Mwewa v People (SCZ Appeal 16 of 1993) [1993] ZMSC 40 (2 March 1993)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA. (Criminal Jurisdiction) SCZ Appeal No. 15- 16 of 1993 SMART MHEWA Vs THE PEOPLE Appellant Respondent Coram: Gardner* Sakala and Chirwa, J. J. J. S. 2nd March* 1993. For the appellant. H. J. F. Silva. Assistant Senior Legal Aid. For the respondent. Mrs. A. M. Sitali, Assistant Senior State Advocate. Sakala J. S. delivered the judgment of the court. JUDGMENT The appellant was convicted of aggravated robbery contrary to Section 294(1) of the Penal Code Chapter 146 of the Laws of Zambia. The particulars of the offence alleged |hat, the appellant with three other persons, on 15th September 1990, at Ndolfl, in the Ndola District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together robbed Batson Zulu of K700.00 cash and one cap altogether valued at K950.00 the property of Batson Zulu and at or immediately before or immediately after such robbery used violence to Batson Zulu. The appellant and the co-accused were sentenced to fifteen years inprisonment with hard labour. The two other co-accused were found with no case to answer and were acquitted. We have been told that the co-appellant convicted together with the appellant has since died. His appeal therefore abates. The prosecution case centred on the evidence of PW1. According to PW1, he was on guard duties at house No. 1, Nyimba Crescent on 14th October, 1990. He reported at 18.00 hours. There was nobody else present at the house. Around midnight while checking around the premises, he saw eight people who entered the premises through the swimming pool area. He was then in the car park area where the alarm switch was fixed. The Intruders came to the house, four of them came to the car park and two of them threatened him with death and tied him with a rope. They took money and a cap from him, later, he 2/... J2. struggled until the ropes were loose. At the same time another security guard from another house started throwing stones. PW1 then switched on the alarm, the intruders scattered; some climbed over the high wall fence. The appellant failed to climb the fence and was apprehended by PW1. His co-appellant, who has since died, also failed to climb the wall fence and fell into the swimming pool. He was apprehended while wearing PW1‘s cap. The learned trial Commissioner properly identified the issue for determination to be one of the identity of the persons who robbed PW1 of his K700.00 and a cap. He accepted PW1*s evidence and convicted the appellant accordingly. In this court, Mr. Silva has advanced one ground of appeal. He contended that the ingredients of aggravated robbery were not established. He argued that while it was conceded that the appellant had been around the premises, the common intention of the eight intruders was to rob the house and not the security guard. He pointed out that no money was found with the appellant In our view, a group of people with a common intent to steal also has a common intent to overcane by force any resistance from anyone reasonably expected to be in their way. Equally we hold that if a group of people set out to steal from a building and during the course of that undertaking some of them rob a guard or other individual reasonably expected to stand in their way the common intent to steal would include the intent to rob. In the case of Mwape Vs The People (1976) Z. R.160, this court held on the facts of that case that there was no evidence of a common purpose to use violence against the security guard because there was a possibility that the thieves intended to steal clandestinely. However, in the present case there would have been no possibility for the thieves to enter the house without the knowledge of the guard and it must have been the common intent to use violence against him and to rob him if there was anything worth stealing. We have considered the submissions and the evidence on record. This is one of those cases where one would say the appellant was caught red handed. 3/... J3. The evidence against the appellant was overwhelming. We find no merit in the appeal against conviction. The appeal is dismissed and no appeal lies against the mandatory sentence of fifteen years imprisonment with hard labour. B. T. Gardner, SUPREME COURT JUDGE. E. L. Sakaia, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE.