People v Gershom Sinkonde (3D/20/23) [2023] ZMSUB 14 (26 June 2023)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/20/23 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) BETWEEN: THE PEOPLE AND GERSHOM SINKONDE Before: Hon. Deeleslie Mondoka For the State: Mr. W. Chavula, Public Prosecutor, National For the Accused: In person Prosecution Authority. JUDGMENT Cases referred to: i. ii. iii. iv. MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.); SALUWEMA V THE PEOPLE (1965) ZR 4 (CA); NGUILA V. THE QUEEN (1963-1964) Z. AND N. R. L. R. 14; ABEDINEGAL KAPESH AND BEST KANYAKULA V THE PEOPLE SCZ SELECTED JUDGMENT NO. 35 OF 2017, and v. GRAVE V. MILLS 7 H& N 917. Statute and other sources: i. THE PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA, AND J1 of 12 Introduction [1] The accused GERSHOM SINKONDE stands charged with one Count of criminal trespass, contrary to section 306 (a) of the Penal Code Chapter 87 of the Laws of Zambia. [2] In brief– the accused on 18th April, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, did unlawfully enter upon the premises of LIGHTWEL CHONGO with intent to commit a felony. [3] On 16th April, 2023, the accused person was made to stand trial, and was arraigned on the charge in question, to which the accused pled NOT GUILTY. Background facts Prosecution’s case [4] The facts surrounding this matter are by and large– the abstract of the facts gleaned at trial. [5] On 9th May, 2023, the prosecution summoned as its first witness, PW1, AMOS SIMUKANGA, a caretaker, who gave an account on oath concerning the events of the 18th day of April, 2023, as hereunder. [6] On the day in question, PW1 was on duty, and at around 07:00hrs while slashing, he saw the accused coming from Maround Compound in Mbala district, using the road that is used by everyone. After ten (10) minutes I saw him coming from the direction behind me where there is no road. [7] After tracing back, the accused steps to ascertain where he was coming from, PW1 discovered that three (3) tresses had been freshly cut with sap still issuing from their vines. [8] It was PW1’s report that– they had been having these trees felled for a long time now and wondered who the culprits had been. J2 of 12 [9] PW1 phone Mr. CHONGO, the owner of the farm, who hove into sight to aid him with some people. Thereafter, the accused was seized and taken to the police. [10] During cross-examination the accused indicated that he found PW1 slashing with a phone is his hand, and disputed having felled the tress in question. [11] Nothing was advanced in re-examination. [12] On 19th May, 2023, the prosecution called as its second witness PW2, a yeoman of Mbala in the Mbala district of the republic Zambia, who in his exordium averred as hereunder. [13] PW2 indicated that he grows pine trees, and that they currently had 15, 000 tree, which stood at about 2 meters tall. [14] It was PW2’s testimony that in the last two (2) years persons unknown would walk into the planation and indiscriminately top the trees and consequently causing them to wither on their vines. [15] PW2 further averred that in the months of March and April, 2023– a ballpark figure of sixty-five trees had been felled by a group of unknowns. Hitherto PW1 claimed that the culprits given to this practice are arrantly foreign to him. Thusly, PW1 was engaged in order to call the practice in question to a halt. [16] And touching the events of the 18th day of April, 2023, PW2 related that– PW2 was in the central business district (CBD) of Mbala when he received a phone call from PW1, indicating that PW1 had apprehend a man, in connection with the felling of the trees that they had been experiencing in the past months. [17] With dispatch– PW2 was at the scene (inside the plantation), where he found PW1 and the accused bandying words over the accused’s innocence and the accused was seen asserting himself as not being J3 of 12 responsible for the three (3) trees that had been cut in the wake of him trespassing the plantation in question. [18] PW2, PW1 and the accused in retracing the steps taken by the accused we discerned with certainty that three (3) trees had indeed been felled. [19] PW2 maintained that he recognised the accused as having worked for him at a point, and that the accused did expiate, but it was his pig- headedness that prompted PW2 to apprehend and take the same to the Bill. [20] At the police station PW2 requested that the officers working in the CID’s office and a forest office visit the site to ascertain what had transpired on the day in question. [21] It was PW1’s position that a paltry one hundred and fifty (150) pine trees had hitherto been cut by persons foreign to him, and that the accused would help them unravel the mystery surrounding this clandestine operation. [22] In PW2’s marathon of a testimony, PW1 made a dock identification of the accused in question, and also took the liberty of highlighting the fact that the property in question is on title and is a private property, with a visible signage discouraging trespassing from member of the public. [23] During cross-examination, the accused denied trespassing notwithstanding indicating that, that was the route he uses to access his garden on a parcel alienated to him by a Mr. CHIPUZILO. And it was PW2’s position that the same had not been seen by CHIPUZILO for more than two (2) years. [24] Nothing was advanced in re-examination. [25] On 7th June, 2023, the state allied the testimony of PW1 and PW2, with that of PW3, SIAME SINGANANJI, a police officer at Mbala Airport Police Station, who related as hereunder. J4 of 12 [26] It was on 19th April, 2023, at 07:45hrs when I reported on duty at Mbala police post. And whilst on duty I was allocated a docket of criminal trespass, were male LIGHTWEL CHONGO, a quadragenarian of T122– UBZ farm, reported that, male GERSHOM SINKONDE, had criminally trespassed the farm in question, on the 18th of April, 2023, in the morning. [27] Acting on the same docket– PW3 ascertained that the accused was already in police custody. PW3 then took accused to the CID’s office, where his rights were explained. [28] Not too long after that, PW3 administered a warn and caution statement and the accused gave a free and voluntary reply denying the charge. And at around 17:00hrs, PW3 made up his mind to charge the accused with the offence of criminal trespass contrary, to section 306(a) of the Penal Code Chapter 87 of the Laws of Zambia. [29] During cross-examination it was established that the accused trespassed PW2’s plantation. And that that accused demonstrated how the crime was committed. [30] Nothing was advanced during re-examination. [31] At the close of the prosecution’s case on 7th June, 2023, I found the accused with a case to answer and put the same on his defence pursuant to section 207 of the Criminal Code, Chapter 87 of the Laws of Zambia. The Defence’s case [32] The accused persons elected to give unsworn evidence. DW1, the accused in the matter herein was the sole witness as to the events of the 18th of April, 2023. [33] In his defence on 16th June, 2023, DW1 related that he had been allocated a parcel of land by CHIPUZILO SIMPUNGWE. And that on 1st J5 of 12 March, 2023, the accused planted some onion on the parcel in question. It was DW1’s testimony that, since the onion was not enough, DW1 decided to plant tomatoes as well, and that he had both the onion and tomatoes covered with grass to reduce of the amount of water lost from the nursery. [34] On 7th March, 2023, DW1 removed the covering from the onion and tomato seedlings. On my way home that day DW1 had in hand his just about ready to phone Mr. Silungwe and parallel to the action of calling Silungwe, DW1 was nicked by PW1 and PW2 and consequently consigned to the police station. [35] DW1 argued that– he could not make head nor tail of the arrest as he did nothing wrong to warrant being pulled in. [36] And that marked the close of the defence’s case. Facts in dispute [37] This was the gist of the evidence before me; considering the whole evidence, I found that the following facts are in dispute: the accused did not trespass the property in question; that he did not fell any tresses on the material date; that the accused’s arrest was unwarranted. Facts not in dispute [38] I find the following facts not to be in dispute: that the accused had a garden on a parcel assigned to him by one CHIPUZILO; and (ii) that the accused was once in the employ of PW2; that there was sign notifying the public against trespassing the plantation in question. The Law Establishing the Charge in Casu [39] The Penal Code Act, Chapter 87 of the Laws of Zambia in section 306 constitute the offence of criminal trespass, reads in part that: Any person who- J6 of 12 (a) unlawfully enters into or upon any property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property; (b) having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult, or annoy any such person or with intent to commit any offence; is guilty of the misdemeanour termed “criminal trespass” and is liable to imprisonment for three months …. (Emphasis mine) Ingredients to Be Established to Prove the Accused Guilty [40] In view of the foregoing– the prosecution must satisfy me with each and every ingredient of the offence being: (i)that the accused person did unlawfully enter the premises of Lightwel Chongo; (ii) that the accused had ample notice to clue him into knowing that the property was private; (iii) that the accused intended to commit an offence and/or annoy. [41] As a result, the accused is entitled to give and or call evidence or say nothing at all and if he elects to remain silent this does not in any way shift the burden from the prosecution to prove the guilt of the accused to the required standard as herein articulated. Analysis of the Law; Facts and Determination [42] From the outset, I cautioned myself that– in criminal cases the onus is squarely on the prosecution to prove their case, as per the Supreme Court’s position in re MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.), where it held inter alia that: … “criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused lies from beginning to end on the J7 of 12 prosecution… The standard of proof must be beyond all reasonable doubt”. (Emphasis mine) [43] With that, if the accused case is ‘reasonably possible’, although not Probable, Then A Reasonable Doubt Exists, And the Prosecution Cannot be said to have discharged its burden of proof. [44] And if upon considering the evidence adduced there is reasonable doubt on the mind of the court as to the guilt of the accused, the court will return a verdict of NOT GUILTY. SALUWEMA V THE PEOPLE (1965) ZR 4 (CA). [45] The accused in this case elected to give unsworn evidence. Our courts have always followed the following words by Conroy, C. J, in re BENSON NGUILA V. THE QUEEN (1963-1964) Z. AND N. R. L. R. 14 in this case he referred to unsworn testimony in the following terms: … “The court may attach what weight it chooses to the contents of such statement. The balance of opinion seems to be that an unsworn statement is evidence in the case, but is of less weight than sworn testimony, which can be tested by cross- examination”. (Emphasis mine) [46] And as a point of information, it is worth noting that– the intent element of the crime means that the defendant must be aware that they do not have permission to be on the property, or a legal right to be there. [47] In other words– if the accused (DW1) reasonably believes that he owns the property, or that it is open to the public, the prosecution probably cannot secure a conviction, which is not the case in casu. The accused in this case has not unambiguously warded off the fact that he was on the property in question, but has in his arguments advanced that he informed PW2 that he had been using that route to access his garden J8 of 12 assigned to him by one CHIPUZILO, and this was advanced during his cross-examination of PW2. [48] Further, it is crucial to note that– sometimes criminal trespass can arise when someone initially does have permission to be on a property owner’s land, but then the property owner tells them that they need to leave. Refusing to leave can result in charges. Fortunately, this is not the case in this matter. [49] What is interesting in this matter, is the fact that the accused when cross-examining PW2, did not dispute the fact that there was signage giving notice to members of the public prohibiting trespass through the plantation in question. [50] I hold the view that, the accused having been a habitue of the area in question is not oblivious to the apparency of the semiotics that is at the plantation in question, which explains why he made no effort to challenge PW2 when he indicated that there was a sign that prohibits trespassing. [51] I am persuaded that ample notice was availed to the accused as a potential trespasser by PW2, and must have known that he was trespassing. Further, it goes without saying that– walking onto someone else’s land is the most obvious form of trespass. [52] In our jurisdiction, criminal trespass is a misdemeanour, or an infraction. If an accused person enters someone else’s property, they open themselves up to criminal prosecution, which as has been aptly established may lead to a custodial sentence of three (3) months. [53] The Penal Code in section 38, Chapter 27 of the Laws of Zambia, talking of misdemeanours also provides for payment of fines: J9 of 12 … “When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine or with both. (Emphasis mine) [54] And while the accused would have me believe that he was unaware of the fact that he had trespassed the land belonging to PW2, the accused made very little effort to challenge the evidence advanced by PW1 and PW2 concerning him having trespassed the property in question. The accused has in one breath intimated that that was the route, he had been using to access his garden, and in another the accused is giving the impression that he is mystified by the fact that he got pulled in on an issue he is arrantly oblivious about. [55] More to the point– the accused has in his testimony availed dates that do not harmonies with his date of arrest and the testimony of the prosecution witnesses, whose testimony he was not unimpeachably dispelled. [56] Following from the foregoing– the Supreme Court in ABEDINEGAL KAPESH AND BEST KANYAKULA V THE PEOPLE SCZ SELECTED JUDGMENT NO. 35 OF 2017, sympathized with the assertion by, Lord Mansfield in GRAVE V. MILLS 7 H& N 917, when he stated that: … “a man shall not be allowed to blow hot and cold - to affirm at one time and deny at another - making a claim on those whom he has deluded to his disadvantage, and founding that claim on the very matters of the delusion. Such a principle has its basis in common sense and common justice - and it is one which the courts of law have in modern times usefully adopted. (Emphasis mine) [57] Thus, it ill behoves the accused to blow hot and cold, especially in criminal matters as that may cast a blight on such a person’s J10 of 12 testimony. Therefore, upon solemn appraisal of all the available evidence before me, I cannot decisively resolve in favour of the accused. This I say after having conscientiously gleaned that the version of the facts by the accused is tinged with inconsistence. [58] in the premises– I have meticulously weighed the evidence of the accused, and I can roundly assert that with diligent scrutiny– I find the same wanting. [59] The accused in maintaining that he had been using the said route, even when the same did not negate the argument by PW2, when he argued that there is a sign that prohibits all and sundry against ingression onto the property without permission and the accused going further to spin a tale that he was beside himself when PW1 and PW2 apprehended him and consigned him to the police, the accused did injure his credibility irreparably. [60] When the evidence is gingerly interrogated, it appears that the accused refutes fervently that he had been or was indeed the one who felled the trees in question, alas the accused put in little or no effort in dismissing the fact that he had trespassed the property in question, but conveniently spelt out that he had been a habitual trespasser who had been using the said plantation to gain access to his garden. [61] In the main, I am persuaded that the prosecution has painstakingly built an irrefragable case against the defence, and that the accused did indeed trespass the property in question and that had no permission to do so given him by PW1, notwithstanding the prohibition discouraging him from trespassing. The accused in his defence failed to, credibly discredit the prosecution’s witnesses and or evidence. J11 of 12 Verdict [62] In conclusion, the state has proved its case beyond reasonable doubt and that there is no lingering doubt that the offence was committed by none other than the accused person. [63] I find the accused GUILTY as charged for the offence of criminal trespass, contrary to section 306 of the Penal Code Chapter 87 of the Laws of Zambia; consequently, I CONVICT him accordingly. [64] IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 26TH JUNE, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J12 of 12