Mwaba v People (Appeal 180 of 2010) [2011] ZMSC 35 (12 July 2011)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 180/2010 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: DONALD MWABA APPELLANT AND THE PEOPLE RESPONDENT Coram: Chirwa Ag/DCJ; Wanki and Muyovwe J. J. S On the 3rd May, 2011 and 12th July, 2011 For the Appellant: Mr. S. K. Mumba, Senior Legal Aid Counsel For the Respondent: Ms. M. Mwalusi, Senior State Advocate JUDGMENT MUYOVWE, JS, delivered the Judgment of the Court Cases referred to: 1. David Zulu vs. The People (1977) Z. R. 151 2. The People vs. Anthony Kenneth Gondwe and Moses Banda HN/39/2005 3. Rex vs. Fundakubi & Others (1948) 3 S. A. 810 4. Jack Chanda and Kennedy Chanda (2002) Z. R. 124 5. Mvula vs. The People (1990-1992) Z. R. 54 JI The Appellant was charged in the 1st count with the offence of murder contrary to Section 200 of the Penal Code. The particulars were that on 7th July 2007 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia jointly and whilst acting together with other unknown persons he murdered Omar Muhammed Abdullah. In the 2nd Count, he was charged with the offence of aggravated robbery contrary to Section 294 of the Penal Code. The particulars were that on 7th July 2007 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia jointly and whilst acting together with other unknown persons, he did steal 1 motor vehicle namely Toyota Corolla Registration Number ABE 4969, a Black trunk containing electrical components, a 21” Phillips TV, a Pistol browing 9mm and 2 Magazines with 12 rounds of ammunition, the property of Omar Muhammed Abdulah and at or immediately before or immediately after the time of stealing used or threatened to use violence to the said Omar Muhammed Abdulah in order to retain or overcome resistance to its being stolen. Although the Appellant was charged with two counts as stated J2 above, he was convicted only of 1st count of murder by the Lusaka High Court and was sentenced to death. The facts presented by the prosecution are that on 7th July 2007, PW1 Constable Edgar Mukuka Mumbi of Mtendere Police Post, Lusaka received a report from PW5 the brother-in-law to the Appellant that he (the Appellant) had left some goods at his home which he suspected to have been stolen. Together with other officers, PW1 in the company of PW5 proceeded to PW5’s house where they found the Appellant’s wife who led them to where the Appellant was. The Appellant agreed that he had some stolen items and after some interviews, he led the police to Kalingalinga where a trunk with electrical items and a TV were recovered. Later, the Appellant revealed that he got the items from his employer who had not paid him for sometime. He said his employer was in Siavonga. The Appellant was detained in police custody. According to PW1 in the morning of 8th July, 2007 the Appellant appeared jittery and as police officers they suspected that something bad had happened. PW5 and the Appellant’s wife went to the deceased’s residence but found no one. The Appellant revealed that he had parked a Toyota Corolla Registration Number ABE 4969 near Mtendere Police at a J3 car wash. PW1 then informed Woodlands police who took over the case and when PW1 and other police officers passed through the deceased’s house they again found no one, only dogs barking. PW2 Detective Sergeant Mwila testified that he joined in the investigations in this case when the Appellant was being investigated for being found with property believed to have been stolen. The Appellant revealed to the police some of the deceased’s friends who included PW3 and PW4. Later, in the company of the deceased’s friends they all went to the deceased’s house and they managed to enter the house after the Appellant secured the dogs and opened the house through the kitchen door. On entering the house, they found everything in disarray and there was nobody in the house and there was blood in the prayer room and blood on the wall leading to the front door. The Appellant could not give information on the whereabouts of his employer. According to PW2 the body of the deceased was found in one of the manholes outside the house. This was after the Appellant was asked where his boss was and he pointed to one of the manholes outside the house. The body was removed from the manhole by the Fire Brigade and it had J4 multiple cuts on the head. A blood stained pick, a hoe and clothes were also fished out of the manhole. PW3 identified the clothes that the Appellant was wearing as belonging to the deceased and he confirmed that the Appellant was the deceased’s servant who lived in the servant’s quarters. PW4 identified the body of the deceased to the doctor before postmortem examination. He also identified the deceased’s vehicle a Toyota Corolla Registration Number ABE 4969, a pistol, a 21” Philips TV, and a black trunk containing a solar system gadget. PW5 was Hemy Chanda the brother-in-law to the Appellant who told the Court that he found his sister with her four children at his home. The Appellant arrived in the deceased’s vehicle in which he carried a TV and a trunk. He questioned his sister as to why she had come to his home at night and her explanation was that the Appellant’s boss had chased them. The Appellant wanted to off-load the goods but PW5 refused and instead they were taken to his elder brother’s storeroom. On the advice of his elder brother, he reported the matter to the police as the Appellant had never owned such properties before. J5 PW6 was the arresting officer, while PW7 attended the postmortem examination. According to PW7 the postmortem examination was external as per Muslim tradition. PW8’s evidence was substantially the same as that of his fellow police officers PW1, PW2 and PW6. At the close of the prosecution case, the learned trial Judge put the Appellant on his defence and he elected to give an unsworn statement. In his defence, the Appellant stated that the deceased had been gambling with his friends and after they left, the deceased said he was going to pick someone and asked him to prepare some food. After he returned, the Appellant heard a car hooting at the gate and together with the deceased, they went to open the small gate and four people came in armed with a pistol and demanded that the Appellant tells them where his boss kept the money or they were going to kill him. He was taken into the bedroom with his boss as the assailants started searching. Two of the men took the deceased to the prayer room with a trunk which had electrical components. J6 Later, they went outside and a motor vehicle came and took them away. The Appellant said he went and stayed in the flowers for 20 minutes and later he told his wife what had happened and then PW5 was contacted. As PW5 had already knocked off from work, he followed him to his home. PW5 advised him to report to the police but the Appellant feared as gambling was illegal. His wife went to her brother’s place with two bags and beddings and he was later apprehended by the police. After analyzing the evidence, the learned trial Judge found as a fact that the Appellant was employed as a servant by the deceased and that he lived in the servant’s quarters with his family; that there was no direct evidence pointing to who had murdered the deceased and put his body in the manhole. He noted that there was evidence from PW2 and PW7 that during the search for the deceased, the Appellant pointed to the manhole where the deceased’s body was found; that the Appellant had in his possession the keys to the gate and the kitchen from where they gained entrance into the main house. The learned trial Judge found it an odd coincidence that the Appellant and his family vacated the servant’s quarters in unexplained circumstances. He J7 found as a fact that the Appellant drove the deceased’s vehicle to his brother-in-law’s home where he offloaded a trunk and a TV all of which belonged to the deceased. He found as a fact that the Appellant stole these items from the deceased. The learned trial Judge found that these facts amounted to circumstantial evidence which in line with the principle laid down in David Zulu vs. The People1 had attained a degree of cogency such that the only reasonable inference was that the Appellant is the one who committed the offence. The learned Judge concluded that the Appellant killed his boss, stole the items and put his body in the manhole and that had there been intruders there would have been evidence of a break-in but this was not the case. Instead the house was locked and the Appellant had the keys. The learned trial Judge rejected the defence raised by the Appellant that his boss was attacked by intruders and convicted him as charged. He sentenced him to the mandatory death sentence. On behalf of the Appellant, Mr. Mumba filed written heads of argument, augmented by brief oral submissions based on the one ground of Appeal which is that the trial Court erred in law and fact in holding that there were no extenuating circumstances. Mr. J8 Mumba started by addressing the issue put to him by this Court, that the lower Court did not enter a verdict for the offence of aggravated robbery. Mr. Mumba submitted that although in its judgment, the lower Court found that the murder occurred after a robbery, the Appellant was not convicted of aggravated robbery which was the 2nd Count he was charged with. Learned Counsel submitted that the evidence against the Appellant is circumstantial and that there is no evidence to establish that the deceased was killed during a robbery. He, therefore, urged the Court to treat the Appellant as guilty only of murder in accordance with the conviction of the lower Court. Turning to the only ground of appeal, Mr. Mumba submitted that in cases of this nature, and as provided under Section 201 of the Penal Code, the trial Court is required to give consideration as to whether there are extenuating circumstances before imposing sentence. He cited the case of The People vs. Anthony Kenneth Gondwe and Moses Banda HN/39/20052 and a South African Court of Appeal case of Rex vs. Fundakubi & Others3. He argued that in the case of Jack Chanda and Kennedy Chanda vs. The People4 this Court accepted that a failed defence J9 of provocation amounts to an extenuating circumstance. Mr. Mumba referred us to the evidence of PW1 who stated that the Appellant took his employer’s (the deceased) goods because he had not been paid for some time. He submitted that the lower court ought to have given consideration to this piece of evidence. He argued that if, indeed, the deceased person treated the Appellant in such a manner this would, if it were a persistent state of affairs amount to “a fact associated with the case” that would reduce morally the blameworthiness of the Appellant so as to be an extenuating circumstance. He, further, contended in the alternative, that the non-payment of the Appellant for his labour should be considered as a failed defence of provocation in line with the holding in Jack Chanda and Kennedy Chanda vs. The People4. Mr. Mumba contended that in the current hard economic times, to deprive a worker of his pay is provocative due to the hardship experienced by the worker and his family. He urged this Court to quash the death sentence and instead impose a sentence which will reflect that there are extenuating circumstances. In her oral submissions, Ms. Mwalusi the learned Senior State Advocate responded that there were no extenuating circumstances j 10 in this case and that the learned Judge was on terra ferma when he sentenced the Appellant to death. She conceded that the learned Judge did not pronounce conviction on the charge of aggravated robbery but that the Court drew an inference from the circumstantial evidence to the effect that the appellant had killed his employer and stole the items. She contended that the lower Court did address its mind to the robbeiy although no pronouncement of conviction was made. She submitted that this Court should invoke its powers under Section 15 (3) of the Supreme Court Act and enter a verdict for aggravated robbery. Further, she contended that the issue of the Appellant not having been paid his dues by the deceased cannot amount to an extenuating circumstance and referred us to Section 201 (2)(a)(b) of the Penal Code. She contended that being owed money is not something that would morally diminish criminal responsibility as this is something that can be resolved through civil law and allowing it to be considered an extenuating circumstance would be stretching the law too far. Citing Mvula vs. The People6 she submitted that the manner in which the offence was committed is an important factor to consider and in this case, where the jii deceased’s body was concealed in a manhole takes away any extenuating circumstance. It was contended by Ms. Mwalusi that there was no evidence of the availability of the defence of provocation on record and, therefore, a failed defence of provocation cannot arise and that the authority cited by the defence is not applicable. She urged us to dismiss the Appeal and uphold the sentence of the Court below. We have considered the evidence on record, the judgment of the trial Court and the submissions of both learned Counsel. From the outset, we want to state that we have noted from the record of appeal that although the Appellant was charged with two offences namely murder and aggravated robbery, the Court below in its judgment only addressed its mind to the offence of murder. It is also clear from the record of appeal that the charge of aggravated robbery was never withdrawn by the prosecution. The learned trial Judge did not pass a verdict in respect of the charge of aggravated robbery. This was a serious omission. Ms. Mwalusi invited us to invoke Section 15 (3) of the Supreme Court Act and enter a verdict in respect of the offence of aggravated robbery. For obvious reasons, we are not competent to enter a verdict of aggravated robbery and J12 as Mr. Mumba submitted, this was not the intention of Section 15 of the Supreme Court Act. In this regard, the lower Court having omitted to enter a verdict on the offence of aggravated robbery, we agree with Mr. Mumba that the Appellant in this case is guilty only of the offence of murder. Turning to the question of whether there were extenuating circumstances in this case which the lower Court should have taken into account, the gist of Mr. Mumba’s argument is that the lower Court should have considered the fact that the Appellant had not been paid his dues for a long time and that this amounted to provocation in view of the economic situation prevailing in our country. Section 201(2)(a)(b) of the Penal Code provides that: For the purpose of this Section - (b) (a) An extenuating circumstance is any fact associated with the offence which would diminish morally the degree of the convicted person’s guilt; In deciding whether or not there are extenuating circumstances, the court shall consider the standard of behavior of an ordinary person of a class of the community to which the convicted person belongs. J13 In the case of Jack Chanda and Kennedy Chanda vs. The People4 , cited by Mr. Mumba, we said: “....... failed defence of provocation, evidence of witchcraft accusation and evidence of drinking can amount to extenuating circumstance s. ” In our view, the starting point is, therefore, that for a failed defence of provocation to be considered as an extenuating circumstance, the defence of provocation must be available to the Appellant. We must agree with Ms. Mwalusi that, in this case, there was no evidence of any provocation. In our view, and again, we agree with Ms. Mwalusi on this point that, if the Appellant had not been paid his dues for a long time, he certainly could have explored other avenues to settle the matter other than killing his employer. By asking us to accept that there was a failed defence of provocation in this case, it seems to us that, Mr. Mumba is asking us to broaden the definition of the defence of provocation. If we were to accept Mr. Mumba’s submission, we would be sending a wrong message to society that a domestic servant/worker has a right to take the life of his employer, if he does not pay him his dues on time. We take the firm view, that the case of Jack Chanda and J14 Kennedy Chanda vs. The People4 is not applicable to this case. In the case of Mvula vs. The People6 in considering extenuating circumstances, we took into account the violent conduct of the Appellant in executing the offences and we cannot ignore this important factor in this case as well. In the lower Court, the defence raised by the Appellant was that the deceased was attacked by intruders and this was rightly rejected by the learned trial Judge and the learned Judge rightly concluded that the Appellant killed his deceased employer, stole some of his goods which he loaded in the deceased’s vehicle which he drove at night to his brother-in-law’s house together with his family. The deceased’s body was found in a manhole within the deceased’s premises. As we have already stated herein, we do not see how the killing of his employer could diminish the degree of his guilt. Certainly, considering the standard of behavior of an ordinaiy person of a class of the community to which the Appellant belongs, we are satisfied that the learned trial Judge was on firm ground in finding that there were no extenuating circumstances present in this case. J15 We, therefore, find no merit in this Appeal against sentence. We confirm the mandatory death sentence given by the Court below and dismiss the Appeal accordingly. D. K. CHIRWA ACTING DEPUTY CHIEF JUSTICE M. E. WANKI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE J16