Wezzy Kabaila v People (SCZ Appeal 136 of 1998) [2000] ZMSC 138 (8 August 2000)

IN THE SUPREME COURTOF ZAMBIA SCZ APPEAL No.136 OF 1998 HOLDEN AT NDOLA AND KABWE (CRIMINAL JURISDICTION) WEZZY KABAILA APPELLANT Vs THE PEOPLE RESPONDENT Coram: Sakala, Muzyamba and Lewanika, JJS 6th June and 8th August 2000 For the Appellant: In person For the Respondent: C. F. R. Mchenga, Senior State Advocate JUDGMENT Muzyamba, J. S. delivered the judgment of the court. The appellant was convicted of aggravated robbery Contrary to Section 294 of the Penal Code, Cap 87 of the Laws of Zambia and sentenced to 18 years imprisonment with hard labour. The particulars of the offence were that the appellant and Mulomba Phiri, who was acquitted, on 25th February 1997 at Ndola in the Ndola District of the Republic of Zambia jointly and whilst acting together with other persons unknown did rob Godfrey Chitambala of the property listed in the information and at or immediately before or immediately after the time of such robbery did use or threatened to use actual violence to the said Godfrey Chitambala in order to obtain or retain the said property. He has appealed to this court against conviction. J2 The facts of this case were that on 5th February 1997 at 19.00 hours the complainant, PW.l and his wife, PW.2 were seated in the house. A while later they heard PW.3 screaming outside the gate. When she screamed the second time they decided to go outside and investigate. At the door they met four men who were pushing PW.3 and his cousin, Ernest Mukwanga. The men claimed to be Policemen and one of them had an AK.47 assault rifle. In the house they pushed the entire family into the masterbedroom where they demanded for money from PW.l. They got his wallet in which was K26,000. They also ransacked the bedroom and entered all the rooms and stole the property in the information. The bedroom was lit with electricity and the whole episode lasted 45 minutes. The matter was later reported to Mushili Police Post. On 9th April 1997 PW.l was called to Kanseshi Police Station where he was shown some recovered properties. He identified a Tobico Radio Cassette player, a suitcase and a police cap as his. On 10 April 1997 he identified the appellant on a parade as one of the robbers and the ring leader. PW.2, the complainant’s wife and PW.3, the complainant’s sister in law gave similar testimony. On 5th April 1997 PW.6, a Police Officer carried out some investigations. He apprehended the appellant at a house in Nkwazi Compound and recovered the suitcase that was identified by PW. 1. Later the appellant led him to PW.4 where the radio cassette player was recovered. In his defence the appellant said he knew nothing about the robbery. That the five witnesses who identified him on the parade had earlier seen him in the cells. : J3 : The appellant advanced two main grounds of appeal that the evidence of identification was poor and that the identification parade was poorly conducted. He argued that none of the witnesses gave a description of the assailants to the Police or the role played by each assailant. That he was shown to the witnesses before the parade in that shortly before the parade he was taken to where the five witnesses were and that at one stage the witnesses were brought near the cells where he was detained. For the State, Mr. Mchenga argued that the appellant was properly identified at the scene and parade by three eye witnesses. That the question of mistaken identity did not arise because the incident lasted 45 minutes and the room was lit. That the witnesses had therefore ample chance to recognize the appellant. That the identity of the appellant was strengthened by the fact that the appellant led the Police to the recovery of the radio cassette player. We have considered the evidence on record, the Judgment of the learned trial Judge and the arguments on both sides and we are satisfied that the learned trial Judge considered and properly resolved the issues raised by the appellant in this appeal and came to the right conclusion that the appellant was one of the robbers. Indeed the evidence against the appellant was overwhelming. We would therefore dismiss the appeal against conviction and we affirm the sentence. E. L. SAKALA W. M. MUZYAMBA SUPREME COURT JUDGE SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE