Chisopa v The People (APPEAL NO/134/1985) [1991] ZMSC 70 (29 January 1991)

IN THE SUPREME COURT CF ZAMBIA APPEAL ND/134/1985 HOLDEN AT NDGLA (Criminal Jurisdiction) BETWEEN: JOSEPH CHIWALA CHISDPA Appellant VB - . . : $ •. Coram: B. T. GARDNER AG. D. C. J. J M. S. CHAILA,D. K. CHIRWA JJS at Ndola on 18th September, 1990 and 29th January, 1991. THE PEDP LE Respondent For the . Appellant: For the Respondent: Mr. S,K. Munthalir Senior Legal Aid'Counsel. Mr. R. Okafor, Ag. Assistant Principal State, Advocate. CHIRWA XS. DELIVERED JUDGMENT OF THE COURT. • The appellant^ convicted of murder and sentenced td the mandatory death sentence and he now appeals against the conviction. The particulars of the information against the appellant are that he on 7th February, 1985 at Kasama in the Kasama District of the Northern Province of the Republic cf Zambia murdered one Daniel Bimutowe. • • ; s The evidence found by the court below was that the appellant . previously worked for the deceased and in the course of that employmen sn offence was committed by the appellant and the complainant was the deceased. The appellant was convicted on that offence end finished ■ serving sentence at Milima Prison and released on 7th day of February, c*- • . * " ' ./JX - - : Upon his release, the appellant cams to the house of the deceased where he found only the deceased's wife, who was P. W.2 in the court below* The appellant is said to have told P,U»2 that they thought he was going to die in prison but he use out and they would see* He further told P. W.2 that anybody driving a motor vehicle in his (the appellant's) mother's yard or premises would see. The appellant went away and when the deceased came beck to his house, P. W.2 told him what the appellant had eaid earlier in the day. It is worth noting that the deceased's house and the appellant's mother's house are very close to each other. z The prosecution evidence further showed that later at night ■ on the same day, P. UJ.2 was awakened by the noise of objects falling4 . .... , ’ . •. - . . • < on their roof which was made of iron sheets. She awaken ad her husbsnt and told her husband that there was someone outside, whom she recog­ nized as the appellant, throwing objects on the roof and Insulting • them. The deceased woke up with the intention of going out of the : house but P. W.2 advised him not to do so as the appellant was known to carry a knife on hie person. The deceased did not heed that warning and went outside where he challenged the appellant to throw down whatever weapon he had so that they might fight like men. According to P. W.2 she then saw the appellant come to where her husband, the deceased, was standing and hit the deceased once on the right aide of the heed with a pounding stick end the deceased fell down. The appellant ran and ehe did not know when and where / ...................... */23. - he was apprehended* The deceased use taken to the hospital inhere he died an Sth February, 1905* In his defence the appellant told the court that on the night in question he was coming from beer drinking singing end when he reached near the house of the deceased, the deceased inquired is to who was making a noise and when told that It was the appellant, wished he told the appellant that he was his enemy and ;-him to die in prison and threatened to kill him. He than hit the appellant on the eye and the deceased's brothers joined in assaulting the appellant. The appellant managed to free himself and ran into some banana plantation but the deceased followed and hit him again. It is at this stage that the appellant hit the deceased with one fist blow end the deceased fell down, hitting himself against a tree. The appellant left and reported at the Police that he had been to assaulted and was given a medical report to goAhe hospital for the treatment of the injuries sustained in the assault. We have found it necessary to go into some detail of the evidence in view of what was argued before us in the appeal. Mr. Munths11 for the appellant orltlsed the lower court's judgment the mainly on the failure of / learned Commissioner to. consider defences ' of provocation and/or self-defence. We entirely agree with Mr. Hunthe that nowhere in the judgment does the learned Commissioner consider* these possible defences. . ........................../Jw. Tha leauEi la: was there any evidence before him to raise such defences? We have been unable to see any evidence of provo­ cation, If there was any provocation at all, it waa the appellant who provoked the deceased. The appellant was throwing some objects at - r. the deceased's roof and insulting him. The appellant’s evidence that he had come home drunk and wae singing when the deceased challenged him was. In our view, correctly rejected In view of P,W,2'e evidence, which evidence was properly evaluated and considered by the learned Commissioner, Her evidence wae In no way biased against the appellant, as can ba seen where she says that when the appellant ran into banana plantation he was pursued by the deceased where he continued besting the appellant, Tha* piece of evidence wae Ip favour of the appellant. On the evidence, we are af the viewthat after the deceased was provoked by the appellant, he challenged the appellant to a fight and thereafter an affray ensued and during that affray the appellant wea overpowered and he'picked up aJpoinding stick and hit the deceased with it once and the deceased died of the injury sustained from that hit, - The deceased never provoked the appellant, but we accept that a common affray developed between the deceased and the appellant, r. , .. , V ' I,'.: v, » *■ We will now consider whether there waa any evidence to support self-defence, as we have found earlier, after the first encounter the •t appellant ran away and was pursued by the deceased. There Is no evidence that the deceased used any Meppen in this fight. Having been the original aggressor, an the evidence of this case, the appellant cannot avail himself of this defence. He provoked the situation himself and he should bear the resultant consequences. In any event we are of the opinion that the force used was not necessary. The defence of self^defsncs therefore falls. Having found that there was en affray and the deceased1a death resulted from it, we are 'satisfied that the appellant took the first weapon to hand, in the heat of the moment. Ide are also satisfied that there ia overwhelming evidence against the appellant oh a reduced charge of manslaughter. Uie therefore allow the appeal against the conviction of murder, tie quash the conviction of murder and set aside the sentence and its place we substitute a conviction of manslaughter. ’ ' ' *C‘-. ‘ Coming to sentence, this is a very bad case of manslaughter. The appellant had just come out of prison end it seems he never learn anything there. He provoked the affray situation and used a poundinn stick in assaulting the deceased. Bearing in mind the circumstances of this case, we feel that a sentence of eight (8) years I. H. U is appropriate. bJe therefore sentence the appellant to eight (fl) years I. H. L. for manslaughter with affect from 9th February, 1905. /J6. " 0. T. GARDNER ACTING DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT “JUDGE J1 b'tii -