Mwamba and 4 ors v The People (SCZ Appeal No. 40 of 1990) [1991] ZMSC 68 (9 January 1991)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 40 of 1990 HOLDEN AT LUSAKA f DYSON MWAMBA & FOUR OTHERS VS THE PEOPLE CORAM: Ngulube, D. C. J., Chaila and Chlrwa JJ. S. Mr. G. S. Phiri, Director of Public Prosecutions for the State Appellant in person 9th January, 19^|. JUDGMENT Chlrwa, J. S. delivered the Judgment of the court. The appellant Dyson 'Mwamba was originally charged with six others on a charge of murder contrary to section 200 of the Penal Code. After the trial one of the accused persons in the lower court was found with no case to answer and was acquitted. The appellant Dyson Mwamba with the other five were found guilty on a lesser charge of manslaughter and the appellant with four others was sentenced to 4 years imprisonment with hard labour and one.of the appellants was sentenced to 3 years imprisonment with hard labour. The other convicted persons are not here to-day, although a message was sent to them about the appeal coming up to-day and their appeals have already been struck out with liberty to restore. Our judgment therefore is in respect of Dyson Mwamba who has appeared before us. Briefly the facts as found by the court below are that the appellant with his friends whose appeals have been struck out are game scouts based at Mplka. That sometime in July 1987 they got some information that one Joseph Mungulube had some Ivory. The said Mungulube was apprehended /2.. .and taken and taken to the appellant's offices at Mpika. It was A - further found that whilst Mungulube was at their offices, the appellant and his friends assaulted the said Mungulube. The aim of the assault was to get information as to the whereabouts of the ivory. After assaulting the said Mungulube, the appellants and the said Mungulube went to the home of the deceased Samson Bunongo Chungu. At the said; village they searched the house of the deceased. They also I dug at the rubbish pit all in search for ivory. Nothing was found. The deceased together with Mungulube were brought back to the appellant'-s offices. Mungulube was also assualted by the appellant and his friends and Mungulube was kept at the offices for five days. During the assault Mungulube got so sick that he had to be taken to the hospital by the appellant and his friends. As already said the deceased was kept for five days was released in a sick condition. On return to his village the deceased's wife observed that the deceased's leg was swollen and generally he was in very weak condition. She started looking for transport to take the deceased to the hospital and she managed to get transport on 28th day of July< 1987 but unfortunately the deceased died on the way to the hospital. According to the postmortem conducted on the deceased, the doctor found the cause of death as septic# shock. According to the doctor's evidence the shock is a complete disturbance of body function; and that septic is the presence of bacteria in the blood stream. The doctor also observed the swollen leg and other abscesses on the body. After the deceased's death, the case was reported to the police. The appellant and his friends were arrested and charged with the offence of murder as already said. ' ' • • '■ ? ’ ■ ■ ■. ■ ■ Upon the close of the prosecution's case and the court having found the appellant and his friends with a case to answer on manslaughter and after their rights were explained to them, the appellant elected to remain silent. . On the evidence before the lower court and on record, /3...there is............ - J3 - there is no doubt that PW1 Mungulube knew the appellant and his friends and the assaults on the deceased and Mungulube were of a long period. The question of Mungulube being biased was properly considered by the lower court and we cannot fault the lower court in finding that Mungulube was not biased at all. The evidence of Mungulube clearly shows that the appellant did take part in assaulting the deceased. In particular the appellant kicked the deceased in the chest and also planks were used in assaulting the deceased. From the evidence on record we see no merit in this appeal against the conviction of manslaughter. The appeal against conviction Is dismissed. The appellant was sentenced to 4 years Imprisonment with hard labour. The appellant must regard himself as being very lucky to have got only 4 years Imprisonment with hard labour. In enforcing the Jaw, the law does not condone violence. The method used by the appellant and his friends to extract information from the deceased and Mungulube were most unorthodox. We see no merit in his appeal against sentence. The appeal against sentence is also dismissed. M. S. Ngulube DEPUTY CHIEF JUSTICE M. S. Chaila SUPREME COURT JUDGE O. K. Chlrwa SUPREME COURT JUDGE