Ernest Yoombwe v The People (Appeal 10 of 2017) [2019] ZMSC 367 (5 June 2019)

SELECTED JUDGMENT NO. 15 OF 2019 P.467 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 10/2017 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: ERNEST YOOMBWE APPELLANT AND THE PEOPLE RESPONDENT CORAM: Phiri, Muyovwe and Chinyama, JJS., on the 1 1th July, 2017 and on the 5th June, 2019. For the Appellant: Mr K. Muzenga, Deputy Director - Legal Aid Board. For the Respondent: Mr C. K. Sakala, State Advocate - National Prosecutions Authority JUDGMENT Chinyama, JS., delivered the judgment of the court. Cases referred to: 1. Minister of Home Affairs, Attorney General v Lee Habasonda (suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes) (2007) Z. R. 207. 2. Muyunda Muziba and Another v The People, SJ No. 29 of 2012. 3. Muvuma Kambanja Situna v The People, (1982) Z. R. 115. 4. Wina and Wina v The People (1996) S. J. 5. Edward Sinyama v the People (1993) S. J. 15 JI P.468 Statutes referred to: 1. Penal Code, Chapter 87, Laws of Zambia. 2. Criminal Procedure Code, Chapter 88, Laws of Zambia. The appellant was convicted on one count of murder contrary to section 200 of the Penal Code by the High Court at Livingstone. He was sentenced to death. The appeal is against both the conviction and sentence. The evidence adduced in the High Court disclosed that one night towards the end of January, 2011 the deceased was physically assaulted using a stick and fists by two people at a drinking place called Pett’s Tarven at Shamukunchi village in Namwala around 20:00 hours. PW1 who witnessed the assault, among other people, intervened and rescued the deceased. The incident took about 15 minutes. Afterwards, the deceased, who walked on his own, was escorted towards his home in the company of other people who included PW1 and they parted. This was between 22:00 hours and 23:00 hours according to PW1. The same night around 23:00 hours, PW3 who was related to both the appellant and the deceased heard the deceased making noise “insulting someone who had assaulted him”. The witness, who was in his house, heard the deceased say “Lime, wakeup you J2 P.469 who sleeps with your mother. You had struck my ox with an axe. Wake up we fight.” Lime was the appellant’s nickname. PW3 then heard what he described as the striking of a stick on someone. The deceased then cried out, “Uncle, wake up the accused is killing me”. The witness went outside with a torch and saw the appellant beating the deceased, who lay on one side on the ground, with a stick on the head and on the sides of the body for about two minutes and the whole incident lasted about seven minutes. The stick was 5 to 6 cm thick and about one and a half meters long. The appellant then ran away. PW3 checked the deceased and saw swellings on the legs and the back which he massaged with warm water at the deceased’s house. The next day the deceased was unwell and he was taken to a clinic. He died later in the night. PW3 stated that the problem between the deceased and the appellant started when the deceased’s cow had strayed into the appellant’s crops and the appellant struck it with an axe. A post-mortem examination of the deceased’s body established that he had died from “severe head injury secondary to assault”. The summary of significant findings in the report J3 P.470 recorded “evidence of bleeding from both nostrils and mouth. Abnormal neck movements on both sides and depressive fracture (closed) on the left side of the frontal aspect of the skull”. The appellant was apprehended and charged with the murder of the deceased which he denied. In his defence, the appellant denied fighting the deceased at any time at all. He explained that he had been out-all day herding cattle and only returned home around 18:00 hours after which he cooked for his two children before retiring to bed. He was awakened early the following day by some people who included PW3. He was accused of having killed the deceased. He was apprehended and taken to Namwala Police Station. He confirmed that both PW3 and the deceased were his relatives. He stated, however, that he had [previously] differed with PW3 over land and that they were not on good terms. He denied that the deceased’s cattle had trespassed into his field or that he struck any of the deceased’s animals. The learned trial judge summarised the evidence given on behalf of the parties as well as the submissions on behalf of the J4 P.471 respondent in a five paged judgment. The fifth page merely contained the date on which the judgment was delivered and the name and signature of the judge. There were no submissions on behalf of the appellant. The judge then went on to say- “Having considered the evidence of both the prosecution and the defence, I have come to the conclusion that the evidence of the prosecution witnesses was credible and the elements of the murder charge were apparent. Section 200 of the Penal Code reads: “Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” - • Section 204 of the Penal Code outlines malice aforethought as: “204. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: (a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not;” I find from the evidence that the assault occasioned on the deceased by the accused, which PW3 has testified to, was an intention to cause grievous harm to the deceased and hence malice aforethought was established. I find that the accused did murder the deceased and convict him accordingly.” The appellant put up one ground of appeal in which the grievance was that the learned trial judge misdirected herself in law when she delivered a judgment which fell short of the stand ard set out in section 169(1) of the Criminal Procedure Code, Cap 88 J5 P.472 thereby depriving the appellant of an opportunity to properly appeal against it. In his written and oral submissions supporting the ground of appeal, the learned Deputy Director of the Legal Aid Board, Mr Muzenga, criticized the manner in which the judgment of the lower court was written. Mr Muzenga submitted that the trial judge did not state exactly what she relied on to reach the conclusion that the evidence of the prosecution witnesses was credible and that the elements of a murder charge were present. Learned counsel also submitted that the trial judge did not reason or analyse the evidence and make findings in the light of [the] circumstances and evidence before her. He pointed out that the evidence revealed two separate or unconnected assaults on the deceased, each one of which was capable of causing death. The learned Deputy Director lamented that the trial court never addressed itself to this issue and also ignored the evidence of the appellant. Relying on Section 169(1) of the Criminal Procedure Code and the cases of Minister of Home Affairs, Attorney General v Lee Habasonda (suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of J6 P.473 Disputes)1; Muyunda Muziba and Another v The People2; and Muvuma Kambanja Situna v The People3, Mr Muzenga submitted that what the trial court delivered was no judgment at all, that it is veiy defective as it does not meet the criteria and standard [of a judgment] set by law. Mr Muzenga submitted that ordinarily the case should have been sent back for retrial but noted that the offence occurred in January, 2011 which is over six years ago and the appellant has been in custody ever since; that it would take long to locate the witnesses and that if eventually the appellant is found not guilty, the long period of incarceration would not be atoned for; further, that the evidence on record is “shaky”. It was submitted that the appellant be acquitted in the interest of justice, on the basis of the case of Muyunda Muziba ante in which we quoted the case of Wina and Wina v The People4 where we said­ a re-trial could be ordered if the first trial was flawed on a technical defect or if there were good reasons for subjecting the accused to a second trial in the interest of justice; where, as here, the prosecution had adduced all the evidence it had, there would be no point to order a re-trial. J7 P.474 Learned counsel submitted that a re-trial in the circumstances of this case is inappropriate. Mr Muzenga’s prayer was that we uphold the appeal, quash the conviction, set aside the sentence of death and set the appellant at liberty. Learned counsel argued in the alternative that the lapses in the judgment notwithstanding, and should we exercise our jurisdiction under section 15 of the Supreme Court of Zambia Act Cap 25, we should take into account the “highly” provocative conduct of the deceased which should reduce the conviction for the offence of murder to that of manslaughter. In spite of the undertaking made by the learned state advocate, Mr Sakala, to file written submissions on behalf of the respondent by the 21st July, 2017 none were filed. Suffice to state that irrespective of the failure, we shall consider the appeal holistically. We have thus considered the sole ground of appeal, the arguments presented on behalf of the appellant as well as the evidence placed before the lower court and the judgment thereof. The issue that arises from this appeal is whether the judgment J8 P.475 delivered by the court below is defective and the case should be sent back to the lower court for re-trial; or alternatively, whether this is a case in which we can and should exercise our jurisdiction under section 15 of the Supreme Court of Zambia Act to determine the guilt or innocence of the appellant on the merits of the evidence adduced in the lower court. With respect to the issue whether the judgment is defective, we have perused the record of appeal and are satisfied that there was no flaw in the proceedings in the court below in so far as the trial was concerned. It is apparent from the record that both parties had sufficient opportunity to state their case. This is shown even in the judgment of the trial court in which the evidence of the witnesses was reviewed. Mr Muzenga’s grievance on behalf of the appellant is, as it were, not with the conduct of the proceedings. It is with the stated inadequacies in the judgment. A perusal of the judgment shows that a substantial portion of it was dedicated to reviewing the prosecution and defence evidence leaving only less than a full page of content to deal with what was supposed to have passed as the reasons for the decision and the decision itself which J9 P.476 we have quoted in full above. Clearly, there were no reasons given for the conclusion that “the evidence of the prosecution witnesses was credible and that the elements of a murder were apparent” and the eventual finding that the appellant did murder the deceased. The judgment did not reveal the reasoning of the court why it preferred the evidence of the witnesses for the prosecution. Section 169(1) of the Criminal Procedure Code is clear. It states- 169. (1) The judgment in every trial in any court shall, except as otherwise expressly provided by this Code, be prepared by the presiding officer of the court and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it. (Underlining supplied) This section applies to all criminal case judgments. Therefore, a trial judge or magistrate is required to prepare a judgment at the conclusion of every trial in which the point(s) to be determined should be stated, tn order to identify the point(s) to be determined it is imperative that the judge or magistrate takes into account the evidence adduced by the parties. The judgment should then disclose the decision on the point(s) and the reason(s) for the decision. Given the peremptory language of the statute, the requirement must be complied with even in the most obvious case. J10 P.477 In the case of Minister of Home Affairs, Attorney General v Lee Habasonda (suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes1 cited by Mr Muzenga, we stated the principle that- (4) Every judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of the court on the facts and the application of the law and authorities if any, to the facts. A consideration of the evidence which is one-sided as where only the prosecution’s story is taken into account is a misdirection. Indeed, as we said in the case of Muvuma Kambanja Situna v The People 3- (iv) The judgment of the trial court must show on its face that adequate consideration has been given to all relevant material that has been placed before it, otherwise an acquittal may result where it is not merited. The judgment in this case contains a review of the evidence and what appears to be findings of fact. It is not explained how the court arrived at those facts- whether the facts were common cause; or arrived at after a process of analysing the merits and demerits of the contending evidence. More importantly, it is not clear why the learned trial judge preferred the evidence of the prosecution Jll P.478 witnesses over that of the appellant. In the foregoing regard the judgment is defective. This then brings us to the issue whether the case should be sent back to the court below for retrial or whether we should exercise our jurisdiction in terms of section 15 of the Supreme Court of Zambia Act Cap 25 and determine the matter on the merits. Earlier, we had noted that there was no flaw in the trial proceedings. What is flawed as shown by the discussion above is the judgment. The question in terms of the proviso to section 15 of the Supreme Court of Zambia Act Cap 25 is whether, if the lapses in the judgment had not occurred, the trial court would on a proper consideration of the evidence in the case, have still arrived at the same conclusion. To determine this question, we have to look at the evidence available on record. The evidence of the prosecution is that the deceased was initially assaulted by two people, two to three hours before he was assaulted by the appellant. Mr Muzenga’s argument is that either incident was capable of inflicting the fatal blow that caused the death of the deceased, especially the first assault which lasted for J12 P.479 about fifteen minutes during which the deceased was beaten with a stick and fists. We have considered the argument. We note that PW1 who witnessed the first beating of the deceased did not describe the deceased’s condition after rescuing him. From his testimony, however, it appears that the deceased was well enough to walk as the witness and others escorted him to his home. The deceased was even able to insult someone who had assaulted him and to challenge Lime to wake up and fight. The witness described the deceased’s condition the next morning when he visited him. He found the deceased lying on the ground and unable to speak. No one could explain his condition. PW3 who had checked the deceased the previous night after he was assaulted by the appellant and did not see any other injuries besides swellings on the legs and the back and walked with him to his home, also visited the deceased the next day and found him immobile and unable to talk. Apart from confirming that the deceased was beaten twice the same night, we agree that there is no clear evidence which one of two incidents delivered the fatal blow. The evidence has shown that J13 P.480 after each beating the deceased was able to get up and walk on his own. Up to the point at which PW3 left him the deceased was able to walk on his own and the issue of the broken neck which PW3 heard about from the nurse had not arisen. In this vein the exclamation by the deceased telling PW3 to wake up because the accused was killing him does not amount to admissible res gestae because, clearly, the utterance was not made “in conditions of approximate, though not exact, contemporaneity by a person so intensely involved and so in the throes of the event that there is no opportunity for concoction or distortion to the disadvantage of the Defendant or the advantage of the maker” as propounded in the case of Edward Sinyama v The People5. To compound the issue, the post mortem report of the examination of the deceased’s body disclosed, among others, abnormal neck movements on both sides and a depressive fracture (closed) on the frontal aspect of the skull. This confirmed what PW3 heard from the nurse at the time the deceased was delivered to the clinic that his neck was broken. If the deceased’s neck was broken in the fight with the appellant, we doubt that he could have J14 P.481 gotten up and walked to his home after being rescued by PW3. We are also curious that PW3 could not have noticed this condition including the depressive fracture of the skull, which was in front, when he examined the deceased. This situation does not help in affirming the prosecution’s story as to how the fatal blow was inflicted. Ascertaining which beating could have caused the fatal injury was a material fact which the prosecution needed to establish with the utmost clarity. What the evidence suggests to us and which we will accept is that the deceased sustained a broken neck and probably the fractured skull after PW3 had left him at home after examining him and massaging the swellings on his legs and back with hot water. In the circumstances, we entertain a doubt that the beating by the appellant could have inflicted the fatal blow that caused the deceased’s death. In the result, we give the appellant the benefit of that doubt and find that we are unable to support his conviction. We accordingly set aside the conviction and consequentially, the sentence of death. We, however, believe that PW3 saw the appellant beat the deceased in the second incident. PW3, the appellant and the J15 P.482 deceased were related. PW3 gave an account of what he heard and quite clearly he saw the appellant whom he knew' so well. Even though the beating lasted about two minutes and the whole incident took about seven minutes, PW3 was able to ascertain the identity of the appellant firstly, from the nickname ‘Lime’ by which the deceased called him and secondly, when he got out of the house with his torch which he illuminated on the pugilists. We are unable to accept the appellant’s explanation that PW3 falsely implicated him (in the beating, at least) because they had differences between them over land. We note that although the appellant alleged that he had informed his advocate about those differences, the issue was never raised during the cross examination of the witness. On this basis, we are inclined to find that the alleged differences were a mere afterthought and we accept the evidence of PW3 as being truthful. On the basis of this evidence, we find the deceased guilty of the offence of common assault contrary to section 247 of the Penal Code in terms of section 15(3) of the Supreme Court of Zambia Act and section 181(1) of the Criminal Procedure Code. The maximum sentence which can be meted for that offence and which the trial court could J16 P.483 have imposed is one year. We accordingly impose that sentence. The appellant having been incarcerated since 11th February, 2011 when he was arrested without warrant, however, it means that he has effectively served the sentence. He is, therefore, set at liberty. To the extent of the decision taken above the appeal is successful. SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE SUPREME COURT JUDGE J17