Msoni v People (SCZ Appeal 154 of 1992) [1993] ZMSC 37 (6 January 1993)

IN THE SUPREME COURT OF ZAMBIA S. C. Z. Appeal No. 154 of 1992. HOLDEN AT LUSAKA. (Criminal Jurisdiction) DAVID MSONI Appellant Vs THE PEOPLE Respondent Coras: Sakata, Chatla A Chlrwa J. J. J. S. 6th January, 1993. Hr. N. H. A* Samadl, Senior Legal Aid Counsel for the appellant. Mr. L. N. Muuka, State Advocate for the State. JUDGMENT Sakata J. S. delivered the Judgment of the Court. The appellant was convicted of murder contrary to section 200 of the Penal Code Cap 146 of the Laws of Zambia. The particulars of the offence alleged that the appellant, on the 28th of March 1991 at Mumbwa, in the Mumbwa District of the Central Province of the Republic of Zambia, murdered Ruth Ngosa. On the facts of the case the learned trial judge found that there were extenuating circumstances, consequently, the appellant was sentenced to 25 years Imprisonment with hard labour. The appellant has appealed to this court against both conviction and sentence. The facts of this case, which were generally common cause, were that the appellant lived together with the deceased as a girl friend for 7 years. Later the deceased who was employed as a cleaner at a Police Station in Mumbwa informed the appellant that she wanted to marry someone else and that he should leave her alone. This was a source of quarrels for a number of days including the day the deceased was murdered. The learned trial judge accepted that the appellant was provoked but that the retaliation by stabbing the deceased two times was out of proportion to the verba! provocation of telling the appellant to leave her alone as she wanted to marry someone else. Although the provocation failed and the appellant was convicted of murder the court found that the failed provocation amounted to an extenuating 2/......... J2. circumstance and as already observed sentenced the appellant to 25 years imprisonment with hard labour. On behalf of the appellant the learned senior Legal Aid Counsel has urged this court to find that the defence of provocation on the facts of this case had been made out entitling the appellant to a lesser charge of manslaughter. The learned State Advocate supports the conviction. He submitted that the learned trial judge correctly dismissed the defence of provocation especially that the retaliation was not proportionate to the provocation offered. He further pointed out that the defence of self defence could not have succeeded on the evidence on record which evidence included the Warn and Caution Statement recorded from the appellant admitted without any objection. We have considered the evidence on record. We have also considered the learned trial judge’s judgment and the submissions by both learned counsel. Certainly the defence of self defence could not have succeeded on the facts of this case. On the question of the defence of provocation the appellant’s evidence on oath was that the deceased was stabbed when he tried to take the knife from her. But 1n his Warn and Caution Statment the appellant said: When slw came back we started quarrelling* she was still telling me that she wanted to get married to somebody else. From there she took a bath in her bedroom. Myself was at the sitting room I became very annoyed and my heart was paining. I took a knife went to her bedroom* I found her applying vaseline on her body and she wrapped her chitenge materia! around her waste. I stabbed her on her loft breast* she did not fall down but she screamed and said* "Mr. Davy you have killed me." and stabbed another one at left ribs and blood started oozing from the wounds and she fell down. In dealing with the defence of provocation the learned trial judge found that the deceased had been stabbed twice contrary to the appellant's evidence on oath. In dealing with the retaliation the learned trial judge found that to stab a person twice as a result 3/.... J3. of a verba! provocation of telling him to leave her alone was not proportionate to the provocation offered. Ue agree with the learned trial judge. Although the appellant lived together with the deceased for 7 years they were not formally married although that would not have been the basis for the defence of provocation falling. In this instant ease when the events of the material date are examined carefully the picture that emerges is that the utterances by the deceased were not new to the appellant; they had been said to the appellant four days before the day the deceased mst her death* The appellant did not react immediately when the words had been uttered* The deceased had gone to her bedroom after the utterances; she had a bath and was putting vaseline on her body when the appellant took a knife; went to the deceased's bedroom and stabbed her twice. These events suggest that the appellant must have had enough time to cool down* On these facts the defence of provocation would not certainly have succeeded and cannot succeed In this court. The appeal based on the defence of provocation fails. The appeal against conviction therefore fails. The learned trial judge accepted that the failed provocation was an extenuating circumstance. We agree with him. However, on the facts of this case, a sentence of 25 years imprisonment with hard labour does not come to us with a sense of shock and not wrong in principle. The appeal against sentence is also dismissed. E. U. Sakaia, SUPREME COURT JUDGE. M. S. Chaila, SUPREME COURT JUDGE. JUDGE.