Alimon Njovu and Anor v People (SCZ 22 of 1988) [1988] ZMSC 53 (19 April 1988)

IK THE SUPREME COURT OF ZAMBIA SCZ JUDGMENT NO 22 Op 588 HOLDEH AT KABWE Appeal No„ 37 & 88 of ■jgQg (150) (Criminal Jurisdiction) ALIHON NJOVU FELIX T. NJOVU - V- THE PEOPLE Appellants Respondent CORAH: Gardner, Ag. D„C„J_, Bweupe and Chaila AJJ. S. J. Mwanakatwe, Assistant Senior Legal Ziid Counsel, for the appellants G.. S. Phiri, Senior State Advocate, for the respondent 19th April, iggg JUDGMENT Gardner, Pr. C. C. J, delivered the judgment of the court., case Referred to: (1) Hwape -v- The People (1926) ZR P. 150 The appellants were convicted of murder; the particulars of the offence being that they, together with others, cn the 17th of March, 1984 at Lusaka, jointly and whilst acting together did murder Emmanuel Hulenshi. The prosecution evidence was to the effect that both appellants took part in a concerted robbery and store breaking at Vintage Zambia Limited and there they murdered the night watchman and stole a quantity of goods including in particular one welding machine. The evidence against both appellants was that they were in possession of the welding machine after the robbery and in connection with the charge of murder both appellants made statements to the police to the effect that they were 2/. , present (151) Hr. Piiiri the learned State Advocate has very properly indicated that he dees not support the conviction of the second appellant for murder, but ■ ho does support a conviction for store breaking. Mr. Mwanakatwe on behalf of the first appellant has argued that, because the appellant was in custody for three days before the statement was taken from him, the learned trial judge should have exercised his discretion by refusing to admit the confession statement. Wo have considered this and other arguments put forward by Mr. Mwanakatwe as to why the confession statement should have been excluded, and we are satisfied that, after a trial-within-a-trial, the learned trial judge did not misdirect himself in any way when he found that thestotorent of the first appellant should be admitted. This ground of appeal therefore fails. Hr. Mwanakatwe further argued that if the statements were admitted the first appellant did no more than admit being present with a gang of people whu intended to carry out a store breaking and that he had specifically taken no part in the .attack on the watchman. On the contrary he had implored his friends not to kill the watchman. In reply Hr. Phiri has argued that the very fact that there was a watchman there, as was known to the appellants, indicated that they intended to use force against him,tflat everybody in the gang who took part in the venture was acting under a common purpose,and all who were proven to have taken part in the assault or being present when the assault was taking place are properly guilty of murder. ; . In dealing with this aspect the learned trial judge said this:- "I * net accept that he, (the first appellant) did net toko part in boating the teased; ncr that he told than not to kill him. If he did not take part in beating and killing the teased then the only thing for him to have dene vrs to it-xrt the matter to the police or rwrest authority, but ho did net do so." 3/......... J'?.. Fhiri : >. J3 (152) Mr. Phiri concedes that when the learned trial judge said that the natural thing for the appellant to have done was to report tc the police he misdirected himself, because obviously the appellant knew that he was guilty of at least store breaking and it could hardly be* said that it would be natural for a person who knows he is a criminal to report to the police. A similar situation was dealt with in the case of Mwape -v~ lire People (1) in that case the learned Chief Justice Silungwe said:- "Vfe consider that the second portion of fir. /nycreh's proposition is a non sequitur, because there is nothing in the evidence to suggest that there was an agroarcnt to use violence if necessary, or if there was, that the appellant was party tc such agreement, the rotters may veil have anticipated the presence of a guard, tut they may have planned to effect entry into the premises only if they culd avoid detection, end after blowing open the safe, tc ixn ci /and specifically avoid contact with any guard or guards. It ceirct.. on the evidence, be assured against the appellant that tie plan was to use violence if necessary...." In this case, although there is evidence that the appellant was in possession of the welding machine after the robbery, which would make him at least guilty of receiving, the only evidence to connect him with the theft is his own confession,. We think it proper thatj when a person's confession is used against him, the mitigating factors mentioned in the same confession should weigh in his favour, unless of course such factors are specifically disproved. In this case, despite the learned trial judge's finding, there was no evidence tc disprove what the appellant said in mitigation in his statement and it is proper that we should take into account what he said in his own favour. We accept that in this case the first appellant did not intend that any violence should be used during the course of the theft from the promises which were being subjected to the attentions of the gang. In view of what we have said the appeals of both appellants against the convictions of murder are allowed. The convictions fcr that offence are quashed and the sentences are set aside. In their place wo substitute convictions of each appellant fcr the offence of stc-re breaking end sentences for each 4/................appellant J4 (153) appellant of six years imprisonment with hard labour with effect from the 23rd flarch, S984. B. T. Gardner ACTING DEPUTY CHIEF JUSTICE B. K. Bweupe ACTING SUPREME COURT JUDGE M. S<. Chai la ;’ ACTING SUPREME COURT ■ JUDGE