Izezi v The People (Appeal No.184/2022) [2023] ZMCA 220 (31 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: Appeal No.184/2022 EMMANUEL IZEZI APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Muzenga and Chembe JJA August 2023 and 31st August 2023 ON: 23 rd For the Appellant: A. Banda-Chirnimba, Legal Aid Counsel, Legal Aid Board For the Respondent: G. Zimba, Deputy Chief State Advocate, National Prosecution Authority J U D G M E N T Mchenga DJP, delivered the judgment of the court. 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 Cases referred to: 1. Nsofu v. The People [1973] Z. R. 287 2. Emmanuel Phiri v. The People [1982] Z. R. 77 3. Mushemi v. The People [1982] Z. R. 71 J2 4. James Mwango Phiri v. The People, SCZ Appeal No. 171 of 2015 5. Christopher Nonde Lushinga v. The People [2011] 2 Z. R. 301 1. INTRODUCTION 1.1. The appellant appeared before the Subordinate Court charged with two counts of indecent assault, contrary to Section 137 of The Penal Code, and one count of assault on a child, contrary to Section 248A of The Penal Code. 1.2. He denied the three charges and the matter proceeded to trial. 1.3. At the end of the trial, he was convicted of all the three charges. 1.4. He was sentenced to 5 years imprisonment for the offence of assault on a child and committed to the High Court for sentencing, for the indecent assaults. 1.5. In the High Court (Maka, J.) sentenced him to 15 years imprisonment for the indecent assaults. 1.6. He has appealed against the convictions. 2. EVIDENCE BEFORE THE TRIAL MAGISTRATE J3 2.1. The evidence against the appellant, was, in the main, given by two children. Their evidence was received after the conduct of voir dire. 2 .2. On the 24th June 2021, around 21: 00 hours, the appellant entered a house were the two young girls were watching TV. They were alone because their mother had briefly stepped out of the house. 2.3. He patted the buttocks of one of the girls and said he wanted to see if she was now a woman after checking her private parts. He did not manage to check her because he was hit with a cooking stick. 2. 4. The appellant left the room in which the first girl was and entered a bedroom where the other girl had moved to. He pushed that girl against the wall, lifted her skirt and inserted his fingers into her private parts. 2.5. He was immediately confronted by the first girl, whom he hit with a pounding stick. 2.6. Sony Simwinga, a neighbour heard the girls crying out. He rushed to the house and found the appellant about to exit the house. He got hold of J4 the appellant but subsequently let go when the appellant became violent. 2. 7. Sony Simwinga was joined by Chabalangana Zilabonwa, the landlord, who confirmed seeing the appellant coming out of the house. 2.8. The girls' mother testified that not long after she had left her house, which she operated as a shebeen, she was informed that the appellant had entered the house. She returned. 2.9. When she got home, she found the appellant exiting her house. She got hold of his hand, but let him go because he became violent. 2.10. In his defence, the appellant denied committing the offences and said he had been falsely incriminated because the girls' mother had a grudge against him. 2.11. His evidence was that that evening, he went to the girls' house, which neighboured his house, to ask for brazier. He was given a brazier but as he was leaving, one of the girls struck him with a cooking stick and run into the house. JS 2 .12. He followed her, but was unable to enter the house because her mother stopped him. Thereafter, some people including Sony Simwinga turned up. 2.13. He quarrelled with Sony Simwinga, who threatened to fabricate a case against him so that he could be locked up. 2.14. When he received information from a person who was present during the altercation, that Sony Simwinga and the girls were going to the police station to present a fabricated story of what happened, he followed them. 3. FINDINGS OF TRIAL MAGISTRATE 3.1. The trial Magistrate accepted the testimony of the two girls that the appellant patted the buttocks of one of them, and inserted his fingers into the private parts of the other. She also accepted their evidence that he struck one of the girls with a pounding stick. 3.2. The testimony of Chabalangana Zilabonwa and Sony Simwinga, that they went to the house when they heard the girls crying, was also accepted. J6 3.3. The trial Magistrate found that these two witnesses and the girls' mother, saw the appellant coming out of the house. 3.4. She also found that the medical report confirmed the girls' testimony that the appellant struck one of them with a pounding stick. 3.5. She found that the girls' testimony was corroborated by that of Chabalangana and Zilabonwa Sony Simwinga. 3. 6. She rejected the appellant's claim that he had been falsely incriminated. 3.7. This was after noting that on the fateful night, he had actually gone to ask for a brazier from that house. She opined that had the girls' mother been in bad books with him, as he claimed, the appellant would not have gone to ask for a brazier from her house. 3. 8. The trial Magistrate concluded that the three charges had been proved beyond all reasonable doubt. 4. PROCEEDINGS IN THE HIGH COURT J7 4.1. In the High Court, the sentencing Judge imposed a sentence of years 15 years imprisonment. That was after noting that the appellant was a first offender who had exhibited remorse. 5. GROUNDS OF APPEAL 5.1. Two grounds have been advanced in support of the appeal. The grounds of appeal are couched as follows: (1) The learned Court below erred in law and fact when it misapplied the law that the only inference to be drawn is that the appellant had an opportunity to indecently assault the victims and assault PW2 and concluded that this constituted corroboration; and (2) The learned Court below erred in law and fact when it relied heavily on the evidence of PWl, PWS, and PW6 while disregarding the apparent inconsistences their evidence. JS 6. ARGUMENTS IN SUPPORT OF THE GROUNDS OF APPEAL 6 .1. Both grounds of appeal were argued at the same time. 6.2. The case of Nsofu v. The People1 was referred to and Mrs. Banda-Chimimba submitted that the mere opportunity to commit an offence cannot be corroborative. She pointed out that the mere presence of the appellant at the house did not raise any suspicion to be corroborative. 6.3. She also submitted that it did not make sense for the appellant to enter the house and molest the girls when there were people outside. 6.4. Mrs. Banda-Chimimba also referred to the case of Emmanuel Phiri v. The People2 , where it was held that in sexual offences there is need for corroboration of both the commission of the offence and the identity of the offender. 6.5. She argued that the girls' mother ( PWl) , Chabalangana Zilabonwa ( PW6) and Sony Simwinga ( PW 5) , could not have corroborated the girl's testimony because they were untruthful witnesses as evidenced by the contradictions in their statements. J9 6.6. Mrs. Chimimba-Banda also pointed out that there was evidence from the appellant of the hostile relationship the appellant had with Sony Simwinga and the girls' mother. The duo told him that they were going to fabricate evidence against him. 6.7. She then argued that contradictions in the evidence of these witnesses, is a pointer to their testimony being fabricated. 6.8. Further, the fabrication is confirmed by the appellant's conduct after the incident. He went to the police station after the incident, conduct which was not in line with the behaviour of a guilty person. 6.9. Finally, Mrs. Banda-Chimimba referred to the case of Mushemi v. The People , and invited us to consider the credibility of all the prosecution witnesses by comparing their testimonies. 6.10. She submitted that such an assessment, will point to the fact that their testimony was not credible. That in turn confirms the appellant's allegation that the case against him was fabricated. 7. ARGUMENTS IN RESPONSE JlO 7.1. In response, Mr. Zimba submitted that there was evidence from the girls' mother that the appellant was the only customer at the time she left her house. He was outside the house at the time and the fact that he was seen coming out of the house, raises suspicion and was corroborative. 7.2. As regards the credibility of the prosecution witnesses, he referred to the case of James Mwango Phiri v. The People4 and submitted that the trial Magistrate was entitled not to find that the allegations of the testimony of the prosecution witnesses being fabricated, was not credible because it was only raised in the appellant's defence. The allegations were not suggested to the prosecution witnesses during their cross-examination. 7.3. Mr. Zimba also submitted that the trial Magistrate correctly found that an inference of guilt, was the only inference that could be drawn on the evidence before her. Jll 8. COURTS CONSIDERATION AND DECISION ON THE 1st and 2nd GROUNDS OF APPEAL 8.1. There are two issues at the centre of the two grounds of appeal. The first is the credibility of the testimony of the witnesses, whose evidence the trial Magistrate concluded corroborated the testimony of the two girls. The second issue is whether the testimony of those witnesses was in fact corroborative. 8.2. The testimony of the girls' mother, Chabalangana Zilabonwa and Sony Simwinga, has been criticised for being contradictory and not credible. It was pointed out that they differed on exactly where the appellant was when they saw him. 8.3. Mrs. Banda-Chimimba pointed out that the girls' mother testified that she found the appellant coming out of the house, on the other hand, Sony Simwinga's testimony was that the girls' mother only turned up after the appellant had run away on being confronted as he left the house. 8. 4. She also pointed out that had the appellant really indecently assaulted the girls, on their J12 being questioned by Chabalangana Zilabonwa, soon after the appellant emerged from the house, would have touched on that area, but it did not. The girls were only asked if the appellant had beaten them. 8.5. The general picture that emerges from the evidence in this case, is that Chabalangana Zilabonwa and Sony Simwinga came to the house when they heard the girls crying. The evidence does not point at them being together when they came to the house, but that at some point, they were present at the same time as they both saw the appellant emerge from the house. 8.6. There was also evidence that there were other persons present and there was confusion soon after the appellant exited the house. 8.7. In the circumstances, one would not expect that these three witnesses would have given exactly the same narration of what followed after the appellant came out of the house. 8.8. We have examined the differences in the evidence of the three witnesses and we find that they are not on anything material as to affect the credibility of J13 their evidence. The variations do, to a large extent, deal with the amount of details they each gave of what happened that night. 8 . 9 . In our view, that is normal because people have different capabilities of observation and recall. In fact, an account that would have been without differences would have actually pointed at a rehearsed story. 8.10. The only material difference in this case was Sony Simwinga's evidence that the appellant had run away by the time girls' mother returned, while the girls' mother testified that she found him coming out of the house and got hold of him. 8.11. Since the appellant does not deny being at the door of the house with girls' mother at some point, we do not find this disparity to be material. The question is, was he coming out of or attempting to go into the house? 8.12. There was an 'independent witness', independent in the sense that unlike Sony Simwinga and girls' mother, who were accused of being in bad terms with the appellant, no such allegation was raised against J14 Chabalangana Zilabonwa. This witness testified that he saw the appellant corning out of the house. 8 .13. The trial Magistrate was therefore entitled to find that the appellant was seen corning out of the house. 8.14. The trial Magistrate considered the appellant's allegation that the girls' mother falsely incriminated him. She rejected the allegation on the basis that had they been in bad standing, as claimed by the appellant, he could not have gone to borrow a brazier from her. 8 .15. We are satisfied the that with that reasoning, trial Magistrate was entitled to conclude that the allegation of false implication was without basis, as the fact that he could even borrow a brazier from her, showed that they were not in bad standing. 8.16. We are also in agreement with Mr. Zirnba's submission, anchored on the case of James Mwango Phiri v. The People4 , that the issue of false implication only being raised in the appellant's defence, suggested that it was an afterthought. JlS 8.17. It is therefore our view that there is no basis on which the trial Magistrate can be faulted for not finding that the evidence of the 'corroborating witnesses' was not credible. 8.18. As regards whether the testimony of Chabalangana Zilabonwa and Sony Simwinga did corroborate that of the girls, in the case of Christopher Nonde Lushinga v. The People5 , the Supreme Court held, inter alia, that, 'There is no magical meaning in the word "corroboration". It simply means evidence which confirms the commission of the offence and the identity of the perpetrator of that offence. Put differently, corroboration means supporting or confirming evidence' 8.19. The evidence of these two witnesses is that they turned up at the house when they heard the girls crying out. They found the appellant emerging from the house. 8. 20. The emergence of the appellant from the house soon after the girls had cried out, does, in our view, point at the fact that he had the opportunity to commit the offence. J16 8.21. In the circumstances, we are satisfied that the test in Nsofu v. The People for opportunity to be corroborative, was met. was 8.22. The crying of the girls, while the appellant in the house and his emergence there from, does raise suspicion. This is the case given that he only entered the house after the girls' mother had left. The girls cried out while he was in the house and soon after the girls had cried out, he decided to exit. 8.23. All in all, we find no merits in the two grounds of appeal and we dismiss them. 9. VERDICT 9.1. Having found no merits in the two grounds of appeal, the appeal against conviction is dismissed. 9.2. As regards the sentences, we pointed out earlier on, that the appellant was sentenced to 5 years imprisonment for assault on a child by the Subordinate Court. 9. 3. He was then committed to the High Court for sentencing on the 2 indecent assaults. The Jl7 sentencing Judge imposed a sentence of 15 years imprisonment. 9.4. Section 15 (1) of The Criminal Procedure Code provides as follows: "When a person is convicted at one trial of two or more distinct offences, the court may sentence him, for such offences, to the several punishments prescribed therefor which such court is competent to impose; such punishments, when consisting of imprisonment, to commence the one after the expiration of the other, in such order as the court may direct, unless the court directs that such punishments shall run concurrently" 9.5. Since the appellant was committed to the High Court for sentencing on two counts of indecent assault, the sentencing Judge was required to impose a sentence for each of the two indecent assaults. She erred when she imposed a single sentence. 9.6. In addition, the sentencing Judge was required to indicate whether the sentences were going to run concurrent or consecutive, to each other. 9.7. We set aside the sentencing order by the sentencing Judge. In its place, we sentence the appellant as follows: Jl8 (1) 15 years imprisonment with hard labour for each of the two counts of indecent assault; (2) Both sentences will run concurrent to each other and to the 5 years sentence imposed by the Subordinate Court for the offence of assault on a child; and (3) The three sentences will all run from the 28th of June 2021. C. F. R. Mcheng DEPUTY JUDGE PRESIDE T K. Muzenga COURT OF APPEAL JUDGE Y. Chembe COURT OF APPEAL JUDGE ··················· a.o,� .................... .