Kashweka v People (SCZ Appeal 104 of 1995) [1996] ZMSC 39 (16 April 1996)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 104/1995 HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN OSCAR KASHWEKA APPELLANT VS THE PEOPLE RESPONDENT Coram: Bweupe, DCJ, Chaila and Lewanika, JJS 16th April, For the Appel 1 ant: Mr. V. A. L. Kabonga, Director of Legal Aid For the Respondent: Mr. James Mwanakatwe, Principal state Advocate JUDGMENT Chaila J. S. delivered the judgment of the court. The appellant was charged with one count of aggravated robbery contrary to Section 294 of the Penal Code. The particulars of the offence were that on the 8th day of July, 1994, at Mongu in the Mongu District of the Western Province of the Republic of Zambia, being armed with a knife did rob Joseph Kakoma of 1 travelling bag, 1 radio cassette, 1 lumber Jacket and K49,000.00 cash at or immediately before or immediately after the time of such robbery, did use or threatened to use actual violence to the said Joseph Kakoma in order to obtain or retain the said property or to prevent or overcome resistance to its being stolen or retained. - J2 - The briaf facts of tne case were that on the material <kce the complaliiatit met the appellant at a drinking place after no had done some shopnjnn. They drank together for sometime. They then decided to go together. The complainant was persuaded to go with cne appellant to nis home, Qn the way the appellant attacked the complainant using an okapi knife. Ha was ordered to droi the bag in which the goods were packed. He was made to run. The appellant followed the complainant until the complainant joined some three people. Then the appellant withdrew. The following day the appellant after the police had got the report was apprehended with some stolen goods which were found on him including an okapi knife. He was convicted of the offence and was sentenced to 1o years imprisonment with hard labour. r-1r. Kabo.-iga ths Director of Legal Aid has advanced cne r.ajor ground and this ground is that the learned trial judge misdirected himself in having been biased against the appellant. He informed the court that he was going to rely on Article 18(1) of the Cons 11 tu c I r>n of Zambia/ This Article deals with ■Inc impartiality of all High Court tribunals. On being questioned oy tills court whether ne 6as ratsiric a constitutional issue, ;io said no. He said the learned trial j it dee s biased in his approach when deciding c.,3 case. ;!c bus r r <j o •> P ma Lily triat tnc learned trial j-udj'i was wrung in Jescrioing the . J.ur, t in nis imigment as a cunnt.ig man who wanted the gi fence or a-Jw'ravateu rootJery to bo rufi.ic-d to just a simple case of theft. Mr. Kabonga has argued that the learned trial • J3 - judge was. unjustified to coma to such description of the aapeiiant. He nas argued cnat in fact the appellant gave an expianantion that after tne complainant had left the goods at nis nome in his custody, cnr complainant did not return tu3 fallowing dav and because of hunger he decided to sell the goods. Mr. Kauonga argued that the learned trial judge should have accepted that explanation and should have made hi-vt entertain a reasonable doubt as co the </uilt of the dppetiann. un the okapi knife Mr. Kabonga argued that the Knits was a common weapon which is normally carried by many ;jraopl=? ana that among the African people xz is used as a ds fane e ■nd therefore -th« having of tne knife by the aooellant Homs not cone I ud?» chat the knif* was vs ad ag-t.tnst the co<>.jl«i»iunt. >i«a ufy«d us to allow the appeal «yai»ist aggravated robbery and to convict him of a single theft. ?r. Hwanakatwc for the State uai supported the conviction. Ths identification of the appellant was not in dispute. The hoods w*r<* f«>und on Uro and cha writer i»ar**j y rest-id on the question of cr^di ui i x cy ot ti»A parci&s. Ou cae knife hr. ffwanakatwe argumd that an okapi knifs wns found on the ?;■>:>»<! j an: md thl * is tae very knifm wnich aaed tn thro4tun rit- : 11 a ■> • This is iin -umv cci i;Cithe ev!‘.tenc-? of the com* J ni a xn 1, '>■';<'> 'mW? coh::-i c-di’ed vi*ry .spri a us ly cha argument:: o/uotii teamed 'xains.fls. We have considered thm svtdenc* on record, a«v! we entirely agree with the submission that the question - J4 - of identity was not in issue. The appellant himself accepted that they were together for a long time and moved together and tiie goods were left with nim. Th® only difference was on the question of threats ana use of a knife. The learned trial judge considered tne nieces of evidence before him and ne concluded that tne complainant was telling the truth. Because of thts finding the prosecution case should have been more stenghthened if the people who helped the complainant gavo evidence after running away from the appellant. Hr. Mwanakatwe argued that there was no need to call them since there was ample evidence. Mr. Kabongo has complained bitterly on the attitude of on’iy relying on one person. There is no rule of law which requires the State co call all the witnesses if they are of the opinion that one witness can prove the case. T!t this particular case the complainant gave evidence and he was supported by the finding of being in possession of the okapi knife and the evidence of the people who bought tne goods. We find tnat even without the evidence of tne other three people there was sufficient evidence on whlcn any reasonable tribunal would find the appellant juilcy. r:u- judg-.-. 1 a s u mm i n g ik descri the man as a c u n i n g feiiow. frc.,1 the evidence on record the man proved n i ri > o 1 f *:o !)••? v -ry ccnnlnn. f'- 0I t h i n k tnat the iccrn c c t rial or rod in s.v,- he. do in do scribing the appellant cs a cunning follow. - J5 - For the reasons we have given this appeal is dismissed. There is no appeal against a minimum sentence of 15 years. B. K. 9WEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 103 OF 1996 HOLDEN AT NDOLA (CIVIL JURISDICTION) COPPERFIELDS COLD STORAGE COMPANY VS SUNTRUST INVESTMENTS LIMITED Coram: Bweupe DCJ., Chaila and Muzyamba JJS. 11th September, 1997 AND 14th January, 1998. For the Appellant : MR. N. NOYO, HAKI CHAMBERS. For the Respondent: Mr. Micheal Masengu of Micheal Masengu and Company. JUDGMENT BWEUPE DCJ., DELIVERED THE JUDGMENT OF THE COURT. This is an appeal against the decision of the High Court at Kitwe granting the Respondent specific performance of a contract dated 27th March, 1992. The undisputed facts were that the parties entered into a contract of sale for plots No 3 Matuka Avenue and 120 Accra Road for consideration of K34,000,000.00. The Respondent paid a total sum of K14,000,000.00. the Respondent further despatched to the appellant nine post