IN THE COURT OF APPEAL OF ZAMBIA APPEAL 118/2020

HOLDEN AT LUSAKA AND KABWE

(Criminal Jurisdiction)
BETWEEN:

UTHIN PHIRI APPELLANT

AND
THE PEOPLE RESPONDENT

CORAM: Mchenga DJP, Chishimba and Sichinga, JJA

On 24th March 2021 and 21Bt October 2021

For the Appellant: B. Banda, Legal Aid Counsel, Legal Aid

Board

For the Respondent: C.S. Mwila, State Advocate, National

Prosecutions Authority

JUDGMENT

Mchenga, DJP, delivered the judgment of the court.

CASES REFERRED TO:

1.Mwewa Murono v The People [2004] Z.R. 207

2 . Dorothy Mutale and Another v The People [1995-97]
Z.R. 227.
3. Clifford Dimba v The People HPS/24/2014
4. Macheka Phiri v The People[1973] Z.R. 143
5. Bernard Chisha v The People [1980] Z.R. 36
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6. Emmanuel Phiri v The People [1982] Z.R. 77

7. Liswaniso v The People [1976] Z.R. 277
S.Ilunga Kabala and John Masefu v The People
[1981]Z.R. 102
9. Machipisha Kombe v The People [2009] Z.R. 282

LEGISLATION REFERRED TO:

1.The Penal Code, Chapter 87 of the Laws of Zambia

1.0 INTRODUCTION
1.1 This appeal emanates from the judgment of the High

Court (Chitabo, J.), delivered in Chipata on 11th

December 2019.

1.2 The appellant, initially appeared before the

Subordinate Court (Hon. F.M. Musaka), on a charge

containing one count of the offence of defilement

contrary to section 138 (1) of The Penal Code.

1.3 The allegation was that on 17th November 2018, at

Chadiza, he had unlawful carnal knowledge of a girl

under the age of 16 years.

1.4 He denied the charge and the matter proceeded to

trial.
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1.5 At the end of the trial, he was convicted and

committed to the High Court for sentencing because

the offence attracted a mandatory minimum sentence

which exceeded the sentencing jurisdiction of the

trial court.

1.6 The High Court sentenced him to the mandatory

minimum sentence of 15 years imprisonment, with

hard labour.

1.7 He has now appealed against conviction.

2.0 EVIDENCE BEFORE THE TRIAL COURT

2.1 The evidence before the trial magistrate was

that on 17 th November 2 018, at around 21:00

hours, the prosecutrix was at home with her

sister-in-law, Romania Zulu. They stayed at one

of the houses in the teacher's compound at

Mwangazi School in Chadiza.

2.2 The appellant knocked on the window to her

bedroom and persuaded the prosecutrix to come

out of the house using the window.

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2.3 He took her to a toilet that was at the back of

the house, and had sexual intercourse with her.

He then gave her K22.50 and two pills to take,

to prevent falling pregnant.

2.4 As the appellant was leaving the premises, he

was seen by Point Mbewe and David Tembo. They

reported him to Romania, the same night.

2.5 The following morning, Romania traced the

prosecutrix's footsteps from her bedroom's

window to toilet. She observed a point, at the

back of the toilet, at which the ground was

'disturbed'. The colour of the soil at that

point, was similar to the colour of the soil

seen on the prosecutrix's wrapper.

2.6 The Deputy Head Teacher at Mwangazi School was

informed of the discovery. On being questioned,

by him, the prosecutrix revealed that the

appellant had sexual intercourse with her that

night.
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2.7 On the same day, the matter was reported to

Chadiza Police Station. A medical report form

was issued to the prosecutrix, who, on being

examined at Chadiza District hospital, on 20th

November 2018, was found to have previously had

sexual intercourse.

2.8 The prosecutrix's mother gave evidence that she

was born on 20th March 2004 and was 14 years old

at the time the offence was committed.

2.9 In his defence, the appellant gave sworn

evidence. He also called Eric Soko and Jackson

Ngulube as his witnesses.

2.10 He denied committing the offence. He said on 17th

November 2018, he went to the Deputy

Headmaster's house, together with other

teachers, for a drink beer.

2.11 He left the place at around 21:26 hours and went

straight home after escorting a colleague, who

was very drunk.

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2.12 The following morning, around 06:00 hours, David

and that colleague went to his house. David then

asked him about his whereabouts the previous

night, because there was a rumor that the

prosecutrix had been defiled.

2.13 On the same day, around 22:00 hours, he was

apprehended in connection with the offence.

2.14 Eric's evidence was that the appellant arrived

home at 21:00 hours, on the material night, and

went to sleep. He conceded that he did not check

the time or know what the appellant did prior to

that.

2.15 Jackson's testimony was that the appellant was

summoned to a meeting to discuss some concerns

raised by the prosecutrix's brother. At that

meeting, the appellant admitted having followed

the prosecutrix to the field. He also admitted

having knocked at the prosecutrix's window on

the material night.

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3.0 THE TRIAL COURT7S FINDINGS

3.1 The trial magistrate found that Point and David

corroborated the prosecutrix's evidence that the

appellant was the offender.

3.2 He also found that the medical report

corroborated prosecutrix's evidence that the

appellant had sexual intercourse with her,

3.3 All in all, he found that the charge of

defilement was proved beyond all reasonable

doubt.

4.0 PROCEEDINGS IN THE HIGH COURT

4.1 Satisfied that the charge of defilement had been

proved in the Subordinate Court, the judge

proceeded to sentence the appellant.

4.2 Noting that he was a first offender, and that

there were no aggravating factors, the judge

imposed the mandatory minimum sentence of 15

years.
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5.0 GROUNDS OF APPEAL

5.1 The four grounds filed in support of this appeal,

raise two issues:

(i) The prosecutrix's age not being proved; and

(ii) The prosecutrix's testimony not being credible

nor corroborated.

6.0 APPELLANT'S SUBMISSION THAT PROSECUTRIX7S AGE WAS

NOT PROVED

6.1 Mr. Banda referred to the case of Mwewa Murono

v The People1 and pointed out that each and every

ingredient of a charge of defilement, should be

proved beyond all reasonable doubt.

6.2 He submitted that in this case, the age of the

prosecutrix was not satisfactorily proved. This

is because there was conflicting evidence on her

age, between the prosecutrix and the doctor who

examined her.
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6.3 The prosecutrix said she was 14 years old, while

the doctor said the prosecutrix's father told

him that she was between 15 or 16 years old.

6.4 He also argued that in the circumstances,

documentary evidence should have been led to

satisfactorily prove her age.

6.5 He concluded by referring to the case of Dorothy

Mutale & Another v The People2 and submitting

that in the face of the conflicting evidence,

the trial court should have drawn an inference

favourable to the appellant, that is, that the

prosecutrix was above the age of 16 years.

7.0 RESPONDENT'S SUBMISSION ON PROOF OF THE

PROSECUTRIX'S AGE

7.1 In response to the argument that the

prosecutrix's age was not proved, Mrs. Mwila

submitted that the trial magistrate was right,

when he accepted the prosecutrix's testimony

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that she was below the age of 16 years at the

time the offence was committed.

7.2 She also submitted that there was no need to

produce documentaryr evidence to prove the

prosecutrix's age because her mother testified

on it. She relied on the case of Clifford Dimba

v The People3, in support of the proposition.

8.0 COURT'S CONSIDERATION OF ARGUMENTS ON PROOF OF THE

PROSECUTRIX'S AGE

8.1 In the case of Macheka Phiri v The People4, it

was held that:

(i) Where the age of a person is an essential

ingredient of a charge, that age must be
strictly proved; and

(ii) it is not acceptable simply for a

prosecutrix to state her age; this can be no
more than a statement as to her belief as to
her age. Age should be proved by one of the
parents or by whatever other best evidence is
available.

8.2 First of all, it is our view that there was no

conflicting evidence on the prosecutrix's age.

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8.3 The age given by the doctor was based on hearsay

evidence, as the person who told him of the

prosecutrix's age (her father), did not come to

court to testify.

8.4 In the case of the age given by the prosecutrix,

the case of Macheka Phiri v The People4, makes

it clear that it should not be relied on because

it is "no more than her belief'' .

8.5 The prosecutrix's mother testified and she told

the trial magistrate that her daughter was born

on 20th March 2004.

8.6 Since the offence was committed on 17th November

2018, it is clear that the prosecutrix was 14

years old at the time the offence was committed.

8.7 As regards Mr. Banda's argument that documentary

evidence should have been led to prove the

prosecutrix's age, we are of the view that since

her mother conclusively proved the issue, there

was no need for such evidence.

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8.8 As was held in the case of Macheka Phiri v The

People4, a parent can give evidence, including

oral evidence, of a child's date of birth. The

credibility of such evidence, will be dependent

on the power of recollection and the particular

circumstances of each case.

8.9 We are thus satisfied that there was no

conflicting evidence on the prosecutrix's age

and that it was proved beyond all reasonable

doubt at she was below the age of 16 years at

the time the offence was committed.

8.10 The arguments that the prosecutrix's age was

not proved, are thus dismissed.

9.0 THE PROSECUTRIX'S TESTIMONY NOT CREDIBLE NOR

CORROBORATED.

9.1 Mr. Banda submitted that the prosecutrix's

evidence incriminating the appellant, lacked

credibility because it was only disclosed after

she was forced by the Deputy Headmaster. He

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referred to the case of Bernard Chisha v The

People5, in support of the proposition.

9.2 Mr. Banda also argued that the prosecutrix's

evidence incriminating the appellant required

corroboration to rule out the danger of false

incrimination. This is because she admitted

having had sexual relationships with other

persons, prior to this case.

9.3 He referred to the case of and Emmanuel Phiri v

The People6 in support of the proposition that

the prosecutrix's evidence required

corroboration.

10.0 RESPONDENT'S SUBMISSION ON PROSECUTRIX'S TESTIMONY

NOT BEING CREDIBLE NOR CORROBORATED.

10.1 In response, Mrs. Mwila argued that the

prosecutrix was not induced to implicate the

appellant.
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10.2 She submitted that in any case, going by the

decision in Liswaniso v The People7, illegally

obtained evidence is admissible.

10.3 Mrs. Mwila further submitted that the appellant

did not dispute proposing love to the

prosecutrix or giving her K22.50, after having

sexual intercourse with her or being seen coming

from the yard where the prosecutrix lived, on

the night in question.

10.4 She argued that being seen coming from where

the prosecutrix lived, amounted to an odd

coincidence and was corroborative. She referred

to the case of llunga Kabala and John Masefu v

The People8, in support of the proposition.

11.0 COURT'S CONSIDERATION OF ARGUMENTS THAT

PROSECUTRIX'S TESTIMONY WAS NOT CREDIBLE OR
CORROBORATED
11.1 First of all, we do not think that the fact

that the prosecutrix was pressured or

threatened, into disclosing what happened on

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the material night, warrants classifying her

testimony as illegally obtained evidence.

11.2 If anything is to be made out of it, at worst,

it can only be said the manner in which the

prosecutrix was made to disclose what had

happened, was inappropriate.

11.3 In any case, since that evidence related to the

commission of a sexual offence, it required

corroboration.

11.4 In the case of Machipisha Kombe v The People9,

the Supreme Court had the following to say on

the subject of corroboration in sexual

offences:

(i) Corroboration must not be equated with

independent proof. It is not evidence which
needs to be conclusive in itself.
(ii) Corroboration is independent evidence
which tends to confirm that the witness is
telling the truth when he or she says that the
offence was committed and that it was the
accused who committed it.
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11.5 The evidence incriminating the appellant was

that given by the prosecutrix, that on 17th

November 2018, at night, he went to their house

and had sexual intercourse with her behind the

toilet.

11.6 There was also evidence from Point and David,

that, that night, they saw the appellant

leaving the yard of the house where the

prosecutrix lived.

11.7 In addition, there was evidence from Jackson

that at a meeting, the appellant admitted

having knocked at the window of the bedroom.

11.8 Further, Romania's evidence was that she

observed footmarks from the window of the

prosecutrix's bedroom to a point behind the

toilet, where the ground was ’disturbed'. The

soil at that point, matched the colour of the

soil that was on the wrapper the prosecutrix

wore that evening.

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11.9 Although the evidence of Romania, Point, David

and Jackson, did not, on its own incriminate

the appellant, it was independent evidence,

which confirmed or corroborated the

prosecutrix's testimony.

11.10 The net effect of this evidence, was to confirm

the prosecutrix testimony that she came out of

the house that night, through the window, and

had sexual intercourse with the appellant,

behind the toilet.

11.11 The argument that the prosecutrix's evidence

was not credible nor corroborated, therefore

fails.

12.0 VERDICT

12.1 All the arguments in support of the appeal

having been unsuccessful, this appeal collapses.

12.2 We dismiss it and uphold the appellant's

conviction for the offence of Defilement of a

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Child contrary to section 138(1) of The Penal

Code.

12.3 We also uphold the sentence imposed on him. He

shall serve a sentence of 15 years imprisonment,

with hard labour, from the 18th of November 2018.

C. F. R. Mchericta
DEPUTY JUDGE PRESI

COURT OF APPEAL JUDGE