Raphael Bwalya v The People [2021] ZMCA 252 (23 February 2021)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 93/2020 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: RAPHAEL BWALYA APPELLANT AND THE PEOPLE RESPONDENT CORAM: CHASHI, LENGALENGA AND NGUL UBE, JJA. On 18th February, 2021 and 23rd February, 2021. For the Appellant: B. Banda, Legal Aid Counsel, Legal Aid Board. For the Respondent: V. Nsingo, State Advocate, National Prosecutions Authority. / JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Nelson Banda vs The People (1978) Z. R.30 2. Mwewa Murono vs The People (2004) Z. R.207 Legislation referred to: 1. (cid:9) The Penal Code, Chapter 87 of the Laws of Zambia (cid:9) (cid:9) (cid:9) -J2- INTRODUCTION 1. The appellant was tried and convicted of two counts of the offence of Aggravated Robbery, contrary to section 294(1) of the Penal Code, Chapter 87 of the Laws of Zambia. 2. The particulars of the first count are that Raphael Bwalya, on 22nd March, 2017 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown stole five cases of gum boots, fifty steering covers, one hundred roller brushes, ten rolls of hose pipes, sixteen geysers, fifteen shovels, twenty five scorn pans, thirty wire rods, 3 x 10mm x 100 yards of nylon ropes, one hundred and forty four gasket makers, ten pieces of single sinks, twelve pairs of Italian gum boots, seven C plates, forty pieces of C plates, six G. I boxes, ten flicker machines PVC glue, seven double sinks, two hundred and forty MCB's, three stand fans and seventy-two moon locks, altogether valued at K85,694.00, the property of Sajid Patel at or and immediately before or immediately after the time of such stealing used or threatened to use actual violence on Sydney Nkonde to obtain or retain the said property or prevent or overcome resistance to its being stolen. -J3- 3. The particulars of the second count are that Raphael Bwalya, on 22nd March, 2017 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia jointly and whilst acting together with other persons unknown stole a motor vehicle, Mitsubishi Canter registration number ABM 112 valued at K150,000.00, the property of Amex Electrical Limited and used or threatened to use actual violence on Sydney Nkonde immediately before or immediately after the time of such stealing in order to obtain or retain the said property or overcome resistance to its being stolen. The appellant was sentenced to eighteen years imprisonment with hard labour with effect from the date of his arrest. THE TAKING OF THE PLEA IN THE LOWER COURT 4. When the matter was scheduled for plea at the commencement of trial, Mrs Mwila, State Advocate made an application to amend the information for the statement of offence to read "robbery", contrary to section 292 of the Penal Code, Chapter 87 of the Laws of Zambia instead of the original charge of Aggravated Robbery. 5. The particulars of the amended charge were that Raphael Bwalya on 22nd March, 2017 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia stole one Mitsubishi -J4- Canter registration number ABM 112, valued at K150,000.00, the property of Annex Electrical Limited. The particulars further alleged that Raphael Bwalya threatened to use actual violence on Sydney Nkonde in order to retain or prevent or overcome resistance to the property being stolen. 6. The court granted the application and the information was amended accordingly. When the amended charge was read to the appellant, he denied the charge. When the plea bargaining failed, prosecution then decided to proceed on the original charge of aggravated robbery and the trial commenced. EVIDENCE BEFORE THE LOWER COURT 7. The first witness for the prosecution, PW1 was Alfred Phiri of Barlastone Park, Lusaka. His testimony was that on 24th March, 2017, he was at his place of business in Lilanda Market when he was approached by three men he did not know who said they had some merchandise for sale. PW1 had a look at the items that they were selling and saw a nylon rope, a packet of iron sheet roofing nails and moon locks. The men told him that they obtained the hardware items from their contractors who owed them money. PW1 later accompanied the men to a house but they made him wait at the roadside while they went to get more goods. -J5- Eventually, they sold him six shovels and 18 kilograms of roofing nails for the price of K700.00. 8. On 27th March, 2017, two police officers went to PW1's shop and asked for the goods that he bought from the three men. He handed over the six shovels and roofing nails to the police officers. He further identified the appellant in the court room as one of the men who went to his shop and sold him hardware items which he later learnt were stolen. 9. PW2, Josephat Chibwe aged 31 years, of Barlastone Park was the second prosecution witness. His testimony was that on 25th March, 2017, he was at his hardware shop when he was approached by three men who told him that they were selling various hardware goods. He bought moon locks, shovels and roofing nails which were priced at K2,040.00. He paid K1,960.00 and told the men to collect the balance of K80.00 the following week, on a Monday. 10. On the appointed Monday, PW2 was approached by police officers who told him that some of the goods in his shop were stolen. These were the hardware items that he bought from the three men who visited him the previous week. PW2 was taken to George Police post for interrogation by the police officers and while there, -J6- he received a phone call from someone who was at his shop and was informed that the man who sold him hardware items had gone to collect the balance of K80.00. He rushed back to the shop with police officers who apprehended the man. He later identified him as Raphael Bwalya the appellant herein. 11. PW3, Brian Sihoka, Detective Sergeant of Emmasdale police station was the third prosecution witness. His testimony was that on 23rd March, 2017, at about 09:30 hours, he visited the scene of crime, at Sajid Patel's hardware shop where a robbery allegedly occurred. He entered the warehouse and observed that goods were in disarray. He also noticed that the shelves in the hardware shop were empty and he took photographs of the scene. PW3 stated that he saw the guard Sydney Nkonde who was purportedly beaten by the robbers and noticed that he had multiple head injuries. PW3 identified the medical report that was issued to the guard, in court. 12. PW4, Jonas Sinyambwe's testimony was that on 19th April, 2017, he conducted an identification parade at which PW 1 and PW2 identified the appellant as the person who sold them hardware goods which they later discovered were stolen. PW5, Gilbert Mwakama, Detective Sergeant, based at Matero Police Station -J7- testified that on 25th March, 2017 he received information that there were three men who were selling hardware goods at Lilanda market which were suspected to be stolen. He went there and instituted investigations and apprehended the appellant at PW2's shop. PW5 later went to the hardware where goods were allegedly stolen from. He also met the owner of the hardware, Sajid Patel and later went to Kabanana Township where the Mitsubishi Canter that was stolen was left abandoned. He later charged and arrested the appellant for two counts of aggravated robbery and he denied the charges. 13. In his defence, the appellant stated that he was given the items that he sold to PW1 and PW2 by his three friends who he named. He denied involvement in any aggravated robbery. At the close of the appellant's defence, the court analysed the evidence before it and found that it was common cause that a Mitsubishi Canter belonging to Amex Electrical Limited was stolen when there was a robbery at Sajid Patel's hardware on 22nd March, 2017. 14. The court found that from the medical report and the photographic album that were produced, the robbers beat up the security guard who suffered multiple head injuries. The court further found that the appellant, in the company of his two friends -J8- sold stolen hardware goods to PW 1 and PW2 at Lilanda market. The court concluded that from the totality of the evidence and due to the evidence of leading to the scene by the appellant, he was part of the group that staged the robbery at Sajid Patel's warehouse and stole various hardware goods as well as the Mitsubishi Canter. The court convicted him of the two counts of aggravated robbery and sentenced him to 18 years imprisonment with hard labour. GROUNDS OF APPEAL AND THIS COURT'S EVALUATION OF THE EVIDENCE AND ITS DECISION 15. Dissatisfied with the lower court's conviction and sentence, the appellant lodged this appeal advancing the sole ground of appeal that: Ground one The learned trial Judge erred both in law and fact to convict the appellant on circumstantial evidence which had not attained a degree of cogency and taken the case out of the realm of conjecture to attain a degree of certainty in the manner of identification by PW1, PW2, PW3 and PW4, the leading of PW5 to the scene of the crime, the recent possession doctrine application of the alleged stolen goods and alleged theft of various items and motor vehicle in both counts one and two respectively. -J9- 16. However, we will not consider the sole ground of appeal and its heads of argument because in our view these are not the issues that must be addressed in this appeal. Consequently, we will not consider the respondent's heads of argument as well. 17. The first issue that this court must consider is whether the lower court was on firm ground when it proceeded to try the appellant on two charges of aggravated robbery after the prosecution had amended the charge and substituted it with that of robbery contrary to section 292 of the Penal Code. 18. The record of proceedings from the lower court shows that the appellant pleaded not guilty to the amended charge of robbery. The court however decided to try the appellant on the two counts of aggravated robbery he was initially charged with. We are of the view that this was a misdirection on the part of the court as the correct position is that the prosecution should have entered a nolle prosequi to discontinue the matter and if they so desired, the appellant would have been re-arrested and then charged with the offence of Aggravated Robbery. 19. From the evidence on record, it is clear that there was no unequivocal plea of guilty as the appellant was emphatic in denying the charge and as such, the lower court should not have 410- proceeded to hear the matter on the original information which had been amended. 20. The second issue for determination is whether the court should have found the appellant guilty of aggravated robbery when the complainant, Sajid Patel and the guard who was allegedly robbed and beaten by the robbers, Sydney Nkonde, did not give evidence in court. In the case of Nelson Banda vs The People', the court stated that: "In any given set of circumstances where there is evidence that more than one person witnessed a particular event, if the happening of the event is disputed when first deposed to and the prosecutors chooses not to call any of the other persons alleged to have been present, this may be a matter for comment and a circumstance which the court will no doubt take Into account in the decision as to whether the onus on the prosecution has been discharged." 21. The prosecution witnesses, PW1 and PW2 stated that they bought the hardware items which turned out to be stolen from the appellant. The evidence of PW3 is that he saw the security guard Sydney Nkonde at the warehouse with head injuries. However, the prosecution did not call Sydney Nkonde and Sajid Patel, who was allegedly the owner of the warehouse. Clearly, no evidence proving that aggravated robbery occurred at the warehouse was led. Further, the owner of the warehouse, did not testify. We are of the view that the prosecution did not prove that there was an aggravated robbery at the said warehouse. These discrepancies in the evidence of the prosecution should have been resolved in favour of the appellant. The prosecution cannot be said to have proved its case beyond all reasonable doubt. 22. It is trite that the prosecution must prove their case beyond all reasonable doubt and in this matter, the state failed to discharge this burden. In the case of Mwewa Murono vs The People2, the Supreme Court stated that: "In criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently, the guilt of the accused, lies from beginning to end on the prosecution. The standard of proof is high. The case must be proved beyond all reasonable doubt." Turning to whether the appellant should have been charged with two counts of aggravated robbery, we are of the view that the appellant should have been charged with one count of the offence of aggravated robbery contrary to section 294(1) of the Penal Code as the hardware goods and motor vehicle were stolen in one event. •-J12- 23. Regarding the sentence, we note that the court sentenced the appellant to 18 years imprisonment with hard labour but did not specify on which count it was sentencing him to. We are of the view that where an accused person is convicted of two counts of any offence, the convict must be sentenced to a term of imprisonment for each count to run concurrently. As such, we S form the view that the court misdirected itself in sentencing the appellant to one count of 18 years imprisonment with hard labour. 24. In the circumstances we find merit in the appeal, albeit for different reasons. We allow the appeal and accordingly quash the conviction and sentence. The ap 11 ant is acquitted and set at liberty forthwith. J. CH COURT OF APEAL JUDGE COURT OF APPEAL JUDGE P P. C. M. NGULUBE COURT OF APPEAL JUDGE