Nichola Habeenzu v The People (APPEAL NO. 36/2024) [2025] ZMCA 25 (21 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 36/2024 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: NICHOLAS HABEENZU AND THE PEOPLE ~ ' 'f . \2,t -p\J BLIC O l)RT OFA - '- 1 ] 27"\3 INALRE(; LLANT ONDENT CORAM: MCHENGA, DJP, NGULUBE AND CHEMBE, JJA. On 18th February, 2025 and 21 st February, 2025. For the Appellant B. Banda, Senior Legal Aid Counsel, Legal Aid Board For the Respondent : S. Mainza, State Advocate, National Prosecution Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1 . Emmanuel Phiri vs The People (1982) Z. R. 77 2 . Darius Sinyinza vs The People (2009) Z. R. 24 3. 4. Bernard Chisha vs The People (1980) Z. R. 36 David Zulu vs The People (1977) ZRl 51 5. Ezious Munkombwe and others vs The People CAZ Appeal No. 7, 8, 9 of 2017 6. Saidi Banda vs The People SCZ Appeal Number 114 of 2015 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 The appellant was tried and convicted of the offence of Defilement by the Subordinate Court of the First Class sitting at Lusaka. The case was then remitted to the Lusaka High Court for sentencing. The appellant was sentenced to thirty-five (35) years imprisonment with Hard Labour. 1.2 He has appealed against the conviction. 2 .0 BACKGROUND 2.1 The brief facts are that on 14 July, 2021, PWl Priscilla Phiri was at home when she was invited by PW2 to go to her house which was about 10 metres away. 2.2 PW2 pointed at a child and she explained that the child had just come out of the appellant's house , which was opposite her house. -J2- PW 1 examined the child's private parts and she saw a fluid coming out and further noticed that the child's private parts were dirty. PWl also noticed that the fluid was mixed with blood. 2 .3 PWl knocked on the door of the appellant's house and when he came out, she asked him if the child had been to his place and he refused. PWl then asked the child where she had been. The child pointed at the appellant and further stated that she was in his house. The appellant was apprehended and taken to Chinika Police Station where the matter was reported. The child, who happened to be PW l 's younger sister was issued with a medical report form and was examined at the hospital. The appellant's house was 10 metres away from PW l's house. 2.4 PW2 , Lydia Nyimbiri's testimony was that on 14 July, 2021, at about 10:00 hours, she was at the door of her house when she heard the appellant calling Anna (the prosecutrix) . The appellant's house was 4 metres away from PW2 's house. PW2 stated that Anna was with her older sister who was aged about 4 - 5 years , while Anna was about 3 years old. PW2 stated that she saw Anna following the appellant and they entered his house . -J3- 2. 5 After about twenty minutes the appellant opened his door and let Anna out of the house. PW2 made inquiries and found out who the mother of the child was and she called her. When PW2 observed and examined the child, she noticed that sperms were dripping onto the child's legs. When the appellant took Anna into his house, the other children remained playing outside. Before the appellant let the child out of his house, he peeped three times and then pushed the child out of his house. 2.6 The evidence of PW3, David Mukwacha was that on 14 July, 2021 he returned home to pick up a tool that he needed when he found a lot of noise at his house. He later learnt that the prosecutrix who lived at his home had been defiled. He was informed that the appellant was the one who defiled her. The child was taken to Kanyama Level 1 hospital where she was examined and it was confirmed that the child was defiled. 2. 7 PW4, Margaret Mooba was the prosecutrix's mother. She testified that her daughter was born on 4 February, 2018. She stated that she was not at home when the child was defiled. 2.8 PWS, Patricia Nsama was the arresting officer. She investigated the matter and stated that the appellant was already in custody -J4- on 15 July, 2021 when the docket was allocated to her. Upon being questioned, the appellant denied the charge, PWS also identified the medical report that was signed after the child was examined by the doctor. 2. 9 In his defence, the appellant stated that he was falsely accused of defiling the prosecutrix. He stated that PW2 wanted to have an affair with him and when he declined, she falsely accused him of the subject offence. 3 .0 FINDINGS OF FACT BY THE TRIAL MAGISTRATE 3 . 1 The learned trial Magistrate found that the appellant was the one who defiled the prosecutrix. The court found that the evidence of PW2 was corroborated by the evidence of PWl. The medical report further confirmed that the prosecutrix was defiled. The court found that PW2 saw the appellant get the child and he entered his house with her. She later saw the appellant peep three times and he then pushed the child out of his house. 3 .2 The court found that the appellant had the opportunity to commit the offence because he was in his house with the child. The court found that the opportunity to commit the offence was a special and compelling ground and found that soon after the child was -JS- ejected from the appellant's house she had semen in her private parts. 3.3 The trial court concluded that the prosecution had discharged its burden and that the case of defilement had been proved beyond all reasonable doubt. The appellant was accordingly convicted. When the matter was remitted to the High Court for sentencing, a sentence of 35 years Imprisonment with Hard Labour was imposed on the appellant. 4 .0 THE APPEAL 4 . 1 The appellant was dissatisfied with the conviction and sentence and appealed to this court, advancing three grounds of appeal couched as follows- 1. The learned trial court erred both in law and fact to admit evidence of the prosecutrix as corroboration of both the commission of the offence and the identity of the offender in the absence of her testifying before court. 2. The court erred in law and fact to find that the appellant had the opportunity to commit the offence of defilement. -J6- 3. The learned trial court erred both in law and fact by failing to resolve the lingering doubt created in the case in favor of the appellant. 4. 2 In arguing ground one, it was submitted that there was no corroboration on record to show that the app ellant committed the crime. The case of Emmanuel Phiri vs The People1 was referred to in this regard. 4. 3 Further, the case of Darius Sinyinza vs The People2 was referred to, where the Supreme Court held that victims of defilement are suspect witnesses and that their evidence must be corroborated. 4.4 It was submitted that PWl and PW2 were witnesses with a possible interest of their own to serve and that for that reason, their testimony could not corroborate that of the prosecutrix. According to Counsel, PWl and PW2 were suspect witnesses. 4.5 It was argued that since the prosecutrix was only aged 4 years, she was susceptible to giving false statements and could have been influenced by third parties to give false testimony against the appellant. The case of Bernard Chisha vs The People3 was referred to in this regard. -J7- 4.6 It was contended that PW2 was a single identifying witness and was also a suspect witness. It was contended that her evidence required corroboration as there was no direct evidence that the appellant committed the offence. It was argued that the medical report had findings which made it doubtful that the appellant committed the offence. 4.7 According to Counsel, the allegation of opportunity to commit the offence was not conclusive and speculative as there should have been something more. Counsel contended that the commission of the offence and the identity of the offender were not corroborated and that as such, the conviction cannot stand. It was argued that the learned trial court erred when it received evidence of the prosecutrix through PW2, PWl, PW4 and PW5, to the effect that she was defiled. 4 .8 In arguing ground two, it was submitted that the opportunity to commit the offence was not compelling as the prosecutrix was in the company of her friends in a densely populated community in Kanyama compound. Counsel argued that the evidence of opportunity to commit the offence was circumstantial and that the court should only accept it if it takes the case out of the realm -J8- of conjecture and attains such a degree of cogency that could provide the court with only an inference of guilt as the reasonable inference. 4. 9 It was argued that in a densely populated community, other men cou ld have had the opportu nity to commit th e offence. It was conten ded that the court did n ot give reasons why it preferred the prosecution eviden ce in convicting the appellant. 4 . 10 In arguing the third grou nd of appeal, it was submitted that the trial court erred in failing to resolve the lin gering doubts in favour of the appellant. It was argued that there were doubts in the prosecu tion case which sh ou ld have been resolved in favour of the appellant. We were u rged to allow the appeal and quash the conviction and sentence and set the appellant at liberty. 5 .0 RESPONDENT'S HEADS OF ARGUMENTS IN OPPOSITION TO THE APPEAL 5 .1 The respondent filed heads of argument on 13 February, 2025. The respondent's Counsel responded to grounds one and two simultaneously as they were interrelated. 5 .2 It was submitted that even without the evidence of the prosecution the trial Court was on firm ground when it convicted -J9- the appellant as the evidence on record was that the appellant took the prosecutrix into his house for about ten to fifteen minutes . When he let her out of his house , PWl and PW2 checked her private parts and found that there was semen in there. It was argued that the only inference that could be drawn was that the appellant defiled the prosecutrix. 5 .3 It was contended that the prosecutrix and the appellant were neighbours and that PW2 saw the prosecutrix leave the appellant's house before she was checked and found to have semen in her private part. We were urged to dismiss the first and second grounds of appeal for lack of merit. 5 4 Responding to ground three which attacked the trial Court for failing to resolve doubts in favour of the appellant, it was submitted that there were no lingering doubts on record which could h ave been r esolved in favour of the appellant. It was argued that PW2 saw the appellant take the prosecutrix into his house and later let her out of the house. This was the time when PW2 checked the prosecutrix and she found that the prosecutrix was defiled. It was submitted that the evidence had taken the case out of the realm of conjecture to attain such a degree of -JlO- cogency which permitted only an inference of guilt. The case of David Zulu vs The People4 was referred to. We were urged to dismiss the third ground of appeal and dismiss the appeal in its entirety and uphold the conviction and sentence. 6 .0 THE HEARING 6 . 1 At the hearing of the appeal, both Counsel relied on the heads of argument filed, with brief augmentation. 7.0 CONSIDERATION AND DECISION OF THE COURT 7.1 We have analysed the evidence on record, the Judgment of the trial Court and the arguments in support of the appeal as well as those in opposition. We will now determine the appeal, which in our view hinges on circumstantial evidence. The question is whether the circumstantial evidence on record was so cogent as to take the case out of the realm of conjecture that it attained such a degree of cogency to warrant only an inference of guilt. 7 .2 Legal issues that relate to the nature and application of circumstantial evidence are well precedented in our jurisdiction. A wealth of authorities outline the requirements that ought to be satisfied before a trial court can safely convict on circumstantial -Jll- evidence. In the case of David Zulu vs The People the Supreme Court gave guidance on wh at circumstances would warrant a conviction and stated that- "The Judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt." 7. 3 Further, in the case of Ezious Munkombwe and Others vs The People,5 the Court stated that when considering a case anchored on circumstantial evidence, the strands of evidence making up the case against the appellant must be looked at in their totality and not individually. 7 .4 In some cases, circumstantial evidence may be the best form of evidence as it is proof of facts not in issue from which an inference may be made which settles matters in issue. In order to convict on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon other hypothesis than that of the accused's guilt. 7.5 In the case of Saidi Banda vs The People6 the Supreme Court guided that- -J12- "Where the prosecution's case depends wholly or in part on circumstantial evidence, the court is, in effect being called upon to reason in a staged approach. The court must first find that the prosecution evidence has established certain basis facts. These facts do not have to be proved beyond all reasonable doubt. Taken by themselves, those facts cannot therefore, prove the guilt of the accused person. The court should then i nfer or conclude from a combination of those established facts that a further fact or facts exists. The court must then be satisfied that those further facts implicate the accused in a manner that points to nothing else but his guilt. Drawing conclusion from one set of established facts to find that another fact or facts are proved, clearly involves a logical and rational reasoning process. It is not a matter of casting any onus on the accused but a conclusion of guilt a court is entitled to draw from the weight of circumstantial evidence adhered before it. " 7 . 6 Although we agree that the trial Court misdirected itself when it found th at th e evidence of PWl and PW2 corroborated that of the prosecu trix on the commission of the offence, when the prosecutrix did not testify, the critical evidence in our view, is that of PW2 who saw the appellant when h e took the child into -J13- his house and later ejected her from his house after about twenty minutes. 7 . 7 When PW 1 and PW2 examined the prosecu trix, they found that she had semen on her private parts and the medical report that was obtained after she was examined confirmed that she was defiled. 7.8 In our view, this evidence points at the appellant as the only person who could have defiled the prosecutrix as he took her into his house and when she left his house fifteen minutes later, she was found with semen on her private parts. 7. 9 Our examination of the totality of the circumstantial evidence leaves us with no choice but to agree with the learned trial Judge's conclusion that the appellant is the one who defiled the prosecutrix. We are of the view that only an inference of guilt could have been drawn from the evidence of the prosecution against the appellant. 7 . 10 The argument that PWl and PW2 were suspect witnesses cannot stand because there was no evidence to that effect. 7.11 The evidence on record shows that the appellant was the only person who took the prosecutrix into his house and when she -J14- emerged twenty minute later, she was defiled. The fact that he peeped, preferably to ensure that no one saw the child come out of the house clearly points at the act of taking the child into the house not being innocent. The sequence of events points at the appellant as the person who defiled the prosecutrix in his house that fateful morning. 7 .12 We find no basis upon which to find that there were any inconsistencies in favour of the appellant. 8. 0 VERDICT 8 .1 Although we find merit in the first ground of appeal, the appeal fails because there was circumstantial evidence in which the charge against the appellant was proved. 8.2 In the view that we have taken, we uphold the conviction and sentence and dismiss the appeal for lack of merit . . F . R. MCHE DEPUTY JUDGE PRESIDENT ~ P. C. M. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE -JlS-