Mabvuto Phiri v The People (Appeal 64/2024) [2025] ZMCA 103 (15 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL 64/2024 BETWEEN: MABVUT0 PHIRI 1 5 ~. UG 7025 APPELLANT AND THE PEOPLE RESPONDENT CORAM: MCHENGA DJP, NGULUBE AND CHEMBE JJA On 17th June 2025 and 15th August 2025 For the Appellant Ms. S. Mvula - Legal Aid Counsel, Legal Aid Board For the Respondent No Appearance JUDGMENT CHEMBE JA delivered the judgment of the Court. Cases referred to: 1. R v Baskerville ( 1916) 2 KB 658 2. Nsofu v The People (1973) ZR 287 3. Kate be v The People ( 1975) ZR 13 (SC) 4 . Emmanuel Phiri v The People ( 1982) ZR 77 (SC) 5 . Ives Mukonde v The People (2011) Vol 2 ZR 134 (SC) 6. Misheck Mwanza v The People CAZ Appeal No 197 /2020 7. David Zulu v The People (1977) ZR 151 J2 8. Saidi Banda v The People SCZ Appeal No. 114/2015 9. Makasa Mazuba v The People SCZ Appeal No. 116/2021 10. George Bienga v The People (1978) ZR 32 11. OTK Ltd v Amanita Zambiana Ltd and Others (2011) Vol 1 ZR 170 12. Saluwema v The People ( 1965) ZR 4 13. Maseka v The People (1972) ZR 9 (CA) 14. Philip Mungala Mwanamubi v The People SCZ Judgment No.9/2013 15. James Mwango Phiri v The People SCZ Appeal No. 171/2015 16. Ndakala v The People ( 1974) ZR 19 (SC) 17. Machipisa Kombe v The People (2009) ZR 28 18. Phiri Macheka v The People (1973) ZR 145 CA 19 Justus Simwinga v The People SCZ Appeal No 120/2017 1.0 INTRODUCTION 1.1 This is an appeal against the judgment of Honourable K Kabwato dated 14th August 2023. 1.2 The Appellant was charged with the offence of defilement contrary to section 138 (1) of the Penal Code. Particulars of offence alleged that on 8 th December 2022, the Appellant had unlawful carnal knowledge of S P , a child under the age J3 of 16 years. 1.3 Following a trial, he was convicted and subsequently sentenced to 15 years imprisonment. 2.0 EVIDENCE BEFORE THE TRIAL COURT 2.1 The evidence before the trial Court was that on 8 th December 2022, the prosecutrix, S P , went to Luangazi Health Centre for treatment. She was scheduled for an injection which had earlier been prescribed. 2.2 At the Health Centre, she found the Appellant attending to other patients. When all the other patients had left, the Appellant called her into a room where he administered the injection. He then proceeded to give her some tablets. After taking the tablets , she became weak. The Appellant then placed her on the hospital bed, undressed her and sexually assaulted her. 2.3 Afterwards the Appellant put her on a drip and she fell asleep or lost consciousness. When she woke up, the Appellant allowed her to go home . As she walked home, she was crying. PW3 saw her walking across the field and heard her crying. J4 When questioned, the prosecutrix informed her that she had been sexually assaulted by the Appellant. 2.4 When she got home, the prosecutrix informed her mother that the Appellant had sexual intercourse with her. The matter was reported to the police and the prosecutrix was taken to the hospital. Upon being examined, it was confirmed that sexual intercourse had taken place as there was bruising on the vagina and the hymen was absent. Some semen was also found in the vagina. 2.5 The Appellant was apprehended the following day and charged with the subject offence. In his defence , the Appellant denied having defiled the prosecutrix. His evidence was that there were other patients at the clinic at all material times. He explained that after administering the injection, the prosecutrix reacted to the medicine and started showing symptoms suggesting that she was in shock. He then gave her promethazine tablets to stabilize her and asked her to lie on the bed. 2.6 It was his evidence that he asked another patient called Getrude Zulu to be with the prosecutrix. He also administered a saline JS drip together with dextrose to raise her energy levels. When she stabilized, he allowed her to go home. 2.7 The Appellant called 3 witnesses in support of his defence. Getrude Zulu confirmed that he requested her to stay with the prosecutrix. She, however, testified that she found the prosecutrix lying on a bed and did not know what had transpired earlier. The Appellant's wife testified that the clinic had 3 rooms which all had doors leading outside. DW4 was a medical doctor whose evidence was that certain medicines could cause side effects. He stated that the tablets the Appellant had administered could cause drowsiness if given in high doses. 3.0 DECISION OF THE TRIAL COURT 3. 1 After analyzing the evidence, the trial magistrate found that the elements of the offence of defilement had been sufficiently proved. He found that the identity of the offender and the commission of the offence were sufficiently corroborated as required by law. He rejected the Appellant's explanation and found him guilty as charged. J6 3 .2 On committal to the High Court for sentencing, the Appellant was sentenced to 15 years imprisonment with hard labour. 4.0 THE APPEAL 4.1 Aggrieved with the decision of the Court below, the Appellant launched the current appeal fronting five grounds as follows; 1. The trial Court erred in law and fact when it convicted the Appellant on insufficient evidence of opportunity to commit the offence. 2. The trial Court misdirected itself when it found that there was corroboration of the commission of the offence and the identity of the offender when the evidence of the complainant was inconsistent and there were patients that were present at the clinic that did not corroborate her story. 3. The trial Court erred in law and fact when it found that the complainant had been defiled without tendering into evidence the laboratory results. 4. The trial Court erred in law and fact when it held that the administration of Finnegan to the prosecutrix was calculated to sedate the victim so that he can have carnal knowledge with her without proof that the dosage given produced sedation. 5. The Court erred in law and fact when it held that the complainant was below the age of 16 without proper and admissible proof of age. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL J7 5.1 The Appellant filed heads of argument in support of the appeal on 16th June 2025. He argued grounds 1 and 2 together. It was submitted that it was a requirement in sexual offences that the evidence on the commission of the offence and the identity of the offender should be corroborated. For the definition of corroboration we were referred to the cases of R v Baskerville 1 and Nsofu v The People2 . 5.2 The Appellant contended that the evidence that the prosecutrix was defiled was not sufficiently corroborated despite the admission of a medical report. It was submitted there was no report confirming the presence of semen in the prosecutrix vagina and it was therefore not safe to rely on that evidence. 5.3 Whilst acknowledging that as decided in the cases of Katebe v The People3 and Emmanuel Phiri v The People4, the absence of motive on the part of the prosecutrix to falsely implicate the accused and exclusion of honest mistake may amount to something more that may support a conviction, the Appellant maintained that in the present case there was a possibility of honest mistake due the confused state of the prosecutrix after JS the injection. 5.4 It was argued further that there was no opportunity for the Appellant to commit the offence as there were other people at the clinic at all times. The cases of Nsofu v The People (supra), Ives Mukonde v The People5 and Misheck Mwanza v The People6 were referred to in support of the proposition that m ere opportunity does not amount to corroboration. 5.5 In relation to ground 3 , the Appellant su bmitted that there was no evidence th at h e administered th e tablets to the Prosecu trix t o sedate her so that he could h ave sexu al intercourse with her. The cases of David Zulu v The People 7 , Saidi Banda v The People8 and Makasa Mazuba v The People9 on the need to be cautious in drawing inferences from circumstantial evidence were ref erred to. 5.6 It was argued that the evidence showed that the Prosecutrix could see people from the treatment room and that the Appellant had left her when he went to collect a cannula from J9 his house. It was also submitted that the tablets were a dministered to the prosecutrix in the presence of DW3. 5.7 Regarding ground 5 which was referred to as ground 4 , the Appellant charged that the evidence relating to the age of the prosecutrix was unsatisfactory as a photocopy of the under-five card was produced and not the original. It was submitted that there was no explanation for the absence of the original for the copy to qualify as decided in the case of George Bienga v The People10 . We were also referred to the case of OTK Ltd v Amanita Zambiana Ltd and Others 11 on the need to lay a foundation before tendering an item into evidence. 5.8 It was argued that the age of the prosecutrix being an essential ingredient of the offence meant that the offence was not proved beyond reasonable doubt. In conclusion, the Appellant argued that his explanation was reasonably possible and should have been accepted as guided in the cases of Saluwema v The People12 and Maseka v The People 13 . We were urged to allow the appeal. 6.0 RESPONDENT'S ARGUMENTS 6.1 In the arguments in opposition to the appeal, the Respondent JlO supported the judgment of the trial court. They argued grounds 1, 2 and 3 together. It was submitted the trial Magistrate was alive to the requirement for corroboration on the commission of the offence and the identity of the offender. 6.2 The Respondent supported the finding that the fact that the Appellant had an opportunity to commit the offence when he moved the prosecutrix to a different room amounted to corroboration on the identity of the offender. It was submitted that the prosecutrix was vulnerable during the time she was alone with the Appellant as she could see but could not speak. It was submitted that the fact that the prosecutrix was given a drip confirms that she had been sedated and needed to be energized. 6.3 The Respondent challenged the submission by the Appellant that DW3 was present when the tablets were administered to the prosecutrix in view of her evidence that she found the prosecutrix asleep when she was called. DW3 also confirmed that the prosecutrix was sleeping in a room which was different Jll from the room where the other people were. She also explained that the prosecutrix was not visible to the other people. It was submitted that the above facts constituted opportunity. Reference was made to the case Philip Mungala Mwanamubi v The People 14 where it was held that opportunity can be corroboration as to the identity of the accused. 6.4 The Respondent also raised the failure by the Appellant to cross examine the prosecutrix on the sequence of events between the being injected and becoming sedated. It was submitted that the Appellant raised the issue of the reaction to the injection for first time in his defence. The case of James Mwango Phiri v The People 15 where the Supreme Court held that where an issue is only raised when the accused is on the stand, it can be treated as an afterthought. 6.5 A further argument by the Respondent was that the prosecutrix cried loudly as she walked home and informed PW3 that she had been defiled by the Appellant. The prosecutrix also informed her mother about the ordeal when she got home. Relying on the case ofNdakala v The People 16 , it was submitted • that the early complaint must be weighed in the prosecutrix' J12 favour. 6.6 The cases of Nsofu v The People (supra) and Machipisa Kombe v The People 17 were referred to for the definition of corroboration. 6.7 In relation to ground 4, the Respondent submitted that the mother of the prosecutrix testified that she was born on 12th May 2008. Our attention was drawn to the cases of Phiri Macheka v The People 18 and Justus Simwinga v The People 19 where it was held that the best evidence on age should come from the parent of the child. It was submitted that the age of the prosecutrix was sufficiently proved by her mother PW 1 and even if the underfive card was excluded the mother's testimony would suffice. 7.0 CONSIDERATION AND DECISION 7 . 1 We have considered the record of appeal together with the judgment of the Court below and the arguments by both sides. The main issue raised in the appeal is whether the prosecution • adduced sufficient evidence to support a conviction on a charge J13 of defilement. 7.2 In order to secure a conviction on a charge of defilement, the prosecution has to adduce evidence that shows that the prosecutrix was below the age of 16 and was sexually assaulted by the Respondent. It is a requirement that the evidence on the identity of the offender and the commission of the offence is corroborated by some independent fact. 7. 3 The record shows that the trial Court accepted the evidence of the prosecutrix that it was the Appellant who defiled her. The trial Court made a finding that the identity of the perpetrator was corroborated by the admission by the Appellant that he did attend to the prosecutrix on the day in issue and therefore had an opportunity to commit the offence. The trial Judge formed the view that the opportunity amounted to corroboration. In the case of Machipisa Kombe v The People18, corroboration was defined as independent evidence which tends to confirm that witness is telling the truth. 7.4 In the present case there was undisputed evidence that the J14 prosecutrix had gone to Luangazi clinic where she was given an injection and some tablets by the Appellant. There was also evidence that the prosecutrix became unwell thereafter and was found lying on a bed in the clinic by DW3. 7. 5 Further, the evidence of DW3 was that the prosecutrix was lying on a bed in a room where she could not be seen by people outside. We take judicial notice of the fact that injections are administered privately for the dignity of the patient. The Appellant's explanation that there were patients at the clinic does not help his case in view of this. The above evidence suggests that there was a point at which the Appellant was alone in the room with the prosecutrix during which he had the opportunity to defile her. 7.6 In the case Nsofu v The People2 , the Supreme Court clarified the circumstances under which evidence of opportunity can amount to corroboration as follows; "mere opportunity alone does not amount to corroboration but ... the opportunity may be of such character as to bring the element of suspicion. That is the circumstances and JlS locality of the opportunity may be such as in themselves amount to corroboration." 7. 7 In our considered view, something happened in that room which caused the prosecutrix to lose strength. The Appellant's explanation that she reacted to the injection could not be true as she was being given the injection for the fifth time that week and she had not reacted badly to it. The evidence of DW 4 was that the tablets given to the prosecutrix could cause sedation if given in large doses. Although there was no evidence that the dosage she was given was high, the evidence suggests that that is the effect that the tablets had on her as she immediately felt weak. The trial Court was therefore entitled to conclude that it was the tablets she was given by the Appellant which caused her to be weak. 7.9 The fact that the prosecutrix was in a weakened state where she could not scream in an isolated room alone with the Appellant amounts to suspicious opportunity in our view. In view of the foregoing, we cannot fault the trial Court's finding that the evidence of the prosecutrix on the identity of the offender was sufficiently corroborated. 7.10 Regarding the commission of the offence, the medical report J16 sufficiently corroborated the evidence of the prosecutrix as it showed that sexual intercourse had taken place . PWS who examined the prosecutrix testified that he observed that the hymen was absent, there were braises on the vulva and there was semen in the vagina. 7 .11 The Appellant argued that the medical report should not have been relied upon as there was no laboratory report to confirm the presence of spermatozoa. We note that the corroborative evidence was not challenged at all in cross examination. As held in the case of James Mwango Phiri v The People (supra) cited by the Respondent the failure to challenge the prosecution evidence through cross examination may result in the issue being raised in the defence for the first time to be considered an afterthought. In any event, our view is that there were other findings by the medical officer which confirmed that sexual intercourse had taken place. We accordingly uphold the trial Court's finding that the commission of the offense was corroborated and that the prosecutrix was sexually assaulted within the meaning of the law. 7.12 The Appellant has also raised issue with the age of the J17 prosecutrix. The age of the prosecutrix on a charge of defilement is a crucial ingredient which needs to be proved. In order for the offence to be proved, it must be shown that the girl was below the age of 16 years as held in the case of Phiri Macheka v The People3 . In that case the Supreme Court stated the age of the prosecutrix should be proved by one of the parents or by whatever other best evidence is available. The record of appeal shows that the prosecutrix' mother PWl testified that she was born on 12th May 2008 and produced a copy of her under five card to support this evidence. 7.13 Although no explanation was tendered on the whereabouts of the original, our view is that it was the best evidence available. The case of OTK Ltd v Amanita Zambiana Ltd and Others cited by the Appellant can be distinguished from the present case in that that case dealt with electronic communications. The evidence on the age of the prosecutrix was not challenged at all during the trial. The Appellant accepted that the prosecutrix was 14 years old. At page 16 of the record of appeal Counsel for the Appellant jndicated that he had no objection to .. J18 the admission of the copy of the under- five card into evidence. The trial Court can therefore not be faulted for relying on it. The 4 th ground of appeal fails. 8 .0 CONCLUSION 8.1 All the grounds of appeal having failed, we find no merit in the appeal and we dismiss it. We uphold the decision of the trial court. P. C. M. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE