Teddy Mutisa and Anor v People (SCZ Appeal 169 of 1997) [2000] ZMSC 128 (22 August 2000)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA/NDOLA/KABWE (Criminal Jurisdiction) SCZ APPEAL NO. 169(a)(b)(c)/97 TEDDY MUTISA } ROBBY KANGWA } BWALYA CHIPETWA } APPELLANTS Vs THE PEOPLE RESPONDENTS Coram: Chaila, Chirwa, Lewanika, JJS 3rd Mach, 1999 and 22nd August, 2000 For the Appellants : In person For the Respondents: Mr. D. Mupeta, State Advocate JUDGMENT Chaila, JS, delivered the judgment of the court. This is an appeal against the decision of the High Court by the appellants convicting them of the aggravated robbery offence and subsequently sentencing them to terms of imprisonment of 17 years each. The appellants faced an offence of aggravated robbery contrary to Section 294 of the Penal Code. The particulars of the offence was that on the 14th day of May, 1996 at Masaiti in the Ndola Rural District of the Copperbelt Province of the - J2 - Republic of Zambia, jointly and whilst acting together and whilst armed with offensive weapon, namely a gun, did rob ANNA MANDAB A of various properties which included a bicycle, a sewing machine, a radio cassette, 20 plates, 3 pairs of shoes, 2 teacups, 2 skirts, 2 blouses, 1 brief case, 2 pairs of bed sheets, 3 pieces of curtain material, 2 blankets 2 ladies suits, 1 pair of long trousers, 1 suitcase, 1 duster coat, I scarf and I set of spoons, altogether valued at K.499,000, the property of the complainant ANNA MANDAB A and at or immediately before or immediately after the time of such stealing did use actual violence to the said ANNA MANDABA in order to obtain or retain property stolen or prevent or overcome resistance to its being stolen or retained. The facts as found by the learned trial Judge briefly, were that during the morning of 11th May, 1996, the prosecution witnesses, PW3 and PW4, were approached by three men who had gone to PW3’s village. They introduced themselves as maize buyers who were looking for Mr. Joy Mandaba’s farm. The two prosecution witnesses, PW3 and PW4 directed them to Mr. Mandaba’s farm. Mr. Mandaba was the husband to the complainant. Around 16.30 hours, Mr. Mandaba was approached by one man who introduced himself to her as a maize buyer who was with other two and that the vehicle they had hired to feny the bags of maize had broken down and were looking for another vehicle with which they could tow the broken down vehicle. The husband, PW2, was not at home at that time. PW1 directed the young man to the neighbours would properly assist them. The young man left but promised that he was going to call his friends who J3 were somewhere. Mrs. Mandaba proceeded to her maize garden. When she returned she found that the young man, including the one who had approached her first waiting. The young men told her that they could not go where she had directed them because it was too far. She then attempted to walk away from them. One of them cocked his gun, which he was carrying and pointed it to her throat. The young men pushed into the house while beating her, demanding for some money, saying that they had knowledge that her husband had recently sold a car. She denied the allegation but they forced her to produce K24,000 that she had in the house, which she gave to them. They went away but later two of them returned to her carrying some dry grass and threatened to bum her up. They searched the place and found a bottle of pesticide which they mistook for petrol and started to force her to drink from it. At that time they had pushed her into her bedroom where the armed man found them. They packed all her household property which formed part of the indictment and they left. Later the respondent’s brother-in-law who had been with her went to report the matter to the Mine Police. On his way to the police, he met his brother, PW2 and explained to him what had happened at home. The police visited the complainant’s home and she made a statement. She was given a medical report form to take to the hospital for treatment for the injuries she had sustained. On her way from the hospital, the complainant met two men whom she recognized as those who had attacked her at the farm the previous day. They were in the company of a lady. The complainant decided not to - J4 - talk to them but went to make a report about them to her husband. The following day the complainant and her husband went back to the police station and made a report of what PWI, the complainant, had discovered. They led the police in company of another person called Mwitwa to assist them locate the house of the lady who was in company of the two men when the complainant met them. The house was located and one man was found and P W1 recognized that person as one of those who had attacked her at the farm and that person is A1. That person was apprehended and taken to the police station. The police then continued with the investigations. A week later PWI attended an identification parade. There she picked Al and A2. She told the police that in fact it was Al who carried the gun which was identified in court. The complainant also identified the recovered materials in court as those stolen from when she was attacked by the robbers. The police in their investigations recovered I curtain from PW5, which he said he had bought from Al. The police also recovered a traveling bag which is exhibit P20 from PW6 which had been taken to her by her sister-in-law who is Al’s wife for hiding during the month of May 1997. The police also recovered 1 gun from PW7’s backyard after being led by Al and it was found buried in the ground. During the investigations by the police, Al led the police to A2 in Chipulukusu in Ndola and A2 was apprehended. In turn A2 led the police to the recovery of 1 bicycle from the person where he had sold it. A2 further led the police to his house where the police were able to recover a sewing machine, a radio cassette and a black brief case, which belonged to the complainant and PW2. The police, during their investigations found 10 ammunitions in the magazine of the gun at the - J5 - time of its recovery. During their investigations, the police received information, which lead to the apprehension of A3. The learned trial Judge found that the prosecution had produced overwhelming evidence against the three. He dismissed their defence and convicted them. The three appellants appearing in person have in their written submissions attacked the identification. They have complained that they were not properly identified and that the evidence against them on identification was unsatisfactory. They have argued that the witnesses, particularly PW1 and PW2, were unreliable witnesses and should not have been believed by the learned trial Judge. They have further complained and argued that the learned trial Judge did not have ample consideration of the issues involved in the case. They have complained that the learned trial Judge did not have sufficient evidence before him to that effect and that he only used his personal opinion. They have further complained that the learned trial Judge did not warn himself when he passed judgment. We have considered the evidence on record and the submissions of the appellants. The evidence on record shows that some young men approached PW1 during broad daylight. PW1 spoke to them when they introduced the subject of maize and that they wanted some help. PW1 spent a lot of time with them and when they attacked her, there was no mistake. The following day on her way from the hospital, she met two of them. The matter was reported to the police and the police apprehended these two. These two assisted the police in arresting the third person. The learned trial - J6 - Judge in his judgment fully considered the evidence placed before him. He analyzed the evidence of PW1 and he came to the conclusion that she was a very reliable witness. The learned trial Judge analyzed the role the appellants played in investigating the matter and the learned trial Judge said: “Police have done a commendable job in that while the robbery had taken place on 14th May, 1996, within a period of one week Al and A2 were apprehended and assisted them in recovering a lot of stolen property. ” It cannot, therefore, be argued by the appellants that the learned trial Judge in convicting them did not have sufficient evidence and that the learned trial Judge convicted them on mere opinions. The record shows that the prosecution adduced ample evidence on which any reasonable Tribunal could convict. We entirely agree with the conclusion reached by the learned trial Judge that the prosecution had proved the case beyond any reasonable doubt. For the reasons we have given, the appeal is dismissed. - J7 - M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE