Andrew Musukwa v The People (APP. No. 23/2022) [2023] ZMCA 357 (23 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APP. No.23/2022 BETWEEN: ANDREW MUSUKWA AND THE PEOPLE l -~ ......_ _____ _ ' / APPELLANT RESPONDENT CORAM : Mchenga DJP, Chishimba and Muzenga JJAs On 20th September, 2022 and 23rd November, 2023 For the Appellant : Ms . Z. Ponde, Legal Aid Coun sel of Messrs. Legal Aid Board. For the Respondent : Mr. R. C. Masempela, Deputy Chief State Advocate - National Prosecution Authority. JUDGMENT Chishimba JA, delivered the Judgement of the Cou rt. CASE AUTHORITIES CITED: 1. Whiteson Simusokwe v The People (2002) ZR 63 2. Precious Longwe v The People CAZ Appeal No. 82 of 20 17 3 . Lavey Mween e v The People CAZ Appeal No. 86 of 2020 4. Simutenda v The People (1975) Z. R. 294 5 . Trevor Muma v The People CAZ Appeal No . 228/2020 LEGISLATION CITED: 1. The Penal Code Chapter 87 of the Laws of Zambia -J.2- 1.0 INTRODUCTION 1.1 The appellant stood charged with two counts of the offence of murder contrary to section 200 of the Penal Code Chapter 87 of the Laws of Zambia. The particulars alleged that Andrew Musukwa, on 4 th February, 2019, at Mpika in the Mpika District of the Muchinga Province of the Republic of Zambia, did murder Christopher Chitalu Musonda. 2 .0 EVIDENCE IN THE COURT BELOW 2.1 On the 2 nd February, 2019 between 07:00 and 08:00 hours, the appellant went to the house of Solomon Mwaba, PW 1 selling beans. He informed Mwaba that Christopher Chitalu Musonda 'Shikayula' (the deceased) who was away in Mpika and sent him to sell the beans. The appellant further told PW 1 that he had some more beans hidden in the bush. Mwaba told him to bring all the beans and that he would pay for it the next day. Being suspicious, Mwaba telephoned Christopher Musonda and informed him of the activities of the appellant. Christopher Musonda stated to PWl that he did not give the appellant permission to sell any b eans to sell and asked that h e be apprehended. -J.3- 2.2 On 4 th February, 2019, Christopher Musonda arrived at the home of PWl attired in a blue shirt, blue coat and a black cap. He was shown the beans that was the appellant was selling. Around 1 7: 00 hours the same day, PW2 , Dorothy Chisulo a sister to the deceased, was informed by her son that the house belonging to Christopher was on fire. PW2 and her husband, proceeded to check on the said house and found it burning. A check around the house revealed a black cap with blood stains and an axe handle at the door. 2.3 The couple proceeded to report the matter to the Zambia Wildlife Authority Officers at a n earby camp. On their way, they met Marriot Machiko, PW4 who told them that he had seen the appellant going to Kalonje. PW4 informed them that the appellant stated that Christopher Musonda set his own house on fire. The appellant was apprehended on 5 th February, 2019. 2.4 In cross-examination, PW4 told the court that the appellant had worked for the deceased for three days prior to the incident. 2.5 PW3, Detective Inspector James Muya, visited the scene on 5 th February, 2019 after the appellant had been apprehended. Under warn and caution, the appellant told him that he fought -J.4- with the deceased and hit him with an axe handle on the head. He then p u lled his body into the house. The appellant led the Detective In spector to the crime scene where he recovered a blood stained black cap and some burnt logs. PW3 observed th at there was blood under a guava tree and an axe handle n ear the door of the completely burnt house. Inspector Muya recovered the remains of the severely burnt body of the deceased i.e. the head and torso in the burnt house. 2 .6 The body of the deceased having been severely burnt to ashes with only the torso and h ead remaining, no postmortem was conducted to ascertain the actual cause of death. 2.7 The appellant gave an unsworn statement, which in law is n ot evidence, in which he admitted hitting the deceased with an axe handle at the back of the head in a fight. Thereafter, dragging the body in the house and setting it alight. He further stated that he struck the deceased with the axe after the deceased hit him with the axe handle on the eye. 3.0 DECISION OF THE COURT BELOW 3.1 In his judgment, the learned trial judge found that the appellant confessed to the arresting officer that h e killed the deceased by -J.5- hitting him on the head with an axe handle during a fight. This, the court found to be evidence of malice aforethought. The defence of self defence was rejected as there was no evidence of the appellant attempting to retreat or that h e sustained any injuries as a result of an attack by th e deceased. The court stated that in any case, it was the appellant that stole the property of the deceased. 3.2 Consequently, the appellant was condemned to suffer the ultimate penalty of death. 4.0 GROUND OF APPEAL 4.1 The appellant has advanced one ground of appeal cou ch ed as follows: The learned trial judge misdirected himself in his failure to find extenuating circumstances so as to impose any other sentence other than the mandatory death sentence. 5.0 ARGUMENTS BY THE APPELLANT 5. 1 On behalf of the appellant, it was submitted that the case heavily rested on provocation as testified to by the appellant. That the appe llant had been provoked by the deceased who had not paid him for the work done . Further that the deceased had -J.6- also thrown an axe handle to his face which enraged the appellant who pushed the deceased to the ground. The deceased picked a stick to strike the appellant. The appellant in turn used the same stick to hit the deceased on his h ead resulting in his death. 5.2 The learned Legal Aid Counsel contended that from the evidence on record, at the time of the altercation, the deceased and the appellant were the only persons present. The only witness to what transpired, is the appellant. The defences of self-defence and provocation raised by the appellant were wrongly rejected by the trial court. 5. 3 Counsel ref erred to the case of Whiteson Sim usokwe v The People 11l and submitted that a failed defence of provocation affords extenuation for a charge of murder. It was argued that the trial court should have found extenuation circumstances because of the failed defence of provocation raised by the appellant. The attack on the appellant by Christopher Musonda (the deceased) with an axe handle after being questioned about the maize and beans taken from the deceased, had provoked the appellant. -J.7- 5.4 As authority, reliance was placed on our decision in Precious Longwe v The People 121 where we said that: "... in order for a failed defence of provocation to qualify as extenuation, the accused must prove that there was a provocative act and that there was loss of self-cont rol but the retaliation was not p roportionate to the provocat ion." 5 .5 It was submitted that any reasonable person faced with a similar situa tion would be provoked by the manner in which the deceased acted, particularly that h e had n ot paid the a ppellant for work done. That the act of the d eceased was provocative and com es within a failed d efence of provocation to qualify as extenuation. We were u rged to set asid e the d eath sentence imposed by the court below, and substitute it with any other sentence deemed appropriate by the a ppellate court. 6.0 ARGUMENTS BY THE RESPONDENT 6.1 In opposing the a ppeal, the State submitted that even though t h e defence r ested mainly on provocation, the appellant did n ot prove that there was a provocative act and that he suffered loss of self-control. It was contended th at in the case of Lavey Mweene v The People (3 l, we guided that once provocation is -J.8- non-existent, the principle that a failed defence of provocation affords extenuation, does not apply. 6.2 While accepting that the appellant was the only witness to what transpired, the learned Deputy Chief State Advocate contended that the appellant was a biased witness as he had his own interest to serve being a desire to be acquitted of the offence, and thus the more reason to lie. He submitted that the surrounding circumstances are cardinal in determining whether there was a provocative act or loss of self-control. 6.3 In that regard, the act of burning the body without checking for the pulse of the deceased shows a lack of care about the life of the deceased. Further, the confession statement made to PW3, which was not objected to, and as noted by the trial court in its judgment, was that during the fight, the deceased hit the appellant with an axe handle on the head and not that the deceased attempted to hit the accused first with the axe handle. 6.4 Counsel argued that the defence of being attacked by the deceased is an afterthought as it was not raised during the cross-examination of PW3 or any other witness. The testimony -J.9- of the appellant being unsworn, we were urged not to attach much weight to it as it was not tested in cross-examination. 7 .0 ORAL ARGUMENTS 7 .1 At the hearing of the appeal, the learned Legal Aid Counsel, Ms. Ponde submitted th at there are extenuating circumstances in this case being that the deceased failed to pay the appellant what was due to him and went on to hit him with an axe handle on the face during a fight. This resulted in the appellant striking the deceased with a stick leading to his death. She disagreed that the defence of provocation failed and was an afterthought on the basis that appellant had no marks on his body to show that he had been struck with an axe handle. She argued that there was n o other evidence available to contradict that of the appellant's unsworn statement in court. 7 .2 The learned Deputy Chief State Advoca te , Mr. Masempela submitted that the circumstantial evidence adduced by PW4 who saw the appellant, and the confession made to PW3 , incriminated the appellant even though there was no other witness to the murder. That the appellant laid no foundation to his defence in cross-examination even though he considered -J.10- that this was not possible there being no eye witness to what transpired between the appellant and the deceased. 7 .3 When we asked Mr. Masempela if there was any evidence that entitled the trial court to reject part of the story of the appellant, the Deputy Chief State Advocate responded that there was none. 8 .0 DECISION OF THE COURT 8.1 We have considered the appeal, the heads of argument, authorities cited and the oral submissions advanced by respective Learned Counsel. 8.2 The sole ground of appeal is that the trial judge misdirected himself in failing to find extenuating circumstances to warrant any other sentence than death. 8.3 The appellant in the court below advanced the defence of self defence. The court below considered the defence and stated that the defence of self-defence fails where there is no evidence of the accused a ttempting to retreat and that a failed defence of self-defence or provocation does not in itself qualify as extenuation. The court below was of the view that the alleged provocation and self-defen ce does not add up because, the -J .. 11- deceased did not retreat, had no injuries to show that he was indeed assaulted and thereby provoked or acted in self-defence. 8.4 It is not in dispute that the sole witness to the killing of the deceased is the appellant. None of the other witnesses were present at the time the appellant and Christopher Musonda allegedly fought leading to the death of the latter. However, it is clear that there was a dispute between the deceased and the appellant over the alleged pay owed to the appellant. The appellant sold beans and maize belonging to the deceased. 8.5 As stated above, apart from the confession statement made to PW3 by the appellant, no witness saw what transpired. In the confession statement made to Inspector Muya, the appellant stated that whilst fighting with the deceased , he struck the deceased with an axe handle and that the deceased fell to the ground. As he appeared not to be breathing, the appellant pulled the deceased into the house and set it ablaze. 8.6 In his unsworn statement, which in law is of little probative or evidential value, the appellant stated that there was an argument between the deceased and himself over the missing beans and maize. In the process Christopher Musonda (the -. -J. 12- deceased) took an axe handle and struck the appellant on the eye. The appellant in turn pushed Christopher, who fell to the ground. When he got up, Christopher took a burnt log to hit the appellant. In the ensuing tussle, the appellant grabbed the stick from the deceased and struck him on the back of the head once. The deceased fell down. Seeing there was no movement, the appellant dragged the deceased into the house and set it on fire before fleeing. 8.7 From the unsworn statement and the confession statement made to PW3, we find that Christopher Musonda died after being struck with a stick at the back of the head by the appellant following an altercation arising from the dispute over beans and maize sold by the appellant without the permission of the deceased. 8.8 The appellant contends that extenuating circumstances exist in this case to warrant a reduction in sentence, the defence of provocation having failed. 8.9 As regards the defence of provocation, it was held in Simutenda v The People !4 l , that: -J. 13- "Provocation consists mainly of three elements - t he act of provocation, the loss of self-control both actual and reasonable, and the retaliation proportionate to the provocation. These elements are not detached. Evidence of a provocative incident is not by itself evidence of provocation ''fit to be left to ajury". The question is not merely whethe r an accused person was provoked into losing his self-control but also whether a reasonable man would have lost his self-control and having done so, would have acted as the accused did." 8. 10 As regards the defence of self-defence the burden to n egate self defence lies upon the prosecution. It is trite that a man wh o is attacked may defend himself, by doing what is reasonably necessary i.e. not wholly out of proportion to the necessities of the situation. Where the attack is serious putting the person in immediate peril, then immediate defensive action may be necessary, to avert the danger by some instant reaction. 8.11 The issues to be determined , in our view are a s follows: (i) Whether there was a failed defen ce of provocation/ self defence; and (ii) Whether , from the circumstances of the case, the prosecution had established beyond reasonable doubt th e -J.14- charge of murder, or whether from the circumstances of this case, manslaughter was the tenable offence. 8.12 We accept that the appellant had an altercation with the deceased. We are not entirely satisfied that the deceased struck him with an axe handle on the face as there was no evidence showing that the appellant sustained any injuries on the face as a result of such an attack with an offensive weapon. 8.13 In view of his confession to PW3 , we accept that the appellant retaliated after the deceased wanted to hit him with a log. 8.14 As to whether the retaliation was proportionate, in his unsworn statement, the appellant clarified that he struck the deceased at the back of the head and that he fell down. The appellant went on to drag the body of the deceased into the house and to set the house ablaze. We find this retaliation not to be proportionate bearing in mind that the deceased had picked a log to hit the appellant. The level of retaliation was disproportionate to the attack considering that the deceased was struck from the back of his head. The appellant without ascertaining whether Christopher Musonda was still alive or not, pulled him into the house which he set on fire. -J.15- 8.15 In our view, the attack was over after the deceased was struck on the back of the h ead and collapsed, no sort of peril had remained . 8.16 The lower court, in the circumstances of this case, was on firm ground in r ejecting th e defence , the appellant having applied excessive force . For these reasons, the defence of s elf-defen ce is not available to the a ppellant and fails. 8.17 The important issue in our view, is whether from the eviden ce adduced, the offence of murder was proved or whether in the circumstances of this case, this was manslaughter. 8.18 It is not in dispute from the appellant's eviden ce on record that there was a fight between the appellant and the deceased. 8 . 19 Having accepted that there was an alter cation b etween the appellant and the deceased over money owed and the missing beans, we find that a fight ensured. In the course of the fight, the deceased was hit on the back of th e h ead and died. Indeed , the burning of the body and house of the deceased aggravated the circumstances of this case. The d estruction of the body was meant to conceal the act by the appellant. We are of the view that h ad the learn ed trial court properly directed itself it would -J.16- have foun d that th e offence of murder was not proved. That this was manslau ghter. 8.20 We refer to the case of Trevor Muma v The People 151 where there was an altercation which degenerated into a full-fledged fight resulting in the death of the deceased. We set aside the conviction for murder made by th e court below and found the appellant guilty of th e offence of manslaughter. 8.2 1 Had th e trial Judge properly evaluated the evidence before him, he would not have found that the prosecution evidence establish ed the charge of murder beyond all reasonable doubt. We fin d manslaughter to be the most tenable offence in the circumstances of this case. 8.22 Section 199 of the Penal Code provides that: Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed "man slaughter". An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm. 8.23 We are of the view th at a figh t is an unlawful act and it resulted in the death of the deceased. The ref ore, in terms of section 181 -• ..) -J.17- of the Criminal Procedure Code chapter 88 of the Laws of Zambia, and section 16(4) of the Court of Appeal Act No . 7 of 2016, we find the appellant guilty of the offence of manslaugh ter contrary to section 199 of the Penal Code. 8.24 Having found the appellant guilty of th e offence of manslaughter, we quash the conviction for murder, we accordingly sentence the appellant to ten years imprisonment with effect from the date of his arrest, being 4 th February, 20 19. C. F. R. Mchenga DEPUTY JUDGE PRESIDENT F. M. Chishimba COURT OF APPEAL JUDGE ....... ~ ...•.....•... K. Muzenga COURT OF APPEAL JUDGE