Lazarous Mwango v The People (Appeal No 110/2021) [2023] ZMCA 286 (12 October 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA AND KABWE (Criminal Jurisdiction) Appeal No 110/2021 BETWEEN : LAZAROUS MWANGO AND THE PEOPLE APPELLANT RESPONDENT l CORAM: Mchenga DJP, Makungu and Muzenga, JJA ON: 22 nd March 2022 and 12 th October 2022 For the Appellant : E . Chavula , Principal Legal . Aid Counsel, Legal Aid Board For the Respondent : F . Ny irenda - Tembo, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, del ivered the judgrnent of the court . CASES RE. FERRED TO: 1. Richard Daka v. The People SCZ Appeal No. 333/2013 2 . Philip Mungala Mwanamubi v The People SCZ Judgment No . 9 of 20 1 3 3 . Zefa Goba v The People [1966] Z . R . 113 4 . The People v Patrick Mulala [20 15] 2 Z . R . 358 5. Mabvuto Tembo v The People scz Appeal No. 33 of J2 G. John Banda v. The People [1970] Z. R. 14 7. Mwanza (A. B.) v. The People [1973] Z. R. 329 8 • Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v. The People [1988-1989] Z. R. 163 9. Kasuba v. The People [1975] Z. R. 41 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 3 . The Juveniles Act , Chapter 53 of The Laws of Zambia 1. INTRODUCTION 1 . 1. The appellant appeared before the Subordinate Court (Hon . S . Chikuba), charged with the offence of defilement contrary to section 138(1) of The Penal Code. 1.2. When the charge and the proviso to section 138(1) of The Penal Code, was read out to him, he admitted the charge . ( ( 3 · · The case was then adjourned for the reading of J3 the facts. 1.4. When the case came up for the reading of the facts, the appellant informed the trial magistrate that it was his wish to withdraw his plea of guilty. He explained that the police had pressured him i nto admitting the charge . 1.5. The trial magistrate then adjourned the case for the retakin g o f the plea. 1.6. The next time the case came up, the plea was not retaken . The tria l magistrate proceeded to receive evidence from the prosecution witnesses. He subsequently also received evidence from defence witness es . ( 1.7. At the end of t h e trial , the appellant was convicted and committed to t he High Court for sentencing. 1.8. In the High Court (Kamwendo, J.), he was sentenced to 40 years imprisonment, with hard labour . 1.9. He has appealed against the conviction. 2. CASE BEFORE THE TRIAL COURT J4 · 1 · On the 4 th of August 2020, th e prosecutrix's mother, a reside nt o f Kabwe's Mukobeko Compound, was drawing water, when her daughter's friend asked her whether her daughter, the prosecutrix, told her what the appe l lant did to her. 2.2. Initially, the prosecutrix's friend was reluctant to tell the prosecutrix's mother what had happened , but when pressed, she told her t hat the prosecutrix told her that the appellant had sexual intercourse with her . 2.3. According to the prosecutrix , on the 27 th of July 2020 , she was in the company of two friends when the appellant instructed them to sell baskets on his behalf. She wanted to go with her friends but he insisted t ha t s h e stays behind. 2.4. When her friends h ad le ft , th e appe ll ant took her into the bush and forcibly had sexua l intercourse with h er . He the n gave K3.00 and warned her not to t e ll anyone . ( C. 2. CASE BEFORE THE TRIAL COURT J4 · 1 · On the 4th of August 2020, the prosecutrix' s mother, a resident of Kabwe's Mukobeko Compound, was drawing water, when her daughter's friend asked her whether her daughter, the prosecutrix, told her what the appellant did to her. 2.2. Initially, the prosecutrix's fr i end was reluctant to tell the prosecutrix's mother what had happened , but when pressed, she told her that the prosecutrix told her that the appellant had sexual intercourse with her. 2.3. According to the prosecutrix , on the 27 th of July 2020 , she was in the company of two friends when the appellant instructed t h e m to sell baskets on his ( behal f . She wanted to go with her friends but he insi sted t h at she stays behind. 2. 4. When her fri ends h ad left , the appellant took her into t h e bush and for cibly had sexual intercou rse with h er . He the n g ave K3.00 and warned h er not to tell anyone. • ( J6 prosecutrix ' he said he only admitted after being threatened. 3. FINDINGS BY THE TRIAL MAGISTRATE 3.1 . The trial magistrate found that the prosecutrix was below the age of 16 years at the time the appellant had sexual intercourse with her. 3.2 . The trial magistrate dismissed the appellant's claim that his admission at the police station was as a result of being t hr eatened. He opined that had he been threate ned , he would have objected to the arresting office r' s testimony when he gave the incrimina ti ng stateme nt. 3.3. He found that the appel lant 's admission at the police station , t hat he had sexual intercours e with the prose c ut rix and gave her K3.00 , corroborated the prosecutrix ' s evidence incriminating him. 3.4. I t also confi rmed the prosecutrix a nd h er friend ' s c l aim , that the jiggies were bought with money t hat came from the appellan t . J7 4 · GROUND S OF APPEAL 4 .1. Two grounds have been advanced in support of the appea l . They are couched as fo l lows : (1 ) The l earned t rial mag i strate erre d bo t h i n l aw and fact when he received the evi dence of the prosecutri x and her friend on oat h when the voir dire c ond ucted prior to their t e stimo ny , was d e f ective ; a n d (2) The learned tria l magistra t e erred in law and fa c t when he a l lowe d the trial to p r oceed witho ut th e pl e a be ing retaken and the proviso being e xpl a ined . ( 5 . ARGUMENTS IN SUPPORT OF THE 1 ST GROUND OF APPEAL 5.1 . Mr. Ch a vu la refe r re d to t h e cas e s of Richard Daka v. The People 1 , Philip Mungala Mwanamubi v The People2 a nd Zefa Goba v The People 3 and s u b mit t ed that s i n ce t h e t h res h ol d f o r the r e ce i pt o f evi d ence unde r sect ion 122(1) of The Juveniles Act , wa s n ot • J8 met, the evidence of the prosecutrix and her friend should not have been received. 5.2. He p oi nted out that the trial magistrate, in his examination of the two witnesses focused on questions establishing their understanding of the duty to tell the truth. The questions did not establish that they were possessed of sufficient intelligence to warrant the reception of their evidence o n oath. 6. ARGUMENTS AGAINST THE 1 ST GROUND OF APPEAL 6.1. In r e spo ns e , Mrs . Nyirenda-Tembo submitted that the voir dires conducted on the two witnesses were not defe c tive . 6.2. She argued that the answers given by both witness es confirmed t h at they were possessed o f sufficient intelligence to warrant t he reception of their evidence on oath . 6 . 3. She pointed out t h a t section 122(1) of The Juveniles Act, doe s not have a prescribed set o f questions to be asked before it can be determined I ( J9 th at the child witness is possessed of sufficient intelligence to warrant the re ception of the child's evidence, o n oath. 7 · COURT' S CONSIDERATION OF THE 1 sT GROUND OF APPEAL 7 .1. Section 122(1) of The Juveniles Act, provides as follows: "Where in any criminal or civil proceedings against any person, a child below the age of fourteen is called as a witness, the court shall receive the evidence, on oath, of the child if in the opinion of the court, the child is possessed of sufficient intelligence to justify the reception of the child's evidence on oath, and understands the duty of speaking the truth : Provided that- if in the opinion of the court, the child is not possessed of sufficient intelligence to justify child's reception of evidence, on oath and does not understand the duty of speaking the truth, the court shall not receive the evidence; and the the (a) (b) 7.2. Interpreting this provision , in the case of The People v Patrick Mulala4 , it was he l d that before a child , who is below the age of 14 y ears can be allowed to testify , the cou rt must be satisfi ed that such a child is possessed of sufficient intel l igence JlO to give evidence on oath and understands the duty o f telling the truth. 7.3. Further, in the case of Mabvuto Tembo v The Peoples, it was pointed out that although no specific questions have been prescribed to determine both issues, the adjudicator is required to ask the child questions that will elicit answers touching on both issues. 7.4. A determination of whether a child is possessed of sufficient intellige nce to warrant the reception of that child 's evidence on oath , is made after evaluating the manner in which the child answered all the questions the c hild wa s asked. 7.5. The questions are usually of a ge nera l na t ure . In the case of Mabvuto Tembo v The Peoples i t was pointed out that even t h ou gh it is impossib le t o prescri b e specific questions to be asked, t h e q u estio ns asked wi ll dep e nd o n prob i ng skil l s of t h e adj udi cator a nd oth er factors , inc luding the age of the intended witness. JlO to give evidence on oath and understands the duty of telling the truth. 7. 3. Further , in the case of Mabvuto Tembo v The Peoples, it was pointed out that although no specific questions have been prescribed to determine both issues, the adjudicator is required to ask the child questions that will elicit answers touching on both issues . 7 . 4 . A determination of whether a child is possessed of s u ff i cient intelligence to warrant the reception of that child ' s evidence on oath, is made after eval uating the ma nner in which the child answered a ll t he question s t h e child was asked. 7 . 5 . The qu estion s are usually of a general na t ure . In the c ase of Mabvuto Tembo v The Peoples i t was pointed out th a t e v e n thou g h it is impossible to pres cribe specifi c qu e s t ions to be asked, the questions aske d will dep e nd on prob i ng ski lls o f the a djudi c ator and oth er fact o rs, in c ludin g the a ge of t h e int e nded wit ne ss. 1· J12 · 11 · We therefore find no merit in the 1 st ground of appeal and we dismiss it. 8. ARGUMENTS IN SUPPORT OF THE 2ND GROUND OF APPEAL 8 .1. Mr. Chavula referred to the cases of John Banda v. The People 6 , Mwanza (A. B. ) v. The People 7 and Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v. The Peoples and submitted that t he failure to retake the plea after the appellant had indicated that h e intended to change his plea, rendered the trial a null ity. 9. ARGUMENTS IN RESPONSE TO THE 2ND GROUND OF APPEAL 9.1. Mrs . Nyirenda -T e mbo conceded that if a plea is not taken, the trial i s a nullity as was held in the cases of John Banda v. The People 6 , Mwanza (A. B.) v. The People 7 and Boniface Chanda Chola, Christopher Nyamande and Nelson Sichula v. The Peoples. 9. 2. Sh e however argued that the circumstances in those cases are different f r om wha t transpire d in th i s case. J13 9 . 3 . In t h ose cases , the plea was not retaken after the charge had been amended , but in the case , the c h a r ge remai n ed the same afte r the appel l ant had i ndicated t ha t h e wan ted to retake the P,lea . 10. COURT'S CONSIDERATION OF THE 2ND GROUND OF APPEAL 10 .1. In t he c ases of John Banda v. The People 6 , Mwanza (A . B. ) v . The People 7 and Boniface Chanda Cho la, Christopher Nyamande and Nelson Sichula v. The People8 , ref erred to by both coun se l, i t was he l d that the failure to t ake pl e a can render t h e trial a nullity . 10.2. The three cases we r e con c erned with s i tuat i ons where the charge was eit h er a me nde d o r a new cha r ge wa s i n trodu ced , after t h e accu s ed p e rson had ta k en t h e in itia l p l ea . 10.3. In a n y case i n the case of Mwanza (A. B.) v. The People7 , it wa s h e ld , i n ter alia , that : "Where however there has merely been an amendment which does not alter the nature of the charge , the failure to comply with the first proviso to section 213 does not nullify the plea already taken . In such a case, the first proviso J14 is merely directory; its provisions should be followed but failure to do so is not fatal unless injustice has been caused" 10.4 . It follows, that the mere fact that plea was not r etak en after an amendment, will not automatically be fatal to the prosecution's case . It lS dependent on the nature of t he amendment and whet her the accused person was prejudiced by the failure to (__, re t ake the plea . 10.5. I n this case , the charge was not amended nor was a new charge introdu ced , prior to the appellan t requesting that he ret akes the plea . 10. 6. The procedure for t aking p l ea is set out in section 204 of The Criminal Procedure Code. I t reads as follows : (1) The substance of the charge or complaint shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge: , that where the charge or complaint Provided contains a count charging the accused person with having been previously convicted of any offence, the procedure prescribed by section two hundred and seventy-five shall, mutatis mutandis, be applied . If the accused person admits the truth of the (2) charge, his admission shall be recorded, as nearly in the words used by him, and the as poss ible , court shall convict him and pass sentence upon or JlS make an order against him , unless there shall appear to i t sufficient cause to the contrary . (3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided . If the accused person refuses to plead, the (4) court shall order a plea of "not guilty" to be entered for him . 10.7 . In a case where the re i s a p lea o f not gu i l ty , (, section 205 of The Criminal Procedure Code provides that : (1) If the accused person does not admit the truth of the charge, the court shall proceed to hear the compl a i nant and his witnesses and other evidence, i f any . (2) ques t ions The accused person or his advocate may put to each witness produced against him. I f the accused person does not employ an (3) the court shall, at the close of the advocate , examination of e ach wi tness for the prosecution, ask the accused pers on whether he wishes to put any ques t i ons t o that witne ss, and shall record his answer . 10 . 8. We h ave looked throu gh the Criminal Procedure Code a nd h a v e not come across a ny provisi o n t hat i s illustrat i ve of how the court s h ou l d procee d wh e r e an accused person has p l eaded gui l t y b u t wou l d l ike ,, \ ,, J16 to c h a n ge the pl ea . However, t he pract i ce h a s been that t he p l ea i s re taken . 10 • 9 • We have n o difficul t y in findi n g t h a t t he fail u r e to re take the pl e a , i n t his case , was an irregulari t y. However, section 353 of The Criminal Procedure Code provi des as fo l lows: "Subject to the provisions hereinbefore contained, no finding , sentence or order passed by a court of competent jurisdiction shall · be reversed or altered on appeal or revision on any ground whatsoever unless any matter rai sed in such ground has , in the opinion of the appellate court, in fact occasioned a substantial miscarriage of justice : Provided that, in determining whether any such matter has occasioned a substantial miscarriage of justice, the court shall have regard to the question whether the objection could and should have been rai sed at an earlier stage in the proceedings . " 10.10 . The appellant informed the trial magistrate tha t he intended to retake the plea because he had been influenced to plead guilty . Even if he did not indicate h ow h e intended to plead , it is apparent that his intention was to ple ad not guilty . 10 .11. Such a plea would have resulted in the tria l magistrate receiving the prosecution evidence as set out in section 205 of The Criminal Procedure Code. J17 lO. l2 · Al though the appellant did not retake and change his plea, the court proceeded to receive prosecution evidence as if he had retaken the plea and pleaded not guilty. 10 .13. Even if this was the case, we find that the appellant was not prejudiced in any way because he had actually intended to plead not guilty. 10.14. We therefore find no merit in the 2 nd ground of appeal and we dismiss it. 11. FURTHER CONSIDERATION OF APPEAL BY COURT 11.1. The matter does not end there. 11.2. While we have fo und no merits in both grounds of appeal, it is our vie w that the real issue that this appeal raises, is whether the appellant's confession at the police station, that he had sexual intercourse with the prosecutrix, did corroborate the prosecutrix's evidence incriminating him. 11.3. Before we deal with that issue, it is necessary that we point out that because the prosecutri x and her friend , were both below the age o f 14 years when V J18 they testified, section 122(1) of The Juveniles Act, required that . their evidence incriminating the appellant, be corroborated. 11.4. Reverting to the subject whether the appellant's admission at the police station was corroborative, the appellant testified that the admission was not made freely and voluntarily. ((' 11.5. This claim was rejected by the trial magistrate who took the view that had it been the case, the appellant would have objected to its production into evidence , when the arresting officer was testifying. 11.6. In the case of Kasuba v. The People 9 , it was held that when a police o fficer is about to be referred to incriminating evide nce that was given by an accused person , t h e accused person must be asked if he has any objection to that evidence being produced. 11.7. In this case , the trial magistrate erred when he ' allowed the arresting officer to produce int o evidence t he appellant 's confession, without asking the a ppe llant if he had any objection to its J19 production. This should have been the case eve n if the appellant had not raised any issue wi t h the statement. 11. 8. That obligation was no t dependent on the appellant first registering any displeasure at the production of the statement, as was wrongl y concluded by the trial magistrate. 11.9. Sin c e the incriminating statement was e rr on eou s ly admi tted into evidence, the case against t h e appel l ant mus t be determined without considering t h e contents of t hat statement. 11.10. In our asses sme nt, the exclusion of the s t atement , leaves th e prosecutrix's evidence i n criminating the a ppe l l ant, uncorroborated. 11.11. It, in tu rn , re nde rs t he a ppellant's conviction unsafe, as i t was incompet e nt for the trial magistrate to c onvi c t him on the prosecutrix's un c orrobo ra t e d e vide nc e . 11.12. On the whol e , we find merit in this appeal and al low it. 12 · VERDICT J20 12 . 1. Having al l owed the appeal , we set as i de t he conviction and quash the sentence . C. F . R . Mchenga DEPUTY JUDGE PRESIDENT C. K. Makungu COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE