Gift Mulonda v The People (SCZ JUDGMENT NO.14/ 2004) [2004] ZMSC 156 (1 June 2004)

(P. 204) SCZ JUDGMENT NO.14/ 2004 IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 22 OF 2004 HOLDEN AT KABWE AND NDOLA (CRIMINAL JURISDICTION) GIFT MULONDA APPELLANT AND THE PEOPLE RESPONDENT Coram: Sakala, CJ., Mambilima and Silomba JJS 6th April, 2004 and 1st June, 2004 . For the Appellant: Mr. F. B. Nanguzyambo, Director of LegaJ. Aid • For the State: Mr. L. E. EYAA, Principal State Advocate Sakala, CJ., delivered the Judgment of the Court. JUDGMENT Cases Referred to: 1. Chipendeka Vs The People {1969} ZR 82. 2. Mwaba Vs The People {1974} ZR 264 3. 4. 5. Lunga Mika Vs. The People {1970} ZR 61 Somerhough .1 in R Vs Mwakanangile {1957} R & N.740 R Vs Phiri N. R. L. R. 324 (205) :J2: The Appellant pleaded guilty to a charge of defilement of a girl under the age of 16 years contrary to section 138(1) of the Penal Code, cap 87 of the Laws of Zambia before the Subordinate Court of the First Class holden at Mufulira. The particulars of the offence alleged that the Appellant, on 22nd October, 2002, at Mufulira in the Mufulira District of the Copperbelt Province of the Republic of Zambia, unlawfully and carnally knew Constance Mumba, a girl under the age of 16 years. The learned trial Magistrate sentenced the Appellant to a conditional discharge that the Appellant was not convicted of a similar offence within one year. Subsequently, the record was called for review by the High Court at Ndola. The reviewing Judge set aside th~ sentence of a conditional discharge imposed by the Subordinate Court at Mufulira and sentenced the Appellant to 15 years Imprisonment with Hard Labour with effect from 14th October, 2003. When we heard the appeal at Kabwe on 6th April, 2004, the learned Principal State Advocate indicated that he did not s_~pport the conviction for the reasons which will be apparent later in this judgment. We immediately allowed the appeal. We set aside the conviction and quashed the sentence of 15 years Imprisonment with Hard Labour. The Appellant was thus acquitted. We said we would give our reasons later. This we now do. The brief facts read and admitted in court were that on 12th October, 2002, the prosecutrix met the Appellant, a Minibus Driver, known to her, at Butondo Bus Station. The Appellant then invited the prosecutrix to board the Minubus which he was driving to go to Mufulira town centre. At the town centre, he offloaded the passengers and r<- (206) : J3 : drove with the prosecutrlx to a Pleasure Resort Club. Thereafter, he drove to Butondo Tigers Football ground where he took the prosecutrix to the Club's change House. According to the facts, it is at this change house where the Appellant defiled the girl. The matter was reported at Butondo Police Station. The prosecutrix was issued with a medical report form. She was examined at Ronald Ross Hospital. The Appellant was Q later apprehended by the Police and charged with the subject offence. In arguing the appeal against conviction and sentence, the learned Director of Legal Aid advanced three grounds namely; that the learned trial Magistrate erred in law in convicting the Appellant for the offence of defilement under Section 138 of the Penal Code without explaining to the Appellant the provisions of that Section; that the learned trial Magistrate erred in law by convicting the Appellant when the -age of the prosecutrix, which was an essential ingredient of the offence of defilement, was not revealed by the facts of the case as read out by the public prosecutor nor was the same ever enquired into by the court; and that the learned reviewing Judge fell into error by imposing a sentence of 15 years Imprisonment with Hard Labour in place of a conditional discharge which, regard being had to all the circumstances of the case, is on the higher side and further that the learned Reviewing Judge could not give a sentence which was not within the jurisdiction of the trial Magistrate. The gist of the submission on ground one was that it is a rule of practice that where it appears that an unrepresented accused may be intending to plead guilty to a charge of defilement, the proviso to section 138 of the Penal Code should be explained to him. This is even more desirable where an accused person pleads not guilty to enable an accused to _have an opportunity to direct his cross examination of the "" ~ .' .. ,t,. ]4 (207) prosecution witnesses to the question of the prosecutrix's age. It was submitted that a perusal of the record before the Subordinate Court reveals that no such explanation was given to the Appellant who was unrepresented. In support of this submission on / ground one, the learned counsel relied on the cases of Chipendeka Vs The People {.t} and Mwaba Vs The People{2). On ground two, counsel argued that in his own ground of appeal, the Appellant attempted to put forward the defence that the prosecutrix was over the age of 16 years and that he had had sexual connection with her before. Counsel pointed out that the age of a victim in defilement is crucial. It is a very essential ingredient of a charge. The learned Director also pointed out that the facts as read in· court did not reveal the age of the prosecutrix. . He contended that an essential ingredient of the offence was glaringly missing from the facts. It was counsel's submission that- at that stage the court ought to·have either acquited the Appellant or put itself on inquiry to ascertain the age of the prosecutrix. On ground three, the learned Director pointed out that the accused came before the () High Court by way of review. The Appellant had been conditionally discharged. The trial Magistrate was of the rank of Class I . Counsel submitted that on the strength of Section 7 of the Criminal Procedure Code and on the authority of the case of Lunga Mika Vs The people{3}, the Subordinate Court, presided over by a Magistrate of the First Class, could not impose a sentence of imprisonment exceeding a term of five years. The learned Director submitted that the reviewing Judge could not impose a sentence which was not within the jurisdiction of the trial Magistrate. He submitted further that a sentence of 15 years Imprisonment with Hard Labour, regard being had to all the circumstances of the case, was rather on the higher side. He urged the court~ .. rev~ajt the sentence if the two other grounds of appeal fail. ,, i -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (208) : J 5: As indicated earlier, the Learned Principal State Advocate did not, properly so in our view, support the conviction. The proviso to Section 138 of the Penal Code reads as follows:- / "Provided that it shall be a sufficient defence to any charge under this section if it shall be made to appear to the court before whom the charge shall be brought that the person so charged had reasonable cause to believe, and did in fact believe, that the girl was of or above the age of sixteen years. 0 The effect of this provision has been considered and explained in a number of cases. In the case of Chipendeka (1) the court explained that no conviction based on a plea of guilty to a charge of defilement can stand if the proviso to that ~ection is not explained to the accused and if the accused could have set up a defence given to him by the proviso. Somerhough Jin RV Mwakanangile{4} added to this by stating that the fact that this has been done should clearly appear on the record. At page 742 the learned Judge in Mwakanangile had this to say:- "If it seems that the accused could have set up that defence with a prospect of success, however remote, then in my view the effect of the decision of this court in R V Phiri{SJ must be that the conviction cannot stand unless the prisoner was made aware of the defence." () In the case of Mwaba (2) the short facts from the headnote were that the Appellant was convicted after trial of defilement and sentenced to three years' imprisonment with hard labour. The record disclosed that the trial magistrate did not at any stage of the : ]6 : (209) 0 proceedings explain to the Appellant the statutory defence available to him under the proviso to section 138 of the Penal Code. This court held as follows:- (i) It is a rule of practice that where it appears that an unrepresented accused person may be intending to plead guilty to a charge of deflleinent the proviso to section 138 of the Penal Code should be explained to him. Even where an accused pleads not guilty it is desirable that the proviso be - (ii) explained before plea, but certainly at some early stage in the proceedings, so that the accused may have the opportunity to direct his cross-examination of the prosecution witnesses to the question of the girl's age. (iii) In a borderline case in terms of age the failure to explain the statutory defence to an accused person is an irregularity which may be cured if there has been no prejudice. We have perused the record of the trial Magistrate. It is very clear to us that the proviso to section 138 of cap 87 was not put to the Appellant at the time he was initially called upon to plead. Nor was it put to him after the facts were read. Having regard to the circumstances under which the offence was committed, as revealed by the facts read in court, this was not a borderline case in terms of age. The facts revealed that the Appellant had a meritorious statutory defence which was not explained as required ·by the rule of practice in such offences. Failure to explain the proviso on the facts of this case was fatal that we did not even consider to order a retrial. ,~{\ : J 7: (210) We agree with the learned Director that the age of the victim in defilement cases is crucial and a very essential ingredient of the charge. Ground three attacked the sentence of 15 years imposed by the reviewing Judge. The short argument was that the tri91 Magistrate was a Class I. And i.n terms of section ?(iii) of cap 88, the maximum sentence that court can impose is five years. In the case of Lunga Mika {3} the short facts from the headnote were that the Appellant was convicted of burglary and sentenced to three years imprisonment with hard labour by a Q Class I Magistrate. This was the maximum sentence at that time within the jurisdiction of the Magistrate. On appeal to the High Court, the appellate Judge enhanc(¥1 the sentence to five years imprisonment with hard labour. The court of appeal held that on appeal, the appellate Judge could not give a sentence which .was not within the jurisdiction of the Magistrate:. The original sentence by the Magistrate was restored. The court observed that the appellate High Court Judge must have overlooked the fact that a greater sentence was outside the jurisdiction of the Magistrate. For the reasons elaborated in grounds one and two we allowed the appeal against conviction and acquitted the Appellant. /~ ············~-... , .......................... . E. L. Sakala CHIEF JUSTICE , = re, ························································ I. C. Mambil!ma SUPREME COURT JUDGE S. S; Silomba SUPREME COURT JUDGE