Kabwe and Ors v People (SCZ Appeal 32 of 1993) [1993] ZMSC 107 (3 March 1993)

IN THE SUPREME COU^T OF ZAMBIA SCZ Appeal No. 32 - 34 of 1993 HOLDEN AT NDOLA. (Criminal jurisdiction) 1. 2. 3. OBET JOSEPH KABWE GAMA MBEWE MATHEWS NSAMA CHANDA Vs Appellants THE PEOPLE Respondent Coram: Sakala, Chaila and Chirwa, JJJ. S. 3rd March, 1993. 77i The appellants in person Mr. S. A. G. Twumasi, Assistant Senior State Advocate, for the ; ■ . • State Sakala, J. S., delivered the judgment of the court. JUDGMENT The three appellants were convicted of aggravated robbery contrary to iSection 294(1) of the Penal Code Cap 146 of the Laws of Za^iia. The particulars of the offence were that, the three •July, 1990, at Ndoia, in the Hdola District of the Copper^ Kv' ellahts on 9th ^Province of the Republic of Zambia, jointly and whilst acting together dig: po Robertson '^Ngombe of ?Ky meat and K60.00 cash altogether valued at the property of Robertson Ngombe and used force at the'time of the robbery. They were each sentenced to fifteen years imprisonment with hard labour. The main evidence connecting the appellants-to the offence came fran. PHI the V- complainant, himself. His evidence was that, on 9 th JUly,i^U at 1500 hours, he was on his way to his friend's home in Nueke coii^Wd» carrying with him some meat when he met four men who asked him for momey to buy cigarrettes. dhan he replied that ne had no money, due of the men advanced □nd started figntiny him. \ Tne other three joined. They him to the ground and kicked him all over the ..body -When he woke up, h- found that ■ his meat was missing and his National Registration. Card was iitrown at him : ■ .pk! :■ J2. ■ ' % The evidence of PW1 was that* he knew this assailants as they grew up toge^P^ in Kabushl township. According to him, he knew them for seven years. They grabbed from him K90.00. The matter was subsequently reported to the police where he was given a medical report form. The complainant further testified that in the same month of the robbery, he went to the Subordinate Court to attend to a case. While at the Subordinate Court, he saw the first appellant. On seeing the first appellant, he rushed to Ndola Central Police but when he returned with the police, he found that the first appellant had been taken to Prison, The following day, he went to the Remand Prison with the Police. He informed the police the name of the first appellant. When the first appellant’s name was called at the Remand Prison, he responded. According to the prosecution case, on seeing PW1, the first appellant pleaded with him that he was already in trouble, he must be forgiven. The first appellant then led the police to - his co-appellants's house. PW1 was later called to the police station where he identified the second and third appellants at an identification parade. In his defence, the first appellant testified that on the day in question, he was drinking Kachasu with his co-appellants when PW1 joined‘and accused him of not buying drinks. Later, a fight ensued. PW1 left the scene. According to the first appellant, PW1 had nothing at the time. He denied stealing the meat and the money. Both second and third appellants confirmed in their defence of witnessing a fight between the first appellant and the complainant. They denied taking part in the fight and. J they also denied stealing meat and the money from the complainant. All the three appellants testified to knowing PW1. The learned trial judge found that the issue for determination centred on the question of credibility. He accepted the complainant’s story and rejected the appellant's story of a fight and convicted the three accordingly. ' < The first appellant filed five grounds of appeal in which he criticised the evidence of the complainant but In which he conceded of knowing the complainant very well and that It would have been madness to rob a friend in day light.' In his written grounds, the first appellant has further pointed 3/... out that when he was fighting the complainant'the two co-appellants did not take part in the fight. The two appellants in their written grounds of appeal also confirmed the fight between the complainant and the first appellant* They also confirmed knowing the complainant but that they d|d not take part in the fight and they did not steal anything from the complainant. We have examined each of the five grounds of appeal filed by each appellant; separately. We have further examined the evidence on record and the judgment of the trial court. We agree with the trial court that the only issue In the case for determination centred on credibility. The learned trial judge had the opportunity of seeing the prosecution witnesses and,the appellants. He also had the opportunity of assessing the witnesses and the appellant’s deminour. He accepted the prosecution evidence. We find no basis to disturb the conviction. The appeal against conviction is dismissed, no appeal lies against the mil sentence of fifteen years imprisonment with hard labour E. L. Sakaia, SUPREME COURT JUDGE M. S. Chaila, SUPREME COURT JUDGE D. K. Chlrwa. SUPREME COURT JUDGE