Maneku and Ors v People (SCZ Appeal 166 of 1997) [1999] ZMSC 127 (2 March 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEALS NOS. 166(a)(b)(c)/97 HOLDEN AT NDOLA (Criminal Jurisdiction) NJAMBA MANEKU KELLY OSMAN TOM KATONGO VS 1ST APPELLANT 2ND APPELLANT 3RD APPELLANT THE PEOPLE RESPONDENT Coram: Bweupe, DCJ; Chai la and Chirwa, JJS 3rd June, 1998 and 2nd March, 1999 For the 2nd & 3rd Appellants : Mr. G. L. Chilandu of Chilandu & Company For the 1st Appellant : Mrs. J. C. Kaumba, Assistant Principal Legal Aid Counsel For the Respondent : Mr. R. O. Okafor, Principal State Advocate JUDGMENT Chaila, JS, delivered the judgment of the court. This is an appeal by NJAMBA MANEKU, hereinafter referred to as 1st Accused, KELLY OSMAN as 2nd Accused and TOM KATONGO as 3rd Accused. We will refer to them as 1st accused, 2nd accused and 3rd accused for convenience. They have appealed against being convicted of aggravated robbery contrary to Section 294 of the Penal Code Cap. 146. In the lower court they faced a charge of aggravated robbery which involved robbing MR. BONIFACE SAKALA of his vehicle in Ndola on 22nd February, 1996 and in so robbing, they used force in order to obtain or retain his property. The main issue in this appeal is that no force was used by the accused persons in robbing the complainant of his car. At the beginning of the appeal, counsel for the 1st accused Mrs. Kaumba informed - J2 - the court that after consultations with her client, her client decided to abandon the appeal. The 1st accused was therefore, allowed to withdraw the appeal. Mr. Chilandu, on behalf of the two accused persons, A2 and A3, advanced one ground divided into two. The ground is that the learned trial judge erred in holding that force was used against the complainant by all the accused persons without taking into account the evidence of the accused persons. The facts as found by the learned trial judge are that on the material date, the complainant, Mr. Boniface Sakala, was pirating in Ndola using his car registration No. AAM 5962. About 21.00 hours the accused persons booked him to take them to their home in Northrise. When they booked him, the 1st accused sat with PW1 in front, while the 2nd and 3rd accused sat at the back. They took him to Northrise, stopping at some place on their way. They reached Mwami Road; he was ordered to stop so that they could collect their girlfriends. He stopped and the three accused persons went out then later the 1st accused came back into the car. Then the 2nd accused person came back and grabbed the complainant by the neck and mouth. The 3rd accused joined the 2nd accused and the two opened the door and pulled the driver out of the car. The 1st accused also joined in and they pushed the complainant out of the vehicle and the 1st accused took over the driver's seat. The 1st accused drove on and later he made a U-turn, picked his two colleagues and drove away towards Kansenshi Secondary School. The complainant booked a taxi, went to the taxi pirate base in town and informed his colleagues of what had happened. He was told that somebody had seen his car with a coloured man with long hair at Kansenshi Filling Station. The complainant and his colleague went to the Ndola Police Station where they reported the matter. The police accompanied them to Kansenshi Filling Station. The complainant was told to leave the matter with the police and was advised to go back home. The following morning the complainant went to the police station where he was informed that two of the suspects had been apprehended and that the third man had driven to Lusaka. Meanwhile, the police intensified their investigations which led them to Lusaka where the car in possession of the 1st accused was recovered. The 1st accused person was apprehended and taken back to Ndola. The police organised an identification parade and the complainant identified the three accused persons. - J3 - The defence by the two accused persons was that they never participated in the stealing of the car and that when the car was taken by the 1st accused person, they were not present; they had gone out to get their girlfriends. The learned trial judge considered the defence and the question of whether or not force was used and he came to the conclusion that all the three accused persons participated and that the force used was enough to justify the requirements of Section 294(1) of Penal Code and proceeded to convict them. Counsel for A2 and A3 strongly argued that the evidence of the complainant was full of contradictions and that it was too fantastic to believe and that the evidence of PW1 was completely unsatisfactory. The learned counsel argued that the evidence of PW1 was not true on the identification of his clients. He concluded that there was no evidence to prove violence against the complainant. The learned counsel further attacked the evidence of the prosecution witnesses and concluded that their evidence was not satisfactory. He argued that the evidence of the two accused persons, his clients, was that they were out of the car at the material time and they were busy knocking on the door of their girlfriends' house when they heard the car moving. They were not a party to the taking of the car. The learned counsel argued that the learned trial judge misdirected himself when he dismissed the evidence of A2 and A3 in its entirety. He argued that the sweeping dismissal of the evidence of the accused persons constituted a misdirection. For the State, the learned Principal State Advocate Mr. Okafor, submitted that there was overwhelming evidence against the accused. The evidence showed that they acted together with the person who drove off after PN1 was robbed of the vehicle. The learned counsel for the State argued that there was use of violence and there were threats by A2. Mr. Okafor argued further that the complainant was dragged from his vehicle without his consent, in addition, there were threats. The learned counsel further argued that there were no contradictions in the evidence. He concluded that all the appellants were present and they took part and that all the elements of aggravated robbery were there. The learned counsel submitted that PW5, Security Guard, whose evidence was that he was at the filling station, saw the three of them in the car at the filling station. The counsel argued - J4 - further that the whole thing was planned together; all the accused persons knew everything and they told the police where the police could find the vehicle in Lusaka. The police travelled to Lusaka and after two hours of the arrival of the vehicle in Lusaka, tne vehicle was recovered and all the persons involved were arrested. Mr. Okafor commended the police for a very efficient job. We would like to deal first with the question of identification. The counsel for the appellants had argued that the identification by PW1 was not reliable. The evidence showed that after the complainant had been robbed of his car, the complainant took a taxi and went to the taxi rank and reported the matter to his colleagues. They went to the police station and one of his colleagues reported that the vehicle had been spotted somewhere in Kansenshi. With the help of the police, they went there and it was confirmed by PW5 that the vehicle had been seen. Later the police were given further clues. Two people were arrested in connection with the vehicle. The two people told the police that the third person had taken the vehicle to Lusaka. The vehicle was recovered and the third person was arrested. Apart from the evidence of PW1 of recognizing or identifying the accused persons, there was evidence of PW5 which showed that they had been seen after the robbery at the filling station in the car. The police through this lead arrested the third person and the vehicle was recovered. There was a question of being found in possession of the vehicle recently stolen. The prosecution evidence of the identification was very strong and in his judgment the learned trial judge considered all the evidence and he concluded that the accused persons were involved in the robbery. In addition, the evidence of the accused persons showed that they were the people who hired the car from the complainant. The complainant took them to Northrise. They left the complainant with Al and went to their homa and returned to attack the complainant. They cannot say that the evidence of the complainant was weak on the identification. The prosecution evidence was very strong and the appeal cannot, therefore, succeed on this ground. The second leg of the argument was that they did not participate in getting the car. They were not present when A1 got the vehicle from the complainant and that they did not use any violence at all. On violence, the court had the evidence of PHI. PW1 described in detail what happened - J5 - to him. The learned trial judge considered his evidence and the evidence of the accused persons. The learned trial judge concluded that the accused persons were blaming each other and he dismissed their defence. We have read the evidence and the judgment of the learned trial judge. The learned trial judge considered in detail the evidence concerning the attack. The learned trial judge considered their defence that they were not present when the vehicle was taken by Al and the learned trial judge concluded that they were present and that they participated in the attack. The learned trial judge considered whether force used came within the requirements of the law and he concluded that there was sufficient force to warrant the conviction. Having regard to the evidence adduced and to the reasons given by the learned trial judge, we find that the judge was on a firm ground when he concluded that the accused persons participated in the attack against the complainant and that the force used met the requirements of the section of the Act. The appeal cannot, therefore, succeed on this ground. For the reasons we have given, the appeals against convictions are dismissed. The appellants were given a minimum of 15 years and there can never be an appeal against mandatory minimum sentence. B. K. BWEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE