kantu and Ors v People (Appeal 27 of 1991) [1991] ZMSC 40 (7 May 1991)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA SCZ Appeal Nos. 2.7-30 I PASCAL KANTU CHARLES CHIBINGA GREY PHIRI TITO MUSHIMA vs THE PEOPLE 1st Appellant 2nd Appellant 3rd Appellant 4th Appellant > ' - Respondent CORAM: Si lungwe, C. J., Gardner and Chaila JJ. S. 7th May, 1991. Mr. E. Sewanyana, for thePeople Mr. F. N. Nguzyambo, for the 1st and 4th appellants Second and Third appellants. In person ■ JUDNEN T Chaila, J. S. delivered the judgment of the court. . ■ ■ 1 Cases referred to: —... -- ■■ ■— (1) (2) (3) Evaristo Bwalya vs The People 1975 ZR 227 ...___ Nyambe vs The People 1973 ZR 191 Chlmblni vs The People 1973 ZR 278 The appellants were prosecuted In the lower court for aggravated robbery contrary to section 294 of the Penal Code. The particulars of the offence were that the appellants on the 12th day of November, 1988 at Ndola in the Ndola District of the Copperbelt Province of the Republic of Zambia jointly and whilst acting together robbed James Mpundu of 1 tractor registration No. ACB 6144, valued at K400,000.00 and at or immediately before or immediately after the time of such robbery used or threatened to use actual violence to the ‘ said James Mpundu in order to obtain the said property. The prosecution case is that on the morning of the date in question, James Mpundu (hereinafter referred to as the complainant in this case) reported for duty at his /2................. i J2 - working place. He was driving a tractor with a trailer. After off-loading his first load at his employer's house in town, he started off to go back for his second load. After passing a road block, he branched off into a small road leading to the area where black soil was to be collected. He then saw six men in front of him. When.he was about to by-pass them, one of them jumped into the road and pointed a gun at him. He then realised that the men were thieves. He was eventually surrounded and the man with the gun was still around. Then one of them came and removed the complainant from the tractor. He sat In the seat, started the tractor and drove^off. Those who remained took off the complainant's lumber jacket and covered his head with it. They then took him to a bush where he was threatened with death and later told to lie down and not to.attempt to raise , his head. After some time and when he realised that all was quiet, the complainant woke up and ran towards the police road block where he reported the matter. The police later went into the direction where the tractor had gone. According to the complainant, he had a, good look at the man who had removed him from the tractor. He also.saw the face of the man who had the pistol.1 He said that he was frightened to death when the man pointed the pistol at him. At an identification parade held at the Police Station, the complainant identified the second and third accused persons and said that the second accused was the one who had pointed the gun at him and the third accused was the one who had removed him from the tractor. He revealed that the tractor had not been recovered. The appellants were convicted and sentenced to fifteen years imprisonment with hard labour. Mr. Nanguzyambo appearing for the first and fourth appellants has relied on written grounds of appeal. The first and fourth appellants filed further additional grounds. The second and third appellants appeared in person and in addition to the written grounds of appeal, they filed further grounds. - J3 - The learned State Advocate supported the convictions of all the appellants. In supporting the convictions, the learned State Advocate argued that the identification by a single witness was a proper one In the sense that the robbery^ occurred during broad day light, although the witness was frightened. The learned State Advocate argued that the complainant told the police that he was able to Identify two of the assailants and that at the identification parade he identified two appellants, i.e. the second and third appellants. The learned State Advocate has, however, conceded that the identification of the firearm;was not properly done. He agreed that the principles laid down in A* ‘ J the case of Evaristo Bwalya and the People (1) were not followed, but despite that error, the learned State Advocate supported the convictions. The appellants have complained of Improper Identification. The second and third appellants have argued in their grounds of appeal that the learned trial judge misdirected himself in not warning himself on the dangers of replying on a single identifying witness. They have further maintained that if the judge had properly warned himself he might not have drawn an inference of guilt from the proven facts. The fourth appellant has complained that the gun which was exhibited was not properly identified. The identification of the gun recovered could not therefore be relied upon. The first witness has complained that he was not proerly Identified and that the Inference drawn by the learned trial judge was wrong. In his judgment the learned trial judge said: , "There Is evidence in this case and Wiich I entirely accept that the first accused is the one who led the police (PW2) to where other three accused persons were. Thane is also evidence that the forth accused led the police to where the gun was hidden inside his house. Despite the accused’s denials of InvolvaiEnt in this case which denials I reject, I find this evidence to be most incriminating against the first and forth accused persons." The evidence referred to by the learned trial judge as regards the first appellant is that he led the police to the J4 - places where the other three appellants were found. Could this be regarded as incriminating without looking for further evidence? It must be oberved that the first appellant was not identified by the complainant at the police identification parade. We are in some difficulty in agreeing with the finding of the learned trial judge that that piece of evidence was so incriminating against the first appellant that it could lead to the inference of guilt.. The evidence against the fourth appellant was that he led the police to where the gun was hidden inside the house. This gun was not properly identified in accordance with the principles laid down in the case of Everlsto Bwalya already referred to. In considering this piece of evidence, the learned trial judge did not bear in mind the principles laid down in that case; that is to say: (i 1 i) "An identification of a firearm by picking it out of a rurber of others is very like an identification parade, and evidence should be led as to the descriptions of all the weapons." The evidence that the fourth appellant led the police to where the gun was found did not entitle the judge to draw the inference of guilt. The learned trial judge in considering the case of the first and thirdVappellants said: "With regard to the second and third accused persons, I would certainly have been in dodbt in regard to their identification had there been no other evidence other than that of the caiplainant. However, when one takes into account the fact that this robbery took place during the day and the fact that according to the caiplainant, the second accused is the one who removed him fran the tractor, and the subsequent identification of the two accused at an identification parade, one begins to have certain conclusions in mind. However, when one takes into accant the evidence that the first accused led the police to vhere his co-accused persons were and their subsequent arrest, more than fortifies the complainant's evidence that the second and third accused persons were participants in the crime. I therefore reject their respective defence as absolute lies.” The appellants have complained that the learned trial judge misdirected himself in not warning himself of the dangers of convicting them on the evidence of a single identifying witness. This court in the cases of Nyambe vs The People (2) ahd Chlmblni case (3) has laid down principles to be applied /5.......... J5 - in single identification cases. The judge must warn himself of the dangers of convicting in such cases. The judge must be satisfied that the witness was not only honest but was also reliable and must usually look for some corroboration, unless the single witness fell within certain exceptions. In this case, the complainant himself admitted that he'was frightened and the robbery took place within a short time. The learned trial judge in considering the issues before him, not only did not warn himself of the dangers of convicting on the evidence of the complainant alone but the learned trial judge did not Look for corroboration. Failure to warn himself of the dangers of convicting on the evidence of a single identifying witness was a major misdirection on the part of the learned trial judge. > / < • | 4: ? ' - < : For the foregoing reasons, we are unable to allow.t convictions to stand. The appeals are allowed; the convictions are quashed and the sentences set aside. * ’ •'V. .' ■ ■ A. M. Silungwe CHIEF JUSTICE • / „■ i B. T. Gardner SUPREME COURT JUDGE M. S. Chaila SUPREME COURT JUDGE J