Mudenda and Anor v People (Appeal 142 of 2021) [2022] ZMCA 75 (28 September 2022)

IN THE COURT OF APPEAL OFZAMBIA appeal no. 142, 143/2021 HOLDEN AT KABWE (Criminal Jurisdiction) / /\ \ BETWEEN: 23 M STEWARD MUDENDA LISWANI MULIWANA APPELLANT ----- - 2ND APPELLANT S/ ■ AND THE PEOPLE RESPONDENT Coram: Me he ng a, DJP, Makungu and Muzenga, JJA On the 18th day of May, 2022 and the 28th day of September, 2022 For the Appellant : Mr. K. Katazo, Senior Legal Aid Counsel - Legal Aid Board For the Respondent : Mr. C. Bako, Deputy Chief State Advocate - National Prosecution Authority JUDGMENT Makungu, JA delivered the Judgment of the Court. Cases referred to: 1. Darius Chanda & Others v. The People SCZ Judgment No. 8 of 2019 2. Mushala & Others v. The People (1978) ZR 58 3. Kakumba v. The People SCZ Appeal No. 479/2013 4. George Lipepo & Others v. The People SCZ Judgment No. 20 of 2014 5. Charles Lukolongo & Others v. The People (1986) ZR 115 6. R v. Masemang (1950) ZSA 488 (AD) 7. Kenneth Mtonga & Victor Kaonga v. The People (2000) ZR 33 8. Muvuma Kambanja Situna v. The People (1982) ZR 115 9. Chimbini v. The People (1973) ZR 191 10. Nyambe v. The People (1973) ZR 228 11. Wilheim Roman Buchman v. The Attorney General (1994) ZR 76 12. Simon Miyoba v. The People (1977) Z. R. 218 13. Attorney-General v. Edward Jack Shamwana & others (1981) Z. R 12 14. Roberson Kalonga v. The People (1988-1989) ZR 90 15. Mulenga Katete v. The People SCZ Judgment No. 10 of 2010 16. Kambarage Mpundu Kaunda v. The People (1990/1992) ZR215 17. James Chibuye and Others v. The People SCZ Judgment No. 33 of 2010 18. Patrick Tambwisha and Elvis Shamboko v. The People CAZ Appeal No. 56 and 57 of 2016 19. John Timothy and Feston Mwamba v. The People (1997) ZR 394 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia. 1 .0 INTRODUCTION 1.1 The judgment I am about to read is that of the majority of the court comprising Judge Mchenga, Deputy Judge President (DJP) and myself. Our brother Judge Muzenga, J. A will read his own separate dissenting decision. 1.2 Both appellants were convicted of the offence of aggravated robbery contrary to section 294(1) of the Penal Code, Chapter 87 of the Laws of Zambia and sentenced to death. This appeal is against conviction and sentence. 1.3 The particulars of offence were that Steward Mudenda and Liswani Muliwana on the 9th day of March, 2019 at Kalomo in -J2- the Kalomo District of the Southern Province of the Republic of Zambia jointly and whilst acting together while being armed with a gun attacked Abel Siafwa and robbed him of money amounting to KI8,000 and USD50 and at or immediately before or immediately after the time of such robbery, threatened to use actual violence to the said Abel Siafwa in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. 1.4 On 5th June, 2019, the appellants appeared before the Kalomo Subordinate Court for explanation of the charge. They continued appearing before that Court as they awaited instructions from the Director of Public Prosecutions (DPP) until 13th March, 2020 when the court decided to hold a preliminary inquiry. The decision to hold a preliminary inquiry was due to the delay in receiving instructions from the DPP. 1.5 After hearing witnesses for the prosecution, the Subordinate Court passed a ruling on 6th May, 2020 reducing the charge to robbery; contrary to section 292 of the Penal Code. The court then adjourned the matter for defence. However, on 12th May, 2020, the prosecutor informed the court that the docket had been collected by the Senior State Advocate based in Choma. -J3- - 1.6 On 18th June, 2020, the Subordinate Court was informed that instructions had been received from the DPP’s office that both appellants be committed for trial to the High Court on the initial charge of aggravated robbery. The court accordingly committed them to the High Court. 2.0 EVIDENCE BEFORE THE HIGH COURT 2.1 The case for the prosecution rested on the evidence of six witnesses. PW1, Margaret Busiku, the wife to PW2, testified that while seated outside their farmhouse seeping a glass of wine, at around 19:00 hours on 9th March, 2019, two men armed with a gun and a knife appeared and ordered them to sit down. The man with the knife tied PW2’s hand with a rope. 2.2 PW1 stated that she was looking at the assailants and she observed that they both wore old ZAWA uniforms with boots. She described the man armed with the gun (Al) as being quite short, fat with shaved hair and a beard, while the one with the knife (A2) was said to be tall, slim with a big nose and a squint right eye. She added that when standing, A2’s legs would slightly push backwards. The trial judge put it on record that he had observed the said features on A2. -J4- - 2.3 Though it was at night, PW1 was able to see these features on account of the light from the moon and security lights. PW2 was made to lie facing down. Al demanded for money while A2 slapped PW1 and warned her against looking at them. 2.4 PW3, a farm hand, heard the commotion and came to the house. A gun was immediately pointed at him by one of the intruders and he was threatened to be stabbed. PW3 also had his hands tied but with his own shirt by A2. 2.5 The three victims were led into the house. The assailants demanded for money and PW2 produced a key to a box where the money was kept. A2 opened the safe and got the KI8, 000.00 and US$50.00 that was in it. A cell phone belonging to PW2 was also stolen. Al then fired the gun into the wall. Then PW3 was hit with the butt of the gun on his left cheek. Thereafter, the lights were switched off, at which point, PW3 escaped. PW1 and PW2 were led outside and made to lie down. The assailants then left. 2.6 According to PW1, the whole episode lasted about 30 minutes during which time she was looking at the assailants. She later identified Al and A2 at an identification parade. She further stated that she had known Al for three years as a seller of bush- -J5- meat and patron of her bar. That she knew A2 from 2017 as her father’s neighbor at a farm in Namiyanga. 2.7 PW2, Abel Siafwa, gave similar testimony as PW1. However, he added that when the assailants arrived, the gun was cocked and they were ordered to sit down. That the one with the knife threatened to stab him and demanded for money. He told the assailants that the money was in the house. That it was at this point that PW3 arrived and was forced to lie down and his hands tied with his own shirt. 2.8 The keys to the cabinet where gotten from his pockets by the knife wielding robber who went on to open the cabinet and take the money that was there. PW2 said he saw PW3 being hit with the gun butt on the cheek. After one of the assailants switched off the security lights, PW3 fled the house. That the assailants threatened to kill PW1 and PW2. Nevertheless, the one with the gun discharged it into the wall. Thereafter, the assailants left them. 2.9 PW2 conceded that he could not positively identify the assailants at an identification parade owing to a stroke he had suffered three days after the attack. However, he described the one carrying the gun as being tall and slim while the one with the -J6- knife was a bit light and fat, and had a clean shaven head with a beard. That they both wore old ZAWA uniforms and boots. 2.10 PW3, also gave similar testimony and stated that he was assaulted with a gun butt on his left cheek. He recognized Al owing to the fact that after firing the shot, he got close to him. He described him as having a shaved head with a beard; that he had known him for a long time as he used to see him in Simakakata area; and that they hail from the same area. However, in cross­ examination, PW3 conceded that he did not recognize Al during the assault. 2.11 PW4, a crime scene officer, took photographs of the identification parade while PW5 conducted the parade. 2.12 The Arresting Officer, PW6 told the court below that when he visited the scene of crime, PW2 told him that he did not recognize the attackers but that his wife, PW1 recognized them. That when he interviewed PW1, she described one of the attackers as being short, stout, with a shaved head and a beard. That this particular suspect was known to her. She described the other suspect who was armed with a knife as being a bit tall, myopic, and slim. -J7- 2.13 PW6 retrieved the pellet that was discharged into the wall. The same was later confirmed by a ballistics expert to be a bullet from an AK47 rifle with a caliber of 7.62mm. This witness told the court that no recoveries were made. He denied the assertion that Al owns a bar and that at the time of the robbery, he was at his bar in the company of Chiluba Chulu as it was never mentioned to him. He further stated that Al once worked with ZAWA as a guide. 2.14 In cross-examination, PW6 conceded that though there was no medical report to confirm that violence was actually used on the victims, the offence involved violence directed at the victims. .0 DEFENCE EVIDENCE 3.1 In his defence, Al denied committing the offence saying that on 9th November, 2019, he and A2 had arranged to dip their cattle the following morning but were apprehended. A search at his house yielded nothing. He complained that during the identification parade, PW6 took them from the cells and led them to where PW1 was and then back to the cells. He was later given a khaki checkered T-shirt, black pair of trousers and white socks to put on and then paraded for identification. Nonetheless, PW2 failed to identify him but PW1 identified him. -J8- 3.2 He further told the court that he and PW1 were previously involved in an intimate relationship which ended when she found him with another woman. That PW1 threatened him that if she had lost him, the other woman would lose him too. 3.3 Al further gave an alibi that he was at home with his wife at the time the crime is said to have been committed. He also denied ever having served as a ZAWA aid in Dundumwezi. 3.4 In cross-examination, Al could not recall if PW6 was asked if he was not told that Al was with Chiluba Chulu at the time of the offence. He then changed his statement and stated that he was with Chulu between 20:00 and 21:00 hours. He conceded that he did not complain about the changing of clothes during the identification parade and that he was not the only one on the parade who had changed clothes. He further conceded that he neither mentioned the name of his girlfriend to PW6 nor told PW6 that he used to be in a relationship with PW1. 3.5 A2, testified that on 9th November, 2019, he and Al agreed to dip their cattle at Simakakata Resettlement Scheme and that he spent the night at Al’s home. However, in the night, he and Al were apprehended. He alleged that PW1 saw him prior to the identification parade as she was with PW6. That he suspected -J9- that he was falsely implicated because PW1 and A2’s family, who live on neighbouring farms, have had land disputes over boundaries. 3.6 In cross-examination, A2 conceded that he was not identified on account of the white socks he wore but because he and PW1 have known each other since childhood. .0 DECISION OF THE HIGH COURT 4.1 In his judgment, the learned trial judge found that the offence of aggravated robbery was committed because PW2 had his money and Techno cell phone stolen from him. He accepted that the thieves threatened to use and actually used violence on PW1, PW2 and PW3 in order to overcome resistance from the property being stolen. 4.2 The court below considered the case of Darius Chanda & Others v. The People (1) and was of the view that there is no law that requires a medical report to prove aggravated robbery. He was satisfied that PW1 and PW2 were beaten. That it was sufficient to show that violence was used in stealing the property. 4.3 The lower court was further satisfied on the evidence of PW1, PW2 and PW3 that during the incident, the thieves were armed with offensive weapons within the meaning of section 4 of the -J10- Penal Code; namely a knife and a firearm. Further that, PW4 and PW6 recovered a bullet that was discharged into the wall of the house. Therefore, it was immaterial that neither the rope nor the cloth used to tie the hands of PW2 and PW3 were produced in evidence. 4.4 The learned judge noted that the appellants alleged that the key identifying witness, PW1 had mistaken them for the assailants on the grounds that she was intoxicated; had observed the assailants under stressful conditions or an unlit environment; and she lied against them on account of previous differences. 4.5 The trial court found that there was no dispute that PW1 and the appellants knew each other prior to the incident. As PW1 based her evidence on recognition as opposed to identification of a stranger, the court warned itself of the possibility of mistaken identity akin to recognition cases as guided in Mushala & Others v. The People (2) and Kakumba v. The People.131 He then considered the prevailing conditions and noted that the attack lasted for a long time, being a period of more than 20 minutes; the faces of the assailants were uncovered; they were in close proximity to PW1 who watched them throughout until she was hit and ordered to stop looking at them. That PW1 had ample -Jll- time to observe the assailants and was, for this reason, able to narrate the roles that each of them played in the robbery and the weapon each of them carried. 4.6 A finding was made that the scene of crime was well lit as evidenced by the fact that PW3 was immediately seen by the assailants when he arrived at the scene and that was the reason why PW1 was beaten for watching them. He also found that PW4 and PW6 as independent witnesses, confirmed that the scene of crime was lit. 4.7 The absence of bulbs in the pictures in the photographic album was found not to be fatal, as PW4 might have focused his attention on other portions of the crime scene. Guided by the case of George Lipepo & Others v. The People, 141 the trial court found that the possibility of an honest mistake in recognizing both appellants had been eliminated. 4.8 The court rejected the argument that the identification parade was unfairly conducted on the ground that there was no evidence of a complaint from the appellants regarding the manner in which the parade was conducted. He found no evidence that they were forced to change clothes. He accepted Al’s evidence that -J12- PW1 identified him because she knew him and not on account of the white socks. 4.9 Further that, if PW2 had seen them prior to the identification, then he would not have failed to identify them. The court rejected the argument by the appellants as an afterthought as PW1 merely identified people she already knew. 4.10 As regards, the argument that PWl’s ability to observe may have been impaired owing to the wine she had taken, the court found that this was speculative as she was able to give a lucid narration of the events that took place during the attack which was similar to PW3’s account and yet PW3 had not taken any alcohol. 4.11 The court rejected the alibi put up by the appellants on the ground that PW6 was never told of it and that it was only raised at trial. Further, that the evidence of identification defeated the alibi. 4.12 In addressing the allegation of false implication by PW1, the court found it to be farfetched as it defied logic for PW1 to have waited for the occurrence of an unlikely and unforeseeable case of aggravated robbery to falsely implicate Al. The allegation by A2 of a land dispute was also found to be merely an afterthought. -J13- The court found no discernable motive for PW1 to falsely implicate the appellants. 4.13 While the trial judge found no satisfactory reason for the failure by the police to lift finger prints from the objects allegedly touched by the appellants, he found that the dereliction of duty had been offset by the strong evidence of recognition supplied by PW 1. In arriving at this finding, the trial court relied on the case of Charles Lukolongo & Others v. The People.,5> 4.14 Consequently, the appellants were found guilty as charged, convicted and sentenced to death. .0 GROUNDS OF APPEAL 5.1 Two grounds of appeal have been advanced as follows: 1) That the learned trial judge erred in law and fact when he convicted the appellants based on the single identifying witness, when the possibility of an honest mistake had not been ruled out; and 2) In the alternative, the trial court erred in law and fact in convicting the appellants despite the trial being unfair. -J14- .0 APPELLANTS’ ARGUMENTS 6.1 Mr. Katazo, learned counsel for the appellants filed heads of argument on 9th May, 2022. In ground one, counsel submitted that the possibility of an honest mistake on the part of the identifying witness, PW1 had not been eliminated on account of the number of people who were present at the scene of crime who witnessed the robbery but failed to identify the appellants. 6.2 It was submitted that since the incident happened at night at around 19:00 hours, PW1 did not possibly see the appellants clearly as she was scared, traumatized and had been kicked and slapped by the attackers. She also did not give the details and description of the physical appearance of the attackers to the police. It was further contended that PW1 did not inform the police that she recognized the attackers when the police visited the scene. 6.3 The identification parade conducted was said to have been fraught with procedural irregularities on account of the appellants having been seen by PW 1 prior to the identification parade and that the appellants were the only ones wearing white socks on the parade. -J15- 6.4 We were referred to the case of R v. Masemang (6) where it was held that: “Where such identification rests upon the testimony of a single witness and the accused was identified at a parade which was admittedly conducted in a manner which did not guarantee the standard of fairness observed in recognized procedure, but was calculated to prejudice the accused, such evidence standing alone can have little weight, ” 6.5 Further reliance was placed on the case of Kenneth Mtonga & Victor Kaonga v. The People ,7) where it was held that: (i) The Police or anyone responsible for conducting an identification parade must do nothing that might directly or indirectly prevent the identification from being proper, fair and independent. Failure to observe this principle may, in a proper case, nullify the identification. (ii) If, therefore, any irregularity committed in connection with the identification parade can be regarded as having any effect whatsoever on the identification, it would not be to nullify the -J16- identification given the ample opportunity available to the witnesses. (Hi) If the identification is weakened then, of course, all it would need is something more, some connecting link in order to remove any possibility of a mistaken identity.” 6,6 Counsel submitted that in relying on the evidence of PW1, the trial court should have gone further than merely making a finding of fact. That PWl’s evidence should have been tested and evaluated by subjecting it to searching questions while noting all the prevailing conditions and the basis upon which the witness claimed to recognize the appellants as per the case of Muvuma Kambanja Situna v. The People?81 6.7 The appellants further argued that no one was called from the Zambia Wildlife Authority (ZAWA) to confirm that Al had worked there before. That the court below went on to convict the appellants on the evidence of PW 1 even when there was nothing connecting the appellants to the offence. Therefore, the court should not have convicted the appellants on the evidence of a single identifying witness as the possibility of an honest mistake had not been ruled out. -J17- 6.8 In ground two, counsel contended that the trial of the appellants was unfair on account of the procedural impropriety in respect of their committal to the High Court for trial and the resultant opportunity for the state to guide its witnesses to suit the preferred charge. 6.9 Counsel submitted that due to the inordinate delay by the DPP to exercise her powers under section 254 of The Criminal Procedure Code Chapter 88 of the Laws of Zambia (The CPC). In the exercise of its jurisdiction under section 232 of the CPC, the Subordinate Court put the appellants on their defence for the offence of robbery as opposed to committing them to the High Court for trial. 6.10 In apparent dissatisfaction of the Subordinate Court’s ruling and contrary to section 255 of the CPC, the State invoked section 254 of the CPC and the Subordinate Court proceeded to commit the appellants to the High Court for trial for the offence of aggravated robbery. That this was despite the ruling of 8th May, 2020 not having been set aside by any court of competent jurisdiction. 6.11 Counsel submitted that the committal of the appellants to the High Court for trial was irregular because the exercise of the -J18- powers of the DPP under section 254 of The CPC was and is contrary to the limits set by section 255 of The CPC. Counsel contended that in terms of section 255 of The CPC, the authority of the DPP under section 254 of The CPC can only be exercised either before the commencement of or during a preliminary inquiry, and not after the conclusion thereof as was the case in casu. In this regard, the committal of the appellants to the High Court for trial was irregular and a misdirection in law. 6.12 Consequently, the appellants submitted that their trial was unfair as it presented the State with an opportunity to take ‘a second bite at the cherry’ or an opportunity for its witnesses to correct their shortcomings which led to the Subordinate Court to determine that their evidence pointed to robbery and not aggravated robbery. 6.13 We were urged to find that the trial by the lower court was unfair and a miscarriage of justice, and to quash the convictions and sentences. .0 RESPONDENT’S ARGUMENTS 7.1 On 18th May, 2022, the respondent filed heads of argument in which it stated that it supports the convictions and sentences. -J19- - 7.2 The learned Deputy Chief State Advocate, Mr. Bako submitted that the evidence which connected the appellants to the commission of the offence was that of identification from PW1. The appellants were known to PW1 prior to the material date and hence the finding by the lower court that the evidence against the appellants was that of identification arising out of recognition as opposed to identification of a stranger was correct. 7.3 Counsel pointed out that the trial judge was alive to the dangers that come with evidence of recognition by a single witness, and he warned himself of such dangers and the need to exclude the possibility of an honest mistake. The requirements for excluding the possibility of an honest mistake were restated in Chimbini v. The People’9* as follows: "The case against the appellant rests entirely on the evidence of the complainant. It is always competent to convict on the evidence of a single witness if that evidence is clear and satisfactory in every respect; where the evidence in question relates to identification there is the additional risk of an honest mistake, and it is therefore necessary to test the evidence of a single witness with particular care. The honesty of the witness -J20- is not sufficient; the court must be satisfied that he is reliable in his observation. Many factors must be taken into account, such as whether it was daytime or night­ time and, if the latter, the state of the light, the opportunity of the witness to observe the appellant, the circumstances in which the observation was alleged to have been made (i.e. whether there was a confused fight or scuffle or whether the parties were comparatively stationary). Most importantly, it is relevant to consider whether the witness knew the accused prior to the incident, since there is the greatest difference between recognizing someone with whom you are familiar, or at least whom you have seen before, and seeing a person for the first time and attempting to recognise and identify him later from observations made in circumstances which are no doubt charged with stress and emotion. ” 7.4 It was submitted that though the incident was at night, the evidence shows that the locus in quo was well lit by the moon and electric bulbs; the whole ordeal lasted about 20 minutes and happened both outside and inside the house; that PW1 was in close proximity to the assailants throughout the ordeal; that the -J21- assailants faces were covered or disguised in any way. That PW1 was slapped on the face for looking at the assailants. There was evidence that she never lay down when ordered to do so but remained standing. 7.5 With respect to the argument that PW1 did not tell the police that she recognized the appellants when the police visited the scene, it was submitted that the record shows that PW6 confirmed that PW2 informed him that PW1 recognized the assailants and she proceeded to describe them to him. Therefore, the trial court correctly found that PW1 informed the police. 7.6 Mr. Bako submitted that both appellants conceded in their defence that they were identified at the identification parade since they were well known by PW1 prior to the incident, thereby confirming that she recognized them. That Al asserted that he was at one point PWl’s boyfriend. Therefore, the identification parade was a formality with respect to PW1. 7.7 In referring us to the case of Nyambe v. The People, (10) it was submitted that the circumstances of the case reveal that the prosecution evidence was sufficient in that it shows that even though PW1 was slapped, kicked and scared, there was ample opportunity for her to reliably observe and recognized her -J22- assailants. Therefore, the quality of the identification evidence was good to exclude the possibility of an honest mistake. 7.8 With respect to ground two, Mr. Bako submitted that the issue of fairness was not raised in the court below as the record is devoid of any reference to this issue. Counsel contended that in terms of the case of Wilheim Roman Buchman v. The Attorney General (11) a matter that was not raised in the court below cannot be raised on appeal. That, had the issue been raised in the court below, the trial court would have determined it. 7.9 Counsel submitted that the record actually shows that the trial was very fair as the appellants were represented by legal aid counsel who, on more than one occasion employed the evidence from the preliminary inquiry to cross-examine prosecution witnesses. That this was in line with the case of Simon Miyoba v. The People (12) that: (i) The general rule is that the contents of a statement made by a witness at another time, whether on oath or otherwise, are not evidence as to the truth thereof; they are ammunition, and only that, in a challenge of the truth of the evidence the witness has given at the trial. -J23- (ii) It is necessary for the trial court to have before it formally the previous statement so that it can compare it with the evidence given in court and assess for itself the seriousness of the alleged discrepancies. (Hi) Neither the depositions taken at a preliminary inquiry nor statements to the police, which in summary committal proceedings are furnished to the court and the defence, are formally before the court and the court is not entitled to have regard to the contents of such depositions or statements. ” 7.10 In spite of the rigorous cross-examination, the record shows that the prosecution evidence remained materially the same during trial, contrary to the assertion that the prosecution had an opportunity to tailor the evidence to suit the offence of aggravated robbery. 7.11 In any case, counsel submitted that the argument of unfairness cannot stand as it is anchored on a grave misdirection at law by the learned magistrate who, after the preliminary inquiry, took the view that the evidence disclosed the offence of robbery, when in fact not. This is because the magistrate did not direct his mind -J24- to the provisions of sections 292 and 294 of the Penal Code in view of the evidence disclosing that there were two assailants and that offensive weapons, namely, a firearm and a knife were used to threaten violence. 7.12 We were urged to dismiss the appeal for lack of merit, and to uphold the convictions and sentences imposed by the court below. 8 .0 ORAL SUBMISSIONS BY THE RESPONDENT DURING THE HEARING OF THE APPEAL 8.1 When the appeal came for hearing, the learned Deputy Chief State Advocate, Mr. Bako requested us to give guidance on the import of section 232 of the CPC in light of what transpired in the Subordinate Court. We in turn asked Mr. Bako to give us his thoughts on the argument that the appellants having been put on their defence in a Preliminary inquiry (PI), the DPP could not commit the appellants to the High Court. 8.2 The Deputy Chief State Advocate responded that while section 232 of the CPC allows the Subordinate Court to proceed to take plea and hold a trial where it is of the view that the offence disclosed is one in which it has jurisdiction, in this case the Subordinate Court misdirected itself with regard to the evidence -J25- that was offered. He stated that the problem arose when the lower court indicated that the matter was coming up for defence instead of plea for robbery. 8.3 He submitted that the PI would only have terminated had the court made a finding that there was a case triable by itself and proceeded to take plea. 8.4 Mr. Bako submitted that the High Court was on firm ground to hold trial as Committal Certificate attached with Preliminary Depositions had reached it. At that point, the court below could not be said to have received a wrong committal process or a wrong Certificate of Committal. He stated that strictly speaking, had the lower court complied with section 232 of the CPC, the certificate of committal ought not to have been transmitted. 8.5 He further submitted that though the particulars of offence refer to ‘a gun’ and not a firearm, a gun is a gun until proven otherwise. Therefore, no injustice was occasioned to the appellants for the lack of notice that the offence they finally stood charged with, carried a mandatory death sentence. ORAL SUBMISSIONS BY THE APPELLANTS’ 8.6 For the appellants, the learned Senior Legal Aid Counsel, Mr. Katazo submitted that the trial was unfair in as far as what -J26- caused the Subordinate Court to rule out aggravated robbery was corrected or altered at the time the appellants were committed to the High Court for trial. He further submitted that the trial was unfair because the High Court had no jurisdiction to hear the matter when the committal procedure was not followed. That where there is a PI, there must be a proper committal. 8.7 He argued that the DPP had no power to issue a Certificate of Committal after the PI had ended. That such a Certificate could only be issued before or during the PI. 9 .0 DECISION OF THIS COURT 9.1 We have considered the record of appeal and the arguments advanced by counsel. Although the 2nd ground of appeal was raised in the alternative, we find it expedient to deal with it first as it raises a crucial issue of jurisdiction and it should have been raised first as a decision made by a court that has no jurisdiction is a nullity. 9.2 In ground two, the appellants contend that the trial was unfair on account of the procedural impropriety in respect of their committal to the High Court for trial and the resultant opportunity for the state to guide its witnesses to suit the preferred charge. -J27- 9.3 With respect to procedural impropriety, the appellants contend that the DPP exercised her powers wrongly by issuing a Certificate of Committal to the High Court for summary trial pursuant to section 254 of the CPC when the Magistrate had held a preliminary inquiry in which she reduced the charge from aggravated robbery to robbery and had placed the appellants on their defence. Section 254 of the CPC provides as follows: “Notwithstanding anything contained in part VII, in any case where a person is charged with an offence not triable by a Subordinate Court, the Director of Public Prosecutions may issue a Certificate in writing that the case is a proper one for trial by the High Court as a summary procedure case and such case shall, upon production to a subordinate court of such certificate, be dealt with by the Subordinate Court in accordance with the provisions of this part. ” 9.4 We have considered the provisions of sections 223 to 232 of The CPC on the procedure to be followed in a preliminary inquiry. We accept that the learned Magistrate was correct to hold a preliminary inquiry as this is what section 223(1) of the -J28- CPC requires a Magistrate to do whenever any charge has been brought against any person of an offence not triable by a subordinate court as to which the subordinate court is of opinion that it is not suitable to be disposed of upon summary trial. 9.5 If, at the close of or during the inquiry, it shall appear to the subordinate court that the offence is of such a nature that it may suitably be dealt with under the powers possessed by that court, the court may, hear and finally determine the matter, and either convict the accused person or dismiss the charge. 9.6 The record shows that in this case, the Subordinate Court heard the evidence of the prosecution and rendered a ruling in which it reduced the charge from aggravated robbery contrary to section 294(1) of the Penal Code, to robbery contrary to section 292 of the Penal Code. Thereafter, it adjourned the matter for defence. 9.7 The reduction of the charge was made even when the evidence clearly showed that more than one person was involved in the commission of the offence and that a gun (whether or not it was a firearm within the meaning of the Firearms Act) and a knife was used to attack and threaten PW1, PW2 and PW3, meaning that the case fell under section 294(1) of the Penal Code which provides as follows: -J29- “(1) Any person who, being armed with an 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 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 and is liable on conviction to imprisonment for life, and notwithstanding subsection (2) of section twenty-six, shall be sentenced to imprisonment for a period of not less than fifteen years. 9.8 Therefore, we are satisfied that the learned Magistrate misdirected herself in law when she reduced the charge to ordinary robbery. We also find that the Subordinate Court had no jurisdiction whatsoever to even hear the matter as at that stage, the evidence was sufficient for committal of the appellants to the High Court for summary trial in terms of section 231(1) of The CPC which provides as follows: -J30- “If the court considers the evidence sufficient to put the accused person on his trial, the court shall commit him for trial to the High Court and, except in the case of a corporation, shall until the trial, either admit him to bail or send him to prison for safe-keeping... ” 9.9 The record shows that upon reducing the charge to robbery, the learned Magistrate adjourned the matter for defence. Section 232 of The CPC provides as follows: “If, at the close of or during the inquiry, it shall appear to the subordinate court that the offence is of such a nature that it may suitably be dealt with under the powers possessed by the court, the court may, subject to the provisions of Part VI, hear and finally determine the matter, and either convict the accused person or dismiss the charge: Provided that, in every such case, the accused shall be entitled to have recalled for cross­ examination all witnesses for the prosecution whom he has not already cross-examined.” -J31- 9.10 The import of the above mentioned provision is that when a Subordinate Court conducting a preliminary inquiry is of the view that the evidence discloses a charge or offence that is within its powers to hear and determine, then the provisions of Part 6 of The CPC with regard to the conduct of trials before the Subordinate Court come into play. Among these provisions is the requirement for the accused to take plea in terms of section 204(1) of The CPC. 9.11 Since the Magistrate did not invite the appellants to take plea but proceeded to adjourn the matter for defence, she misdirected herself in law and if she had conducted a trial, it would have been seriously flawed. Such a trial may be quashed by an appellate court. 9.12 As regards, the DPP issuing a Certificate of Committal to the High Court for summary trial in the exercise of her powers under sections 254 and 255 of The CPC when the Magistrate had directed that the matter be adjourned for defence, Sections 254 of The CPC provides: “Notwithstanding anything contained in part VII, in any case where a person is charged with an offence not triable by a Subordinate Court, the Director of -J32- Public Prosecutions may issue a Certificate in writing that the case is a proper one for trial by the High Court as a summary procedure case and such case shall, upon production to a subordinate court of such certificate, be dealt with by the Subordinate Court in accordance with the provisions of this part.” Section 255 of CPC provides: “No such preliminary inquiry as is referred to in part VII shall be held in respect of any case in which the Director of Public Prosecutions has issued and the prosecutor has produced to a Subordinate Court a certificate issued under the provisions of section two hundred and fifty-four, but the Subordinate Court before whom the accused person is brought shall, upon production of such certificate and whether or not a preliminary inquiry has already been commenced, forthwith commit the accused person for trial before the High Court upon such charge or charges as may be designated in the certificate.” -J33- 9.13 In light of the foregoing provisions of the law, we take the view that there was no procedural impropriety on the part of the DPP for the reason that whatever trial the Subordinate Court intended to conduct would have been a nullity for reasons already stated. 9.14 We are very much alive to the fact that under section 255 of The CPC, the DPP can only issue a certificate that the case is proper for trial by the High Court before or during a preliminary inquiry. In the High Court case of Attorney­ General v. Edward Jack Shamwana & Others,13 it was held inter alia: “Section 255 of the Criminal Procedure Code is mandatory. The certificate of committal issued by the Director of Public Prosecutions prohibits the holding of a preliminary inquiry by a Subordinate Court and compels that court to commit the accused for trial before the High Court forthwith. No Subordinate Court has any jurisdiction in the matter and by law no Subordinate Court can query the powers of the Director of Public Prosecutions to issue a certificate of summary committal under -J34- sections 254 and 255 of the Criminal Procedure Code” 9.15 Although the aforementioned being a High Court decision is merely persuasive to us, we endorse it. We are of the firm view that the issuance of the said certificate was proper in that the preliminary inquiry cannot under the circumstances be deemed to have been concluded. Further, the Subordinate Court could not query the powers that were exercised by the DPP. 9.16 We find that no injustice or unfairness was occasioned to both appellants as the record shows that the trial in the High Court was conducted under strict observance of the procedures under Part 9 of the CPC. 9.17 As a result, ground two has no merit and it fails. Under the circumstances, we shall proceed to tackle the first ground of appeal. 9.18 In ground one, the appellants’ have attacked the evidence of the single identifying witness (PW1) on many fronts: • That the possibility of an honest mistake had not been ruled out because PW2 and PW3, who were present at the scene, failed to identify them. -J35- • That PW 1 was too traumatized to identify the assailants as she had been slapped and kicked. • That PW 1 did not give a description of the attackers to the police. • That the identification parade was marred with procedural irregularities. • That PWl’s evidence should have been tested for reliability. . 9.19 We note that in her testimony, PW1 stated that she recognized both accused persons (appellants) Al because he used to sell bush-meat and patronized her bar, while A2 was her father’s neighbour in Kalomo. - 9.20 As regards identification by a single witness, the Court of Appeal in Chimbini v. The People (9) held that: (i) Particularly in cases of identification by a single witness, the honesty of the witness is not sufficient; the court must be satisfied that he is reliable in his observation. (ii) Most important among the factors to be taken into account is whether the witness knew the accused prior to the incident; there is the -J36- greatest difference between recognising someone with whom one is familiar, or at least whom one has seen before, and seeing a person for the first time and attempting to recognise him later from observations made in circumstances which may be charged with stress and emotion. The court further guided that: “It is always competent to convict on the evidence of a single witness if that evidence is clear and satisfactory in every respect; where the evidence in question relates to identification there is the additional risk of an honest mistake, and it is therefore necessary to test the evidence of a single witness in (each) particular case. The honesty of the witness is not sufficient; the court must be satisfied that he is reliable in his observation. Many factors must be taken into account such as whether it was daytime or night-time and, if the latter, the state of the light, the opportunity of the witness to observe the appellant, the -J37- circumstances in which the observation was alleged to have been made,..” 9.21 Further, in Muvuma Kambanja Situna v. The People, (8) it was held that: (i) The evidence of a single identifying witness must be tested and evaluated with the greatest care to exclude the dangers of an honest mistake; the witness should be subjected to searching questions and careful note taken of all the prevailing conditions and the basis upon which the witness claims to recognise the accused. (ii) If the opportunity for a positive and reliable identification is poor, then it follows that the possibility of an honest mistake has not been ruled out unless, there is some other connecting link between the accused and the offence which would render mistaken identification too much of a coincidence.” -J38- * 9,22 It is not in dispute that PW2 failed to identify his attackers at the identification parade. He told the court that his failure was due . to the trauma he had suffered on account of the attack which resulted in a partial stroke. He also told the court that during the robbery, he was made to lie face-down therefore he did not have a clear view of the assailants. 9.23 PW3 told the court that he recognized Al as he once lived in Simakakata area but under cross-examination, he conceded that he did not recognize him during the assault. 9.24 However, PW2 described the assailant who was armed with the gun as being tall and slim while the one with the knife was a bit light and fat, and his head was clean shaven with a beard. She said they both wore old ZAWA uniforms and boots. A perusal of the record of appeal at page 155 (lines 14 - 25) and page 156 (lines 1 — 4), reveals that the arresting officer, PW6, testified that when he interviewed PW2 at the scene of crime, he told him that his wife (PW1) recognized the suspects. He told the court that when he interviewed PW1, she gave him a clear description of the two suspects. 9.25 According to PW6, the description given by PW1, was that one of the attackers was "... short, stout... had a shaved head but -J39- with beard..,” and that he was known to her. The description of the other who was armed with a knife, was that “he was a bit tall, slim, and a bit myopic. ” 9.26 In her testimony, PW1 told the court that they both wore old ZAWA uniforms with boots. She described the man armed with the gun as being quite short, fat with shaved hair and a beard, while the one with the knife was said to be tall, slim with a big nose and a squint right eye. She added that when standing, A2’s legs would slightly push backwards, which features, the trial judge also observed on A2. 9.27 With respect to visibility, PW1, PW2 and PW3 all told the court that the house had electric bulbs which were on and so there was sufficient light to enable them to see clearly. 9.28 In these circumstances, we are satisfied that the learned trial judge was on firm ground when he accepted the evidence of identification by the single identifying witness (PW1) as it was reliable and well supported. The risk of an honest mistake had been eliminated and it was therefore safe to convict the appellants. 9.29 Further, PW1 and the appellants were known to each other prior to the material date and as such, she recognized them. Al -J40- under section 294 (2) (a) of the Penal Code which carries the death penalty. Although neither party has raised the issue of propriety of the sentence under the said section, it is in the interest of justice that we address it for reasons that will become clear below. 9.34 It is trite that for a conviction for armed aggravated robbery to stand, there must be direct evidence of the use of a fire-arm and the accused must be put on notice that he is at the peril of suffering a death penalty. Authorities to that effect in this jurisdiction abound, we shall mention a few: In the case of Roberson Kalonga v. The People,14 the appellant was convicted of aggravated robbery contrary to section 294 (1) of the Penal Code and sentenced to death. He was not charged with armed robbery, neither did the particulars of offence allege the use of a firearm. 9.35 The Supreme Court had this to say: “We agree with the learned director that it is essential when there is an allegation of armed robbery that an accused person must be notified of such an offence. In this particular case there was no notification to the appellant and -J42- therefore, as we will say later in this judgment, he will not be subjected to the death sentence.” 9.36 Similarly, in Mulenga Katete v. The People,15 the appellant was convicted of one count of Aggravated Robbeiy contrary to section 294(1) and sentenced to death under section 294 (2) of the Penal Code. 9.37 One of the grounds of appeal advanced on behalf of the appellant was that; the learned trial judge erred in law and fact when she convicted him for armed robbery and sentenced him to death. 9.38 The Supreme Court found that no amendment was made to the charge and therefore it was a misdirection to sentence the appellant under section 294 (2) when he was charged under section 294 (1) of the Penal Code even though there was evidence that a firearm was used by the appellant during the robbery. 9.39 In the Mulenga Katete case supra, the case of Kambarage Mpundu Kaunda v. The People16 was cited where it was held inter alia that: "A court has power either on its own motion or at the instance of either the prosecution or the defence, to amend an indictment by for instance, upgrading the offence originally -J43- charged, or even including an additional count or an offence not originally charged.” 9.40 In a similar case of James Chibuye and Others v. The People,17 the Supreme Court distinguished the Robertson Kalonga14 case supra from the case before them as follows: “The information in this case reads aggravated robbery (contrary to section 294 (1) of the Penal Code, Cap 87 of the Laws of Zambia. The particulars allege that the appellants robbed Koekemoer Jacobus of the 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 the 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 (2). The record shows that the matter was tried as an armed robbery case in that the firearms that were found with one of -J44- the suspects were brought to court and identified by witnesses. A ballistic expert gave evidence on the nature of the said firearms. They were firearms within the meaning of the Firearms Act. ” 9.41 The Court found that the appellants were not prejudiced in anyway by being charged under section 294 (1) of the Penal Code but sentenced under section 294(2) of the same Code as they knew from the beginning the charge that they were facing. 9.42 The Kalonga14 and Katete15 cases supra can be distinguished from the present case in that in those cases, the particulars of offence did not put the accused on notice of armed (aggravated) robbery but in the present case the appellants were notified of that offence. In the Katete15 case, the Supreme Court observed from the evidence of the witnesses (PW 1 and PW2) that a firearm was used, a conviction of robbeiy under section 294 (2) was still untenable due to the fact that the information did not put the accused on notice of aggravated robbery with a firearm. Hence, the Supreme Court guided on the need to amend the charge in such instances. Our understanding is that the information should under such circumstances be amended to include that a -J45- gun or firearm was used by the accused during the commission of the offence and not that the charge should fall under section 294(2) of the Penal Code. 9.43 In the case of Patrick Tambwisha and Elvis Shamboko v. The People,18 we confirmed the above mentioned principles of law and set aside the death penalty as the information did not disclose a charge of armed robbery. 9.44 The present case is similar to the case of James Chibuye and Others v. The People,17supra in that, although the appellants were charged under section 294 (1) of the Penal Code, the particulars of offence alleged armed robbery. 9.45 The particulars of offence were that Steward Mudenda and Liswani Muliwana on 9th day of March, 2019 at Kalomo in the Kalomo District of the Southern Province of the Republic of Zambia, jointly and whilst acting together while being “armed with a gun” attacked Abel Siafwa and robbed him of money amount to K18,000.00 at or immediately before or immediately after the time of such robbery, threatened to use actual violence to the said Abel Siafwa, in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. J46- 9.46 Our firm view is that, the term “gun” colloquially refers to a firearm. In actual fact some of the synonyms of “gun” are firearm, weapon and cannon. Thus, the use of the term “whilst armed with a gun” in the information or charge sufficiently puts an ordinary person on notice that the robbeiy they are charged with is armed robbeiy. We therefore have no doubt, that both appellants herein being ordinary men were sufficiently notified that what they were charged with was armed robbeiy. When the charge was read out to them, they both stated that they understood it. Therefore no prejudice was caused to both appellants by the mention of “a gun” in the charge. Furthermore, it is clear that they were tried for aggravated robbeiy involving the use of a firearm. 9.47 We venture to add our interpretation of the statute law in issue; that section 294 (2) (a) (i) and (ii) of the Penal Code must be read together with section 294(1) of the same Code as section 294(2) merely prescribes the mandatoiy death penalty which should be imposed on a person convicted under section 294(1) if it is proved that they had used an offensive weapon or instrument which is a firearm during the robbeiy. Section 294(2) (a), (i) and (ii) provides as follows: -J47- । (2) Notwithstanding the provisions of subsection (1), the penalty for the felony of aggravated robbery under subsection 11) shall be death:- (a) Where the offensive weapon or instrument is a firearm, unless the court is satisfied by the evidence in the case that the accused person was not armed with a firearm and - (i) That he was not aware that any of the other persons involved in committing the offence was so armed; or (ii)That he dissociated himself from the offence immediately on becoming so aware.” (Emphasis added) 9.48 Clearly the death penalty referred to in section 294 (2) can only be imposed for the felony of aggravated robbery under subsection (1) of 294 as subsections 2 (a), (i) and (ii) above provide the circumstances which the court should look out for before imposing a death penalty. Simply put; subsection 2(a) of section -J48- » 294 is not the section which provides for the actual charge of aggravated robbery but section 294 (1). No wonder the Supreme Court confirmed the sentence in the Chibuye 17 case supra without amending the charge for it to fall under section 294 (2) of the Penal Code. 9.49 We must state that whether the information refers to a gun or a firearm, the state has to prove that what was used during the robbeiy was a “firearm” as defined under the Firearms Act, Chapter 110 of the Laws of Zambia. 9.50 In the Chibuye17 case supra, the firearms were recovered and produced in evidence but in the present case the gun which the appellants used was not recovered. However, PW6 retrieved the pellet that was discharged into the wall. The same was later confirmed by a ballistic expert to be a bullet from an AK47 rifle with a caliber of 7.62mm. This is proof that a firearm was used. The Supreme Court in the case of John Timothy and Fes ton Mwamba v. The People19 had occasion to interpret section 294 (2) (a) of the Penal Code and held as follows: (i) To establish an offence under section 294 (2) (a) of the Penal Code, the prosecution must prove that the weapon used was a firearm within the -J49- * meaning of the Firearms Act, Cap III i.e that it was a lethal barreled weapon from which a shot could be discharged or which could be adapted for the discharge of a shot. (ii) The question is not whether any particular gun which is found and alleged to be connected with the robbery is capable of being fired but whether the gun seen by the eye-witnesses was so capable. This can be proved by a number of circumstances even if no gun is ever found, (underlined for emphasis} 9.51 We note that the words “weapon" and “gun” were used in the John Timothy19 case to denote a firearm. Applying the said precedent to the facts of this matter, it is clear from the record that the eye witnesses PW1, PW2, PW3 all saw the gun that Al fired into the wall. We reiterate that there was proof that the appellants used a firearm. Since the appellants were put on notice that the offence they stood charged with was armed robbery, there was no need to amend the information in this case. The case of James Chibuye v. The People17 supra is followed. -J50- 9.52 In the premises, we confirm the death sentences imposed on both appellants under section 294 (2) (a) of the Penal Code. 10.0 CONCLUSION 10.1 In sum, both grounds of appeal having failed, the appeal is dismissed. We uphold the convictions and sentences. C. F. R. MCHENGA DEPUTY JUDGE PRESIDENT C. K. MAKUNGU COURT OF APPEAL JUDGE -J51-