Mupeta v Chola (SCZ 137 of 2012) [2014] ZMSC 19 (9 March 2014)

IN THE SUPREME COURT OF ZAMBIA SCZ/137/2012 HOLDEN AT LUSAKA (Criminal Jurisdiction) B ET W E E N: MARTIN MUPETA 1 ST APPELLANT JOHN MUSONDA CHOLA 2 ND APPELLANT AND THE PEOPLE RESPONDENT CORAM: WANKI, JS, LISIMBA, AND LENGALENGA, AG. JJS On 3rd September, 2013 and 10th March, 2014 For the Appellant: Mr. K. Muzeng’a - Principal Legal Aid Counsel (Legal Aid Board) For the Respondent: Ms. N. T. Mumba - Senior State Advocate ___________________________________________________________________________ ___________________________________________________________________________ J U D G M E N T WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO: 1. 2. Director of Public Prosecutions -Vs- Risbey (1977) ZR 28. Director of Public Prosecutions -Vs- Goodwell Billy Siwale (1981) ZR 71. 3. George Nswana -Vs- The People (1988-1989) ZR 174. LEGISLATION REFERRED TO: 4. The Penal Code, Chapter 87 of the Laws of Zambia. J2 This is an appeal against conviction only. The appellants were charged and convicted on three counts of aggravated robbery contrary to Section 294(2) of the Penal Code, Chapter 87 of the Laws of Zambia by the Solwezi High Court and sentenced to death on the second count; and 25 years Imprisonment with hard labour on the first and third counts. The particulars of the offence in count one alleged that the appellants on 10th March, 2009 at Solwezi in the Solwezi District of the North-Western Province of the Republic of Zambia, jointly and whilst acting together and whilst armed with unknown firearms and knives did steal cash money amounting to K15,000,000 (un- rebased) the property of Kaposa Sondashi and or immediately before or immediately after the time of such stealing did use or threaten to use actual violence to Ronald Sibonde in order to obtain or retain the said property. The particulars of the offence in count two alleged that the appellants on 13th March, 2009 at Mufumbwe in the Mufumbwe District of the North-Western Province of the Republic of Zambia, jointly and whilst acting together and whilst armed with unknown J3 firearms and knives did steal 1 bomber jacket, 1 wallet, 1 driver’s licence, 2 cell phones and cash money amounting to K9,200,000 valued at K10,865,000 (un-rebased) the property of Janki Wholesalers and or immediately before or immediately after the time of such stealing did use or threaten to use actual violence to Julius Chipeta in order to obtain or retain the said property. The particulars of the offence in count three alleged that the 1st appellant on 25th February, 2009 at Solwezi in the Solwezi District of the North-Western Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown and whilst armed with a wheel spanner and firearms did steal cash money amounting to K11,000,000 (un-rebased) the property of Wina Enterprise and or immediately before or immediately after the time of such stealing did use or threaten to use actual violence to Musonda Derrick in order to obtain or retain the said property. The evidence for the respondent was presented by twelve witnesses namely Rabson Kalipa (PW1), James Kankomba (PW2), Bridget Malumo (PW3), Julius Chipeta (PW4), Jackson Mazila J4 (PW5), Ronald Sibande (PW6), Derrick Simusomba Musonda (PW7), Jessy Phiri Musonda (PW8), Darius Engaenga (PW9), Sandra Ngushi (PW10) and Benjamin Ngwila (PW12). The detailed summaries of the evidence of the said witnesses, is contained in the judgment of the lower Court. The summary of the facts presented by the prosecution as they relate to count one are that PW1 and PW2 saw the appellants with another person who came in a car to Floriana lodge where they were working as security guards on the 10th March 2009 in the night around 01:00 hours. One of the men who were in the car threatened to stab PW1 with a screw driver, and the other man pointed a gun at him. PW6 handed the cash box to one man who followed him in the office and produced a small gun and demanded for all the available money because he was frightened. PW3 confirmed that there was robbery at the lodge and that a cash box with fifteen million kwacha, a cheque book and a seven million cheque payable to NAPSA with payment vouchers were missing. Later PW3 was informed by the police that some people were found with stolen property. Among the property recovered was a lid for a cash box, J5 cheque book, cheque in favour of NAPSA, a request for a new cheque book, and a payment voucher. PW3 identified the said items as property stolen from the lodge. On the cash box lid was written Floriana Lodge. The facts in respect of count two are that PW4 and PW5 were driving from Kabompo in a Tata Truck which had a container. When they reached a turn off at Lumwe Basic School they saw three men coming from the grass. Two of them had guns and the third one had a knife. All the three men were wearing masks and hats. The men went in front of the vehicle and ordered them to stop whilst pointing the guns at them and they stopped the vehicle. Two of the men, one with a gun and the other with a knife demanded for money from PW4 and threatened to cut off his legs if he didn’t give it to them. The gun man who was on the passenger side of the truck where PW4 was, took away PW4’s phone and later fired a shot and PW4 realized that the men were very serious and he gave them K5,400,000 (un-rebased) belonging to Janki Enterprises which was in his bomber jacket. The men demanded for more money and his bomber. The men hit J6 PW4 with a gun and he fell down. The men took PW4 into the container attached to the truck. PW5 who was driving the truck was also put in the truck. The assailants drove the truck for about 400 metres and stopped. The men then removed PW4 and PW5 from the container. PW4 and PW5 walked with the attackers into a cemetery and later the attackers left one by one. PW4 and PW5 came back to the truck. Later, PW4 discovered that the sum of K3,800,000 (un-rebased) was missing from the bag which was in the vehicle. PW4 observed the assailants for about 8 minutes and about 3 weeks later identified the 1st appellant as one of the assailants on the identification parade. PW4 also identified the phone, one rusty AK47 rifle and a green cowboy hat. PW5 saw the assailants heading one direction and later a Toyota car being driven by the assailants from the bush from the same direction. PW5 further said he saw the 1st appellant troubling PW4. Facts in support of count three are that PW7 and PW8 were in the house around 19:00 hours when three men armed with guns and a wheel spanner entered the house. One of the men hit PW7 with a wheel spanner and he fell down. They demanded for J7 money from PW8 who led two of the men to the bedroom where they got K11,000,000 (un-rebased) in a bag together with car keys. PW7 and PW8 identified one of the guns which were found in the possession of the appellants and a wheel spanner. PW9 was deployed at Manyinga Military Camp check point in Mwinilunga. While at the check point around 01.00 hours PW9 and other officers stopped a Toyota Corolla Registration Number 6863 in which were four men. After searching the vehicle PW9 and the other officers found 3 cell phones, K1,479,500 (un-rebased), 2 AK47 rifles, a short gun with a long barrel and a pistol like an air gun. PW9 thereafter conveyed the suspects and the items, to Mwinilunga Police Station. Later, he identified the appellants herein and the items he and the other officers recovered from the appellants among others. PW12 and PW13 conducted investigations in this matter and subsequently charged and arrested appellants for the subject offence in the three counts. The appellants gave evidence on oath and called no other witnesses before the trial Court. The summary of the 1 st J8 appellant’s evidence is that on the 13th March he was in company of the 2nd appellant in a car going to Kabompo via Mwinilunga. According to him he was awakened at a check point manned by the Zambia Army around 01:50 hours when 15 soldiers with guns showed up. The officers searched the car and found some phones, and some guns. The 1st appellant said that he was in Chambishi on the 28th February, 2009. The 2nd appellant said that on the 13th March, 2009 he was in Kasempa and around 17.00 hours he got a lift to Solwezi from some people with a grey Toyota Corolla. Later, the 1st appellant joined the group. Around 01:00 hours, they reached a check point in Mwinilunga which was manned by soldiers who searched the car and found some guns in the boot. According to the 2nd appellant he was later taken to Mwinilunga Police Station. After considering the evidence before it, the trial Court convicted the appellants as charged and sentenced the appellants to 25 years Imprisonment with hard labour in respect of the 1 st count; to death in respect of 2nd count; and sentenced the 1st appellant to 25 years Imprisonment with hard labour in respective J9 of the 3rd count. Being dissatisfied with trial Court’s judgment, the appellants now appeal to this Court. The appellants have advanced four grounds of appeal as follows: 1. 2. 3. 4. In the absence of the record of proceedings herein, the appellants have been deprived of the opportunity to properly prosecute their appeal and therefore the appeal must be allowed accordingly. The learned trial Judge misdirected herself when she convicted based on the leading by the Accused to where incriminating evidence was found without properly ascertaining exactly which of them led the police and in fact had guilty knowledge. The learned trial Court erred in law and fact when she found that the only irresistible inference that the recent possession of some alleged stolen items by the accused was that they took part in the robberies. The learned trial Court misdirected herself when she convicted the appellant without entering a verdict of guilty in respect of the said conviction. Counsel for the appellants Mr. K. Muzeng’a filed written submission in support of above grounds of appeal on behalf of the appellants upon which he relied. In ground one Counsel for the appellant urged this Court to allow this appeal because the record of proceedings in the Court below was missing. He argued that J10 the appellants were deprived of the opportunity to properly prosecute their appeal relying on the case of DPP -VS- RISBEY. (1) In response to this ground Miss Mumba, Senior State Advocate contended that the appellants have not been deprived the opportunity properly to prosecute there appeal before this Court and that RISBEY’s (1) case should be distinguished from the instant case. In support of ground two it was submitted on behalf of the appellants that the trial Judge was in error when she convicted the appellants based on the evidence of leading by the appellants to where incriminating evidence was found without ascertaining exactly which of them led the police and had in fact guilty knowledge. It was argued that there was no evidence to show which of the number of persons alleged to have done the leading had the guilty knowledge. Counsel for respondent submitted in response that the trial Court did not exclusively base her conviction of the appellants on the leading by the appellants to where incriminating evidence was found and that the available J11 record clearly shows that the trial Court did not rely on the leading evidence as adduced by PW12. In respect of ground three it was argued that the trial Court erred in law and fact when she found that the only irresistible inference from the recent possession of some alleged stolen items by the appellants was that they took part in the robberies because there was weak or no evidence of identification of the suspects. The respondent’s response to this ground is that the findings of the items in the possession of the now appellants provides supporting evidence that buttresses the weak identification evidence. It was further argued for the respondent that the finding of the said items namely stolen property including fire arms and bandanas and hats similar to those worn by assailants are an odd coincidence that helps to lead to the inevitable conclusion that the only inference in the circumstances of this case is that it is the appellants that committed the offences for which they stand convicted. In ground four Mr. Muzeng’a, contended that the learned trial Judge misdirected herself when she convicted the 1st J12 appellant without entering a verdict of guilty in respect of the said conviction and cited the case of DPP -VS- GOOD BILLY SIWALE (2) where we held among others that:- “Before a conviction or an acquittal, there must be a verdict which must be returned by jury or where there is no jury by the court. Failure to take a verdict would render the trial a nullity.” In response to the fourth ground Miss. Mumba submitted that the trial Court did enter a verdict of guilty in respect of the 3 rd count as the trial Court’s judgment at page J36 line 16 state that:- “I therefore find that A1 was armed with offensive weapons and he is guilty of aggravated robbery contrary to Section 294 (1)…..” Counsel for the respondent further urged the Court to dismiss the appellant’s arguments in support of ground four. The offence with which the appellants stand charged in the three counts is created by Section 294 (1) of the Penal Code which states in part that:- “Any person who, being armed with any offensive weapon or instrument, or being together with one person or more, steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence J13 to any person or property to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony of aggravated robbery…” Aggravated robbery is occasioned whenever any person steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained whilst armed with any offensive weapon or instrument, or being together with one person or more. It must be established that a person stole something capable of being stolen whilst armed with an offensive weapon or instrument or being together with one person or more using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. We have carefully examined the judgment of the trial Court and the submissions made on behalf of the appellants and the respondent. We are indebted to Counsel on both sides for their submissions. We have also considered the grounds of appeal J14 advanced by the appellants before us. We shall deal with the grounds in the order that they were argued. We understand a record of proceedings to be a record of the evidence of witnesses and the Court’s decision. It is our view that a judgment is a summary version of the record of proceedings. The record of proceedings provides the raw material for intending appellants. For purposes of appeals the primary raw material for appellants is the judgment of the Court whose decision is being challenged. We say so because the judgment of any trial Court contains the evidence or summary thereof and the decision of the trial Court. It is the decision which forms the subject of the challenge on appeal. In the instant case, the thrust of the arguments in ground one is the absence of the record of evidence as presented before the trial Court. It was argued that because of its (record of evidence) absence the appellants have been deprived of the opportunity to properly prosecute their appeal. We are not swayed by the appellants’ arguments in support of this ground. As we have observed above, the record of proceedings in respect of J15 trial Courts is made up of recoded evidence and the decision of the Court. The judgment of the Court is a summary of the record of proceedings. There was a judgment in this case. It is from this judgment that the appellants were able to formulate their grounds of appeal. What was missing is the recoded evidence as was presented before the trial Court. We are of the view that the appellants herein were not deprived of their opportunity to properly prosecute their appeal. RISBEY’s case relied on by Counsel for the appellants, is not on all fours with the instant. In RISBEY’s (1) case what was missing is the judgment of the trail Court while in this case what was missing is the recorded evidence and not the judgment. In RISBEY’s (1) case we held that RISBEY was deprived of the opportunity to properly prosecute his appeal because the trial Court’s judgment was missing. The judgment of the trial Court was available to the appellants for purposes of prosecuting this appeal. We cannot not say that the appellants, were deprived of the opportunity to properly prosecute this appeal. RISBEY’s (1) J16 case is distinguished as was rightly observed by Counsel for the respondent. Our thorough examination of the trial Court’s judgment reveals that the trial Court did not base its conviction on the evidence of leading as suggested by the appellants in ground two. The trial Judge in her judgment observed on this point that:- “PW12 did not explain how the three co-accused persons namely Eustuce Bindabinda, Clint Musonda Chola and Mbanza Kalukangu led him to that place. The three could not have led him at the same time.” In this light we have reached the inescapable conclusion that the arguments in support of ground two were misplaced. Recent possessions of stolen items can warrant an inference that the person in possession of stolen items actually committed the crimes preceding the possession. Where such an inference is warranted the Court can properly convict on the strength of recent possession. J17 On recent possession we call in aid our decision in the case of GEORGE NSWANA -VS- THE PEOPLE. (3) In that case we had this to say on the inference of guilt premised on recent possession:- “The inference of guilt based on recent possession, particularly where no explanation is offered which might reasonably be true, rests on the absence of any reasonable likelihood that the goods might have changed hands in the meantime and the consequent high degree of probability that the person in recent possession himself obtained them and committed the offence. Where suspicious features surround the case that indicate that the applicant cannot reasonably claim to have been in innocent possession, the question remains whether the applicant, not being in innocent possession, was the thief or a guilty receiver or retainer.” The possessor of goods recently stolen may fairly be regarded as either the actual thief or else a guilty receiver. His possession raises also but less strongly a presumption that of his guilty connection with any further crime that accompanied the theft such as theft or robbery. However, as to what time is near enough to be recent, no general rule has been given. The period J18 within which the presumption can operate varies according to the nature of the article stolen. Three months would be sufficiently recent for a motor vehicle. But for such articles as pass from hand to hand readily like a cell phone, one month would be a long time but seven days would be sufficiently recent. We are alive to the fact that for an inference of guilt based on recent possession to be sustained, there must be no likelihood that the goods might have exchanged hands because it is only then that there will be a consequent high degree of probability that the person in recent possession himself obtained them and committed the offences connected thereto. Further, there should be no possibility that the accused might have come into possession of the stolen property otherwise than by stealing it. It is our view that the period from time of robberies to the time the appellants were found in possession of the some items stolen in the course of the robberies was near enough to warrant an inference and a conviction based on recent possession. We are also satisfied that this is a proper case in which the question we paused in NSWANA’s (3) case can be resolved to the effect J19 that the appellants herein were not mere guilty receivers but persons who actually committed the offences to which the articles they were found in possession of are connected. It is our upshot that the appellants came in possession of the goods in question herein by committing aggravated robberies and stealing them. In light of what we have said on recent possession, it our deduction that the trial Court cannot be faulted on the basis of ground three. There is no merit in this ground of appeal. In criminal law, the doctrine of common purpose, common design or joint enterprise refers to the situation where two or more people embark on a project with a common purpose which results in the commission of a crime. In this situation the participants are jointly liable for all that results from the acts occurring within the scope of their agreement. Each of the parties to an arrangement or understanding is guilty of any crime falling within the scope of the common purpose which is committed in carrying out that purpose. The appellants were jointly charged in respect of counts one and two. It is clear from the evidence available from the record of J20 proceedings that the appellants acted together in respect of counts one and two. According to the arguments presented by the appellant in support of ground four which relates to count three, the trial Judge did not make a verdict before convicting the 1st appellant in count three. We cannot agree with the arguments advanced in support of this ground. We are persuaded to do so, because the judgment of the trial Court clearly shows that the trial Judge entered a verdict of guilty at page J36 line 16. We dismiss this ground. In sum, we are satisfied that the trial Court was on firm ground and it properly convicted the appellants for the offence in their respective counts. We find no merit in all the grounds of appeal and we dismiss this appeal. .............................................. M. E. Wanki, SUPREME COURT JUDGE. J21 ............................................ M. Lisimba, ACTING SUPREME COURT JUDGE. .............................................. F. M. Lengalenga, ACTING SUPREME COURT JUDGE.