Mubamba v People (Appeal 46 of 1985) [1987] ZMSC 54 (2 September 1987)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. U6 OF 1985 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: DAVID SIYONGO MUBAMBA Appellant vs THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Gardner and Sakais JJ. S 2nd September 1987 Far the Appellant : Mr. C. P. Sakala Ag. Director of Legal Aid For the Respondent : Mr. G. R. Kayukua, State Advocate JUDGMENT Sakala, J. S., delivered the judgment of the court. Cases referred tex (1) Munkala va The People (1966) ZR 12 (2) Nkumbula vs Regina (1961) R&N 589 (3) Patrick Sakala va The People (1980) ZR 205 The appellant use convicted of murder, the particulars of the offence being that on Sth October, 1983 at Lueti river in the Malabo District he murdered Saini Kangondo Mumbamba. The eye wltneee to tha incident waa PW1, the deceased's wife. The appellant was tha brother to the deceased. Tha prosecution introduced in evidence a warn and caution statement recorded from the appellant after the defence counsel Informed the court that the statement was recorded freely and voluntarily and that he use not objecting to its production. The evidence of PW1 uias that sometime in the month of October, 19B3 she was going to her father's village with □ 2 her hueband, and that when they reached at a certain stream her husband eat down to remove hia shoes; she was behind him when she saw □ spear flying on top of her husband. According to her evidence the spear came from the reeds from where the appellant shortly emerged. PW1 also testified that when the appellant came out from the reeds he picked up the spear belonging to the deceased and atabbed the deceased with it. According to this witness she ran away and reported the matter to her father. PW2 the father of PW1 testified that he went to the acene when he received the report. He did not find the deceased but found a lot of blood at the scene. He followed the trail of the blood but did not find the body of the deceased. Thia la the wit­ ness who identified the body of the deceased to the doctor at Malabo Hospital Mortuary for the purpose of a postmortem examination. PW3 testified to the differences that existed between the appellant and the deceased. PWU taatifiad that he went to the scene the following day on receipt of the report and found the body of the deceased in the watar. According to this witness he noticed two wounds between the shoulders, two wounds on the neck and one wound in the ribs and one on the left wrist. The body was conveyed to Malabo Hospital mortuary. The prosecution called seven witnesses in all. Phis 6 and 7 were polios officers who were led by ths appellant to the sdene from where they recovered '.a pair of shoes, a spear and an umbrella. The appellant also led' the police where he had hidden the body of the deceased. According to PW6 the appellant had an injury on his hand which he explained by saying that he had sustained the same when struggling with the deceased. - 33 Ths appellant gave evidence In hie defense. He testified that in the month of August, 1983 FW3 had told him that her father had planned to visit his In-laws to hire a witch doctor to kill him. The appellant testified that later he decided to go to PW2's village to find out why the deceased was planning to kill him. According to his evidence, on the way he decided to teke a hath at Hands river. He then saw the de eased behind him who acids *You will see today if you are thinking of going to Malabo to take the madioines, you will not get thsra”. According to the appellant the deceased, who was with hie wife, took out the spear and threw it at him but missed. The deceased took out a knife and held him by the right leg and out him with It. He tried to take the knife away from the deceased but because he held it by tho blade his two fingers were cut. The appellant further testified that he got the deceased's spear and stabbed him with it anae. Obit a witness called on behalf of the appellant testified to having witnessed a fight sometime in October, 1982 between the appellant and the deceased, and DU 3 confirmed of seeing a stranger at the appellant*o house who hod said that he hod some from the deeaeasd'e home. After a very careful review of the evidence the trial judge found that it was not In dispute that the deceased and the appellant were not on friendly terms as they always quarrelled. The trial Judge found os a fact that despite the absence of medical evidence as to the eause of death the deceased was dead. The trial judge was satisfied on the evidence of PWa 1, 2, 5, 6 end 7 that death was due to stab wounds. On the basis of ths confession statement the trial Judge held that it was not in dispute that the appellant killed the deceased by stabbing him with a fishing spear. The court found that what was in dispute was what lad the appellant to stab the deceased* The trial judge noted that the Issue of who started the fight rested on tha question of credibility between the evidence of PWTt the deceased*a wife, and that of the appellant. The trial judge observed that despite the poaelble bias of PUT sho wee a witness of truth. Me accepted her evidence that it was the appellant who first threw the spear at the deceased. The trial judge considered tha defence of self-defence end provoeetion on the beale af the confession statement. Ho found that the appellant started the fight and that on the evidence bafore him tha question □fprovocation did not arise. Ha accepted that the deceased had on more than one occasion hired a witch doctor to kill the appellant and that the deceased and his wife were on the material day going ta PW2’a village to hire a witch doctor to bo-wit ch the appellant. The trial judge accepted the prosecution evidence end rejected the evidence of the appsllant. The trial Judge also considered the question of the appellant having killed the deceased for feer of future bewitchment. In this connection he considered a number of authorities. He took judicial notice that Malabo district has the highest number af eases involving witheraft Me accepted that the eppellent*e belief in witchcraft was reasonable but still rejected ths defence of self-defence. On behalf of the appellant the leerned Director of Legal Aid has argued two additional grounds of oppeel before us. The first ground was that the learned trial judge misdirected himself In dismissing the appellants defence of provocation and aelf-defanos. The eooend ground □5 was that the learned trial judge misdirected himself In canulating the appellant for murder in the absence of medical evidence which the prosecution obtained and did net produce It. Mr. Bekele's arguments en the first ground started with an address on ths theory of witchorsft. Ue do not consider it nseesssry to go into the definition af what is witchcraft. The argument advanced an the first ground wee that belief in witchcraft as found by the triel judge in this case was reasonable. Xt was submitted that aven in the modern times belisf in wltchorsft must still be considered reesonsble. Mr. Saksls argued that on the foots of the ease it is quite clear that at all times the deceased wanted to eliminate the appellant. Ne submitted that on the evidence the act af sudden provocation consisted of the undertaking of the trip by the deceased to hire a witah doctor. He submitted that the evidanoa clearly shews that the deceased was always the oggreeeor when the two met and it is likely that at the scene the deaeased was the aggressor as he had been before. The Director contended that it must have been the deceased whs threw the spear first. He submitted that this act of throwing the spear by the deceased suddenly provoked the appellant so as to make him lose control of himself. Xt woe further submitted that the retaliation was proportionate aa the appellant used the earns spear used by the deceased. Ths Isarned director urged the court to find that the appellant was provoked and that what ha did in retaliation was proportionate to the aot of provocation. On oelf»defenca the learned direotor pointed out that the question was ae to whs threw the spoor first. He submitted that the evidence of PHI, ths eye witness to the incident, fell short of ell the events □6 that took place at the scene; while the explanation by the appellant woe consistent end covered the whole period of the incident at the acene. It wee argued that the appellant*s position wee that the deceased threatened him and he had to defend himself. The Director submitted that the appellant's explanation should have been believed as against the explanation of PU1 who ran away at the sight of a spear. The argument on the second ground wee that a postmortem examination having been conducted on the body of the deceased the evidence as to the cause of death was available to the prosecution end should have been produced before tha court. It was contended that failure to produce the medical report was s dsrolection of duty. The director urged ths court to find that the doctor's evidence wee vital end that Ito absence operated unfairly egsinet ths appellant. Mr. Kayukwa, reacting to the submissions of ths director of Legal Aid, submitted that on the question of provocation, the trip undertaken by the deceased cannot be said to be an act af sudden provocation because the appellant knew of the deceased's trip the day before. He contended that the appellant had time to cool off as he did not attack the deceased on the same day. He submitted that the three ingredients ef provocation were not present st the time of ths attack. On salf-defones, eounael submitted that the evidence shows that the appellant is the one who attacked the deceased. This, he submitted, is confirmed by ths evidence of PW1 which was not in dispute. Counsel alas submitted that the appellant having been the aggressor the defense of eelf-dafsnee was not available to him. On the question of tha absence of the post-mortem report counsel submitted that expert medical evidence is necessary only □7 where there ie a dispute aa to the cause of death. In the instant case the appellant in his warn and caution statement gave the cause of death. Couael submitted that medical evidence waa not necessary. He painted out that ths injuries found on the body of the deceased were consistent with what the appellant had told the police. Ue have very carefully analysed the evidence end the trial judge’s judgment. While PW1 could be regarded as a biased witness, we take note that the appellant*a confession statement clearly set out the sequence of the events that took place at the scene. According to hie confession state­ ment which was not objected to, he was the first to leave for PW2*s Village. On arrival at Lueti river he hid himself. When the deceased and his wife arrived he threw a spear at him while the deceased was removing his shoes. The deceased fell down. The deceased produced a knifo and stabbed the appellant on the leg. The appellant get the knife in the process of which the appellant injured himself. On these facts we cannot say the trial judge's findings could be faulted. The argument advanced n behalf of the appellant was that he had a strong and reasonable belief in witchcraft. This may wall have been so end we agree with the trial judge that the belief waa reasonable. This argument was considered in the case of Hunkale vs The People (1) in which the appellant was convicted of the murder of hie elder brother. In that ease csunsel for the appellant argued that the appellant had a strong and honest belief in witchcraft. The court accepted this argument. Counsel also submitted that the belief was reasonable, having regard to the eppellent'e status in life and the community to which he belonged. Dealing with this submission the court had thia to eayt • ua "Thors have been e number of dealelone on thio very paint but, I da not propose to go Into them since it seems to me that the defence of self-defense falls an a more obvious ground. When the appellant struck down the deceased neither the appellant nor any one else was being attacked by the deceased in any way. Uihat the appellant was doing, in effect, was to strike down tha deceased to prevent him from bewitching hie two children or himself in the future* Hla position was in no way different from that of a person who, fearing that some enemy is going to kill him, anticipates that event by shooting his enemy first himself* That action does not measure up to self-defence. We fully agree tilth these observations. Accepting the events at the river as narrated by PHI confirmed by the appellant himself and also accepting that the deceased and hla wife were on their way to PW2’s village to hire a witch dostar, the appellant feared that he would bewitched bewitched and anticipated that event by stabbing the deceased On the facta of thia case we ore satisfied that the question of witchcraft is Irrelevant, and the defence of self-defence is not available to tha appellant and cannot assist him, and nor is the defenae of provocation* Turning to the second ground relating to the absence of expert medical evidence as to the causa of deaths this question has been considered in a number of ossaa some af them which counsel far the appellant has referred toi one of them being the case of Mugmb^^ There la alao a rscent case of Patrick SpUdo vs The Pegpla (3) in which the appellant was convicted of murder* In that ease there was no dispute as to the appellant’s identity nor was ths assault challenged* The crucial issue was whether the appellant cousad the child’s death. On appeal the appellant denied killing tha child and argued that there was □9 no direct evidence connecting him with the offence. The second ground of appeal in that case waa th t the conviction was not competent in the absence of any specifics medical finding as to the cause of the child's death since.death by natural causes had net been ruled out. Dealing with that ground this court had thia to aay from page 207 to 2081 ‘’Coming to the second ground of appeal, ths point that there was no specific medical finding as to ths cause of death was well token. We find it rather Intriguing that the doctor who performed the post-mortem examination on the child's body should, in the circumstances of the case, have been unable to form an opinion as to the cause of death. To exacerbate the situation, the doetor was not present in the country at the time of the trial and eo no light could be shad upon the medical findings. The question that arises la whether thee child could have mat his death by natural causes. The iasue raised in the second ground of appeal seems to hove been adequately covered by the following passage appearing In the trial court's Judgment* •I am bound to assume that natural oau as have not been ruled out unless there are compelling facte to the contrary when it would ba totally unacceptable so to assume. In fact, I find such compelling foots te exist. The child was no doubt alive before the mother lost coneciousness. It was deed when the mother found it at about 16.00 hours when she recovered consciousness. There were bruleee on its neck and subcooipel haematoma. Thera was a belt wound tightly around its neck. Xt would ba madness to talk about natural aeusea in such circumstancea. In the event, aven though the medical evidence as to (the) cause of death is uncertain, X am certain, not of the cause of death in medical language, but of ths type of death ths child met, namely that it was unnatural and certainly not at its own hands. N We are of ths view that the learned oommlseloner properly directed himself in the matter. Dur view la strengthened by the case of R. v Onufrejcryk (9) where it was held that on a charge of murder, the fact Of death is provable by olroumatantial evidence notwithstanding that neither the body nor any trace of the body has been found and that the prisoner has mode no confession of any participation in the crims. And in Nkumbula v R. (6), - a case of □ 10 causing death by dangerous driving-Claydan, F. C. J., delivering the Judgment of ths Federal Supreme Court had this to say at p. 593 marginal Bt “That there was not the expert evidence of a doctor as to the cause of the death af Chitundu is not fatal to the Crown case.* Ue are satisfied that tha circumstantial evidence uas so cogent and compelling that on no rational hypothesis other than murder oan the facta in this case be accounted for. The submission baaed on this ground therefore fails." We ere satisfied that the absence of expert medical evidence ae to the causa of the death of Mumbamba was not fetal to the prosecution ease. The facts found and sooepted by the trial Judge in the instant case ware that the appellant stabbed the deceased first. The witnesses who went to the scene first and found the body of ths daosaeed found him dead and noticed several wounds on the body. The appellant in hla own confession statement admitted stabbing the deceased and hiding his body sfter he died. We are satisfied on these facts that the deceased died so a reault of the injuries which ware inflicted on his body by the appellant. The evidence on record in support of the conviction was in our view overwhelming. The second ground f appeal also fails. Ths appeal against conviction is accordingly dismissed. H. M. S. Ngulube DEPUTY CHIEF JUSTICE 8. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE