Lewis Mutambo v The People (CAZ.006/2017) [2017] ZMCA 168 (9 August 2017)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA AND NDOLA (Criminal Jurisd iction) CAZ.006/2017 Between LEWIS MATAMBO AND THE PEOPLE APPELLANT RESPONDENT Coram: Mchenga, DJP, Chashi and Chishimba,JJA On 71h March 2017, 9th March 2017 and 9th August 2017 For the Appellant: P. Mudenda, Legal Aid Counsel, Legal Aid Board For the Respondent: P. Nyangu, State Advocate, Na tio nal Prosecutio n Authority / JUDGMENT Mchenga, DJP, delivered the Judgement of the Court Cases referred to: 1. Charles Lukolongo and Others v The People (1986) Z. R. 115 2. Peter Yotamu Haamenda v The People (1997) Z. R; 184 I 3. Boniface Chanda Chola, Christopher Nypmande and Nelson Sichula v The People [1988-1989) Z. R. 163 4. Lupupa v The People (1977) Z. R. 38 5. Ali And Another v The People (1973) Z. R. 311 {Rep.) 6. llunga Kabala and John Masefu v The People [1981) z. R. 102 -J2- Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia ! 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia 3. The Court of Appeal Act, Act No. 7 of 201 :6 1- I I Lewis Matambo, the appellant, appeared b:efore the High Court sitting at Livingstone charged with 3 counts of Aggravated Robbery contrary to Section 294 (2) of the Penal Code. He was also charged with a count of Attempted ' Murder contrary to section 215 of the Penal Coqe. I (ij In the 1 st count of aggravated robbery, it was alleged that on 14th March 2010, at Livingstone in the Livingstone District of the sduthern Province of the Republic of Zambia, being armed with offensive weapons, namely a pistol and an AK 47 rifle, and jointly and whilsf acting together with other person's unknown, robbed Jethro Simapili of K9,000,000.00 cash, US$100 and 20 Euros all valued at . K9,600,000.00 the property of Stero Bureau de Change and at or immediately before or immediately after the robbery threatl3ned to use actual or personal I violence to Jethro Simapili in order to prevent or overcome resistance to the property being stolen. The allegation in the 2nd count was that on 141~ March 2010, at Livingstone in the Livingstone District of the Southern Province of the Republic of Zambia, being armed with offensive weapons namely 1 pistol and 1 AK 47 rifle, and l . -J3- jointly and whilst acting together with other pei·sons unknown, robbed Timothy Mbewe of l AK 47 rifle property of Zambia Police Service and at or immediately before or immediately after the robbery used or threaten to use actual I violence to Timothy Mbewe in order to overcc;>me resistance to the property being stolen. In the 3rd count, it was alleged that on 141h Mciirch 20 l 0, at Livingstone in the Livingstone District of the Southern Province of :the Republic of Zambia, being armed with offensive weapon namely 1 pistol and l AK 47 rifle, jointly and whilst i acting together with other persons unknown rob,bed Jethro Simapili of a bag, a black rain suit, a Barclays Bank card and a cell phone Nokia 5140 altogether I ' valued at K844,000.00 the property of Jethro Simapili and at or immediately before or immediately after such robbery did threaten to use actual or personal violence to the said Jethro Simapili in order to overcome resistance to the property being stolen. The allegation in the 4th count was that on 141h March, 2010 at Livingstone in the Livingstone District of the Republic of Zambia, jointly and whilst acting together I with other persons unknown they attempted to · unlawfully cause the death of Timothy Mbewe. The appellant denied all the charges and the matter proceeded to trial. -J4- Constable Tembo's evidence was that on 14th tqarch 2010, around 09:00 hours, he reported for work at Stero Bureau de Chanf]1e which is at Livingstone's Falls Park around 09:00. He was armed with an AK ;47 rifle. Soon after the bureau I opened, a customer came in and asked for his Aame. When that customer left, three robbers, who included the appellant, caljne in. The appellant, who was carrying a pistol, ordered him to drop his firear:m and when he hesitated, he shot him. Soon after he was shot, he closed his eyes and pretended to be ,. ; (Ji dead. According to Jethro Simapili, the manager of S1tero Bureau de Change, after the appellant shot Constable Mbewe, he p6inted a firearm at him and I demanded for money. He said he opened the idrawers and handed over the money. The robbers also got his personal effects and Constable Mbewe's firearm, before getting away. After they left, he ·took Constable Mbewe to the hospital and reported the incident to the police. : ! On the same day, around l 1 :00 hours, Detectiv~ Inspector Nzhibwe, who was I I in Kalomo, received information of the robbery, and mobilized police officers who included Inspector Lufwendo. They set up a road block at Kalomo Bridge I and started inspecting every motor vehicle that: was coming from Livingstone. After about two hours, the appellant turned u~ in a Toyota Chaser. He was stopped by Inspector Lufwendo who spoke to him and instructed him to park . -JS- the motor vehicle. Instead of parking, the app~llant drove off and they gave chase but could not catch him. i i Detective inspector Nzhibwe returned to Kalorrio Police Station and around 15:00 hours, he received information I from i members the public of an abandoned motor vehicle in the Simakaka area. He made a follow up and ' I recovered the motor vehicle, which the appellant had driven through the road ! '-'i block, earlier on that day. In it, he found articles 1that included a magazine that I was identified as having been on Constable Mbewe's firearm at the time he was shot at the bureau de change. The police dlso received information of the i presence of the appellant at Macrons, which is close to the Simakaka area. They w ent there a nd apprehended him. He theh led them to where they had rec overed the motor vehicle and they found d small bag and number plate fixing riveter. Following his apprehension, the appellant was placed on an identification I parade where he was identified by Jethro Simapili. Constable Mbewe did not ' I attend the parade bec ause he was still recovering from the injuries he suffered ' during the robbery. However, he identified him in; court. ' In his defence the appellant said on 15th March . 20 l 0, he was apprehended in Kalomo by the police after disembarking from a bus. He had travelled there on -J6- a business trip. They took him to Livingstone wher~ they accused him of robbing Jethro Simapili and shooting Constable Mbewe. He denied both allegations. I The trial Judge found that the robbery took a sho;rt period of time and that both I I I Jethro Simapili and Constable Mbewe were propably scared at the time. Even if that was the case, he found that they had fhe opportunity to identify the I I I appellant. He found that prior to the shooting, the appellant had entered the ! bureau and this enabled the two witnesses to identify him. He also found that their evidence was corroborated by the recovery of Constable Mbewe's I I magazine from the motor vehicle that the app~llant drove after the robbery. He rejected the appellant's defence, which he f6und to be a mere denial. Consequently, he found that the prosecutidn had proved, beyond all I ! reasonable doubt, that the property mentioned in the three charges in the information was stolen by the appellant and his ~olleagues. He also found that they shot Constable Mbewe with a firearm. He 'convicted him of all 4 counts. The trial Judge imposed the death penalty for l~ch one of the 3 aggravated I . I robbery counts. He also sentenced him to 25 years imprisonment for the attempt to murder Constable Mbewe. Dissatisfied with the verdict of the High Court, ' the appellant has appealed against the conviction only. He has advanced dne ground of appeal and it is couched as follows: -J7- "The learned trial Judge erred in law and in fact when he convicted I the appellant on the identification evid,ence by the prosecution witnesses when all the conditions favouring correct identification were difficult." At the hearing, both parties relied on the writ~en submissions that they had earlier on filed into court. Mr. Mudenda submitted that both Jethro Simapili and Constable Mbewe did i . . not have a good look at the robbers who came into the bureau. In addition, they were scared because a firearm was poihted at them and they were seeing the robbers for the first time. He also submitted that the trial Judge's I I finding that the witnesses saw the appellant before the robbery that morning, is not supported by evidence. He also submitted that both Inspector Lufwendo and Detective inspector Nzhibwe did not have a good look at the driver at the road block to be able to · .f identify him as being the appellant. This is becm.-!se driver of that motor vehicle spent a very short period of time with them before driving off. He referred to the i cases of Charles Lukolongo and Others v The People (1) and Peter Yotamu Haamenda v The People (2) and submitted thqt the identification evidence I against the appellant was of poor quality and the appellant should not have been convicted on it because it was not corroborated. -J8- Mr. Mudenda also referred to the case of Bonif~ce Chanda Chola, Christopher ' I Nyamande and Nelson Sichula v The People (:3) and submitted that the fact that the appellant led the police to the placJ where the motor vehicle was recovered, was of no probative value because nothing new was discovered. He referred to the case of Yotamu Haamenda v The People (2) and submitted ' I that there was dereliction of duty when the poli:ce failed to lift finger prints from the appellant gave a plausible the recovered items. Further, he submitted that I explanation of how he was found in Kalomb but it was rejected without explanation. Finally, Mr. Mudenda submifted that there was misdirection when the appellant I I was convicted on uncorroborated poor quality'. evidence. He urged the court to uphold the appeal and set aside the convictibns. j ' In response, Ms. Nyangu submitted that the principle set out in the case of ! • Charles Lukolongo and Others v The People :c1 ), on corroboration of poor quality identification evidence, was satisfied by the prosecution evidence. Despite the qualify of Jethro Simapili and Constable Mbewe's identification I evidence not being good, it was supported by the evidence of both Detective i Inspector Nzhibwe and Inspector Lufwendo. Th:ey identified the appellant as ' t being the driver of a motor vehicle from whith a magazine belonging to -J9- i I Constable Mbewe was recovered. The appellq.mt also led the police officers to the recovery of a small bag and number plate ~fixing riveter. Ms. Nyangu also referred to the case of Peter Y.'Otamu Haamenda v The People I I ! (2) and submitted that the failure to lift finberprints could not amount to I: I dereliction of duty because the evidencJ against the appellant was !' overwhelming and he was in no way prejudlced. He was identified by the witnesses and was linked to the robbery by the:;recovery of the magazine form a motor vehicle he had driven. As regards Mr. Mudenda's reference to the case of Boniface Chanda Chola, I Christopher Nyamande and Nelson Sichula '<' The People (3), Ms. Nyangu submitted the evidence of the appellant leO:'cling the police to where the motor vehicle was recovered, had probativ~- value because it led to the I recovery of a small bag and a number plate fixibg riveter. i Finally, she urged the court to uphold the convi~tion and dismiss the appeal. ' I I We have considered the evidence on record, fhe Judgment of the trial court and the submissions of counsel. The first issue we:1will deal with is Mr. Mudenda's i • submission on the trial Judge's finding that Jethro Simapili and Constable I ·' Mbewe's ability to identify the appellant were :ienhanced because they saw -JlO- him earlier that morning. He submitted that th.e finding was not supported by evidence. In the case of Lupupa v The People (4) it was ~:eld, inter a/ia, that an appellate court can only set aside a finding of fact, by a trial court, if it is one that cannot ' I reasonably be entertained on the evidence ;that was before the court. We I accept Mr. Mudenda's submission that the f;°nding that Jethro Simapili and ' Constable Mbewe saw the appellant mom~nts before the robbery is not I supported by evidence. They both testified to seeing him for the first time during the robbery. This being the case, we -set it aside because it is not I supported by evidence. Reverting to the identification evidence at the bureau, we will first deal with Constable Mbewe's identification evidence. He did not attend the I identification parade and only identified the ap:>pellant in court. In the case of Ali and Another v The People (5), BARON, JR, at page 313, delivering the I judgment of the court, observed as follows: "The courts have frequently said that Identification in these circumstances is of little or I no value, and although ( as the learned judge on appeal pointed out) there Is some authority which suggests that It Is within the ju'dge's discretion to allow it in appropriate circumstances, we cannot agree that the circumstances in the present case were appropriate. In that case, R v Calrd [1], iJhe witness, a police constable, had been knocked unconscious at the time of the offence and was off duty for a considerable time thereafter; more Importantly, it appears from the report that there was other evidence incriminating the accused. In lthe present case there was no -Jll- reason whatever not to hold an identification par,ode. The magistrate in his judgment 1i a parade and he simply accepted makes no mention of the failure to conduct such the court room identification; nor did he consider whether there was any other evidence tending to support that identification" ; I Though the trial Judge did not give reasons far accepting Constable Mbewe's court room identification evidence, we find nb misdirection in its acceptance. Constable Mbewe was sick at the time the :parade was assembled, having been shot in the robbery, and there was ther~fore a good reason for him not going to the parade at which Jethro Simapili identified the appellant. Both Jethro Simapili and Constable Mbewe told the court that their assailant i talked to them during the robbery, which wd's in broad day light. Constable Mbewe said he was ordered to drop the firearm and when he hesitated, he was shot. In the case of Jethro Simapili, he was-ordered to surrender the money by the appellant who was pointing a firearm at him. We find that the trial Judge cannot, in the circumstances, be faulted for finding that they had the opportunity to observe the appellant. I We also find that the trial Judge rightly found fhat the evidence of these two witnesses, was corroborated by the evidence of Detective Inspector Nzhibwe ' i I I and Inspector Lufwendo; though the evidence of these two police officers was attacked by Mr. Mudenda who submitted that they did not have the opportunity to see and identify the appellant. We find that it was not the case. Inspector lufwendo stopped and talked to him·· before he drove off. Not long I -J12- thereafter, police officers recovered Constable Mbewe'smagazine from that motor vehicle. The trial Judge was on firm grol!.)nd when he found that the two police officers were able to identify the appell0nt because they talked to him. In the case of llunga Kabala and John Masefu y The People (6) it was held, inter a/ia, that odd coincidences, if unexplained, can provide supporting evidence and that an explanation, which cannot reasonably be true, is in that connection, no explanation. In this case, it would be an odd coincidence that the appellant was seen driving a motor vehicl~ in which a magazine "stolen" from Constable Mbewe's was found a few hours after the robbery, if he was not one of the robbers. Coming to Mr. Mudenda's reference to the case of Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v The People (3), and his submission that the appellant's leading the police to the place where they had recovered the motor vehicle was of no probative value, because nothing was recovered, we agree with him. Contrary to Ms. Nyangu's submission that it was, because it I led to the recovery of a small bag and number 1plate fixing riveter, we find that these two items did not incriminate the appellpnt in anyway. The bag is not I linked to any one nor is the riveting gun linked to the number plates on the motor vehicle. However, we find that the trial Judge did not place any reliance I on that evidence. -J13- I We find that the identification evidence of Jethro Simapili and Constable Mbewe was corroborated by the recovery_ of Constable Mbewe's firearm magazine from a motor vehicle that the apdellant was driving soon after the robbery. We find no merit in the appeal and we dismiss it. But the matter does not end here. As was indicated earlier on, the appellant was convicted of 3 counts of aggravated robbery and a count of attempted murder. All these offences arose from one incident. Section 135 of the Criminal Procedure Code,deals with ; the joinder of counts in a charge sheet or in an information and it provides as ' follows: (1) Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts or form, or are a part of, a series of offences of the some or a similar character. (2) Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out In a separate paragraph of the charge or information called a count. (3) ....... . From this provision, it is clear that there are in'stances where more than one offence is committed during a criminal expediti0n and when that happens, the offences are set out in separate counts in the information or charge sheet. The i question that arises in this case is whether, the appellant and his accomplices committed 3 robberies and the offence of ottempted murder when they attacked Stero Bureau De Change on 14th March 201 0. -114- The offence of aggravated robbery is set out i,n Section 294 of the Penal Code I and it provides that: (1) Any person who, being armed with any offei~sive weapon or instrument, or being I together with one person or more, steals anything, and, at or immediately before or immediately after the time of stealing it, uses or 'threatens to use actual violence to any person or property to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guiliy of the felony of aggravated robbery I and is liable on conviction to imprisonment for li"fe, and, notwithstanding subsection (2) of section twenty-six, shall be sentenced to imprisonment for a period of not less than fifteen years. {2) In the case of attempted murder, it is set out.in Section 215 ( a) of the Penal Code and it provides that: Any person who- (a) (b) attempts unlawfully to cause the death of another; or ......... , is guilty of a felony and is liable to imprisonment for life. Put simply, an aggravated robbery is committed when a thief, who is armed with an offensive weapon, or is in the com:pany of another thief.uses or threatens to use violence, before, during or aft~r stealing. On the other hand, i there is an attempt to murder, under sub sectiory (a) of Section 215 of the Penal ' Code, when injury is inflicted with sole purpose of killing. From the evidence that was before the trial 1court, it is apparent that the appellant and his accomplices set out to rob fhe bureau de change armed ·JlS- with a firearm. They shot · and disarmed a po/;ice officer who was guarding it and thereafter, they threatened the manaber into surrendering both the ., bureau's money and his personal properfy. Th~y also took away the firearm for I the police officer they had disarmed when they started committing the offence. It is our view, that had the prosecutor correctly assessed the evidence, ' 1 the appellant would have only been charged with one count of aggravated !, robbery and nothing more. The shooting of Constable Mbewe did not amount to a separate offence of attempted murder because it is actually an _1 ingredient of the aggravated I robbery; the use of violence to overcome resistance during a theft. Neither did the taking of his firearm amount to a separate 'robbery because it was clearly intended to prevent him from using it to resist the robbery. Further, the fact that what was stolen from Jethro Simapiti belonged to two ,' •, different owners, cannot lead to a conclusion that there were two robberies. In I • theft related offences, aggravated robbery beihg one of them, a person who has in his possession property belonging to another person, can, depending on the circumstances of a case, be treated as a "sp,ecial owner". In this case, it can be said that Jethro Simapili had the authority to be in possession of property belonging to the bureau in circumstances that qualify him to be treated as the special owner of thqt property. A single count of -J16- aggravated robbery should have therefore been preferred against the appellant and it should have referred to J~thro Simapili as the owner of property stolen from him and the bureau de ch ange. Consequently, we find that the information ,in this case was defective for having a multiplicity of charges that were actually one aggravated robbery. This is because, unlike what is envisaged under Section 135 of the Criminal Procedure Code, the count of attempted murder and two of the three counts of aggravated robbery, where not separate offences. They were all "components" of the robbery at the bureau. • • Section 16( 4) of the Court of Appeal Act provide.s that: The Court may, on an appeal, whether agairst conviction or sentence. ! substitute a judgement of guilty for such other offence as the trial court could hove entered and, in the case of an appeal from the Judgement of the High Court in the High Court's exercise of appellate jurisdiction, the Court shall, in addition. have power to restore the conviction of the trial court. i Having found that there was a multiplicity of char:ges, that where essentially one offence, we set aside the appellant's conviction Jor the 3 counts of aggravated robbery and a count of attempted murder. Tne sentences associated with them, are equally set aside. In their place, we convict him of a singlecount of armed aggravated robbery; on 141h March 2010, at Livingstone in the Livingstone District of the South • -J17- Province of the Republic of Za mbia, the appellant, while in the company of others, and while armed with a firearm, robbedJethro Simapili of K9,000,000.00, US$100, Euros 20, 1 bag, l black rain suit, l Bardays Bank card and 1 Nokia 5140 cell phone all valued at K 10,444,000.00, the property of Jethro Simapili and at or immediately before the robbery used actual violence in order to overcome resistance to the property being stolen. • Since there is incontrovertible evidence, in the f6rm of gunshot wounds suffered by Constable Mbewe, of the use of a firearm, o,ur hands are tied into imposing the mandatory death penalty; and we so do. • J. hashi COURT OF APPEAL JUDGE 4a, . .. ........................................ . F. M. Chishimba COURT OF APPEAL JUDGE