Chibuta v People (SCZ Appeal 63 of 1992) [1993] ZMSC 123 (25 January 1993)

IN THE SUPREME COURT OF ZAMBIA 5CZ Appeal No. £3 of t992 NOLDES AT LUSAKA (Criminal Jurisdiction) VlCENT KATONGO CHBUTA Appellant vS THE PEOPLE ^GSpondent CORAM: CORAM: Sakala. Chaiia Chirwa JJJ. S. 30tn July, V>-32 and 25tn January, 1903 Fur liie appellant Mr. R. N. agenda ar Uganda Associates For the raspondent Mr. U. S. PMri, Director of Public Prosecutions JUDGMENT Chai la, U. S. delivered the judgment of the court. Case referred to: (1) Manongo v The People 1981 ZIP p. 152 The appellant was charged with an offence of aggravated robbery contrary to Section 294 (?) of the Pena) Code. The particulars of the offence were that, the appellant with two other persons unknown on 19th April, 1990 M Livingstone in the Livingstone District of the Southern Province of the Republic of Zambia, Jointly end whilst acting together end bsing armed with a Pistol robbed Fashion ChakombeUzya of a wotor vehicle, namely a Flat car registration No, AJA 2806 valued at K120,303.00 and at or Lrw’dUtsIy before or i’KBGdiately after the time of such robbery did use personal violence to the said Fashion Chakombelezya in order to obtain or retain ths said motor vehicle. Ti;e appellant was convicted of ordinary aggravated robbery since the learned trial judge was not satisfied that a firearm nad been used. He was sentenced to 2C years imprisonment with hard labour. He hiis /2........ appealed... - J2 - appealed against both conviction ano sentence. briefly the case below was that the complainant on 19th April 1990 at1930 hours was driving a Fiat car 132 Registration No. AJA 2:106 and when he got to a turn off to Stmango Fam he saw three men who were standing on the side of toe road. He had slowed down due to pot holes and on® of the men threw something which nit the bonnet of the vehicle and the engine switched off. Th® cofaplainant failed to start the car and one of the men who was amed with a pistol ordered him to move to the passenger’s seat. He did as he was told and the other two mon also got into the car. They tied his hands which were twisted behind. The armed man drove th® vehicle and drove up to me railway line where the complainant was ordered to get out of tne car and to get into the boot. He diu as he was told and they closed him inside the boot where he spent a night. The following morning they drove the vehicle away and when the pool was opened, he found that they had parked at the old steam engine yard. He was ordered to get out of the boot and climb into one of the steam engines. They untied his hands and was ordered to remove one suitcase and one travelling bag which he gave to two of the men wno were standing on ladders near the locomotives. He got out of the locomotive and refused to run away after they had told him to do so. The armed man threatened to kill him and the men tied his hands from behind. One of the men held his chin and cut off a small skin and showed him the skin and said that they were going to kill him. The same person cut his lumber jacket with a knife and stuffed some pieces into his mouth and after gagging him they put him back in the boot and drove away and when they stopped the vehicle, they tied his legs together and took him into the bush along Hakatindi road where they warned him that if ha became funny they would kill him and after walking along distance they tied him to a tree® and handed him upside down. One of the three men told his friends that since he had not hidden his face he wanted to xl11 the complainant as he would Identify him but his friends refused to give him a knife and when the other men said that they should set him free, he got holo of the complainant's neck, twisted it and hit him on the forehead. The complainant said he heard noises In the head ano became unconscious. When he regained his consciousness he found that tne assailants had disappeared. He cut and loosened the string and after /3...freeing .... rr^inj .tis hone's ne undue the olotn rru.:; nis head and after untyiiiy . Js k-;r. h- wsixc'd u Vie rcao ar.n in order to assist la locating uie Spot j;v liw d pieW- jf nis shift lO 0 Lfv3. Ue tiwpuu for a J Hl but non-.? of ti>6 ;n0tor1sU stxxw for Mn because he did not have a shirt on; he had no shoos and then: was blood on his body. He ran towards town anu m Ins process a cyclist gave him a ride up to iiaxatindi Compound where a florist pick?; hi *3 and drooped nim at the police station where he -adu a report. w.ilH he was makin-j a report someone told hit that be had seen his car at the Civic Centre. The police wont rut to look for the -^otor vehicle but they Gid not find it even after urlvix; up to Ciio^a lispital woe re the police took itloi for treatment. Som- 3d jaY$ after the robbery the complainant went with the police- and with a pan toe puiice nac apprehended to toe bush out when mey pi to toe placn, tm» aan old not tell me police to stop, on t/selr way back, he told Vu police to stop where he hac tied a piece of his shirt to a tree and the man fed the police to the spot where they ■>sg i■:: ■- im iie.? to ? vre!• >V 1 furthar instil led that he neo iusntirmo the eooellant on tne identiric;<>iton oarjee as one of the three wnc iaa sooU.i his :r>GLor venide. lx1 i^ritipr u j$ furi.n-'r invas11 ;m.ced oy tna puiion and tne police jot uoiJ of a person whe? had bought tn? car AJA 2d3o which he later sold to a Mr. Androw tuson. policv former jot m touch with ?W3 wnp-ji? ‘-vidonca in the ‘o«cr court was that on . LPti April, IP9u around 10 nours, win 1? he w<^ ;u iox-, ne was visited oy tna appellant wfiom he ;-..d ><;:. mown OfrjrT i« appellant aSKeii nu-i for size 13 spanner. Tae appellant bn-M-'O 01^ mat tne Yonicle r.ad oroKea down on the road. y>;d rfitn ni j to lie road where ns saw 3 Fiat car nab broken down. AJj found tnree other .wn in vic- veAicru out they faiiou to repair1 it «!n<:’. faildc to stdri the engine even after pusiilhy the vehicle. Th«»y asked for percuss Ion to push veaic io to hi; village. P43 allowed t!ie?s tc co so and the vshiclo was takca to s shod where the ■.c’i'i continued to repair it but lacy did nut succeed. The appellant said h? was ;oiir; to look for spare parts but leter complained that ue was :H.if\<ry. ?/>'$ sister prepared food and offered it to tno appellant, isiijie natitne appellant told ?w3 that n»? was Just passinn tltroxpi anj siwi of xoney. After appellant uud eaten and sincn ne was to leave his -rotor vehicle in the vlllaoe* ?W3 asked the xwl iant /4...tu .1 vs........... J 4 - to give M^ particulars which PW3 recvrv&i in his diary* Ths appellant did not nave tn« national registralion card and blue oook for Lug vehicle anti aske-J hi.-n not to worry since ns was leaving the vehicle in the village. The particulars read: Onani h«uo, of Box 10140 CMngota House No. 45, 10th Street, CMngola or care of Patrick OnaM of Nkana East, and House Mo. 45, 7th Street Kitwe. PW3 gave K200.bC to the appellant. That was enough for Mm tc get to Lusaka where he nad relatives. The appellant promised he would return after three weeks and asked PN3 to look after the motor vehicle. ?*3 wu/it with tne appellant to the motor vehicle fron wberh- LhG appellant removed a travelling bag and a radio cassette wMcn the appellant said he would sell if need arose. PU3 carried the appellant’s bay to tna 3us stop. PMS’s evidence was that he bid staved with the appellant for two to three hours and had amole time to look at the appellant. PW3 noticed that the appellant had a bald head, £ lame finger on the right hand and a hairiy chest and he had developed some muscles. The appellant on leaving had promised Pw'3 so^e gift. cater when ?w3 returned bow na decided to examine the vehicle and wnen he opened tne golva compart­ ment ne found some receipts in the name of Susu Simango of Sunset rarm and an expired passport belonging to Prisca Ngulube. He got scared and told his sisters that the vehicle that was left in his village had items bearing Livingstone addresses. He took tne items into Ms house for safe keeping. On Monday when he returned from the field he found police officers who questioned Mm about the vehicle. He told the police what had happened and gave them that itefss he had found in the vohilce and the note boo* in which he nad written the appellant’s address. To enable the towing of the vehicle the steering wheel was broken and the police officers told Ms to use any means co apprehend the appellant if he returned for the cotor vehicle. PHJ’s further evlconM was that the appellant snowed up on 1st May 15190. The appellant was walking m toe Sunflower field. The appellant on seeing P^3 and Ms brother ran away into the bush. Pri3 advised other villagers particularyly those at tne railway station to be on tne look out for the appellant. The following morning P^3 and Ms brother jumped into s bus tnat was going to Kalomo; when they got at Sha<Teja‘$ Bus stop, PW3 found the appellant waiting for a bus. PM3 tolo the Bus driver to pick up the appellant but the eriver refused. /b... PW3 after .... P*I3 After contacting police at Kalcrnc Police got off the bus. i!e found the appellant. He ran to tne police station but they did not find anybody. Then he went back to the town centre and ne found a <ltwe bound bus. :4s told the driver about me problem. PW3 jumped into the bus and tne appellant, jumped into tae same bus and PH3 told the driver to drive straight to Kalomo Police Station with the man who was wanted by the Police at Zlmoa was in me ous. At kalomo Police Station an armed police man entered the bus and PW3 identified me appellant to hl*. The appellant was then taken off the bus and was driven to Livingston* police station where the appellant was searched and the appellant told the police officers that PW3 was a kind man who given nbs <200.00. Counsel for the appellant Mr. Ngenda nas argued on behalf of the appellant mainly two grounds. fne first ground was that the identificatlon of the appellant by PWs 1 and 3 was weak and could not oe relied upon, Mr. Agenda further argued that there was a possibility of an honest mistake being made. He has relied on the case of Manongo v The People (1). Mr. Ngenda has submitted in the case of Pwl that the learned trial judge in considering credibility of PW1 as to the issue of Identification the learned trial judge failed to take into account all the relevant circumstances surround­ ing the case. He argued that as a common ground, the offence was committed during dark hours of between 1330 anti 0700 hours in the morning, during these dark hours visibility should have been taken Into account. It was a common cause that the complainant was put In the boot of the vehicle for a period close to 12 hours. In addition he was under threat of death. Ine complainant went through traumatic experience which experience must have affected the sense Of sight. Tne complainant never made a prior description of the appellant to the police. He has argued that the complainant made a fibbie attest during mu trial but mainly put the blame on the police. As regards PW3 Mr. Agenda has criticised tne identification of tne appellant by PW3 .and that py* nust nave honest mistake. He has argued that tne iearnec trial judge disregarded tne evidence of identification parade. /&.... The learned r-as wpcW wat ovi?Mice of ?<R Ve raiplaidant, on we iori<c11 ic'5ti<i। of w? ww 1' Ro r’.»uabvtC c jnsisl^nt .wii in W c.iiof and lit crjis-sixlniitlM; tiie; W jwsiwrooie omourit of li« with the assailants. The evrleuw, accord!.^ to mr, Pniri's arwcwt, showed tnat i<- complainant 'ud ampi'd to observe We assailants and tne complainant had further noticed tnat coo of ths assailants had no masK on the taco. The appellant was later identifiao oy tie ww.iawwt. ir. Phi ri nos further arouse that Wore was no oliicr evidence w;iiw could sake the court to aisueUeve tne evidence of ?Wi. ir. Pom furwu?- argued that wo evidence of PW3 supported PW1‘s evidence. RP’s evidence strengthened the evidence of ?*l. Hr. Pniri Rrww *r>ued wal ?ho saw Lite appellant on Rin April at WOO hours wat was Purely three Hours after r»1 was released from captivity. ?W3 .lad ampR time W observe viviuiy the appellant including one la^ai f'Wjru. was s.ui. W3 nad oosorved Lais wisen they were repairiaG W? ■nutor vehicle, de also oos«rved tne motor vehicle the appellant was r.?;>airi!i.j. if, Pniri has srnued wst tne bJwufRatiun u/ huS d proper one. Ini: evi'iencv of rw.> was suoporteil oy Ph7 in respect of the rocov?ry of the ne; wiuhiinq spares for tn a so tor vehiCi<» radio c.-iss?tu and spea^-rs frur; t>o wpeilam's none in uosc-<a. <is reuarcs contradictions or discrepancies, In t/'ie prosecution*s hvidenco ^r. ?Piri agreed tnat those were minor and liiconseouenijui in too iiwt of t-.e evwenco adduced. It is pulte clrur, from we evidence of we prosecution, Wat Pwd ipe.it a lot ot Line yuto tn.? assail ants. In We morning he was with wen for jiwst four hours aflwr Pwl had been reRas-ju and darely Wrec null's sft^r ?z'J was appruidhw cy Ine aoo^ilant. Tne appellant was seekin; moi > ir-;.;; ,;i ':. T':\ appoiHtw ‘wrruw-od so-.r? tools fro-"4 j1?i. P.. P did ;iot just enu w>w; >w went witn lioi to toe vehicle and was wlW toe app&lluGt am Hs col leagues, lie vehidn’s di sew;-at ion was Rs-; sd.-ie as we Oiiu piven uy W.c cu^pijin.jn:. ine «op«Hant after tai 1 iiip'w r;p:ai;‘ cho verticlo wrrowC’d :ic wrote down Wo porticolars aww dy w.i d^u./ilfint. P^o- escorteo PR to the bus Step. liic .evidence further siows Lnat it was PwP who made .? bold atuomOt to apprehend we woc-l I. Wi. i;;d it wvs throe:,n .-is efforts Wat tap apw 1 Uni was aw’Oiiwded. PwP's evicww was confirmed, gv the evideri-c? of PW7. We have considered Mr. Uganda’s arguments on PW1 's evidence regarding the Identification and we are fully satisfied that the evidence of PW1 was supported by the evidence of PWs 3 dad 7 and the learned trial judoe was on a fir;?; ground la relying on the evidence of PWs I and 3. The first ground cannot therefore succeed. Hr. Agenda's s-scond ground is that, there was need to look for corroboration on PWs t and 3‘s evidence. Mr* Agenda has argued that PHl’s evidence was totally unreliable because he was trying to tell lies in cross-examination. He has argued that there glaring contractions between P^s 1 and 7 and Pw5 in respect to the testimony as regards the evidence used against PW1 by the appellant. He has further questioned the authenticity of the $«dical report. He nas urged the court to dismiss the evidence of PWs 1 and 3. As regards PW3, he had argued that PW3 falls within a class of persons whose evidence swust be treated with caution. Mr. Hgenda has further coraplaineo that the learned trial judge spoke of recent possession in respect of the bag. In his opinion the learned trial judge mis­ directed hiaself in taking into account the evidence regarding spanners in the bag. We have considered Mr. Uganda's arguments on this Issue. As regards corroboration, we do not agree that the evidence of PW1 required any corroboration; in any event PWi’s evidence was confirmed by the evidence of PW3 who was approached three hours later after PW1 had been released by the assailants and PW3 saw the car Registration No. AJA 2806 Flat. PW3 was left into custody of the vehicle in question. On the face of it one say take this witness as a witness with a possible interest to serve. PW3 gave an account of what transpired and his evidence was confirmed by the evidence of ?W7. The evidence in our opinion clearly showed that PN3 was an innocent villager who did not at first know that the vehicle had been stolen and after ne had been approached by the police ha co-operated fully to locate the appellant. The evidence showed that PW3 was not a witness with any interest to serve and the learned trial judge was absolutely right in relying on nis evidence. This ground also falls. There was overwhelming evidence, despite wlnor discrepancies in the evidence, for any reasonable court or bench to convict. Foregoing reasons the appeal against conviction is therefore dismissed. /&.... As to.... - J8 - As to sentence, Mr. Ngenda urged the court to be lenient since the appellant was a first offender. Ue have noted with great dismay how cruelly and brutally the appellant and his colleague treated the complainant. The evidence shows that there was a gang of three. It also showed that the man was made to get into the boot of the car and was made to spend the whole night there. The man was tied the whole night. Ue do not find jany merit in the appeal against sentence. The appeal is therefore dismissed. E. L. SAKALA SUPREME COURT JUDGE M. S. CHAILA SUPREflE COURT JUDGE O. K. CHIRWA SUPREME COURT JUDGE