Martin Siame and 3 Ors v the People (Appeal No. 53, 54, 55, 56/ 2021; Appeal No. 53, 54, 55, 56/ 2021; Appeal No. 53, 54, 55, 56/ 2021; Appeal No. 53, 54, 55, 56/ 2021) [2025] ZMCA 98 (23 May 2025)

' IN THE COURT OF APPEAL OF ZAMBIA Appeal No.53,54,55,56/2021 HOLDEN AT LUSAKA AND KABWE (Criminal Jurisdiction) BETWEEN: MARTIN SIAME MISCHEK PHIRI YOT. AM MBEWE JACK CHANDA AND THE PEOPLE 1 s·r APPELLANT 2ND APPELLANT 3RD APPELLANT 4 Ch APPELLANT RESPONDENT CORAM: Mchenga DJP, Kondolo and Sichinga JJA ON: 20 th January 2022 and 23rd May 2025 For the Appellant: K,C. Bwalya, Legal Aid Counsel, Legal Aid Board For the Respondent: M. Tembo-Wedza, Acting Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to: l . Mwiya Mu:..eya a::d Another. v . T:-.e ?eopj_e, CA/, Appca:..s :--To . 6, ·1 of 2016 2 , Jackson Kamar1ga a~d Other.s v . The People , SCZ AppcJl ' J2 No 30 Of 2020 3 . Esaya Mumpasha and Two Othe,s v. The People, SCZ Appeals No . 12 ,13,14 of 2021 David Zulu v. The People [1977] Z. R. 151 The People v. Alex Muhau Kalanda [1981] Z. R. 308 F'rancis Kamfwa v. The People, SCZ Appeal No. 125 of Chilimba v. The People [197:.] Z. R. 36 Kalobwe v. 'T'he People [19681 Z. R. 97 Chomba v. The People [1975] Z . R. 215 1. 5 . 6 . 7. 8. 9. 10. Isaac Njovu v . The People, SJZ 19 of 2018 Legislation referred to: 1. The Penal Code, Chapter 87 of I.he Laws of Zambia 2. The C,iminal Procedure Code, ChapI.er 88 of the Laws of Zambia l. 0 INTRODUCTION 1.1 We sat wiI.h Mr. Justice Sichinga when we heard this appeal. Mr. Justice Sichinga has since ceased to be a member of this court, and this is the,efore a majority judgment. 1.2 The appellants appeared before the High Court (Banda BQbo, J.) , j oinI.ly charged with four counI.s of the offence of aggravated robbery contrary to Section 294(1) of the Penal Code. • J3 1.3 'l'he .:.nfcr:-:-,i:l::i.on alleged t:hat: !:he robbery ln coi..:nt: l was ccm::-.i ::ted on 3,,:; Cece::1be.:: :?.~ll ·.; the :::-obbe.ry .:.n ccun:: 2 •,;as co:-:-,mi ::ted on 3 ,,j Februi:lry 2 o ·. '?; ::he robbery .:.n c:ounl 3 •,;as com::-.i ::tcd on 3,·n Ma:::-c:h J. O :..2; cJnd ::he robbery .:.n er) t:n t: 4 w us com::-. i. t: te(i on / 2~-.a ;-.•r u rc:h 2012 . 1.4 The appellanl:s denied the cha:::-qes ln all the four co·:Hl t: s cJ nd the ma I: Le:::- proc:e edec: tc Lr i.al. A:: t:he enc of -.:he l:r.:.i:l;, they we:::-e all foi..;nd gi..;: l ::y of co::1ln.:.t:t:lng the cf.:ences in i:l 11 ::he fot~.r c:ct~nl:s. 1.5 'l'he 1 st i:lppel lcJnl was sentenc:ec: ::o ::hi:::-Ly years imp:::-i sonmenl: fn.:: the robbe:::-y .:.n c:iunl: ·1; sixty yecJrs i.m!Jrisonmen:: fo:::- !:he .::obbery :.n count 2 ; t:•,;ent:y-f.:.ve years .:.::;pr ls on men t for -.: he .rcbbe ry ln c:o-. Jnt :3; a nc: thir::y yea.rs lr.prisonmcnt fo:::- the robbery .:.n cot~nl: 4. 1. 6 In \:he c:a sc o.: -.: he 2 nd , 3 rd and 4 t,, ap!Je l ; i:ln ts, they •,;e.re eac:h sentenced to Lwenl y years .:.mpr lscn::1en :: :'.: :ir !:he rn::ibe.::y in c:oi..;nt l; Lh:rly yea.rs l~p.rlsonment: for ::he robbery in coi..:nt 2; an(i fi.:Leen yea:::-s lmp:::-lscnment: f c r !:he .::nbbe.:: :. es in c:oun ts :'l cJ nd 4 . 1. 7 'l'he -.:rial ,Jt~(ige di.::ec:t:ed ::hi:lt i:l l l ::hesc sentences ,,,ere Lo .ri..:n c:cnct~r .::en I:; y. 1.8 'l'he appellants have ap!,)ealed agi:l.:.nst bo::h ::he.:..:: ♦ J4 convictions and t:-ie sente...1ces imposed on them. 2. O CASE BEFORE THE TRIAL JUDGE 2.1 0...1 3°0 December 2011, Mulombe Nkhoma who was asleep with his wi te Li...1da Nkhoma, were attacked at the.:..r hoi..:se in Olympia Park , Lusaka. Burglars who we.::::e armed with machetes a...1d iron ba.::::s, entered the bedroom and dema...1ded fo.:::: money and cell phones. They threatened to ::::ape L.:..nda Nkhoma a...1d only left after being given some mo...1ey, they also stole electronic household goods. 2 .2 On the 7' 0 of Apr.:..! 2012, Ml:iombe Nkhoma anci his wife attendee a...1 identification parade at Ell\f,".asdale ?olice Stat.:..on. Mulombe Nkhoma identified the 1'' a...1d 2 nd appella...1ts, while his wife o...1ly identified t'ie 1 st appellant, as me:nbers of the gang that robbed them. 2.3 In the early hours of 3~ Februa:y 2012, a gang of bu.::::glars b:::oke into a house in Chlpata Compound, whe.::::e Azifa Banda was spe...1di...1g a night w.:.th his gir !friend Ca.::::oline Kabesha; the burglars entered the bed:oom where they were sleepl...1g. 2. 4 The burgla.::::s who were a.::::med w.:. th iron bars ciemandeci for mo...1ey. Despite Azifa 13anda giving them the money, they st.::::uck him w.:..th a machete and he started bleeding. .. JS Before leav::.ng they took tirr,e to eat the food in the kitchen. 2.5 Azifa Banda was able to disarm one of the burglars and str.i.ke him several times, as the burgla2:s ·were fleeing. 2. 6 On 7 1 '' of April 2012, at a parade conducted at l!;ntnasdale Police Station, Az::.fa Banda identified the l st and 3!0 appellants, 'while Caro 1 ine Kabesha identified the 1" and 4 "" appellants, as being part of the gang that robbed them on 3rc February 2012. 2.1 In the very early hours of 3 r.d December 2011, Lady Justice Chanda, was at home in Rhodes Park, Lusaka, with her niece Chitundu Bwalya, when a gang of burgla2:s broke into their house. 2.8 The burglars who were armed with machetes and iron ba2:s, der,·,anded for money. They were g::. ven some money and the2:eafte2:, they stole an assortment of electrical household goods. 2. 9 At a pa2:ade conducted at Emc'.lasdale Police Station on 7t:c April 2012, Lady Justice Chanda identified the 1st and 3 rd appellants, as being rr,errbe2:s of the gang that .. J6 robbed her :in 3rt December 2 O.i 1. Iler n.:.ece .:.dentif.:.ed the 1 st appellant ut the same para::le. 2.10 The last robbery wc1s on 22"d March 2012. In the eurly hours of that day, Charles Imasiku was usleep at his house in Rhociespark, Lusaka, when a gang o: burglc1rs broke in. His wife and daughter were also in the house. 2.11 When the burglc1rs got to his bedroom they demanded for money. When he res.:.sted they chopped his hund. The burglars stole a number of electr.:.cal goods and left. 2.12 Churles Imasiku was rushed to the hospitul where he was admitted for close toil week. 2.13 On the /l·11 o.: April 2012, at an identif.:.cation parade conducted at E.:r.masdale Police Station, Charles Imas.:.ku identified the pt appellant, while his w.:.:e identified the 1" 1 c1nd 3rd appellants as being members of the gang thut robbed them. 2.14 The appellants where apprehended on the 2nd o: April 2012, following il tip off from Caroline Kabesha. 2. 15 On thu t du y, Caroline Kabeshu who wus wc1 l king to her work place, suw the 1st appellant who she recognised as one of the burglars who had attacked them on 3"' E'ebruary 20:i2. • • J7 2.16 She i~fcrr.-ed Lawrence Shaba, c1 pol.:..ce reservisL, cf this sighL.:..ng. W:th the help cf <>Lher persons, Lawrence Shaba apprehended Ll:e :•t ap9ellant. 2.1 '1 '!'he 1••· .. appella::t. was t:a:-<en t::i r:m~.a.sdale P:il.i.ce SLaL.i.o:: and handed over to l~specLcr lvJ1..;l1..:kwen.:... The 1,,. appe llant .~ed :::sper:t:or Mukt:kwen: and nther police of~icers Lo Lhe apprer.e~sio~ n~ the 1' appellanL. 2 .18 ':'he 4 .1, appel 1 ant then led. Lha L Lear.-. Le !:he apprehe~s.:..o~ er tr.e 3,,, appellant, whc in turn led. the~ 2.19 ~ro~ Lhe 2•i appellant's house , tw:i .:..ro~ bars where recovered. The~,,~ appella~L then led Lhe pcl.:..ce Lo Lhe recovery :i~ t:a.:..r straighteners stole~ from lady Jt:sL.i.ce C:t:ancia' s hn· .. 1.se. 2 20 -1-e ~··•·n11-1·i•'~ de-n--er , .• ~ere b--e rier1•-1~ ~hny . .,_ .. v ~ vv1: ,""JJ:1/:1'--·· a . a.~. ; a.:.. ,..... .,_ ..., ..., • . .... - - all <ienied being .:..n .:..nvrll ved .:..n any o:: Lhe rob:Oer .i.es. 2.21 T~ tr.e ~a:n, Lhe Lrial Jt:dge found. LhaL the case ~vide:·,ce aga ins L Lhe appella:: Ls wc1s c1nchore<i on eye w.:. Lne s -~ ev .:..dence r rom v:_c t::_:~.s. 2.22 She fcund LhaL Lhe ev.i.de~ce cf Lhe victi~s in a]l tt:e ccu:--:ts, was supported. by witnesses wr.c sne classified as 'suspect witnesses' c~ accct:~t cf being JS relatives. Notwithstanding, she found that the E)Vidence o!: those witnesses was corroborated by 'similar facts' evidence. 2.23 In al: thE) robber~es, the burglars were armed with :nachetes and iron bars; they would dE);nand :or money; they stole electrical goods; and they would be in a gang of four to six pE)rsons. 2.24 As regards the identification parade, she found that it was conducted in accordancE) with the prescribed standards. She also considered the possibility that the w~tnesses could have made an honest but :nistaken identification. 2.25 She found that in all the four robberies the appellants interacted with their victi:ns for considerable periods o: time in well-lit environments. fiS a result, shE) rulE)d out that possibility of mistaken identification. 3. O GROUNDS OF APPEAL 3.1 Two grounds have been advanced in support of the appeal. 3.2 In the first ground of appeal is centred on J9 conten::ion :..hat tl:e trial Judge .should net have :::-elied on evidence tr.at the aoi:;ellant.s ::::onfe.;,sed, anc! lee! the pol i ::::e to tl:e rec:c;vc·:-y o: ::..:-:crim.:.naticn cvidc::::::e, because Ll:ey were net wa.r::ec! and caut' onecl p:::-::.c:::- ::c I.he.:.= vc,lunteerinq ::he inc:rimina~i~g evidence. 3.3 '!'he .seco.:-:d ground of appeal is concer.:-:ec! w.:.th the sentenc:e. It is contended tl:a. L in the ab.;,cnce cf proc:f cf a prcviou.s co.:-:vi c:t ion, ::he 1 s:. apoella.:-:t ought to have bee:: ::~ea::ed 1.:.~e a fir.;,t offender. It was also co::::e::dcd Ll:a.:... tl:e .;,cn~cnces imposed. en a..:..l -:-.he apoella..:-:ts fai I ed to ::ake in::o account cf the fact ~r.at tl:ey were firs:: offe::der.s. 4.0 CONSIDERATION OF APPEAL AND DECISION OF THE COURT 4.1 ~he firs~ ::.ss~e we w.:.11 c!ea.:.. wltl: i.s ~he ::::cn::ention tha~ cvi clence tl:at :..he ai:;pel.:..a.nts I cd ~he po I ice to va.r.1C1u.;, p J aces and ::hat ::hey made .:.nc:rim.:.na.tlng .s La. :...e:-:-.e::t.s on ~r.c' ·:- apprehens::.cn, sl:01.:ld no:: have b(:(:.:-: admit ~cc! i:::: c ev::.d0::ce bee a .1s e coL.:n.;, (: l u,pres en L .:.::g ~he::-., was n c:: i nv.:. ::ec! to con r .:.rm :..ha L :.he re was .:-:c C~)~ ec~ion to i ~s production. 4.2 •~•he cases of Mwiya Muleya and Another v. The People1 , JlO Jackson Kamanga v. The People2 uc.d Esaya Mwnpasha and Two Others v. The People3 , '.-Jere :::-ef e:::-red t :i : n s uppc rt 4.3 When I:::spocto~ ~ukukweni a:::d :1t!10~ police office:::-s q c.-:.. ve cv :..den::e, they ::-.ade rcfo:::·enc0. to :. nc r :.mi c.a t.:.:·,c ,, statemen•.:s qiven by appe:. Jan•.:s on their appeJ Luc. t :.ed tr.cm to app~er.ens io:. of .,~:o tr.er, u~: ti:. all tho four appellunts we~e app~ohcnded. 4.4 In addltloc., tl:e wil:::esses gave 0.v:.dence on how ~hey were .1.ed t:1 the ~eccve~y of sto.l.ec. prope~ty. 4.5 We ag~oe with tl:e sub::-.ission tLat detai.:s of. the ~ :-,crL::-i :::at i :::g s ta ':emen ::.s t:, e appe l la::: s:s rJ ave on the.:..::· a ~rest, b ~~,. ' - ' - · . • ,Jm.1· t •· ed • ..., <,;. '· ' ,. •·o - · • ..., evtde:.ce, uny obj ec•.:ion to its p:::·c:duct.::.c:n. 4.6 Ho;,-:cve~, we find t:1c,t th.:.s :.apse d.:.d n:it p~ojud.::.co t~c ap!)cll unts :.n a~:y w.,y because tr.e tria:. .:-udgo dld not rely en tl:at evicience wt:e~: ar:::·ivi~:g at !1er verdict. ccnv .:.c ti o~-:s g:::-oundeci .:.dontiflcatic:;. evidence glve;. by ~~el~ victims. 4. 7 T:io appella:-,ts ·,,e:::-e 'ea.s:.ly' lde:~tlf led by t;--ielr • Jll victim's because of the manner in which all the four robberies were committed. 4.8 In all of the four robberies, the appellants broke into the houses of their victims and switched Lhe lights on . They made no effort to conceal their faces and in all the cases, they harassed and conversed with their victims for periods of between 30 ~inutes to an hour. 4.9 In the circumstances, we find that trial Judce cannot , be faulted for finding ~ha~ all the identifying witnesses had a good opportunity to see and identify the appellants. We also find that she was entitled Lo rule out the possibility of an honest but mistaken identification, on this basis. 4.10 Although we have upheld Lhe trial Judge's assessment of the identification evidence, it is our view that iL is necessary to examine how that evidence incriminated each o: the appellants. 4.11 The evidence in support of Count 1 was given by Mulombe Nkhoma and his wife, Linda Nkhoma. Mulombe Nkhoma identified Lhe 1•= and 2"6 appellants, while his wife only identified the 1"1 appellant. 4.12 There was no identification evidence or any other • Jl2 material evidence, incriminating the 3rd and 4~ appellants. This being the case, we find that the 3,<1 and 4u: appellants were wrongly convicted and we acquit them of Lhe charge in Count 1. 4.13 Coming Lo Count 2, the evidence incriminaling the appellants are Lhat given by Azifa Banda and Caroline Kabesha. Azifa Banda idenlified Lhe pc and 3rd appel lan Ls, while Caroline Kabesha the 1 • t. and 1th appellant. 4,14 The 2'"; appellant was not identified or linked to the robbery in Count 2, by any material evidence. In the premises, we find Lhat Lhe 2"" appellan L was wrongly convicted for the robbery in Count 2 and we acquil him. 4.15 As for Count 3, Lady Justice Chanda's identificalion evidence and thdt cf ~er niece Chilundu Bwalya, incriminated the appellanLs. Lady Justice Chanda identified the 1-'' and 3,d appellants, while her niece identified the appellant. 4,16 Since the 1 1i: appellant was not linked to that robbery by any r.-,aterial evidence, we find that he was wrongly convicted for the offence and we acquit him. 4.17 The evidence linking the 2nc appellant to the robbery Jl3 al Toady Justice Chanda's ho·-1se is that he led Inspector Muk~kwe~i and oLher police officers, to the ho~se of one Tina Nya~gu. From thaL house, hair straighteners stole~ during the robbery were recovered. Ti~a ~yangu did ~ot testify. 4.18 Alt.ho·-1gh the trial J.1dge accepLed t.he evide~ce that the zn,i appella~L led Lo t.he police Lo the recovery of that property, she did not specifically deal with the import of this evide~ce. In t.he circumsLances of this case, il is o·.1r view that this evidence, is c i rc·.1ms tan ti al evide~ce which sufficienLly incrimi~ates the 2'"" appellanL Lo t.he robbery al Toady Justice Chanda's house. 4.19 The evide~ce met the tes L set in the case of David Zulu v. The People4 on a convictio~ premised o~ circumstantial evide~ce. It is our view that the only inference that can be draw~ on this evidence is LhaL appellant was one of the robbers beca~se on Lhe evide~ce on record, there is no other explanation of how he could have known where Lhe sLole~ properly was taken, if he was ~o L o:ie of Lhe robbers. 4.20 C::onsequenLly, we .1phold the co~viction of the 2::d Jl4 appellant of the charge in Count 3. 4.21 Count 4 relates to the robbery in which Charles Imas: ku was victim. The appe 11 ants are .:.ncriminat:ed by the evidence of Charles Imasiku, who identj_fj_ed the 1 sl appellant, while his wife identified the 1•~ and 3"' appellants. 4.22 There was no material evidence incriminating the 2"d and 4 .1, appellant, and consequent:ly we hold the view that they were wrongly convicted for the robbery in Count 4 ; we acquit chem. 4.23 We will now deal with the sentences. 4.24 The first issue that was raj_sed in conneccion w:th che sentences imposed in this case, relates to the 1 s1 appellant . Tt was contended that although he was s~ntenced as a person with a previous conviction , that face was not be supported by any evidence. 4.25 In che case of The People v. Alex Muhau Kalanda~ it was held that.: "Once information concerning a previous conviction has been brought to the notice of the court when sentence is being considered, then the court is duty bound to hear evidence concerning the previous conviction in order to make a finding as to whether or not the accused • Jl5 person has had a previous conviction in respect of a rel.evant offence" 4.26 Our examination of the ruling the trial Judge delivered during sentencing, poir;ts at the fact that it was not in dispute that the 1 sc appel !ant had previously been convicted for com:ni tting an offence. In mitigation, the court was called upon to show mercy on hi~ even if this was the case. 4.27 In the circumstances, it is our view that it not being in dispute that the 1• 0 appe:lant had a previous conviction, the fai :ure to formally prove that fact through the production of a court record, did not prejudice him in any way. We say so bearing in mind that the conviction in issue, was not of the kind that automatically compelled the trial Judge to impose a particular sentence. 4.28 The second limb of the appeal against the sentences was that the trial Judge imposed sentences that failed to give the appe~ !ants erect it for being first offenders. 4.29 The cases of Francis Kamfwa v. The People6 and • J16 Chilimba v. The People1 , we::.e ::.efer:::ed to a:~d it was submil:Led that that eve:: if the:--e were aggravacl~g facto::.s, !:he ccc:,c was still reql.:ircd to impose the rnandacory mi:-.irnum senle::ce because the appella::ts were first of:enders. 4. 30 We wi 11 start. with t;1e se:~tences imposed on t;1e 1 "1 appe:.lanc. 4.31 In the case of Kalobwe v. The People8 , l:he app:--oac;1 a court shou.:.d l:ak.e when sentenc: i ng a person wi l:;1 a p:--evious C()nvlcti.on was set out: as folJ.ows: \\a record of past convictions is a reason for the magistrate to deny leniency to the accused, but the length of the record should not result in a correspondingly harsh sentence, for that in effect would be to punish the accused again for his prior convictions' 4.32 Wne:: se:-.tenc:, ~q the 1,· ap-pella~l: i ~ aJ.l the counts, che trial ~Ldge made it c:ear that she had l:aken inLo accou:~t \:he fact. l:hat ;1e had a previous convicl:io::. 4.33 The fact: \:ha\: a fl:::st offe~de:-- i.s entitled to creciil: points al. the posslb.i.l i ty t;1at two : oi.:~t of:ende::.s can rec:ei ve differe:: I: senl:enc:es. Howeve:::, as was pointed out in ::he case of Kalobwe v. The People8 , t;1a-:: s;1ouJ.d ::ot :--esul::. i~ o:~e offe::der ::.·eceivi::g a senl.ence \:ha\: • Jl7 i.s ex::::eedi::-:q.:..y h::1rsl:er t:J-:an t J-:c c:J-:cr cf fender, o:: a ::::coun l. o: :1a v .i.::-:g a E")rcv i cu s ::::onv .i. c: i. o::-:. 4. 34 l t ::.. s 0.1::: v .:.cw t J-:a: t :1e '..r .i.a.:.. J .1dq e e :::red when she .i.mpcsed .subs ::an: i.all y mo:::-e seve:::-e .sent:cn::::cs en :::1e · :;· .. appel.:..a::t 1 n Counts :., 3 and 4 _ 'I'hc ex:ent of l.l:e di.spar.i.'..'( points at: the fact :ha'.. '..:1a:. '..l:is is c:; case :::1c ct her appe 1.:.an l. s rece.i.v.i.nq c:::edit: because of be::..nq [.:..:::st cffen,ic,s. 4. 35 In t J-:c case of l.l:e se::-: Lenee .:. n Coc:n t ?. , t J-:e t :::-i. al ,Tudge jusl.ified it: c:: acccun: of the unwarranted v10.e::::::e J-:e .i.n:licted en :'\.zifa 3anda. 'I'hc 1:;• .. appel la::t :::::1opped off l:is th.1mb eve:: a:' l.cr nc.i.::-:g gi vcn ::1c mo::cy J-:e had cJ s ked for. I::: l. J-:e ::i:::cL;ms ::a::-:::c.s, it: is our view :J-:al. tie ::::-ial JLdqe cannct be fa.11 '.:ed fc::: :..mposinq a mere sevc~c scn:encc en ~lm. 4.36 Even '..hcuqh jcint offende:::s ca::: a.:..l be hel,i :::esponsibl c for anl'.icipal.cd 1nj ury ::au.se,i by one of 1'. J-:cm, wJ-:crc enc cf.:.c::ncr goes o·_il'. of U:e way '..c i::fl.i.ct unwar:::an'..ed inj·.1:::y, a t:rial court is en'. . .i.'. . .:..ed Lo impose a more severe senl.en::e o:: such an offender. 4 . 3 7 l n th i s :::: a s e , the 2 "'\ 3 rn a:: d 4 ·-" a pp c : l an t: .s we, c • • Jl8 sen::enced as fo.1..1.ows; counl 1-20 yc~ars; c::i'..;n~. 2-30 years; co'..;nt 3-15 yea.rs; and count 1,-15 yea~;,. l\.s f~ir 1-20 yr!ars; coun:: 2 - 60 y,~ars; count 3-25 years; and '"i··1·1~ , .. ,,., ........ ' <Q ·v..,~r~ ' ! - .. , ...... - .. J . 4. 38 The sen u~ncc~s imposed on th,~ 2'"', 3' '' o nd r, t:, a ppe l lan t r.avr! bee~ cril~cis~d f::ir being ~arsh as t~0y we:e nol ref.ecliv~ of :he !ac:~ L~al th0y ~ere firsl o~fe~d~rs. We :c::,ke i L :hat :his c:ri ::ici sm ·,;as tc::,rqeled as count;, 1 and 2, because Lhc~ tria.l. Judge impoMr!d thr! mandatory minimum sen u~ncc~s ::i! 15 years, in c::iun ts 3 and ,J • 4. 3 9 T!1e evi dr!nc,~ sr.ow s Lr.a.:: during :he Y obbe =y in c~rnn: 1 , tr.c appe.1. .a.:-: LM :hrr!a tc~ned to rape Linda Ni:homa, a '"lm- .. ,-..., (l . . v,.• ···he '·c1~ VY ;.:> 1-.,..,~ . . 1· l\r "'rr-qnan~ .;.1 ... c1v .. /:' ., ._., '•l1en •··-..,v •·h('llgh~ ... ..1 .... :J .: . _ •. ; :. hus:::iand wc1;, nol vi c~ldi n:; to their demands. '!'h.:.s was - J l:iql:ly traum<J.ti;,ing a:-:d i :: is our view that Lhe Lrial ~!1e mandatc:y reinimum ;,enlenc:e. 4. 40 During t;-.r! rotbe~y in co;.:n L 2, l\:L. ifa Banda' 3 thurrl:: desp:.te yie.l.ding Lhe appe lanls' de~a~dM during th~ :::itbery. Similar y, tl:e '..:nwa=ra!:ted us,~ of vi::i ·.ence, worronted Lr.e imposition • Jl9 of a sentence other than ::.he mandatory minimum sentence. 4. 41 Consequen ll y, were flnd no merits in the appeals agains:. ::he senlences imposed on the 2"d, 3 rd and 4t~. appellants in counts 1 and 2 and we dismiss ::hem. 4.42 As for lhe l" t appellan::. we all.ow the appeal on ::.he sentences imposed on him, hav~nq found lhal lhe trial Judge erred when she enhanced the sen::.ences imposed on him on account of him not being a f~rst offender. 4.43 Wilh the exception of Count 2, we sen::.ence him to the same sen ::ences as those imposed on the other appellants. 4.44 As for count 2, we sentence him lo 35 years imprisonment with ha.rd labour. This is on accounl of the ir1~ u.ry he inflicled of Azlfa 3anda. 4.45 3u::. the mat::.er does no::. end ::.here. 4.46 Section 15 of the Criminal Procedure Code provides that where a court .'.s .'.mposinq a number of sen::ences, such sentences may run concurrent or consecutive to each o::.her. 4. 47 In the case of Chomba v. The People9 , it was held • • J20 t:-ial •where t:1erc arr. a sr.ri r!S of o::te::ces torr:-.i ng <1 course o.:: cond·Jct, the sentences will .r-. Jn co:~cur .::·ently. HcHw~~-.rer, w:le.re the.re are a :-:·. Jm1)e:r of ot f0.nccs, that do ~ot arise 011l of a co:1rsr! nf ca~d. Jct, such sentences wlll Yun consecul.:.vc:y. 4.48 What a~ou~ls lo "a course of cond. Jct" was cons.:.dered ln L:10 ca sr. of Isaac Nj ovu v. The People10 . ::- t w<1s r,o: nted O. Jt lha L Lhere ls a ccuY sc ot conduct where a ::-.umber of o::.:'.:r!nc:r.s are committed .:.::-. the course of o~:e criminal r!xpcd:ticin. 4.49 T:1c robber: es 1n th.is case, hav.:.ng br!r.n c:immi ttr!d :i:: and , n di fferr!::t loc<1l i ties, .:. t obvious L:1a l lhr. y wr. rr! : ndr.pr!:~dcnt of ea.ch o t:-ier a::-.d cu::-.not be cateqo.::·.i.sed as being a scr .i.cs :it :iftr!::ccs a r i s .:.::-.q o·. J t o.:: a co ur sr. :it c:ondnc: : .. 4.50 ~his is ncit to say that the ~ere .::ac~ that o~~ences wcrr. car:-.r:-.ittr.d ln di ::fcrr.nt p·1 ucr.s or on di ::fcrr.nt days, w.:. ·1 · . Lr! ad to a cone. Lu s i an t:1a t t:1cy d.:.d no l t orrn a c:ou:::sr! ot ca::d·.1ct. 4. 51 ':'he dr! lr!rr:· . .i.::an l .:.s whc~ lhcr lhr. of fences can be c:o::s.i.dcrcd ta :1avc br!r!n cm:·.m.:. L lr!d .:.n L:10 co·. Jrse of t:-ie same er i m: na ·1 exr,r.c.:L ti on. ' • J21 4.52 In some cases, a criminal expedition may stretch over a number of days or spread to different places. An example being an offender who abducts a woman and repeatedly sexually violates her, over a number of days while moving with her from one town to another. 4. 53 Since the offences in this case did not form a course of conduct, it the sentences imposed on the appellants, should have ran consecutively and not concurrently. 4. 54 That being the case, we set aside the trial Judge' s order that the sentences run concurrently and in its place, we order that the sentences will run consecutively. 5.0 VERDJ:CT 5.1 The appea:s against conviction are upheld to the extent that: (i) •rhe 3,d and 4th appellants are acquitted of the charges in count:, (ii) •rhe 2nd appellant 1.s acquitted of the charges in count 2; (iii) The 4Lh appellant is acquitted of the charge in count 3; and J22 (iv) The 2"n anci 4:i, appellants are acqt:i-:ted of tt~e charges in count 4. 5.2 The effec-: of -:his decision, is tha~ appellants will serve the follow!ng sentences: (i) 1 st appellant: count 1-?. C years; coL:n:: 2-35 years; count 3-15 years; and cot:n~ 4-15 years; (ii) 2 nd appellant: cot.:n:: 1-?.0 years; and cot.:n:: 3-15 years; (iii) 3rd appellant: coL:nt 2-30 years; count 3-1!:J years; and count 4- 15 years; and (iv) 4 th appellant: coL:nt 2- 30 years. These sentences will all rt:n from the 23~ of April ;c1?., and -:he sen-:ences i.:"'.lposeci on tt~e 1st. , 2°'5 and 3L'' appellants, shall run consecutive ~o each other . .... ---................ , "'1.-......................... . M. M. Kondolo SC COURT OF APPEAL JUDGE