Silumesi Njekwa v The People (APPEAL NO. 46/2023) [2024] ZMCA 213 (28 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) APPEAL NO. 46/2023 BETWEEN: SILUMESI NJEKWA AND THE PEOPLE APPELLANT RESPONDENT CORAM: Ngulube, Muzenga and Chembe, JJA On 21 st February, 2024 and 28th February, 2024 For the Appellant: L. Z. Musonda, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: M. P. Lungu, Deputy Chief 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 (SC) 2. Gideon Mumba vs The People - SCZ Appeal No. 50 of 201 7 3. Saluwema vs The People (1966) Z. R. 4 4. Chabala vs The People (1976) Z. R. 4 5. Katebe vs The People (1975) Z. R. 13 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1. 1 Silumesi Njekwa, the appellant appeared before the Subordinate Court of the First Class, sitting at Lusaka, charged with two counts. The first being Indecent Assault contrary to Section 137(1) of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of the offence are that the appellant between 1 March, 2015 and 8 March, 2020 at Lusaka indecently assaulted Mubukwanu Njekwa (the prosecutrix). 1.2 The second count is that of Rape, contrary to sections 132 and 133 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the second count are that Silumesi Njekwa on 8 March, 2020 at Lusaka, had unlawful carnal knowledge of Mubukwanu Njekwa without her consent. 1.3 The appellant denied the charges and the matter proceeded to trial. 1.4 After hearing the prosecution witnesses, the court considered the evidence before it and came to the conclusion that the the appellant. He was accordingly convicted of the offences as charged. 1. 5 When the matter was remitted to the High Court for revision and sentencing, the Honourable Mrs. Justice C. Lambe - Phiri confirmed the appellant's convictions and sentenced him to ten years imprisonment with hard labour for the offence of Indecent Assault. The appellant was sentenced to twenty five years imprisonment with hard labour for the offence of Rape. He was dissatisfied with the convictions and sentences that were imposed and has appealed to this court against them . 2.0 BACKGROUND 2 . 1 The appellant appeared before Honourable Kaoma in the Subordinate Court of the First Class at Lusaka for the offences of Indecent Assault and Rape, respectively. 2.2 In support of their case, the prosecution called three witnesses. 3.0 EVIDENCE IN THE LOWER COURT 3.1 The first witness, Mubukwanu Njekwa (the prosecutrix), was aged 19 years at the time. Her evidence was that she used to live with the appellant, who is her first cousin, as her father and the appellant's father were brothers. She started living with the appellant in 2013 when her father died. They lived in Avondale - Chainda and Mubukwanu slept in the living room of the one bedroomed house, while the appellant occupied the bedroom. 3.2 Sometime in 2014, the appellant would leave his bedroom at night and sleep in Mubukwanu's bed. Initially he merely slept next to her and would even tell her that he was not doing anything to her. 3.3 Mubukwanu narrated that in 2015, they shifted to Chelston and the appellant continued sleeping in her bed and if she did anything wrong, he would sleep on top of her as punishment. He would then rub his penis on her buttocks. He later started beating her and would then take her to his bedroom where he would rub his penis on her buttocks until he would ejaculate. Mubukwanu stated that her mother passed away much earlier and that she was not close to the neighbours so she did not tell anyone what the appellant was doing to her. 3.4 The appellant got married in 2017 but would still leave his wife in the bedroom at night and go to Mubukwanu's bedroom where he would rub his penis on her buttocks as he did before. 3.5 On 7 March, 2020, Mubukwanu slept at the neighbour's house because the appellant had locked her out. On 8 March, 2020, the appellant, who was on separation with his wife at the time, returned home at about 10:00 hours. He shouted at Mubukwanu for sleeping out the previous night and threatened her with a metal rod. The appellant locked the door and undressed Mubukwanu who he pushed onto his bed. He then raped her. 3 .6 PW2, Namushi Banda's testimony was that on 9 March, 2020, she was at work at Mtendere clinic at about 16:00 hours when she saw Mubukwanu Njekwa, who wanted to see her. PW2 noticed that Mubukwanu was crying. She was a neighbour to PW2. After she calmed down, she told PW2 that her elder brother, the appellant herein had raped her. 3. 7 PW 1 and PW2 walked home together and PW 1 ended up spending a night at PW2 's home because she did not want to go back to her brother's place. 3.8 The following morning, the appellant went to look for PWl at PW2's home. PW2 had the opportunity to speak to the appellant and she told him how disappointed she was because of what he did. The appellant told PW2 that he did not ejaculate. PW2 took PWl to Mtendere clinic where she was examined by the doctor. The officials from Department of Social Welfare got involved in the matter and took Mubukwanu to a safe house. 3.9 PW2 stated that she took PWl to the clinic on 10 March, 2020. 3.10 PW3 was W /Sergeant Enala Mweemba, based at Mtendere Police Station. She received a complaint from Mubukwanu Njekwa on 10 March, 2020, to the effect that her cousin, who was also her guardian was sexually abusing her. PW 1 further told PW3 that her cousin raped her on 8 March, 2020. PW3 instituted investigations which led to the apprehension of the appellant. She interviewed him, and later charged and arrested him for the offences of indecent assault and rape. He denied the charges. PW 1 was later placed in a shelter at YWCA. 3.11 In his defence, the appellant stated that he took PWl into his house in 2013 after the death of her father. He further stated that Mubukwanu's mother passed away when she was five years old. He stated that at the family meeting after her father died, he was asked to take Mubukwanu in and stay with her at his house because of her bad behaviour. He agreed because her late father looked after and educated him. 3.12 He stated that on 7 March, 2020, Mubukwanu did not sleep at home and when he inquired from neighbours, they stated that they did not know where she was. At 07:00 hours the following morning, Mubukwanu returned home. He asked her where she spent the night and she stated that she was at her friend's house within the neighborhood. The appellant stated that he got very angry because Mubukwanu was lying and he slapped her. He told her to pack up and leave his house because he was fed up of her behaviour. 3.13 The appellant stated that when he shifted to Chelston, his mother joined him and the appellant and they lived together from 2014 to 2017. He also worked night shifts most of the time during that period and Mubukwanu used to leave home at about 06:00 hours to go to school on the school bus. He denied indecently assaulting her or raping her. When he shifted to Mtendere compound in 201 7, his wife told him that she did not want to live with PW 1 as she would come late and was disrespectful. 3.14 The appellant stated that Mubukwanu's behaviour escalated in 2018 as she would even spend nights away from home. In October, 2018, his wife left him because she was of the view that he was supporting Mubukwanu's bad behaviour. 3.15 The appellant denied raping Mubukwanu and felt betrayed because he had sacrificed so much for her. He emphasized that most of the time, he worked night shifts. He however admitted that he slapped Mubukwanu on two occasions. 3.16 DW2, Jessy Mwakabumba testified that the appellant was her biological son. She stated that when Mubukwanu's father died, she did not want to be taken by any other relative and elected to go and live with the appellant. DW2 stated that when she fell ill, she lived with the appellant and Mubukwanu from 2014 to 201 7 in Chelston but she did not notice any strange behaviour between them. 3.17 DW3, Alice Njekwa testified that the appellant was her brother's son and that PWl was also her other brother's daughter. She stated that when she heard that the appellant had raped PWl, she did not believe it because the two had come a long way. Further, when DW2 went to Social Welfare, she was told that Mubukwanu told the Social Welfare officers that she had no relatives. 4.0 CONSIDERATION OF THE MATTER AND VERDICT OF THE SUBORDINATE COURT 4. 1 The learned trial Magistrate stated that in sexual offences, corroboration is required both as to the commission of the offence and the identity of the offender to eliminate the chances of false complaint and false implication. The case of Emmanuel Phiri vs The People 1 was referred to. The learned trial Magistrate went on to state that corroboration is only required as a matter of practice where the victim is aged 14 years and above. The case of Gideon Mumba vs The People2 , was 4.2 The court noted that the prosecutrix was aged 18 years and that her evidence required corroboration as a matter of practice, to rule out the danger of false implication. 4.3 The learned trial magistrate accepted the evidence of PW2 that when she confronted the appellant for raping Mubukwanu, he told her that he did not ejaculate and apologized to PW2, stating that he did not know what entered him. The court found that the evidence of PW2 corroborated that of PWl as she stated that the appellant penetrated her for seconds only. 4. 4 The court found that there was overwhelming corroborating evidence that PW 1 did not consent to the carnal knowledge and the identity of the offender, the appellant. The court found that the lack of consent and the identity of the appellant was corroborated by the evidence of PW2 who the appellant told that he did not ejaculate and apologized to her. 4.5 The court referred to the medical report dated 11 March, 2020 in which the medical officer stated that the hymen was absent. The medical officer found that his findings were consistent with the circumstances, that Mubukwanu was raped. 4.6 The court found that the medical evidence corroborated the evidence of PWl and the dangers of false complaint and implication were ruled out. 4.7 The court found that the prosecutrix was crying when she narrated what happened to her to PW2 and stated that the prosecutrix's crying when she narrated her ordeal was corroboration of the commission of the offence. 4.8 The court noted that the prosecutrix complained a day after the rape was committed and that there was overwhelming corroborative evidence against the appellant. The court found that the prosecutrix did not consent and that the identity of the appellant was corroborated by the distressed condition of the prosecutrix and the accused's own admission to PW2. 4. 9 The court found that the admission and apology by the appellant was corroboration of the identity of the offender. The court convicted the appellant of the offence of Rape based on the evidence on record. 4.10 Regarding count one, the court found that there was direct evidence from the prosecutrix that the appellant indecently assaulted over a period of time. The court found that the rubbing of his manhood on the prosecutor's buttocks constituted indecent assault. 4 . 11 The court found that there was no independent evidence to corroborate the prosecutrix's evidence that the appellant indecently assaulted her. However, the court found that the evidence of opportunity and locality corroborates the evidence of PWl. The appellant lived with the PWl from 2013 to 2020 and that he had the opportunity to commit the incident assault. 4.12 The court found that the prosecutrix had no motive to falsely implicate the appellant that he indecently assaulted her. The court found the absence of motive as a special and compelling ground which would justify relying on the uncorroborated evidence of PW 1. 4. 13 The court was of the view that there was overwhelming evidence that the appellant indecently assaulted the prosecutrix from 2014 to 2020. He was accordingly convicted of the offences of Indecent Assault and Rape on 2 February, 2023. Honourable Lady Justice C. Lombe-Phiri found that the conviction of the appellant was sound. 4.14 The court found that the appellant was the prosecutrix's guardian and that the appellant was in a position of great trust and abused this position and that this was aggravating. The court found that the appellant, a Police Officer conducted himself in a cruel manner. He was sentenced to 10 years imprisonment with hard labour on the first count of Indecent Assault and further sentenced to 25 years imprisonment with hard labour for the offence of Rape. The court ordered that the two sentences would run concurrently. 5.0 THE APPEAL 5.1 The appellant was dissatisfied with the conviction and sentence of the lower court and appealed to this court advancing one ground of appeal couched as follows - The learned trial court erred in law and infact when it disregarded the appellant's explanation which might reasonably be true and convicted him for the offences of indecent assault and rape. 5.2 In arguing the sole ground of appeal, it was submitted that where an explanation of an accused person is reasonably possible, the prosecution cannot be said to have discharged its burden of proof. This court was ref erred to the case of Saluwema vs The People3 to buttress the aforestated principle. The case of Chabala vs The People4 was also referred to, to emphasise the principle that if the explanation given by an accused person might reasonably be true, then guilt is not the only inference that can be drawn. 5.3 It was contended that the appellant's explanation in his defence might reasonably be true. 5.4 It was submitted that the appellant raised the issue of the prosecutrix's bad behaviour and that she used to have boyfriends, which could have led to the doctor's findings as per the medical report, leading to the verdict that the appellant raped the prosecutrix. 5.5 It was argued that if the appellant was sexually abused, she would have opened up and confided in her aunts who were in touch with her and checked on her from time to time. The defence contended that the appellant's explanation in his defence might reasonably be true and that a reasonable doubt exists. We were urged to allow the appeal, quash the conviction and sentence and set the appellant at liberty forthwith. 6.0 ARGUMENTS BY THE STATE 6.1 The State filed arguments in response to those of the appellant and submitted that taking into consideration the circumstances of this case and the totality of the evidence on record, the appellant's explanation cannot reasonably be true. 6.2 It was submitted that the prosecutrix chose to go and live with the appellant after her father died because she was close to him as he was raised by her father and she was not close to the other relatives. 6.3 It was further submitted that the prosecutrix did not report the repeated acts of indecent assault because she feared what would happen to the appellant who was her elder brother. The case of Katebe vs The People5 was referred to, where it was held that - "Where there can be no motive for the prosecutrix to deliberately and dishonestly make a false allegation against an accused, and the case is in practice no different from any others in which the conviction depends on the re liability of her evidence as to the identity of the culprit, this is a special and compelling ground which would justify a conviction on uncorroborated evidence." 6.4 The court's attention was also drawn to the evidence of PW2 who stated that she confronted the appellant about what he did to the prosecutrix and he told PW2 that he did not ejaculate. He thus apologised to PW2 . It was submitted that PW2 had no motive to falsely implicate the appellant. It was contended that the appellant had an opportunity to rape the prosecutrix as he lived with her alone in his house. It was argued that the circumstances of this case raise suspicion which amounts to corroboration. The case of Mukonde vs The People6 was referred to where it was held that - "Whether evidence of opportunity is sufficient to amount to corroboration must depend upon all the circumstances of a particular case. The circumstances and the locality of the opportunity may be such that in themselves amount to corroboration." 6.7 It was submitted that even if the prosecutrix had a boyfriend, this did not take away the guilt of the appellant because the evidence against him was overwhelming. 6.8 It was submitted that the prosecutrix did not report the sexual abuse to anyone because the appellant was her only guardian and he was the one who was supporting her and paid for her education. She also feared what would happen to him and the stigma that she would suffer if people came to know what she was made to undergo. 6.9 It was submitted that there were compelling pieces of evidence against the appellant and we were urged to dismiss the appeal and uphold the conviction and sentence. 7.0 THE HEARING 7. 1 At the hearing of the appeal the learned Senior Legal Aid Counsel Mrs. Musonda submitted that she would rely on the heads of argument filed. The learned Deputy Chief State Advocate, Mrs. Lungu also relied on the arguments filed on behalf of the State. 8.0 DECISION OF THE COURT 8.1 We have considered the ground of appeal and the heads of argument filed by both counsel. 8.2 The issue that calls for consideration is whether the evidence of PWl (the prosecutrix) was corroborated by some other independent evidence to support the conviction of the appellant. As a general rule, evidence of a prosecutrix in sexual offences requires corroboration as a matter of practice, so as to guard against the danger of false implication. 8.3 However, a court may convict on the uncorroborated evidence of a prosecutrix if it finds that the dangers of false complaint and false implication has been ruled out. 8.4 Further, odd coincidences such as the opportunity to commit the offence can provide the required corroboration. Additionally, where there is no motive for a prosecutrix to deliberately and dishonestly make a false allegation against an accused person, this can amount to a special and compelling ground to justify a conviction on uncorroborated testimony. 8.5 In the case of Emmanuel Phiri vs The People supra, the Supreme Court held that - "A conviction may be upheld in a proper case, notwithstanding that no warning as to corroboration has been given if there in fact exists in the case corroboration or that something more as excludes the dangers ref erred to." 8.6 In casu, it is not in dispute that the commission of the offence was corroborated. The medical report, in our view supports the prosecutrix's evidence that she was sexually assaulted. 8. 7 What is in issue is the identity of the offender. Upon evaluating the evidence, the trial court found that the evidence of PWl was corroborated by the evidence of PW2 when she stated that the appellant told her that he did not ejaculate when he had unlawful carnal knowledge of the prosecutrix. 8.8 We are of the view that the confession that the appellant made to PW2, an independent witness, corroborated the evidence of the prosecutrix that the appellant did rape her on 8 March, 2020. Further, the court concluded that there was no possibility of honest mistake as the appellant was the prosecutrix's elder brother who was her guardian and she had lived with him from 2013 when her father died until March, 2020. 8.9 We are of the view that the prosecutrix's identification of the aooellant was hundred oercent accurate as shP- liVf~d with him only and he attacked and raped her in his bedroom in broad daylight, at about 10:00 hours. In the case in casu, we form the view that there is no motive that shows why the prosecutrix would want to falsely implicate the appellant. 8.10 Regarding the first count of indecent assault, we find it irregular as it has more than one count of the offence and indicates that it was committed over a long period of time. We accordingly find that this count was not properly framed and for that reason, it is dismissed. We are however convinced that the appellant raped the prosecutrix on the material day and the conviction on the second count is therefore safe. 8.11 The appellant's act of raping his sister was aggravated by the fact that he was her only guardian and he lived with her for several years but still took her for granted and raped her. This, in our view was an act of cruelty. He was also a Police Officer who behaved dishonestly. In the circumstances, the sentence of 25 years imprisonment comes to us with a sense of shock. We thus set it aside. 8.12 We are of the view that this is a proper case in which we can enhance the sentence of imprisonment and we accordingly sentence the appellant to thirty-five (35) years imprisonment with hard labour. 9.0 CONCLUSION 9.1 The conviction and sentence in count one are quashed. 9.2 The conviction in count 2 is accordingly upheld. The sentence is enhanced to 35 years imprisonment with hard labour. P. C. M. Ngulube COURT OF APPEAL JUDGE ... ... ·····~ ·~;~~~~· COURT OF APPEAL JUDGE ·········· ... ·········~ ·············· ... Y. Chembe COURT OF APPEAL JUDGE