Steven Lungu v People (SCZ 4 of 1999) [1999] ZMSC 54 (13 July 1999)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA/LUSAKA (CRIMINAL JURISDICTION) SCZ APPEAL No.4 OF 1999 STEVEN LUNGU Vs THE PEOPLE APPELLANT RESPONDENT Coram: Chirwa, Muzyamba and Lewanika, JJS For the Appellant: In Person For the Respondent: Mr. R. Okafor, Principal State Advocate 1st June and 13th July 1999 ____________________ JUDG MENT 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 15 years imprisonment with hard labour. The particulars of the offence were that Steven Lungu on the 24th of day of April 1997 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia jointly and whilst acting together with other persons unknown and whilst armed with firearm did rob Tom Zulu of four pigs valued at K200,000-00 the property of Zambia National Union of Teachers and at or immediately before or immediately after such robbery did use actual violence to the said Tom Zulu in order to prevent resistence to the property being stolen. He has appealed against conviction only. The brief facts of this case are that on 24th April 1997 PW.1, Tom Zulu was guarding some pigs at Zambia National Union of Teachers farm in Chamba valley. Around 03.00 hours he heard some noise at the piggery. He went to investigate and saw the appellant whom he knew before. The appellant who was armed pointed a gun at him and said to him "if you move I will shoot you". After the appellant had left PW.1 counted the pigs and found that four were missing. He then reported the matter to PW.2, Fredson Banda. The two followed the trail of blood which led them to the appellant's house. After that they reported the matter to Munali Police Post and in company of PW.4, D/Const. Lewis Mpunckj Kasongo they went to the farm and after PW.4 had inspected the piggery they again followed the trail of blood up the appellant's : J2 : house. At the appellant's house they found carcasses of pork on the roof of the appellant's house. The appellant was not at home. Later the appellant was arrested and charged with the subject offence. The appellant argued one ground of appeal that the evidence against him proved a lesser offence of stock theft. He argued that the prosecution did not adduce any evidence of force applied against PW.1 and therefore that he should have been convicted of the lesser offence of stock theft. For the respondent, Mr. Okafor argued that evidence was led by the prosecution that the appellant was armed with a gun and uttered the words “if you move I will shoot you*. That the presence of a gun and threats used amounted to force. We have considered the judgment of the learned trial Judge, the evidence on record and the submissions by the appellant and the learned Principal State Advocate and we are satisfied that threats were used by appellant against PW.1 and that the offence of aggravated robbery was committed. The appeal against conviction is therefore without merit. It is dismissed. No appeal lies against the minimum mandatory sentence of 15 years imprisonment with hard labour. D. K. CHIRWA SUPREME COURT JUDGE W. M. MUZYAMBA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE IN THE SUPREME COURT OF ZAMBIA SC2 APPEAL NO. 133 OF 1997 HOLDEN AT LUSAKA (Civil Jurisdiction) B E T WE E H : AGIP (ZAMBIA) LIMITED APPELLANT AND ENES MUNACHILEMBA RESPONDENT Corara: Sakaia, Chaila, Chirwa, JS 26th March, 1998 and 22nd June, 1999 For the Appellant : Mr. E. C. Lunqu, Andrea Masiye & CcMpany For the Respondent : Mr. N. Sikatana, Veritas Chambers JUDGMENT Chaila, JS, delivered the judgment of the court. This is an appeal by the Appellant against the decision of the Industrial Relations Court which made certain orders in favour of the Respondent. The delay in delivering the appeal is regretted, but it was deu to circumstances beyond our control. The brief facts of tne case were that the respondent was an employee of the appellant company and she was employed as Confidential Secretary to the Marketing Manager. She worked for 14 years. Her work performance was unemhlemi shed until some differences ensued between her supervising officer over loss of a contract document. She was accused of having been responsible for the loss of the decurrent. The Managing Director, when he learnt about the loss of the decurrent, threatened her with dismissal. The Human Resources Manager was brought on the scene and tne respondent’s services were terminated using Clause 2.5 of ZIMCO - J2 - Conditions of Service. The court found that the use of Clause 2.5 of ZIMCO Conditions of Service was a camouflage and that the resporxient was entitled to know why her services were terminated. The court made three orders; the first one being that the respondent be paid her salary arrears inclusive of any allowances from 16tn December, 1994 to the date of judgment with interest at current bank rate. Secondly, the respondent should be declared redundant and be eligible thereby for receipt of redundancy package. Thirdly, the complainant be entitled to costs of proceedings. The learned counsel for both parties have mainly relied on the written submissions. The counsel for the appellant has relied on seven grounds mentioned in the Heads of Argument but in the Memorandum of Appeal, there is only one ground, this is: ■The court misdirected itself when it held that the appellant breached ZIMCO Conditions of Service when it put the respondent on early retirement instead of being put on redundancy.* This ground has been split into seven grounds which were argued before us. The main theme of the appeal is that the court should uphold the retirement which the respondent applied for and which was granted. Ihe other area which gave rise to the complaint by the appellant was that the court below ordered the retrenchment and ordered that the respondent be paid her salary arrears inclusive of any allowances from 16th December, 1994 to the date of judgment when she had been paid her retirement package. Mr. Umgu has argued that his client would have no complaint if the court confirmed the company's retirement and that the court's order should have ended on 16th December, 1994 not the date of judgment. Counsel for the respondent Mr. Si katana has also relied heavily on the heads of argument. He has argued that the evidence snowed that the respondent was forced to ask for retirement. Retrenchment was higher than retirement. He urged the court to uohold the retrenchment as ordered by the lower court - J3 - «e have seriously considered the submissions from both counsel and evidence on record. There is no doubt that the respondent after being threatened with dismissal applied to be retired. There is also no doubt that her colleagues were declared redundant and were given better packages. The court below concluded that she had been unfairly treated and ordered that she be retrenched and be paid arrears. From the facts, the court cannot be said to have misdirected itself when it ordered retrenchment but the court went too far when it ordered that she be paid arrears on salaries and allowances from 16th December, 1994 to the date of judgment with interest at current bank rate. That was a misdirection. The court should have only ordered redundancy and be paid whatever she was entitled at the time she separated from the company. The interest should have been at an average deposit bank rate. The appeal against order for retrenchment is dismissed. The order that the respondent be paid her salary arrears inclusive of any other allowances from 16th Decestoer, 1994 to the date of judgment with interest at current bank rate is set aside and in its place we order that the respondent be retrenched with effect from the date when she stopped work. We order further that the money already paid on retirement be taken into account and whatever is due to her will carry interest of an average deposit bank rate. She will also be entitled to the costs of the lower court and this court. E. L. SAKALA SUPREME COURT JUDGE M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPROE COURT JUDCE IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 104 OF 1996 HOLDEN AT KABWE (Criminal Jurisdiction) DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT VS CHARLES BANDA RESPONDENTS COVACKS MWAPE SAMPULE Coram: Bweupe, DCJ; Chaila, Chirwa, JJS 20th April, 1999 For the Appellant : Mrs. E. M. Chipande, Assistant Principal State Advocate For the Respondents : Mr. Anderson Mulemena, Senior Legal Aid Counsel JUDGMENT Chaila, JS, delivered the judgment of the court. The Respondents were charged with various offences of aggravated robbery and murder. They went through a long trial and were convicted on some counts. They were convicted on two counts of aggravated robbery and were sentenced to 15 years imprisonment with hard labour. In this appeal, we shall limit ourselves only to two counts. These are counts 4 and 9 of offences of aggravated robberies. The appellants after being convicted were sentenced to 15 years imprisonment with hard labour. The State not being happy with the imposition of 15 years imprionment with hard labour lodged an appeal against the two sentences. As regards count 4, the statement offence was aggravated robbery contrary to Section 294(2) of the Penal Code. J2 The particulars were that the two Respondents in Lusaka in the Republic of Zambia, jointly and whilst acting together and whilst armed with a firearm, did rob ALTYELE MWALE of a motor vehicle and at or immediately before or immediately after the time of stealing the said property did use a firearm. Count 9 was again armed robbery contrary to Section 294(2) of the Penal Code. The particulars were that they on 22nd February, 1994 at Lusaka in the Republic of Zambia, jointly and whilst acting together and whilst armed with a firearm, did rob ENNIE BANDA of various properties and at or immediately before or immediately after the time of stealing the said property used a firearm. The learned trial Commissioner convicted the two Respondents of these offences and sentenced them to 15 years imprisonment with hard labour. The learned Assistant Principal State Advocate has submitted only one ground and this ground is that the learned trial Commissioner erred in law in not imposing the mandatory death sentences. She argued that the sentences of 15 years imprisonment with hard labour were against the provision of the law which imposes mandatory death sentences and that the imposition of 15 years imprisonment with hard labour was a misdirection and has urged this court to correct the situation. Mr. Mulemena, Senior Legal Aid Counsel for the Respondents has left the matter to the discretion of the court. The law in question is very clear. Section 294(2) of the Penal Code provides: "Notwithstanding the provisions of subsection (1), the penalty for the felony of aggravated robbery under subsection (1) shall be death - (a) where the offensive weapon or instrument is a firearm, unless the court is satisfied by evidence in the case that the accused person was not armed with a firearm and - - J3 - (i) that he was not aware that any of the other persons involved in coomitting the offence was so armed; or (ii) that he dissociated himself from the offence immediately on becoming so aware; or (b) where the offensive weapon or instrument is not a firearm and grievous harm is done to any person in the course of the offence, unless the court is satisfied by the evidence in the case that the accused person neither contemplated nor could reasonably have contemplated that grievous harm might be inflicted in the course of the offence. The Respondents were convicted of the armed robbery cases and the learned trial Commissioner in imposing the sentences of 15 years imprisonment with hard labour acted contrary to the law which imposes a mandatory death sentence. We agree with the learned Assistant Pr-inci pal State Advocate that the learned trial Commissioner misdirected himself in not following the mandatory provision. The appeal is therefore allowed; the sentences of 15 years imprisonment with hard labour are set aside and in their places, that in respect of count 4 and count 9, we impose death sentences. B. K. BWEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE