Nyirenda and Anor v People (SCZ Appeal 21 of 1993) [1993] ZMSC 41 (2 March 1993)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA. (Criminal Jurisdiction) SCZ Appeal No. 20 - 21 of 1993 JOSEPH NYIRENDA YAVE YAVU Vs THE PEOPLE 1st Appellant 2nd Appellant Respondent Coram: Gardner. Sakaia and Chirwa. J. J. J. S. 2nd March, 1993. For the appellants, in person. For the Respondent, Mrs. A. M. Sitali, Assistant Senior State Advocate. Sakala J. S. delivered the judgment of the court. JUDGMENT The appellants were convicted of aggravated robbery contrary to Section 294(1) of the Penal Code Cap 140 of the Laws of Zambia. The particulars of the offence alleged that, the two appellants on the 26th July, 1989, at Ndola, in the Ndola District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together and whilst armed with a knife and a screw driver robbed Kaumba of her Radio and Radio Cassetter all valued at K20.000 and used violence at the time of the robbery. The prosecution's case centred on the evidence of PWs 1,2,and 4. According to PW4, at about 08.00 hours on 26 th July, 1989, she was in her house feeding her baby when three Uie® entered the house. The three told the house girl to take the baby and thereafter, they showed PW4 a knife and a screw driver and requested her to take them to the bedroom to show them where she kept the money. They held her by the neck,she fainted on her way to the bedroom. When sne regained her consciousness, she ran into the toilet and started screaming for help. Later, she saw the two appellants who had earlier assaulted her and she also saw the Radio and the Radio Cassette taken from her bedroom. She identified the first appellant as the person who had a screw driver and the second appellant as the person who had a knife. The evidence of PW1 was that, on 26th July, 1989, he was on guard duty at house J2. No. 26 Mwatiyamvwa road. Northrise, Ndola. At about 09.30 hours, he heard screams from a neighbour's house. He went out of the fence, a child approached him for assistance and reported to him that there were thieves at the other house. According to PW1 as he approached that other house, he saw a person he identified as the second appellant running towards a taxi being followed by a person he identified as the first appellant. PW1 explained that the first appellant was carrying a Radio and a Radio Cassette from the house. The second appellant opened the door of the taxi and entered the vehicle while the first appellant handed him the Radio and the Radio Cassette. At that time, PW1 called for assistance. Members of the public came to his assistance, one of the members of the public picked up a stone and threatened the taxi driver if he drove away. According to PW1, the taxi driver explained that he had just been nired. The two appellants were apprehended and taken back to the house where they found PW4 who had scratches and injuries. Subsequently, the police came to the scene. The evidence of PW2 was that, as he walked along Mwatiyamvwa road on 26th July, 1989 with PW3, he heard screams of a woman from the house, he then saw two men emerge from where the screams were coming. The two, one carrying a Radio and a Radio Cassette went towards the taxi packed along the road. He also saw a young girl come out from the same house holding a baby shouting that the two men had killed her mother. Subsequently, the two men were apprehended. In his defence on oath, the first appellant did not deny the prosecution's story of being present at the house and being apprehended with the items the subject of the robbery. His explanation for his presence at the house was that, he had been hired to do some piece work of loading property for someone who was shifting from Northrise to Itawa. He further explained that when they arrived at the house, tney found that the big vehicle had already left but he was asked to take small items into the vehicle when he was apprehended. The evidence of the second appellant in his defence does not also seriously challenge the prosecution’s case. His explanation was that he was merely a passenger in the taxi that stopped near the house in issue. On the evidence before him the learned trial judge accepted that PW4 was attacked in broad day light. He accepted the evidence of PWs 1,2, and 4 and rejected the explanation by both appellants. 3/... J3. The appellants who nave each appeared in person have filed four grounds of appeal. The gist of their grounds is that the learned trial judge misdirected himself in convicting them on the unsatisfactory evidence of PWs 1*2,3 and 4. They have also criticised the prosecution for having failed to call the taxi driver as their witness. Ue have considered all the grounds put forward in this appeal. We have also very carefully examined the evidence and the judgment on record. The fact of the robbery was not in dispute. The appellants were seen in broad day light running from the house where the screams had been coming from while carrying stolen items. The appellants were caught red handed. The evidence in support of the conviction is over whelming. We find no merits in the appeal against conviction. Accordingly it is dismissed. The appellants were each sentenced to twenty years imprisonment with hard labour. That sentence does not come to us with a sense of shock nor is it wrong in principle. The appeal against sentence is also dismissed. B. T. Gardner, SUPREME COURT JUDGE E. L. Sakala, SUPREME COURT JUDGE. OlC’ChlMa;.............. SUPREME COURT JUDGE.