Martin Mubanga v People (SCZ Appeal 17 of 2001) [2002] ZMSC 88 (5 May 2002)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA SC7NO. APPEAL NO. 172001 (CRIMINAL JURISDICTION) BETWEEN MARTIN MUBANGA APPELLANT AND THE PEOPLE RESPONDENT Coram: Chirwa, Chibesakunda, JJS and Mambilima, Ag. JS on 16th October 2001 and 5th March 2002 For the Appellant; For the Respondent: Mr A Nkausu, Legal Aid Counsel Mr C F R Mchenga, Senior State Advocate JUDGMENT Chibesakunda JS, delivered the judgment in Court When we sat on 16th October 2001 we dismissed this appeal and indicated that reasons were to be given later in our judgment. This is the judgment giving reasons. In this appeal, the Appellant was charged and convicted. The Appellant together with two others was indicted with the offence of aggravated robbery contrary to section 294 of the penal Code, Cap. 87 of the laws of Zambia. The particulars being that Martin MUBANGA, Levy Chigowe and Sakeya Chirwa on 8th July 1998 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together and being armed with a Gun namely AK 47 Assault Rifle did rob Victoria Muhone Matandika of one HIF Musical System, one TV, one Recorder, two Video Systems, two Video Panasonic System, three suit cases, four Handbags, four pairs Gents Shoes, traveling bag, K700,00 cash 200 - J2 - Zimbabwean dollars, altogether valued K8,007,000.00 and at or immediately before or immediately after such robbery did use actual violence to the said Victoria Muhone Matandika in order to prevent resistance to the property being stolen. The Appellant was convicted of the offence. The two others were acquitted. The evidence on which the Appellant was convicted was that on the 8th of July 1998 around noon Ms Victoria Muhone Matandika, the complainant, was at home in Libala when she was visited by three men who later drew guns and demanded for money. They harassed her, together with her brother in law, Collins Hangubo, PW1, and threatened them with violence. At the end of it all the three men got away with a number of household goods and money. Mrs Matandika, PW3, told the court that she was able to see these men because it was in broad daylight. She identified the Appellants and the other two in the dock as the people who came and robbed her of the property on the date in question. According to the evidence before the court the Appellant and the other people left the house then PW3 called the husband on phone and told him of what had happened. The husband was PW2. She testified before the court that although she was frightened she was able to look at her attackers. She mentioned that she described the Appellant to the Police and then told them he had a pierced ear on one side. PW4, the police officer testified that on the 7th August 1998, together with other police officers apprehended the Appellant with two other men and when searching the Toyota Corolla they were driving they found two AK 47 rifles and 57 rounds of ammunition and a pistol with six rounds of ammunitions. The suspects were then brought to police station. Upon interview the Appellant led the police officers to his house where a lot of assorted items were found and brought to the police station. PW2, owner of the household goods identified a video recorder and a traveling bag as items, which were stolen from the house on the date in question. The Appellant when called upon for his defence denied the charge and denied ever visiting the complainant on the date in question. We have looked at the court’s record and the judgment. - J3 - We note that PW3’s evidence on identification of the Appellant and PW4’s evidence that the police officers recovered a lot of items including the items identified by PW2 as being stolen from PW2 and PW3’s house on the day in question, were accepted by the court below. We also note the trial Judge at Page J3 weighed the evidence on identification and held that although he had misgivings on the credibility of PW3’s evidence on identification of the Appellant he however convicted the Appellant because of the Appellant’s recent possession of all property when his home was searched by the police officers. He therefore convicted the Appellant for the subject offence and surprisingly acquitted his colleagues. We, therefore, find no merit in the appeal. As we said when we sat the appeal had no merit. We therefore dismiss it and confirm both sentence and conviction. D K Chirwa SUPREME COURT JUDGE L P Chibesakunda SUPREME COURT JUDGE I C Mambilima SUPREME COURT JUDGE