Chibuye and Ors v People (Appeal 175 of 2009) [2010] ZMSC 3 (9 December 2010)

Supreme Court Judgment No. 33 of 2010 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA APPEAL NO. 175/2009 JAMES CHIBUYE LUCKWELL NGAMBI PENIUS ZULU 1st appellant 2ND APPELLANT 3rd APPELLANT VS THE PEOPLE RESPONDENT CORAM: MAMBILIMA, DCJ, CHIBESAKUNDA and MWANAMWAMBWA, JJS On 1st June 2010 and 9th December 2010 For the 1st and 3rd Respondents: For the 2nd Respondent: For the People: Mr. N. M. CHOMBA, Senior Legal Aid Counsel, Legal Aid Board F. B. NANGUZYAMBO of F. B. Nanguzyambo & Associates Mrs. R. N, KHUZWAYO, Deputy Chief State Advocate ___________________________ JUDGMENT___________________________ MAMBILIMA, DCJ delivered the Judgment of the Court. CASES REFERRED TO: 1. ZONDE & OTHERS VS THE PEOPLE (1981) ZR 153 2. KALONGA VS THE PEOPLE (1988/1989) ZR 90 LEGISLATION REFERRED TO: (1) THE PENAL CODE, CAP 87 OF THE LAW OF ZAMBIA (2) THE CRIMINAL PROCEDURE CODE, CAP 88 OF THE LAWS OF ZAMBIA (3) THE CONSTITUTION OF ZAMBIA, CAP 1 OF THE LAWS OF ZAMBIA (4) THE FIREARMS ACT, CAP 110 OF THE LAWS OF ZAMBIA This appeal is from the decision of the High Court, sitting at Chipata, in which the three Appellants were convicted of one count of aggravated robbeiy, contrary to Section 294(2) of THE PENAL CODE1. The particulars of the indictment were that the three Appellants, on the 17th day of January 2005, at Chipata, jointly and whilst acting together, and whilst being armed with fire arms, robbed Koekemoer JACOBUS, of a Toyota Hilux Pick Up, registration No. ABC 6125; 1 laptop computer; US$450; 25,000 Malawi Kwacha; 3 million Zambian Kwacha; 1 NIKON camera with a charger; 2 remote controls for a television set and a DSTV decoder; 2 cell phones and 2 compact discs. The record of appeal from the High Court reveals an interesting and dramatic trial. The Appellants first appeared before the Court on 6th June 2005. They were represented by Mr. CHIRAMBO, of Sithole-Mwenda & Company. After the charge was explained to them, the matter was adjourned to the following day, 7th September 2005. 692 When the Appellants appeared before Court on 7th September 2005, the 1st Appellant, James CHIBUYE, started exhibiting strange behaviour. He ran amok and was undressing in court. The defence Counsel, Mr. CHIRAMBO informed the Court that he had made enquiries with 1st Appellant’s wife and she had informed him that he (1st Appellant) was a mental patient. The Judge retired to chambers to confer with Counsel. While in chambers, the State advocate who had conduct of the matter sought an adjournment to 8th June 2005, so that he could consider options available to him in view of the behavior of the 1st Appellant. The adjournment was granted. The record of proceedings shows that on 8th June 2005, the Court first sat in chambers. The Defence Counsel, Mr. CHIRAMBO informed the Judge that while at prison the previous day, the 1st Appellant had smeared feaces on himself and others. It was consequently his view, that the 1st Appellant was not fit to stand trial. The trial Judge then decided to conduct an inquiry, pursuant to Section 161 of the CRIMINAL PROCEDURE CODE2 and ARTICLE 18(2) OF THE CONSTITUTION3 to determine whether 693 the 1st Appellant was indeed unfit to stand trial. He adjourned to open court. However, the inquiry could not proceed on that day because the Appellants had not been brought to Court prompting a further adjournment to the following day. When the Court convened on 9th June 2005, the arresting officer and the clinical officer at the prison were called to give evidence. The three Appellants were present in court. Strangely, while his co-accused were properly seated i n the dock, the 1st Appellant sat on the floor. A clinical officer based at the prison in Chipata, Willard Harold PHIRI (PW 1), was called as a first witness. He informed the Court that he had examined all the persons who were due to appear before the Court for the June sessions, who included the 1st Appellant. PW1 told the Court that he observed nothing strange about the mental status of the 1st Appellant. He went on to state that he was able to communicate with him and he appeared normal at the time. He prepared a report which he tendered to Court. According to this report, the Appellant had no history of mental illness or epilepsy. 694 The second witness to be called was the arresting officer, Edward BANDA (PW 2), based at Nyimba police station. He told the court that he apprehended the 1st Appellant, James CHIBUYE, together with Penias ZULU, in January 2005 from an RPS bus after they had commandeered it to Nyimba police station. He told the Court that the two Appellants were fished out of the bus with the help of members of the public and when he spoke to them, they were both behaving normally. He went on to state that the Appellant did not even look sick. The Judge accepted the evidence of the two witnesses and ruled that the Appellant had no history of suffering from any illness and decided to proceed with the trial. At this stage Mr. CHIRAMBO withdrew from representing the Appellants and handed over the case to Mr. NKUNIKA of Legal Aid. The Appellants then informed the Court that they wanted to be represented by a private lawyer. The learned State Advocate expressed concern that the Appellants were merely trying to buy time and applied that trial should proceed. The Appellant back pedaled and requested the Court to allow them to talk to Mr. NKUNIKA before the matter could proceed. 695 The Court stood down the matter to allow the Appellants to instruct their lawyer. The record of appeal shows that when the Court reconvened, the Appellants were absent. Mr. NKUNIKA informed the Judge that two of the accused persons, Mr. CHIBUYE and Mr. ZULU, had declined to give him instructions and insisted that they still wanted to be represented by a private lawyer. At that stage, the Court ordered the three Appellants be brought into court from the cells. A prison warder who was detailed to collect them from the cells came back and reported that the Appellants had refused to come into court. Mr. NKUNIKA then formally recused himself from the case. The learned trial Judge thereupon decided to proceed with the trial and asked the State to call its 1st witness. He directed that any witness who needed to identify the Appellants in the course of trial should be escorted to the cells to do so. The first witness to give evidence in the main trial was the complainant, Mr. Koekemoer JACOBUS, a Civil Engineer, who at the time, was working on the Chipata/Lundazi road and staying in Moth Township, Chipata. He was PW 3. His evidence was that on 696 17th January 2005, around 2000 hours, he was at home with a woman friend by the name of Zabeda Abdula VALLEY (PW 4). They were watching television. He heard some dogs barking outside whereupon he went out and shouted to quieten them and came back into the house. A short while later, he heard someone approaching the house crying. He went out to the porch to check and saw four men approaching the house carrying guns. He came back inside, closed the door and went to stand behind a brick wall. At this time, his partner had gone to the toilet. The men forced the door open, came into the house. They ordered him to sit on the floor. He pleaded with them not to hurt him but take whatever they wanted. The men were with his garden boy. He was the one crying and had blood all over him. PW 3 told the Court that he got his wallet from the pocket and gave them the money that was in it. The men ransacked the house and collected a laptop computer from his desk. He pleaded with them not to collect the laptop because his work was on it. One of the assailants told him that they would leave it. They also collected about 25,000 Malawian Kwacha; some American Dollars; 697 and about 3 million Zambian Kwacha from the drawers. PW 3 further testified that the men even ransacked his kitchen and went through the fridge. He could hear them opening bottles. They got his car keys and ordered him to show them how to start the car. After he had done so, they brought him back to the lounge and tied his feet and hands. They then covered their heads with cushions; switched off the lights; and drove off in his motor vehicle. After a while, PW 3 managed to free his hands and untied himself. He also untied the servant and switched on the lights. He went to his bedroom where he found that PW 4 had also been tied. He untied her. He called the police and when they arrived, they checked to find out what had been stolen. They found that his lap top computer; a camera; 2 cell phones; a DSTV remote control; his wallet; 25,000 Malawi Kwacha; US$50 0 and 3 million Zambian Kwacha had gone. Also taken were the motor vehicle, diving shoes for his wife, and some of his clothes. PW 3 was not able to identify any of the attackers. He told the Court that he did not look at them. 698 PW 4 echoed the evidence of PW 3 as to how armed men stormed PW 3’s house and robbed them. She told the Court that at the material time, she was coming from the toilet and heard voices in the house. When she entered the corridor, she met a man who was armed with a gun. She came face to face with him and the man ordered her to face the other way. According to PW 4, the corridor was lit by an electric light. She dropped down, but the man lifted her up and demanded for money. He searched her body, including her breasts and pockets, and then took her to the bedroom. While in the bedroom, they were joined by another person. One of them then told his friend in Bemba that “she had no money because she was just the bitch for the white man.” He ordered his friend to put her on the bed and tie her hands and legs. According to PW 4, there was also an electric light in the bedroom. She testified that in the process of tying her hands and legs, the assailants got her gold chain, which was on her hands and covered her with a duvet. They then went out, closing the door after them. A short while later, another assailant came in and got 699 PW 3’s bag which was next to her. She later heard PW 3’s van driving off. PW 4 told the Court that she tried to untie herself but failed. After few minutes, PW 3 came into the bedroom and untied her. According to this witness, PW 3 had blood on him. He told her that it was from the garden boy. When she tried to look for her cell phone, she found that it had also been stolen. PW4 identified the pistol which was brought to court as being similar to the one that the assailant whom she had met in the corridor was carrying. In the course of giving evidence, she was taken to the cells to identify the assailants. She identified the 1st Appellant as the one who pointed a gun at her; the 2nd Appellant as the one who was tying her legs and the 3rd Appellant as the one who was touching her breasts as he was searching for money. She also told the Court that she attended an identification parade at the police station at which she identified the 1st and 2nd Appellant. She also identified one of the cell phones in court as the one which was stolen from her. io The 5th witness was Rodrick ZULU. He was the garden boy who was employed by PW 3 and living at PW 3’s premises. On the events that took place on 17th January 2005, his testimony was that in the evening of that day, he was at home chatting with his family when around 2000 hours, he heard the dog barking. He went to check and found that the dog was barking at the gate. He was going towards the gate when he saw it being pushed open. Some people entered the yard and one of them was taller than the rest. Another was short and brown. They were both armed. They ordered him to sit down and when he did so, one of them hit him with a pistol on the head. He sustained a cut. A third man came in and got an iron bar and started beating him with it as they dragged him to a dark place. He cried for help and the men led him to the main house. PW 3 came out and one of the armed men pointed a gun at him. They entered the house. One of the assailants ordered PW 3 to sit down. They demanded for money and keys to the motor vehicle. PW 5 told the Court that his boss produced his purse and also surrendered the keys to the vehicle. The men got a sisal rope and tied their hands from the back. n PW 5 further told the Court that he saw the assailants go to his employer’s desk and open the drawers. He saw them take a camera and heard his boss pleading with them not to take his computer. The assailants went to the bedroom. They came back and shortly after that, he heard the sound of a motor vehicle starting and the engine went off. One of them came back in the house and asked his boss to show him how to start the vehicle. PW 3 went out with him. When they came back, they tied them both. He then heard the motor vehicle start and drive off. PW 5 further testified that after the assailants had left, PW 3 untied himself and thereafter also untied him. He gave him money to go to Chipata General Hospital where he was given a medical report form. In the course of giving evidence PW 5 was also taken to the cells to identify the Appellants. As he approached the cells, the 1st Appellant threw feaces at him. He however identified him (the 1st Appellant) and the 3rd Appellant as the ones who were beating him. He also identified the 2nd Appellant as the one who was standing near the door to the house. He told the Court that he had a good 702 look at the men because the electric lights in the house were on. He also identified the pistol that was exhibited in Court as being similar to the one that one of the assailants was carrying. The sixth witness for the prosecution was Steven MB EWE (PW 6)), a Detective Sergeant, at Nyimba police station. He told the Court that he was on duty on 18th January 2005 when he received communication from Chipata Central Police, that a Toyota Hilux, registration No. ABC 6125, had been stolen at gun point in Chipata. The vehicle had an inscription, “Stefanutti & Bressan” on the door. It was yellow in colour and belonged to a South African company that was constructing the Lundazi/Chipata road. Shortly after receiving this information, they received information from concerned members of the public that there was an abandoned vehicle within Nyimba Township at the Council houses. They rushed to the scene and found a Toyota Hilux which answered to the description of the stolen vehicle. It had registration No. ABC 6125 and inscribed with the words ‘Stefanutt & Bressan’ on the doors. The vehicle was stuck in the mud. Its doors were open and the ignition was on. They took the vehicle to the police 703 station for custody and commenced investigations to trace the robbers. In the course of investigating the case, they went to the RPS bus stop where they found a lot of people. With the help of members of the public, they zeroed in on some questionable characters. They waited for the bus to load and before it could start off, they diverted the driver to drive to the police station where two suspects were fished out together with their luggage. Upon interviewing them, one gave his particulars as Penias ZULU of house No. D97 of Old Kanyama, Lusaka while the other one gave his particulars as James CHIBUYE of house No. 4/29 Chibolya, Lusaka. Upon searching their luggage, they found Penias ZULU with one pair of diver’s boots and K51,000. The luggage of James CHIBUYE contained one NIKON camera together with its cables and a charger. There were also 2 remote controls, one for a Phillips television and the other for Multi Choice. He also had 64,000 Zambian Kwacha and 4,000 Malawi Kwacha. He had some gloves and some greenish yellow jeans which had mud stains. 704 A message was sent to Chipata police informing them of the recovery of the items. The complainant came together with the police officers. He identified the motor vehicle and the other items which were found with the suspects as some of the properties stolen during the robbery. PW 6 told the Court that he could identify the suspects whom he apprehended from the bus. At that stage and while PW 6 was still on the stand, there was a lot of disturbance coming from the cells, caused by banging on the cell door by the accused persons. They had broken the cell toilets and they were now trying to break down the door. The Judge ordered the police to hand cuff them before they could cause any further damage. PW 6 was then taken to the cells and he identified the 1st Appellant James CHIBUYE and the 3rd Appellant, Penias ZULU, as the two suspects that he had apprehended from the bus. He told the Court that he handed them over to Chipata police for further investigations. PW 7 Detective Constable Nyambe SILUME, of the Flying Squad, based at Lusaka, was one of the officers who intercepted a bus at Chongwe, that was travelling from Chipata to Lusaka, after 705 receiving information that a suspected criminal was on it. They mounted a check point near Chongwe dam, on 18th January 2005. He told the Court that a few minutes later, a bus approached from Chipata and they stopped it. They ordered all passengers to come out with their personal baggage. After everybody had disembarked, they got onto the bus and searched. They came across a small black bag which was under one of the seats. They got it and when they tried to ascertain the owner of the bag from the passengers, no one came forward. PW 7 testified that the bag was locked. They broke the lock and upon searching it they recovered a fire arm. They looked around the passengers and found that one of them was carrying a similar bag. They pulled him out and asked him about the similarity of the bags. He became nervous. They searched him and in his pocket, they found one glove, black and yellow in colour. They found the other glove in the bag earlier found in the bus. When they searched his person, they found that he had hidden some money in his under pants. They then searched the bag that he was carrying. They found another pistol. They also found some 706 Malawian Kwacha; a laptop computer; 11 rounds of ammunition; and one rain coat. As PW 7 was on the stand giving evidence, the State Advocate informed the Court that the accused persons, who were still in the cells had broken their hand cuffs and were about to break the door to the cells. The Court ordered that the Appellants should now be both hand cuffed and chained. The Judge was compelled to stand down the matter to allow the police to deal with the situation. Trial resumed in the afternoon. PW 7 identified the laptop computer, a yellow rain coat, 2 pistols, 11 rounds of ammunition and Malawian Kwacha as the items that he recovered from the suspect. He told the Court that he also recovered 2 cell phones, 20 South African Rands and 17,000 Zambian Kwacha including 1 US dollar. There was also a National Registration Card bearing the name of Luckwell NGA’MBI. PW 7 also identified the gloves and the cell phones together with the bags in which they were found. The properties were identified by PW 3 as those that were stolen in the robbery. When he went to the cells, PW 7 identified the 2nd Appellant as the person who had the said items on the bus. The 2nd 707 Appellant together with the recovered items were handed to the police in Eastern Province. PW 8, Obey Ben CHILUMBU, Detective Sergeant based at Chipata Police Station investigated this case. The docket of the robbery was handed to him on 19th January 2005. When he got information from Nyimba Police, that they had apprehended two persons in connection with the robbery, he went there and collected the suspects as well as the vehicle. He identified the suspects as James CHIBUYE, the 1st Appellant and Penias ZULU, the 3rd Appellant. He also collected the other properties that were recovered from them. PW 8 told the Court that he recorded warn and caution statements from the two suspects at Nyimba, before taking them to Chipata. He got further information that a third suspect had been apprehended at Chongwe Road Block and was in detention at Lusaka Central Police. Together with other officers, he travelled to Lusaka where he was handed Luckwell NG’AMBI, the 2nd Appellant. He was also handed over the items that were recovered 708 from him. These were two pistols, a laptop computer, and some money amounting to 3,505 Malawi Kwacha; 81,500 Zambian Kwacha; one US dollar and 20 South African Rands. He conveyed the suspect together with the items to Chipata. He later recorded a warn and caution statement from the suspect. PW 8 told the Court that on 31st January, 2005, he arrested the three suspects for the offence of aggravated robbery. He went to the cells and identified the suspects he arrested as the three Appellants. He also identified the properties that were handed to him at Nyimba and Lusaka. A ballistic expert, Mr. Steve Mfula ZULU, was called as PW 9. He examined the two pistols that were recovered during the investigation of this case. His conclusion was that the two pistols and rounds of ammunition recovered are dangerous commercial weapons which are capable of causing fear, injury and death when loaded and fired on any animal or human target. He went on to state that only holders of a valid licence are allowed to possess the pistols in Zambia. With the evidence of this witness the 709 prosecution closed its case. The matter was adjourned for judgment. In his judgment, the learned trial Judge found that although the credibility of the two eye witnesses could not be impugned, their identification evidence was unsatisfactory. As he could not safely rely on it, the identification evidence was excluded. The Judge however found that there were odd coincidences in the case which pointed to the guilt of the Appellants. He noted that the 1st and 3rd Appellants told the police upon apprehension, that their accomplice had boarded a bus heading to Lusaka and on the basis of this information; the police in Lusaka waylaid the bus and apprehended the 2nd Appellant. He was found with a bag containing a gun, the laptop computer and some Malawian Kwacha which were stolen in the robbery. The other odd coincidence found by the Court was that the 1st and 2nd Appellants were apprehended in Nyimba, where the stolen vehicle was also found abandoned in the mud. When they were searched, their jeans trousers were also found with mud stains. 710 Apart from the odd coincidences the learned trial Judge found some other supportive evidence. Apart from the 2nd Appellant being found with fire arms and ammunition, he was also found with items stolen in the robbery. The Judge also noted that the 1st and 3rd Appellants were apprehended within 12 hours of the robbery, with items which could not have been procured in Chipata and which were not easily transferable. Relying on the case of ZONDE AND OTHERS VS THE PEOPLE,1 he applied the doctrine of recent possession; in that the Appellants were found with property that was stolen in an aggravated robbery and did not give any reasonable explanation. The Court also noted that the robbery took place at night and some items were recovered from the 1st and 3rd Appellants the very next day. The Court also found it to be an odd coincidence, that the complainant was robbed of some Malawian Kwacha and the Appellants were found with Malawi Kwacha when they were apprehended at two different places. To the Court, this meant that the three accused acted in confederation. The Court also noted that the fire arms that were found with the Appellants were identified by 711 witnesses as being similar to those that were used in the robbery. The same fire arms were found to be dangerous weapons by the ballistic expert. The Judge found, on the totality of the evidence, that the prosecution had proved the case against each of the Appellant beyond reasonable doubt and convicted them accordingly. On the defence of insanity that the 1st Appellant was advancing, the Court found that no iota of evidence was led to prove this defence. The Judge was of the view that no reasonable tribunal could hold that a man from Lusaka, who travels all the way to Chipata, and carefully plans an aggravated robbery while armed, eludes Chipata police and is caught on a bus going to Lusaka could be incapable of understanding what he was doing. He thus dismissed the defence and refused to make a finding under Section 167 of the Criminal Procedure Code. The three Appellants have now appealed to this Court against the conviction by the High Court. On behalf of the 1st and 3rd Appellants, one ground of appeal has been advanced; and this is “that the trial Judge misdirected himself when he held that 712 the trio stood charged with aggravated robbery, contrary to Section 294(2) of the Penal Code and convicted them on that provision,” Mr. CHOMBA, on their behalf, submitted that the Appellants were charged under Section 294 (1) of the Penal Code and that no attempt was made by the State to amend the information. He also pointed out that the Court did not amend or substitute the charge at the end of the prosecution’s case. He contended that, had this been done, the amended or substituted charge could have been read to the Appellants, who could have been asked to plead to the new charge before commencing their defence. According to Counsel, the only amendment that was made by the Court below, was with regard to the date in particulars of the offence. He submitted that the Court therefore misdirected itself, when it held that the two Appellants stood charged under the provision of Subsection 2 of Section 294 of the Penal Code and convicted them under that Section, instead of Section 294(1). Mr. CHOMBA further submitted that aggravated robbery under Sub-section 2 of Section 294, is not a minor offence to aggravated robbery under sub-section 1 of Section 294. He 713 contended that the only option available to the Judge was to consider whether the Appellants were guilty as charged; and not to substitute the conviction for aggravated robbery under Sub-section 1 to that which falls under Sub-section 2. He urged this Court to set aside the conviction and substitute it with aggravated robbery falling under Section 294. Mr. NANGUZYAMBO, on behalf of the 2nd Appellant, has advanced two grounds of appeal. These are firstly; “that the learned trial Judge erred in law and procedure by not affording the 2nd Appellant a chance to be defended himself at his own expense by a lawyer of his own choice” and secondly; “that the learned Judge erred in procedure by proceeding to try the 2nd Appellant, without first taking plea contrary to Section 204 of the Criminal Procedure Code.” In support of the first ground of appeal, Mr. NANGUZYAMBO submitted that the 2nd Appellant was jointly charged with the 1st and 3rd Appellants, of aggravated robbery contrary to Section 294(2) of the Penal Code. When the trial commenced, the Legal Aid Counsel, who was supposed to appear for them, withdrew and the 714 Appellants categorically told the Court that they wanted to hire a private lawyer. Trial was adjourned for 15 minutes for the Appellants to give instructions to a Legal Aid Counsel, but he also declined to proceed with the matter because he was not instructed. The Appellants had informed the Legal Aid Counsel that they wanted private representation, whereupon Counsel recused himself from the proceedings. Mr. NANGUZYAMBO submitted that the response by the Judge was to warn the Appellants that trial would continue. The Appellants were thereafter ordered to be put in cells and when the Court reconvened, a Prison Warder informed the Judge that the Appellants had refused to come into Court. It was then that the Judge asked the State to call its witnesses. It is Mr. NANGUZYAMBO’s submission that the right to a counsel of one’s choice is a constitutional right and the record shows that the 2nd Appellant had opted to be defended by a private practitioner of his own choice and he was not allowed to so. He argued that the Court ought to have adjourned the case to the next criminal session or another date within the session to afford the Appellant a chance or an opportunity to look for his own Counsel to 715 represent him. Mr. NANGUZYAMBO further submitted, relying on ARTICLE 18 OF THE CONSTITUTION,3 that whatever the Appellants are said to have done; like causing a disturbance by continuously banging on the cell door and the 1st Appellant throwing feaces to an entourage that went to the cells for identification, was only to register a protest to the Court for not being afforded an opportunity to be defended by a lawyer of his choice. On the 2nd ground of appeal, Mr. NANGUZYAMBO submitted that Section 204 (1) of the Criminal Procedure Code demands that an accused person shall be called upon to plead to a charge. According to him, this clause is mandatory. Since it was not complied with, the proceedings were therefore a nullity and should be so declared. In response to both Counsel representing the Appellants, the learned Deputy Chief State Advocate, Mrs. KHUZWAYO, supported the conviction of all the three. On the charge that was laid up against the Appellants, sh e submitted that the aspect of being armed came out, and that from inception, all the three Appellants 716 were aware of the charge that they were facing and they therefore did not suffer any prejudice. Mrs. KHUZWAYO submitted further, that this Court should not set aside the conviction of the Appellants pursuant to Article 18 (12)(d)(ii) because the Appellants did not show that their absence was reasonable or that they had a valid defence. In her view, their absence in Court was not reasonable because the matter was adjourned several times at their instance. In this respect, she referred us to page 19 of the record of appeal, which shows that the Appellants refused to come to court and explain their grievances as the proceedings were going on. They remained in the cells where they continued to misconduct themselves by making noise and disturbing the court. She stated further that the Appellants even broke the doors to the cells. According to Mrs. KHUZWAYO, there is overwhelming evidence on record against all the three Appellants. They were all linked to the offence by being in recent possession of items stolen in a robbery within a few hours of the robbery and none of them appeared in Court to give an explanation as to their possession of the stolen property. She urged us to confirm the conviction of all 717 the three Appellants and submitted that the provisions of Article 18(2)(d)(ii) of the Constitution had been satisfied. We have given careful consideration to the submissions that have been made on behalf of the three Appellants and the judgment of the court below. We have also looked at the record of appeal from the lower court as to the manner in which the trial of the Appellants was conducted. We propose to deal first with the appeals of the 1st and 3rd Appellants, and thereafter, the appeal by the 2nd Appellant. The 1st and 3rd Appellants have advanced one common ground of appeal. It contends with their conviction on aggravated robbery, contrary to Section 294 (2) of the Penal Code as opposed to Section 294 (1) of the same code. It is trite law that a conviction under Section 294 (2) of the Penal Code carries a mandatory death penalty while that under Section 294 (1) attracts a penalty of a minimum of 15 years imprisonment. The information in this case appears on page V of the record of appeal. It reads “Aggravated Robbery (contrary to Section 294 (1) of the Penal Code Cap 87 of the Laws of Zambia).” The 718 particulars allege that the Appellants robbed Koekmoer JACOBUS of items listed therein “whilst acting together and whilst being armed with firearms weapons.” The record shows that the charge was fully explained to the Appellants and the 1st Appellant remained mute. It is clear that while the statement of offence referred to Section 294(1) of the Penal Code, the particulars given to the Appellants clearly alleged armed robbery; an offence under SECTION 294 Sub section 2. The record shows that the matter was tried as an armed robbery case in that the fire arms that were found with one of the suspects were brought to court and identified by the witnesses. A ballistic expert gave evidence on the nature of the said firearms. They were firearms within the meaning of THE FIRE ARMS ACT.4 In the case of KALONGA VS THE PEOPLE2, this Court was faced with a similar argument. The Appellant, in that case, was not charged with armed robbery in accordance with SECTION 294 Sub section 2 of the Penal Code, and the particulars did not allege the use of a firearm. We held that it is essential, when there is an allegation of armed robbery, that an accused be notified that he 719 stands charged with such an offence. In the case at hand, although the statement of offence referred to Section 294 (1) of the Penal Code, the particulars clearly alleged armed robbery. The record shows that the charge was fully explained to the Appellants in court. They must therefore have been aware that they were accused of having robbed the complainant, whilst being armed with firearms. On this premise, this can be distinguished from the case of KALONGA. The charge with particulars of armed robbery having been fully explained to the Appellants, they cannot claim to have been prejudiced in any way. The Appellants knew from the beginning the charge that they were facing. We do not find any merit in the ground of appeal advanced by the 1st and 2nd Appellant. It is therefore dismissed. Coming to the 2nd Appellant, he has raised two grounds of appeal; the first of which is “that the Court erred in law and procedure by not affording him a chance to be defended at his own expense by a lawyer of his own choice.” He is contending that the Court below did not give him an opportunity to engage a 720 lawyer of his choice thereby infringing his rights as enshrined in Article 18(2) (d) of the Constitution of Zambia. The right to be represented by a lawyer of one’s choice is a fundamental right which is internationally recognized. Article 3.2 (d) of the International Covenant on Civil and Political Rights recognizes this right when it states:- “3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees; in full equality” (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; if he does not have legal assistance, ....... to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (underlining ours) This right has been domesticated through Article 18 of the Zambian Constitution. In sub paragraph (2) © and (d) Article 18 provides:- “Every person who is charged with a criminal offence © shall be given adequate time and facilities for the preparation of his defence; (d) shall unless legal aid is granted to him in accordance with the law enacted by Parliament for such purpose be permitted to defend himself before the court in person or at his own expense, by a legal representative of his own choice.” 721 The right to be able to prepare a defence and to be represented by a lawyer of one’s choice is one of the facets that ensures a fair trial. One can claim this right and is entitled to legal representation immediately upon being taken into custody, regardless of whether they have been charged. At that stage, the person has lost his liberty and is therefore entitled to be afforded due process of law. It is incumbent upon a court trying a suspect to ensure that the minimum guarantees of a fair trial are observed. Among these rights are the presumption of innocence; the right to a lawyer and equality of arms between the prosecution and the defence; and procedural equity during trial. Both the prosecution and the accused must be heard; both must be allowed to call witnesses and to cross examine them. It is common cause that in this case, the 2nd Appellant together with his co-accused were kept in cells throughout the trial. They were therefore not present in Court and consequently did not give evidence in defence of the charge and they were not able to cross-examine any of the witnesses that gave evidence against 722 them. The verdict therefore rested upon the evidence of the prosecution alone. The record of appeal shows that initially, it was the 1st Appellant who exhibited traits of insanity. The Court conducted an inquiry which revealed that until he was brought to court, the 1st Appellant behaved normally. After the initial hearing, the 1st Appellant started smearing feaces on himself and others. It is clear from the record that the Court was not persuaded by the antics of insanity exhibited by the 1st Appellant and decided to proceed with the trial Mr. CHIRAMBO, of Sithole Mwenda and Company, recused himself and handed over the matter to the Legal Aid Counsel, Mr. NKUNIKA. The accused nonetheless insisted that they wanted a private lawyer, and yet their private lawyer had recused himself. This was on the fourth day, since the case was first called. The Judge adjourned the case to enable them instruct the Legal Aid Counsel but on resumption, Counsel reported that the Appellants had refused to instruct him still insisting on private representation. With no instructions, the Legal Aid Counsel was left with no option but to recuse himself. The Court then ordered 723 that the Appellants be brought back in court, but they all refused to come into court. It was then that the Judge proceeded to hear the case in the absence of the Appellants. The trial was not without drama. While in the cells the Appellants tried to disrupt the trial by banging on the door, almost breaking it. They broke the cell toilets prompting the judge to order that they be handcuffed. This did not last long, as the Appellants broke the handcuffs. The judge then ordered that they be both handcuffed and chained. Human rights to which individuals are entitled are spelt out in the Constitution but they have to be invoked by citizens. Their content and full measure of protection becomes alive when they are claimed by the citizenry otherwise they remain dormant on the statute books on which they are written. Here is a situation where the Appellants were represented by a private lawyer who recused himself and handed over to a Legal Aid Counsel. They refused to instruct the Legal and Counsel, compelling him to withdraw from the case and when they were ordered to come into court, they all refused to do so. How then did 724 they intend to assert their Constitutional right to counsel? Against the background of what transpired during the trial in this case, can it seriously be argued that the Appellants were not offered a chance to be represented by a lawyer of their own choice? It is our considered view that, by refusing to come into court, before the commencement of trial, the Appellants lost an opportunity to ask the Court to allow them to engage a Counsel of their choice. In fact, they did not claim their constitutional rights. It would appear that their sole aim was to disrupt the proceedings. They did not want to be tried. We commend the trial Judge for being firm and not falling prey to the antics and somewhat theatrical performance of the Appellants. The 2nd Appellant’s first ground of appeal therefore fails. On the 2nd ground of appeal, “that no plea was taken before commencement of the trial”; indeed, a Court is obliged, before the commencement of a trial, to put the charge to the accused and ask him or her to plead to the charge. In this case, trial started with disruptions and when the Appellants were called into Court to start the trial, they refused to be brought into court. How then was 725 the plea going to be taken when the accused refused to enter the courtroom? Instead, they tried by all means to disrupt the proceedings. As we have stated earlier, it is for an accused person to avail himself in Court when called upon and let due process of law take its course. An accused should not be allowed to dictate whether or not to be tried and unreasonably hold the court to ransom. Having passed the opportunity to plead, he cannot now seek refuge in Section 204 of the Criminal Procedure Code when he created the default in the first place. We are not persuaded by the 2nd Appellant’s argument in this case. He refused to come into court to be tried and instead engaged himself, together with his co­ accused, in unlawful acts of breaking doors and a toilet. We do not agree with Mr. NANGUZYAMBO that the acts were meant to register a protest for not being afforded a chance to have a lawyer of their own choice. They refused to attend trial where they could have asserted their right to a lawyer. We find no merit in the second ground of appeal either. In our view, the whole appeal is without merit and therefore is dismissed. The sentence imposed is the one prescribed by law. We will not disturb it. LC. Mambilima DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE 37