found and this was barely two days after the robbery. It was Mr Eyaa’s submission that the first appellant’s failure to lead PW4 to where, he lived meant that he lived where he was found. We have heard the submissions of both learned counsel for the appellants and the respondent. As to the evidence of identification relating to the second appellant, we agree with Mr Eyaa’s submission that PW1 identified the second appellant because of the light and that the second appellant was the first to • enter the house. Further more it was the second appellant who asked for the keys to the grocery. This was before PW1 and his brother were ordered to lie down. PW4 in cross-examination told the court that on 18 August 2001 PW1 showed him the house of the second appellant in Overspill compound • where the stolen goods were found and also where the first appellant and another person were apprehended. The second appellant confirmed in his ^evidence that he lived in Overspill compound and gave his address as House No. 1834. This is too much of a coincidence. It only strengthens PWl’s evidence of identification. / The assertion by Mr Mupeta that the evidence of identification by PW1 cannot be relied upon on account that he did not identify the first appellant at the parade cannot hold. According to the evidence of PW1 and PW3 there were only 9 people on the parade including one suspect who was the second appellant. The first appellant was not on the parade. PW1 . denied seeing the second appellant before the parade. The learned trial Judge addressed her mind to the possibility of PW1 making an honest mistake. She ruled out that possibility. We find no merits ' in this ground of appeal in respect of the second appellant. t On the question of possession Mr Mupeta does not appear to quarrel with the fact that the first appellant was found inside the house where the , stolen goods were. The thrust of his argument is that the first appellant was not the owner of the house. ... In the case of ELIAS KUNDA V. THE PEOPLE (1) this court discussed the term “ possession” as defined by Section 4 of the Penal Code Cap 87. We held that here in Zambia, unlike in England, mere custody of . recently stolen property suffices. Contrary to Mr Mupeta’s submission one .; does not have to own the house where stolen goods are found to be in possession. The appellant has not given any explanation as to how he found himself in a house where stolen goods were nor has he put up a defence that • he had no knowledge of the stolen goods. He failed to lead PW4 to where he lived. The evidence of PW4 is that the property was recovered on 21st August 2001, a period of barely 4 days (not 2 days as asserted by Mr Eyaa) from the day of the robbery. This was without doubt recent possession. We however, agree with Mr Mupeta’s submission that the learned trial court misdirected itself by not making a definitive finding whether the first appellant was a thief or receiver. If the first appellant was found to be a thief then the conviction for aggravated robbery could stick. On the other hand if he was found to be a receiver, the appropriate conviction would be •• for receiving stolen property under Section 318 of the Penal Code . In the case of GEORGE NS WANA V. THE PEOPLE (2) (1988/1989) Z R 174 we said this at page 176 “ We affirm the principle that where a finding of guilt is dependent upon drawing of an inference from the possession of recently stolen property, the inference will not be drawn unless it is the only one reasonably open on the facts of the particular . case.” Mr Mupeta’s submission was that since the trial court drew two equally reasonable inferences the court should have adopted that which was . more favourable or less disadvantageous to the first appellant. As we have already said the trial court misdirected itself by its failure to make a definitive finding whether the first appellant was a thief or a receiver. The conviction can only stand if we apply the proviso to Section 15 (1) of the Supreme Court Act Cap 25. The evidence on record does not justify the drawing of the inference that the first appellant was a receiver. Had the trial court properly directed itself it must inevitably have convicted. We therefore apply the proviso. This ground of appeal in respect of the first appellant fails. The appeals of both appellants are dismissed. D. M. LEWANIKA DEPUTY CHIEF JUSTICE L. P. CHIBESAKUNDA SUPREME COURT JUDGE S. S. K. MUNTHALI AG. SUPREME COURT JUDGE