David Nsoni v People (S.C.Z. Appeal No. 154 of 1992) [1993] ZMSC 150 (6 January 1993)

IN THE SUPREME CotltT OF ZAMBIA HOLDEN AT LUSAKA. (Cr1111nal Jurtsd1ct1on) s.c.z. Appeal No. 154 of 1992.· DAVID NSONI Ys THE PEOPLE Appe11nt Respondent Cor•t Sakala. Cha11a I Cll1n,a J. J. J. S.· 6th January. 1993. Nr. N. H. A. Slllld1t Senior Legal Atd Counsel for the appellant. Nr.- L. N. Nuuka. State Advocate for the State. JUD8N£NT Sakal• . J.,S. cle11Yered the Jucl_.t of tlle Courti The appellant wu c~nv1ct~ of n,rd1r contrary to section 200 of the Penal Code Cap 146 of the \.,aws of Zllllb1a. The part1cu1ara of the gffence alleged that the appellant, on the 28th of Marcil 1991 at Mumbwa. fn the Mumbwa 01str1ct of the Central ProYinc:e of the Republic of Zambia. 11111rdered Ruth Ngose. On tht facts of the cue the learned tr1a1 judge feiand that there ware ext1nu1ttng circumstances, canstquently, the appellant was sentenced to 215 years 1q,rfsarunent wfth hard labour. The_ appellant has appealed to this court agatnst both ~onvtct1on ..-d santan~•- Tha facts of this casa, whiah were generally connon cause. ware th•t the appellant 11ved tqether with the deceased as a g1r1 friend for 7 years. Later tha deceaaed who was 811'4)1oyad u a cleaner at a Police Station 1n Mumbwa tnfonned the appellant that she wanted to marry SOllllone else and that he should leave her alone. This was a source of quarrelt for I number of days including the day the deceased was niurdtred. The learned trfal Judge accepted thot the appellant was provoked but that the reta11-at1on by stabbing the deceased two times was out of proportion to tht verbal provocation of ta111ng the appellant to leave her alone as she wanted to marry someone else. Although the provocation failed and the appellant was ~onv1cted of nurder the court found that the fa11ed 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 ftnd that the defenae of provocation on the facts of this i:ase had been made out ent1t11ng the appellant to a lesser charge of manslaughter. Tha learned State Advocate support• the conviction. Ha subllttted that the learned trial Judge correctly d1sm1ssad the dafente of provocation especially that the reta11at1on was· not praport1onate to the provocation offered. He further pot~ted out that the defence of self defence coYld not have succeeded on tha av1ctance on record which evidence fncludad the Warn and Cautton Statmnent recorded from the appellant admitted Without any objection. We have considered the 1vtd8fta1 on recorcl. Wa have also cons1deracl the learned trta1 judge•• judgment and the submissions by both learned cou~sel. Certainly the defence of self defence could not have 1ucceaded on tha facts of this case. On the question of the defence of provocation the appa11ant•s ev1denee on oath was that the deceased wu stabbed wben he tried to take the knife from her. But 1n his Warn and Caution Statment the appellant said: Whens~ c ... back• started quarre111nt. sh• was still telling• that she wanted to oet •rr1ed to sCNllbody •1••· Fro11 t"-re ;ahe toot a bath tn her bedrooa. "1self was at the .,-~tt1ng roaa J bee- very annoyed and IV heart was patntng. I took a kntfe .ent to her bedrOGII, I found her applying ,ue11ne on her body and she wrapped her ch1tenge uteri1l around lier waste. not fall down but she screllllCI and said, •Mr,; Davy you bave killed••• end stabbed another one at left ribs and blood started oozing froa the wounds and she fell down. I stabbed her on her 11ft breast. she did In dealing with thi defence of provocation the learned tr1al judge found that the deceased had bean stabbed twice contrary to tha In . dea 11 ng wt th the reta 11 et 1 on the appa 1 lint's evidence on oath. learned trial judge found that to stab a parson twfce as a result " 3/ •••• J3. . .,,, of a verbal provocation of telling him to leave her alone was not propon1onate to tha provocation offered. We agree '!1.th the learned trial judge. Although the appellant 11vad together with the deceased for 7 years th~ were not formally married although tha~ would not have been t.h1 basis for the defence of provocat1on failing. In this instant case when ~he events of the material dat& are examined caret111ly the pt"ure that emerges 1s that the utterances by the ·deceased wre not new to the appellant; ·thll,Y had bean said to the appe11a..t ·four days before the· day the deceased DH.t her death. Tha appellant dtd not react fnmed1ate1y when the words had been uttered. The deceased had gone to har·badrooa after the utterances, she had~ bath and wu putting ,ase11ne on her body when the appellant took a kn1te, went to the deceasad's badtoom and stabbed her twice. These events suggest that the appellant must h1v1 had enough t1ffll - to cool down. On these facts the defence of provocation would not c:artafnly have·suaceeded and cannot su1ceed 1n thf1 court. The appeal based on the defence of provocation fails. The appeal against c:onv1ction therefore fails. Tbs learned trial Judge accepted that the fafled provocation was an extenuating circumstance. We agree w1th h1m, However, on the facts of this case, a sentence of 25 years imprisonment with hard labour . does not coma to us w1th a sense of shock and not wrong 1n pr1nc1~1•. The appeal against sentence ts al~o d1~1ssed. ·············•~•·········~ E. L. Sakala, SUPREME COURT JUDG~ • •••••••••••••••••••••••••• M. S. Chaila, SUPREME COURT JUDGE. ················~········· ~RT JUDGE.