People v Perry Ngambi (3D/15/23) [2023] ZMSUB 8 (26 June 2023)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/15/23 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) BETWEEN: THE PEOPLE AND PERRY NGAMBI 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. v. vi. MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.); SALUWEMA V THE PEOPLE (1965) ZR 4 (CA); MILOSLAV V. THE PEOPLE (APPEAL NO. 049/2013); LUBENDAE V THE PEOPLE (1983) Z. R. 54 (S. C.) JEREMIAH MUKONDYA V THE PEOPLE SCZ APPEAL NO. 8 OF 2019; SIMUTENDA V THE PEOPLE (1975) ZR 294 AND TEMBO V THE PEOPLE (1976) Z. R. 332 J1 of 11 vii. ABEDINEGAL KAPESH AND BEST KANYAKULA V THE PEOPLE SCZ SELECTED JUDGMENT NO. 35 OF 2017, AND viii. GRAVE V. MILLS 7 H& N 917. Statute: i. THE PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA. Introduction [1] The accused PERRY NGAMBI 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 5th April, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, did unlawfully enter upon the premises of Termite Meat Suppliers with intent to commit a felony, namely to steal. [3] On 11th 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– a conspectus of the facts established at trial. [5] On 26th April, 2023, the prosecution summoned as its first witness, PW1, JUSTIN SINKOLOLWE, a sentinel at Termite Meat Suppliers Limited, who gave his testimony on oath as hereunder. [6] On 5th April, 2023, PW1 reported for work at around 17:30, with his associate a certain– JULIUS SINYINZA. [7] PW1 and company whiled away that evening and at around 22:00hrs, PW1 and compatriot espied a man scaling the wire fence onto the J2 of 11 Termite premises. This they discerned owing to the fact that the area is well-lit. [8] The accused was seen falling into a stream before he made his way over the fence. Upon his entry onto the premises, the same made his way to were the gensets are, which distance is about hundred (100) metres from where he gained access into the premises. [9] Intrigued by the development, PW1 and the minnow, anxiously waited to see what the accused would do. PW1 then proceeded to apprehend the same and called PETSON SINDALA– their supervisor at GUARDALL Security Group Limited. [10] When they apprehended the accused, the same was cagey about giving the bare bones of how he found himself in the premises in question. [11] During cross examination the accused maintained that– he was inebriated and not mentally present, which argument PW1 arrantly refuted. [12] Nothing was advanced in re-examination. [13] Laudably, the prosecution paced itself swimmingly– and did on the self-same day brace PW1’s testimony with that of their second witness, PW2, PETSON SINDALA, an Officer-in-Charge at Guardall and Armour Guard. [14] PW2 iterated that it was at around 22:00hrs, while resting and enjoying the comparative tranquillity of his home when he received a phone call from PW1 that they had apprehended a man for trespass at Termite Meat Suppliers. [15] PW2 enjoined PW1 to restrain the accused and meet him at the tarmac, as the officers at the police station had indicated to PW2 that they had transport challenges. PW1 at the behest of PW2 met the same, and had J3 of 11 the accused consigned to Mbala Police Station. At the police station PW2 came to learn that the accused was– PERRY NGAMBI. [16] During cross-examination, PW2, maintained that the accused was not drunk and that he had not packed any offensive implements. [17] There were no questions in re-examination. [18] On 22nd May, 2023, the prosecution summoned its last witness– PW3, a Detective Inspector, SIKOTA WINA, of Mbala Police Post, who related as hereunder. [19] On 5th April, 2023, at around 22:00hrs a report was made by male PETSON SINDALA, aged 40 of ZESCO compound, who conveyed on behalf of GUARDALL Security Group in his capacity as a supervisor that, PERRY NGAMBI did criminally trespass on the premises of the said company. [20] PW2 further indicated that the incidence, occurred at Termite Beef Company Limited. And PW3, acting on the docket ascertained that the accused was already in police custody. PW3 then took the accused to the CID’s office, where his rights were explained. [21] According to PW3, the accused gave the intimation that throughout the event of the night in question he was blind to his faults and that he did not know what he was doing, but when prodded further, the accused did not advance a satisfactory response. [22] Under a long warn and caution statement, the accused gave a voluntary response denying the charge. [23] All the witnesses made a dock identification of the accused. [24] Curiously, PW3 when cross-examination by the accused, debatably retorted that the accused was drunk. [25] Nothing was advanced in re-examination. [26] At the close of the prosecution’s case, the court then found the accused with a case to answer and put the same on his defence J4 of 11 pursuant to section 207 of the Criminal Code, Chapter 87 of the Laws of Zambia. The Defence’s case [27] [28] The accused– DW1, a polygamous man, elected to give sole evidence. In his defence on 14th June, 2023, he related that– on the 5th of April, 2023, DW1 and friend in tow, at around 14:00hrs set out for a bevvy at a local drinking place. [29] And sometime around 21:00hrs, DW1 had one over the eight– and made a show of himself. And on his way home at around the same time, he happened along the abattoir and was apprehended by a security guard near the abattoir. [30] According to DW1, his mind went completely blank apropos the goings-on of the night in question. DW1 alleged that he only found himself in police custody on 6th April, 2023. It was DW1’s position that, none of his wives knew nor had the faintest idea where DW1 was or that he had been in police custody. DW1 in laying the issue on the line attested that– he had no recollection of the events leading up to him being apprehended. [31] Further, DW1 testified that he husbands two households, with wives in Chiyanga and Luse Lwamfumu village. As a consequence, none of his spouses were there to release him from police custody. [32] During cross-examination, DW1 attested that he knew that the area was private and that DW1 had used the route near the abattoir for years, but never through the premises in question. [33] There was nothing in re-examination. And that marked the close of the defence’s case. J5 of 11 Facts in dispute [34] This was the gist of the evidence before me; considering the whole evidence, I found that the following facts are in dispute: the accused person did trespass the property in question; that the accused person was drunk on the night in question. Facts not in dispute [35] I find the following facts not to be in dispute: that the accused person was arrested on the 5th of April, 2023; that the accused person was a habitué of the area in question. The Law Establishing the Charge in Casu [36] 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- (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 [37] In view of the foregoing– the prosecution must satisfy me with the following: (i)that the accused person did unlawfully enter the premises of Termite Meat Suppliers without leave or permission being granted him; (ii) that the accused intend to commit an offence and/or annoy; (iii) that the was ample notice to prevent him from trespassing. J6 of 11 [38] 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 [39] 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 prosecution… The standard of proof must be beyond all reasonable doubt”. (Emphasis mine) [40] 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. [41] 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). [42] And as a point of information, it is worth noting that– the intent element of the crime of criminal trespass means that the defendant must be aware that he did not have permission to be on the property, or a legal right to be there. This can be accomplished through a notice, i.e., “DO NOT TRESPASS”, or the erection of a fence around the premises in question. [43] In other words– if the accused (DW1) reasonably believes that the premises are open to the public, the prosecution probably cannot J7 of 11 secure a conviction, which is not the case in casu, as DW1 as a habitué of the area, who had used the route near the abattoir for years, was fully aware that Termite Meat Suppliers was a private property. [44] What is interesting in this matter, is the fact that the accused when cross-examining PW1, did not advance any arguments to dispel the fact that he had scaled over the fence to gain access to the premises in question except to conveniently argue that the same was drunk. [45] I hold the view that, the accused having been a habitué of the area in question is not oblivious to the apparency of the fact that the area is fenced. And that that in itself serves as ample notice to the accused as a potential trespasser that Termite Meat Suppliers, is a private property. Further, it goes without saying that–walking onto someone else’s land is the most obvious form of trespass. [46] Fortunately, in our jurisdiction, criminal trespass is a misdemeanour. Consequently, when an accused person enters someone else’s property, they open themselves up to criminal prosecution, which as has been aptly established leads to a custodial sentence of three (3) months. [47] The Penal Code in section 38, Chapter 27 of the Laws of Zambia, talking of misdemeanours also provides for payment of fines: … “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) [48] Touching the issues of intoxication, section 13(4) of the Penal Code, chapter 87 of the Laws of Zambia, which enacts as follows: … “(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any J8 of 11 intention, specific or otherwise, in the absence of which he would not be guilty of the offence.” (Emphasis mine) [49] The Supreme Court in re LUBENDAE v THE PEOPLE (1983) Z. R. 54 (S. C.) heavy drinking, even to the extent affecting the co-ordination of reflexes insufficient in itself to raise question of intent unless the accused person's capacities were affected to the extent that he may not have been able to form the necessary intent. (Emphasis mine) [50] Further, the supreme court has in a legion of cases, i.e., in re JEREMIAH MUKONDYA v THE PEOPLE SCZ APPEAL No. 8 of 2019; SIMUTENDA V THE PEOPLE (1975) ZR 294 AND TEMBO V THE PEOPLE (1976) Z. R. 332 maintained that: … “It is not enough that the accused person was drinking beer for him to benefit from the defence of intoxication under section 13(4) of the Penal Code; there must be evidence showing that as a result of such drinking, the accused person’s capabilities were so affected that he may not have been able to form the intent to kill or cause grievous harm.” (Emphasis mine) [51] In view of the above– and in light of the accused assertion and or testimony that, he did not have any recollection of the trespass in question, but the truth is otherwise. Why do I say so? Well– assuming that what the accused said was the truth– I do not see how beneficial the calling to mind of the unswerving fact that he told PW1 and PW2 that he had been drunk at the time of his trespass, would be a source of help to the accused. [52] The accused maintained during trial that he had no recollection of the event in question, but in his cross-examination of PW1, PW2 and PW3, he made crisp observations that he had indicated to the said witnesses that he had been inebriated, which position I find in consistent with a person who claims they had no recollection of the event, but in this J9 of 11 instance, the accused conveniently made recollection of the fact that he told the witnesses that he was drunk. [53] To boot– I do not see how blowing hot and cold fits the accused neatly in the position of being unable to form the requisite intent to trespass, seeing as the accused argued something fierce that he had no recollection of the events of the evening in question, but consistently insisting that he told all three (3) witnesses that he had been drunk. [54] More to the point– 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) [55] Thus, it ill behoves the accused to blow hot and cold, especially in criminal matters as that has the potential for casting a blight on such a person’s testimony. Hence, upon solemn appraisal of all the available evidence before me, I cannot decisively resolve in favour of the accused. [56] in the premises– I have meticulously weighed the evidence of the accused, and I can roundly assert that upon diligent scrutiny– I find the evidence by the accused wanting in material fashion. [57] In the main, I find that the accused had no lawful or justified cause to enter upon the premises of Termite Meat Suppliers, without so much as having any legal claim of right. J10 of 11 [58] Thus, 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 Termite Meat Suppliers. The accused in his defence failed to, credibly discredit the prosecution’s witnesses and or evidence. Verdict [59] 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. [60] I find the accused persons 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 them accordingly. [61] IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 26TH JUNE, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J11 of 11