Kelvin Simutanda v the People (Appeal No 34/2021) [2022] ZMCA 211 (15 June 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA AND LUSAKA (Criminal Jurisdiction) Appeal No 34/2021 BETWEEN: KELVIN SIMUTANDA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Kondolo and Bobo-Banda, JJA On: 17 th November 2021 and 15 th June 2022 For the Appellant: M. Makayi, Legal Aid Counsel, Legal Aid Board For the Respondent: S. Simwaka, State Advocate, National Prosecution Authority . JUDGMENT Mchenga DJP, delivered the judgment of the court. CASES REFERRED TO: 1. Bernard Chisha v The People [1980] Z. R. 36 2. Kambarange Mpundu Kaunda v The People [1990-1992] Z. R. 215 3. Andrew Mwenya v The People SCZ Appeal No. 640 of 4. Yudah Nchepeshi v The People [1978] Z. R. 362 5. Ivess Mukonde v The People SCZ Judgment No. 11 of J2 6. Emmanuel Chola v The People CAZ Appeal No. 152 of 7. Emmanuel Phiri and Others v The People [1978] Z. R. 8. Mungala Mwanamubi v The People SCZ Judgment No.9 of 9. Katebe v The People [1975] Z. R. 13 LEGISLATION REFERRED TO: 1. The Penal Code, Chapter 87 of the Laws of Zambia !. INTRODUCTION 1.1. The appellant, appeared before the Subordinate Court (Hon. J. C. Lukwesa), charged with the offence of defilement, contrary to section 138 (1) of The Panel Code. He denied the charge, and the matter proceeded to trial. 1.2. At the end of the trial, he was convicted for committing the offence and the case was referred to the High Court, for sentencing. 1. 3. In the High Court (Sunkutu, J.), he was sentenced to 30 years imprisonment, with hard labour. 1. 4. This is an appeal, against the conviction. Two grounds have been advanced in its support. J3 1. 5. In the 1 st ground of appeal, the appellant contends that the trial magistrate erred, when he convicted him on the uncorroborated evidence of the prosecutrix. The second ground of appeal, is that the trial magistrate, should not have relied on the evidence of members of the prosecutrix's family, as they had a motive to falsely incriminate him. 2. CASE BEFORE THE TRIAL MAGISTRATE 2. 1. At the material time, the prosecutrix, used to live in Nakonde, with her mother. They lived in the appellant's house, who is her step father, as he is married to her mother. Also staying in the same house, was the appellant's son. 2. 2. According to the prosecutrix, sometime in August 2017, when her mother was not at home, the appellant entered the room where she was sleeping. He undressed her, and had sexual intercourse with her. He threatened to kill her, if she revealed what had happened. 2. 3. The appellant also had sexual intercourse with the prosecutrix on the 28 th of August 2017. He, J4 again, threatened to kill her, if she revealed what had happened. 2.4. In the same month, the appellant chased the prosecutrix from his house and she went to stay with her grandmother. 2.5. After the month of October 201 7, the prosecutrix's mother discovered that she was pregnant. On being questioned, she told her that the appellant had sexual intercourse with her. 2. 6. In court, the prosecutrix' s mother told the trial magistrate that she recalled an incident in August 2017, when the appellant left the matrimonial bedroom in the night. When he delayed returning, she made a follow up and met him coming out of the prosecutrix's bedroom. It was dark, but the appellant claimed that he had gone in there to kill a rat. 2. 7. In his defence, the appellant denied having had sexual intercourse with the prosecutrix. He claimed that someone else made her pregnant. He also denied JS chasing her from the house, saying it was his son who chased her. 2. 8. However, he admitted having come out of the children's bedroom, on the night his wife mentioned, but he said he was carrying a torch at the time. 2. 9. The appellant also called witnesses who said a named person was probably responsible for the prosecutrix's pregnancy. 3. SUBMISSIONS IN SUPPORT OF THE 2ND GROUND OF APPEAL 3. 1. Because it is convenient, we will deal with the 2~ ground of appeal, first. 3.2. In support of the 2nd ground of appeal, Mrs. Makayi submitted that, on the evidence that was before him, the trial magistrate should not have ruled out the possibility that the prosecution witnesses, had a motive to falsely implicate the appellant. 3.3. She referred to the cases of Bernard Chisha v The People 1 and Kambarange Mpundu Kaunda v The People2 , and argued that since the prosecutrix was a child of tender years, she was susceptible to J6 manipulation and her testimony required corroboration. Further, that since her mother had differed with the appellant, there was a real danger that she could have falsely incriminated him. 4. SUBMISSIONS AGAINST THE 2ND GROUND OF APPEAL 4. 1. In response, to the arguments in support of the 2 nd ground of appeal, Mrs. Simwaka drew our attention to the cases of Andrew Mwenya v The People3 and Yudah Nchepeshi v The People, 4 and submitted that the mere fact that the prosecutrix was chased from the matrimonial home, could not have motivated her and her mother, to falsely incriminate the appellant. 4.2. She argued that for one to be classified a suspect witness, there must be evidence of circumstances that motivate a witness to falsely incriminate an accused person and that, that evidence was missing in this case. 5. CONSIDERATION OF THE 2ND GROUND OF APPEAL 5.1. Other than the prosecutrix, the only person who gave evidence that incriminated the appellant, was the prosecutrix' s mother. Mrs Makayi argued that J7 since the appellant had chased her daughter from the matrimonial home, the trial magistrate should have found that there was a bad relationship between the two, which could have motivated her to falsely incriminate him. 5.2. As conceded by Mrs. Simwaka, in the case Andrew Mwenya v The People 3 , it was acknowledged that a bad relationship between two individuals, can, in some cases motivate false incrimination. In this case, the trial magistrate considered the possibility that prosecutrix' s mother could have had a motive to falsely incriminate him but found that it was not the case. 5. 3. In doing so, the trial magistrate took note of the fact that the appellant admitted having emerged from the bedroom where the prosecutrix was sleeping, at night. 5.4. In the face of that admission, it is our view that the trial magistrate cannot be faulted for concluding that there was no basis on which he could conclude that there was evidence of a possible JS motive for the prosecutrix's mother to falsely incriminate the appellant. 5.5. We will deal with concerns over the possibility of the prosecutrix falsely incriminating the appellant, when we consider the 1 st ground of appeal. 5.6. The 2 nd ground of appeal, in so far as it relates to the failure of the trial magistrate, to find that the prosecutrix's mother should. not have been believed, because she had an interest of her own to serve, fails. 6. SUBMISSIONS IN SUPPORT OF THE 1 st GROUND OF APPEAL 6. 1. In support of the 1 st ground of appeal, Mrs. Makayi referred to the cases of Ivess Mukonde v The People 5 , Emmanuel Chola v The People 6 , Emmanuel Phiri and Other v The People 7 , and submitted that there were no special and compelling grounds, to warrant the appellant's conviction on the uncorroborated evidence of the prosecutrix. 7. SUBMISSIONS AGAINST THE 1 ST GROUND OF APPEAL 7 .1. In response, Mrs. Simwaka submitted that the prosecutrix evidence was corroborated. She pointed J9 out that since the appellant lived with the prosecutrix, he had the opportunity to commit the offence and such opportunity was corroborative. She referred to the case of Mungala Mwanamubi v The People 8 , in support of the proposition. 8 . CONSIDERATION OF THE 1 sT GROUND OF APPEAL 8. 1. In sexual offences, defilement being one of them, corroboration of the commission of the offence and the identity of the offender, is required as a matter of practice. However, there are qualifications. 8. 2. In the case of Katebe v The People 9 , the Supreme Court pointed out, inter alia, that: (i) (ii) (iii) The general principle of the cautionary rule as to corroboration applies equally to sexual cases as to accomplice cases. there are "special and compelling If grounds" it is competent to convict on the uncorroborated testimony of a prosecutrix. a Where prosecutrix deliberately and dishonestly to make a false allegation against an accused, and the case is in practice no different from any others in which the conviction depends on the reliability of her evidence as to the identity of the culprit, this is a "special and compelling ground" which can be no motive there for JlO would justify uncorroborated testimony. a conviction on 8. 3. The trial magistrate's finding, that there were special and compelling grounds, that warranted him convicting the appellant, on the uncorroborated evidence of the prosecutrix, has been attacked as being erroneous. On the other hand, Mrs. Simwaka submitted that in fact, the prosecutrix's testimony was corroborated by evidence that he had the opportunity to commit the offence. 8. 4. In the case of Ivess Mukonde v The People 5 , it was pointed out that whether "opportunity" can be corroborative, depends on the particular circumstances of the case. It was held that for opportunity to be corroborative, there must be some proximity between the opportunity and the commission of the offence, that brings an element of suspicion that the offender committed the offence, even though there is no direct evidence that he did in fact commit the offence. 8. 5. In this case, it is our view that the mere fact that the appellant lived in the same house with the Jll prosecutrix does not point at him having the opportunity to commit the offence as envisaged in the case of Ivess Mukonde v The People 10 . There can be no suspicion that can arise that he may have committed the offence merely because he lived in the same house with the prosecutrix. 8. 6. It can only be the case, where there has been suspicious conduct that has been linked to the commission of the offence. In this case, opportunity would have been corroborative, if the prosecutrix was discovered to have been defiled, the morning after the appellant was seen leaving her bedroom. In that case, it could have been said even if there was no direct evidence that he committed the offence, he had the opportunity to do so because of the suspicious circumstances of his visit to the prosecutrix's bedroom. 8.7. However, we are satisfied that the trial magistrate was correct when he found that there were special and compelling grounds. Evidence that the appellant was seen coming out of the prosecutrix's J12 bedroom, in our view, amounted to special and compelling grounds. 8.8. Even though that evidence was not corroborative, in that he was not seen coming out of the bedroom, on the day that the offence was committed, the fact that he could have entered the prosecutrix's bedroom when the mother was around, gave credence to the prosecutrix's claim that he had sexual intercourse with her in that bedroom when the mother was not around on more than one occasion. 8.9. This being the case, we are not persuaded by the argument that the prosecutrix's evidence should not have been relied on because she had a motive to falsely incriminate the appellant. The appellant did not dispute coming out of the bedroom as alleged by his wife. 8 .10. This being the case, we are satisfied that the trial magistrate was correct when he found that even if the prosecutrix's testimony was not corroborated, a conviction was competent because there were special and compelling grounds. • 8.11. Consequently, we find no merit in the 1 st ground J13 of appeal and it is dismissed. 9. VERDICT 9.1. Both grounds of appeal having failed, we find no merit in this appeal and we dismiss it. 9. 2. The 30 years sentence, with hard labour, imposed on him by the High Court, is maintained . -------:::, ( ::::::= M. M. Kondolo, SC COURT OF APPEAL JUDGE .............. ~ ................... . A. M. Banda - Bobo COURT OF APPEAL JUDGE