Evans Ivil Chama and Anor v The People [1987] ZMSC 93 (8 December 1987)

IN THE SUPREME COURT OP ZAMBIA APPEALS NOS 30/31 OP A'l' NDOLA (Appellate Jurisdiction) BB'l'IJBBNa 1. BVANS IVIL CHAMA 2. DBRlCK NBLODY MUSONDA NULBNGA Appellants and TIIB PIOPLB Reapondent CORAN1 Silungwe, c. J., Gardner, Ag. o.c. J., Cbaila Ag. J.s. 8th December lt87 For the Appellant• ror the Respondent a In per•on. Mr. P. NWila9a, Direator of Public froaeautio•• JU . D : G N B N '1' SilunQwe, c. J., delivered tbe jud9■an~ of the court. Both appellants - Bvan• Xv~l Chua and Deriak Melody Muaonda Nuten9a - were jeintly charged with r•llx Bwalpa witb the off•nce of agor••atecl robbery, -•nt"_ary te aection 294(1) of tbe Penal Code, ebapter 1,6. . ":- The preaecnation evidence, eapeeially that of PWl - the complainant - revealed t~at 4urino tbe ni9bt of octuer 20, 1183, •• he was retumint fr•• Ediuurgb hotel in Kit~• where be worked ·•• a waiter, be was suddenly aet upon by about three ••n: be atru99lad witb the• -u• waa not able to atop tbe a•aailante fro■ depriving btm of bis wriat·watah. 'l'be chain o~ the wri•~ watch snapped lhlrin9 the struggle and a piece thereof ra■ained in PW1 1a posaeaaion; thl• piece was later produced in evidence and marked Exhibit P2. ) \ \ \ J2 - During the trial, the learned trial judqe acquitted the third accused, Pelix Bwalya,on the ground that the only evidence implicating him was that of a co-accused-the first appellant - Evans Chama. This morning, the learned Director of Public Prosecutions has told us that the state does not support conviction againa~ the second appellant~ Derick Melody Nuaonda Mulenga-for the apparent reason that he was c·harged with this offence on the basis that he had been found in the house of the first appellant fro■ which the complainant•• wrist watch waa recovered at 0230 hour• during the night of the robbery, that was a few hours after the co■■iaaion of the cri■e. There was no evidence adduced by the pro■ecution to abow that the second appellant was in any way implicated in the robbery, other than tbe fact that he was found in the first_ appe~l~~t•s residen~e when the stolen watch waa recovered. Further, there waa notbin9 to indicate that be waa aware of the presence of the stolen watch in the firat appellant•• house or tbat be had acted in concert with him. It would· appear on the evidence that the second appellant waa possibly an innocent visitor and, as such, he could not be said to have been in recent poaaesaion of the co•plainant•s wrist watch. It is because of this realisation that the learned Director of Public Prosecutions has, quite properly, indicated that the State does not support his conviction. It follows that it would be unsafe to allow the conviction aoainat tbe second appellant to stand; accordingly, the conviction is quashed and the sentence of fifteen years imprisonment with hard labour is set aside. - J3 - As regard• the first appellant, the complainant•• wriat watch waa found in a cupboard in his residence within a matter of . -few hours after the robbery bad taken place. He was bimaelf found bidino under a bed. According to the proaecution evidence, the third appellant (hereinafter ra refer.red to•• the appellant) told PIIJ3, tbe detective aonatable who waa tbe investigating officer in thia caae, tbat tbere were two wriat watahea wbicb bad all99adly be•n ~re1&9bt to bi• by hia friend - Pelix BWalya - tbe thi~ ~~- aceueed at tbe trial. He waa led to Pelix Bwalya•• realdenae wbo, •• Ming aonfroated witb the allegation aaain■t bia, denied bavin9 had anytbino ~o do with the -two wrist watebea; be in point of fact denied any knowled;e of thoae wriat wa~chea. In bia evidence on oatb, the appellant testified tbat be bad not told tbe police anytbln9 about the complainant•• wrlat watebea. The wrist wa~eb eomplalned of bad incidentally been praperly identified ud it bore tbe naae •T. K. NgeleaaniN as it bad pravtoualf bean 9ivea to tba complainant by Mr. Njeleaani as a present. The appellant further teatlfied that , .the poliae bad told lies againat him conaernia9 the wriat watches. In hi• additional ground• of appeal, however, he n·ow •ays that the evidence olven by the police••• correctf this is in direct oonfliot with tbe evidaaae which he gave 1n aourt. Ne are satisfied that on ~be evidence before him, tbe le•raed trial jud9e did not misdirect himaelf by accepting the prosecution evidence and rejectino that of tbe appellant. Purther, we are satisfied that ~he learned trial judge properly applied the doatorine of recent poaeesaion when be convicted the appellant aa charged. - J4 - The appellant submits that he should have not been convicted aa he had given an explanation. His only explanation in evidence eonaiated of a general denial, na■ely, that he knew notbino about the wrist watch in question. The learned trial judge was clearly entitled to find that that did not ••ount to a reasonable explanation. Consequently, the appellant's conviction waa well foubded. Bis appeal a9ainat conviction ia thus dismissed. The appellant baa appealed against aente.nce aa well. It ia not co■pa~ent for this. court to disturb the senteaae of fifteen year• l■priaon■eat with hard labour it bein9 the ainimuffl mandatory sentence. The appeal against sentence ia alao dia■ia■ed. • •••••••••••••••••••• Annel M. Silungwe CHIEP JUSTICE ••••••••••••••••••••• B. 'l. Gardner AG. DEPUTY CBIEP JUSTICE ........••..••.. , .... M. s. abaila AO. SUPREME COURT JUDGB