Ntembwa v The people (Appeal 100 of 2019) [2019] ZMCA 242 (21 January 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA Appeal No. 100/2019 {Criminal Jurisdiction) BETWEEN: CHARLES NTEMBWA vs THE PEOPLE APPELLANT RESPONDENT Mchenga DJP, Sichinga and Majula, JJA On 19th November, 2019 and .:J... J-:::0. L. .. , 20J!(> For the Appellant: Mr. K. Katazo - Senior Legal Aid Counsel, Legal Aid Board. For the Respondent: Mrs. M. Chilufya Kabwela - Senior State Advocate, National Prosecutions Authority JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. Whiteson Simusokwe vs The People SCZ Judgment No 15 of 2002 2. Kasanga vs The People SCZ Judgment No 12 of 2012 3. Nyambe Mubukwanu Liyumbi vs The People (1978) ZR 25 (SC). 4. Nkhata and four others vs the Attorney General (1966) ZR 124. 5. Jack Chanda and Kennedy Chanda vs The People (2002) ZR 124. Legislation referred to The Penal Code, Chapter 87 of the Laws of Zambia section 200 1.0 Introduction J2 1.1 The appellant was charged with the offence of murder contrary to section 200 of the Penal Code. He was tried in the High Court for the murder of Brian Mumbi. At the conclusion of the trial, the trial Judge (Lim bani, J.) convicted him of the subject offence and sentenced him to death. The appellant's grievance stems only from the sentence. 2.0 Evidence in the Court below 2.1 The evidence adduced by the prosecution was solicited from four (4) witnesses. It was established that the 23rd day of March 2018 was a very sad day for the family and friends of Brian Mumbi (hereinafter referred to as the deceased) who was found hacked on his head with a hoe. This tragic episode took place in Mkushi. 2.2 The deceased's uncle Emmanuel Yumba who was the first witness to testify for the prosecution stated that he had received a caH around 21.00 hours on this fateful day notifying him that his nephew had been murdered by the appellant. He didn't know the appellant prior to this incidence. 2.3 Upon receiving this disturbing news, he immediately rushed to the scene of crime and found the deceased lying on the ground with a cut on his head and blood oozing from the wound. The deceased was subsequently taken to the hospital and a J3 postmortem was carried out which revealed that he had died as a result of brain damage. 2.4 There was evidence from Mathews Mwila who narrated how he was visited by the appellant around 04.00 a.m. The appellant explained to Mathews Mwila that he had come from a drinking spree with friends and had come to take a nap. 2.5 As the day broke, in the morning, the appellant complained of hunger and Mathews Mwila decided to go and look for relish. Whilst on his way he met a crowd of people that had gathered. Upon making inquiries he learnt that the deceased had been murdered by the appellant. Shocked by this information he rushed back home and confronted the appellant over the allegations. He denied murdering the deceased and claimed he had only hit him with a hoe. Mathews grabbed him and took him to the funeral house. 2.6 In cross-examination, he denied that the appellant had told him that he had been provoked and that is why he hit him with a hoe. He stated that he was not informed of the circumstances that led to the fight. 2.7 The role that the third prosecution witness, Evans Yumba played was to lock up the appellant at the funeral house as people were threatening to beat him. He then handed him over to the Police. J4 2. 8 Detective Constable J ackline Kachonga after receiving a report of murder on 26th March, 2018 carried out investigations, attended the postmortem and subsequently charged and arrested the appellant. 3.0 Defence 3.1 The appellant's story regarding the circumstances that led to the deceased's death were that he had gone on a chibuku drinking spree with friends whose names he could not recall. The deceased went to the area where he was drinking and dancing and proceeded to kick a cup of beer. The appellant was not at all amused at the deceased's conduct and cautioned him. The deceased in turn did not take kindly to being challenged, he expressed annoyance and threatened to beat the appellant. 3.2 According to the appellant this reaction did not sit well with him and he chose to run away to his home. The time was 21.00 hours. The deceased followed him and started threatening and insulting him. A fight erupted and in the process of fighting the appellant fell down. In order to protect himself he picked up what he thought was a stick and struck the deceased. Unbeknownst to him the stick was in actual fact a hoe which had a blade. He went on to explain that it was dark and he was drunk. His wife was present as events were unfolding but in fear she retreated to the bedroom. After he had struck the deceased, he ran away to take refuge in Mathew Mwila's house and slept. JS 3.3 Regarding what transpired thereafter, his evidence was the same as that of Mathews Mwila. They were basically singing from the same hymn sheet. He only refuted the assertion that he resisted to be taken to the funeral house. 3.4 In cross examination, the fight that took place at home was not contested. The appellant was asked whether he ran away and why he did not bother to take the deceased to hospital. The appellant accepted that he ran away on the basis that he feared that the fight would continue. 4. 0 High Court Findings 4.1 The Judge in the court below found that the incident before him was circumstantial. He found as a fact that the appellant hit the deceased and he died of brain damage as confirmed by the postmortem report. The Judge rejected the appellant's claim that he was drunk for the reason that he clearly recollected all the events prior and during the attack on the deceased but for the alleged thought that the item he used to hit the deceased was a stick. 4.2 The trial Judge further found that the appellant's evidence of alleged sequence of events of the fight was contradictory. He found that the testimony to not only be an afterthought but a fabricated sequence of events of the material night meant to suppress the truth. J6 4.3 In addition, he dismissed the defence of intoxication, he found that the appellant was not drunk. That the appellant knew or foresaw that serious harm was a natural and probable consequence of hitting the deceased on his head. The lower court rejected the defence of provocation, it took the view that even if the appellant was provoked his retaliation was not proportionate as no reasonable person would have acted as he did. 4.4 It was further held that the act of the appellant running away and sleeping at a farm house when augmented with other pieces of evidence, it was safe to anchor a conviction on the same. At the conclusion of the analysis of the evidence, the trial Judge found the appellant guilty of the murder without extenuation. 5.0 Ground of Appeal 5.1 Resenting the judgment of the court below, the appellant has fronted the following ground of appeal: "The learned trial Judge erred in law when he Jailed to hold that there were extenuating circumstances to warrant sentencing the appellant to any other sentence other than the death penalty.'' 6.0 Appellant's Arguments 6.1 In support of the sole ground of appeal it was argued that the appellant in his defence narrated that he was provoked by the deceased. lVIr Katazo, learned counsel for the appellant faulted J7 the learned Judge in the court below for failing to find extenuation from the failed defence of provocation. According to counsel the trial Judge came to the conclusion that the defence of provocation did not meet the required standard at law for it to succeed. That this therefore meant that there was a failed defence of provocation. He called in aid the case of Whiteson Simusokwe vs The People 1 where it was held that a failed defence of provocation affords extenuation for a charge of murder. Counsel accordingly called upon us to sentence the appellant to any other sentence apart from the death penalty. 7.0 Respondent's Arguments 7. 1 On behalf of the respondent, Mrs. Chilufya Kabwela conceded that the court below ought to have considered the failed defence of provocation as an extenuating circumstance. For this proposition we were ref erred to the case of Kasanga vs The People2 which restated the principle that a failed defence of provocation nonetheless affords extenuation of the charge of murder. 8.0 Verdict 8.1 We have considered the ground of appeal and the submissions of counsel. The ground of appeal criticises the failure by the learned trial Judge to find extenuating circumstances from the failed defence of provocation and subsequently impose any J8 other sentence other than the mandatory death sentence. In this regard Mr. Katazo's argument, which was not opposed by Mrs Chilufya Kabwela, was that there was evidence that the appellant had been provoked by the deceased when he was fallowed to his house after a drinking spree. 8.2 It is trite law that for the defence of provocation to succeed on a charge of murder, there are three elements that must be proved by an accused person. These were ably stated in the case Liyumbi vs The People3 namely: 1. The act of provocation. 2. The loss of self-control. 3. Retaliation proportionate to the provocation. The undisputed evidence from the appellant given in his defence was that on 23rd March, 2018 he was drinking opaque beer with his friends when the deceased joined them. The deceased later kicked the cup of beer that the appellant was drinking from and a fight almost erupted but the appellant ran to his home. Shortly thereafter the deceased followed the appellant to his house and threatened to beat him. In the process, the deceased was struck on the head with a hoe which resulted in fatal in Junes. 8.3 The trial Judge's findings were that he found that the appellant's evidednce of the alleged sequence of the events of the fight was contradictory. There are numerous authorities on when an appellate court can interfere with findings of fact. J9 The case of Nkhata and others vs the Attorney General 4 is one such case that springs to mind where it was held as follows: "A trial Judge sitting alone without a Jury can only be reversed on question of fact if (1) the Judge erred in accepting evidence, or (2) the Judge erred in assessing and evaluating the evidence by taking into account some matter which he should have ignored or failing to take into account something which he should have considered, or (3) the Judge did not take proper advantage of having seen and heard the witness (4) external evidence demonstrates that the Judge erred in assessing the manner and demeanour of the witness." 8.4 It is only in the above cited instances that we as an appellate court can interefere. In relation to the finding by the trial Judge regarding the appellant's evidence being contradictory, we are of the considered view that the Judge misdirected himself by failing to take advantage of hearing the witnesses. This is demonstrated by his dismissal of the appellant's evidence out of hand. There are two points worth noting: 1. The appellant's evidence was not contradicted by the prosecution in cross examination; 2. It is borne out of the fact that the deceased was found at the appellant's home, rendering his version probable. JlO 8.5 The appellant gave an explanation about what happened which explanation was not challenged by the prosecution other than raising issue with whether what was used was a stick. The trial Judge concluded that the appellant gave a contradictory statement. The issue for consideration is whether in the circumstances of this case the finding of contradiction in the evidence could be sustained in the face of it not having been challenged. 8.6 It is trite that if unchallenged evidence was accepted by the other side, the trial court should have proceeded on this premise in assessing the evidence. Had the trial court properly directed himself, he would have accepted the appellant's explanation. Bearing in mind that an accused need not prove his defence beyond reasonable doubt, all that is required is giving an eplanation that could reasonably be true. In this case the appellant gave a plausible explanation which the trial Judge ought to have accepted. It is in this regard that our interference with his finding is warranted, and we hold that the appellant's explanation is acceptable. 8.7 Turning to the instrument used in striking the deceased which was a hoe, the trial Judge rightly found that in the circumstances there was excessive force used. 8.8 As regards the availability of the defence of provocation, the trial Judge stated at page J 11 as follows: Jl 1 "Even if I was to find that the accused was indeed provoked, his retaliation was not proportionate as no reasonable person would have acted as he did thus the defence of provocation equally Jails." In the case of Jack Chanda and Another vs The Peoples the Supreme Court held that: "Failed defence of provocation; evidence of witchcraft accusation; and evidence of drinking can amount to extenuating circumstances." This principle was also reaffirmed in the cases of Whiteson Simusokwe vs The Peoplel and Kasanga vs The People2cited by learned Counsel in this appeal. 9.0 Conclusion 9.1 On account on what we have stated in the preceding paragraphs, we hold that in this case the failed defence of provocation should avail extenuation to the appellant. 9.2 Pertaining to what we consider to be the appropriate the sentence, as stated earlier the evidence before the court was that the deceased initially threated the appellant at the bar. He then retreated to his home and the deceased followed him where a fight ensued. Taking into account these circumstances, we are of the view that a sentence of fifteen (15) years imprisonment would meet the justice of the case. J12 9.3 In light of the foregoing we allow the appeal on sentence and Nkhata and four others vs the Attorney General quash the death sentence imposed by the lower court and in its place sentence the appellant to fifteen (15) years imprisonment with hard labour. C. F. R. Mchenga DEPUTY JUDGE PRESIDENT D. L. Y. Sichinga COURT OF APPEAL JUDGE B. M. Majula COURT OF APPEAL JUDGE