Fredrick Mulusa and Ors v People (Appeal 52 of 2017) [2018] ZMSC 415 (11 April 2018)

SCZ SELECTED JUDGMENT No. 14 OF 2018 P.552 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE A (Criminal Jurisdiction) BE TWEEN: FREDRICK MULUSA ROBBY M. CHIBO JOYCE MWANSA ERIC MENDULO SAMSON CHISALA ERICK KALUNGA KENNETH CHISANGA AND THE PEOPLE APPEAL NOS. 52, 53, 54, 55, 56, 57,$8/2017 1st APPELLANT 2nd APPELLANT 3rd APPELLANT 4th APPELLANT 5th APPELLANT 6th APPELLANT 7th APPELLANT RESPONDENT Coram: Mambilima, CJ, Wood and Malila, JJS on 10th April, 2018 and 11th April) 2018 For the Appellant: For the Respondnet: Mr. M. Makinka, Legal Aid Counsel - Legal Aid Board Mrs. R. N. Nkuzwayo, Chief State Advocate - National Prosecutions Authority JUDGMENT MALILA, JS, delivered the Judgment of the Court. Cases referred to: 1. Esther Mwiimbe v. The People (1986) ZR 15. 2. John Mpande v. The People (1977) ZR 440. 3. R v. Brown Leach (1975) 176 East P. C. 245 6. J2 P.553 4. Simutenda v. The People (1975) ZR 294. 5. Kenious Sialuzi v. The People (2006) ZR 81. 6. Lewis Chewe v. The People, SCZ No. 535 of 2013. 7. Mutambo and Five Others v. The People (1965) ZR 19. 8. Winfred Sakala v. The People, (1987) ZR 23. 9. Haonga and Others v. the People (1976) ZR 200. 10. Rv. Duffy (1949) 1 ALL ER 932. 11. Nyambe Mubukwanu Liyumbi v. The People (1978) ZR 25. 12. R v. Amuli (1949 - 1954) 5 NR LR 243. 13. Mupota v. The People (1976) ZR 212. 14. R. v. Chintunkwe (1949 - 1954) 5 NR LR 339. 15. Walker v. R (1969) 53 Or. App. 195. 16. Mokomelo v. The People (1974) ZRL 54. 17. Milambo v. The People (1997) ZR 103. 18. Chibangu v. The People, (1978) ZR 37. 19. Palmer v. R (1971) 55 Or. App. 223. Legislation referred to: 1. Penal Code, chapter 87 of the laws of Zambia Other works referred to: 1. Halsbury’s Laws of England, Vol. 11 4th ed. at page 349 (para. 455). Barnabas Chella (‘the deceased’) owned, (or so he claimed), Farm No. 3416, also known as Chella Farm, near Mfubu Ranch, Kamfinsa area, Kitwe. He had put in a considerable amount of investment in the farm. He cherished the farm a great deal and was prepared to guard his interest in it at all costs. Regrettably, in attempting to protect the farm from intruders and trespassers, he paid a very heavy price - his life. J3 P.554 The events that prompted the proceedings which culminated in the instant appeal unfolded like a terrible tale. The circumstances were tragic and unfortunate. They are archetypical of the intractable problems arising from the growing lawlessness among sections of the landless in society, especially youths and political cadres, who arrogate to themselves, rights over land in which they neither have legal interest, nor licence. Squatting, illegal settling on or unauthorized use of land held on title by other parties, are vices that have acutely become common place in recent times, especially in many urban communities in our country. The deceased’s farm was a subject of such illegal occupation. It was invaded by squatters and manufacturer of charcoal briquettes, locally referred to as charcoal burners. They gave themselves unrestrained liberties over the invaded land. At the time of the incident, some had built huts, at least two were in the process of digging a well, while others had cut trees and were in the process of confecting charcoal briquettes. The deceased must have had enough of it, and so, on the morning of 5th September, 2013, in the company of his brother and some J4 P.555 farm workers, he went round his farm directing the squatters to leave his land. At his orders, he had a number of illegally constructed huts demolished or burnt and some charcoal kilns destroyed. This riled the squatters and the charcoal manufacturers considerably. They hurriedly convened a meeting at the third appellant’s house at which they resolved that the deceased should forthwith be forced to leave the farm. The road leading to the farm was blocked with rocks and logs. One of the deceased’s employees, Fieldes Mukokola, was apprehended and held hostage as the squatters demanded answers from the deceased. A horde of squatters and charcoal burners, estimated by one witness to have been between 40 and 50, then accosted the deceased. They were wielding axes, slashers, machetes, bottles and sticks. It must have been a traumatic and terrifying moment for the deceased. Following an altercation during which the deceased was also physically manhandled, the deceased was struck with a stick by a member of the crowd and then axed on the left side of his head by another. Ironically, at the time of that attack on him, the deceased was carrying his shot gun in a gun bag, slung over J5 P.556 his left shoulder. He fell to the ground and died. An autopsy report later confirmed that he died due to a fracture of the skull bones with brain damage in the left temporal area behind the ear. He also suffered some hemorrhage and bruises on the left shoulder and left shin. Arrests were effected on a number of people that constituted the rowdy crowd which had confronted and attacked the deceased. The appellants were positively identified as having been part of the mob and as having participated in the assault and/or the killing of the deceased. They were charged and tried for murder. Nineteen prosecution witnesses were called to testify in support of the prosecution’s case. In their defence, the seven appellants gave evidence on oath on their own behalf and called no other witnesses. Robby Chibo, named as the second appellant in this appeal, died while the trial was on-going, but not before he had testified. At the conclusion of the trial, the learned High Court judge was of the settled view that the prosecution had proved its case J6 P.557 against the appellants beyond reasonable doubt. In a seventy- two paged judgment delivered some five months after the conclusion of the trial, the learned judge convicted the appellants accordingly and sentenced each one of the now six appellants to death. It is against that judgment that the appellants have now appealed against conviction on three grounds as follows: 1. The court erred in law and fact when it did not take into account the provocation by the deceased when he chased the appellants from their places of residence and destroyed some houses and kilns. 2. The court erred when it failed to appreciate the evidence that the appellants acted in defence of property. 3. The court erred when it convicted the appellants with murder without taking into account the circumstances that led to the deceased’s death which circumstances ought to have led to a conviction for manslaughter, [sic!] It would appear to us from these grounds of appeal that the chief complaint that the appellants have, has nothing to do with the finding of the lower court linking the appellants to the homicide; rather it has to do with the circumstances under which the death of the deceased was caused. Their principal argument as we understand it, is that the circumstance of the deceased’s death amounted not to murder, but to manslaughter. Our view J7 P.558 is that grounds one and three, speak but to one issue, namely that provocation animated the deceased’s death and, therefore, the appropriate conviction should, at any rate, have been for manslaughter. The second ground, in our estimation, raises a somewhat different issue, namely that the actions of the appellants at the material time was in defence of property - and we suppose in defence of property which the appellants considered as their own. The success of a plea of defence of property would result in an acquittal of the appellants. In support of these grounds of appeal, heads of argument were filed on the 29th December, 2017. In those heads of argument, grounds one and two were surprisingly argued together while the third ground was argued separately. In arguing grounds one and two, the learned counsel for the appellants proceeded from the stand point that neither the deceased nor the appellants were title holders to the farm in issue. It was argued, paradoxically so we must add, that because as far as the appellants were concerned, neither the deceased J8 P.559 nor the appellants had title to the farm, the appellants were entitled to occupy it and use it in any way they pleased. Furthermore, that the appellants had, in any event, obtained authority from the area Member of Parliament to remain on the farm. They also argue that the action of the deceased, assisted by his workers, of burning and destroying huts and demolishing kilns of charcoal belonging to the appellants, as well as his demand that they vacated the farm forthwith, were acts of provocation. Counsel submitted that the facts, as contained in the record of appeal, disclose both cumulative and actual provocation which the lower court did not address. The case of Esther Mwiimbe v. The Peopled) was cited to support the argument that there was in this case cumulative and actual provocation as described in that case authority. The learned counsel reasoned as follows in regard to cumulative provocation: it commenced at the time the deceased went to destroy what counsel termed as ‘the life of the alleged squatters.’ This, counsel contended, was accomplished by the deceased’s actions of demolishing and otherwise damaging their houses and kilns and chasing them J9 P.560 from their residence. When the alleged squatters confronted the deceased and challenged him to produce proof of ownership of the farm, the deceased not only failed to show that proof, but turned up armed with a gun. This, according to counsel, crystalised the cumulative provocation into actual provocation which enraged further the already infuriated crowd, leading to the killing of the deceased. Turning to ground three of the appeal, the appellant’s arguments are not dissimilar from those made under grounds one and two. The learned counsel submitted, again, that the destruction of houses and charcoal kilns by the deceased and his workers, as well as the ordering of the appellants and others to decamp from the land they had always regarded to be theirs, brings the conduct of the enraged alleged squatters and the resultant death, within the realm of manslaughter. Counsel relied on the case of John Mpande v. The People*2* in which we explained the circumstances under which a conviction for manslaughter would be warranted even though the accused person was originally charged with murder. J10 P.561 Counsel also submitted that evidence on record shows that the deceased’s workers had fought the appellants and their kind. He referred to the case of r v. Brown Leachw without providing any citation whatsoever for it, to support the submission that where a person dies in a fight involving two people in circumstances which deprive one of them of self-control, the survivor would only be guilty of manslaughter. Given the manner in which this case authority was introduced in counsel’s argument, it is clearly without persuasion to us. Counsel prayed that we set aside the conviction for murder and in its place impose one for manslaughter. The learned counsel for the respondent filed their heads of argument on 22nd January, 2018 wherein they support fully the conviction and sentence. In respect of the first ground of appeal, the respondent’s learned counsel maintained that there was no provocation in the present case as the circumstances do not satisfy the conditions precedent for a successful plea of the defence of provocation. That is the condition as set out in sections 205 and 206 of the P.562 Penal Code, chapter 87 of the laws of Zambia, and as explained in numerous case authorities including Simutenda v. The Peopled. According to counsel for the respondent, for the defence of provocation to be successfully invoked, the accused ought to have admitted committing the offence, but justifying that commission by pleading provocation, which would exonerate the accused and reduce the penal sanction attending to his wrong doing. Counsel submitted that an accused person desiring to benefit from the defence of provocation must prove the defence on a balance of probabilities. In this case, therefore, according to counsel for the respondent, the appellants should have admitted causing the death of the deceased in the first place, and proceeding thereafter, to justifying it by proving the necessary conditions to sustain the defence of provocation. Counsel then proceeded to analyse the evidence of each of the appellants to ascertain whether there was, in the first place, any admission to causing the deceased’s death, and in the second, whether the evidence they gave established a case of provocation in respect of each one of them. In this regard, J12 P.563 counsel considered the evidence tendered by the appellants in the lower court and summarized it as follows: (a) By his evidence as reflected in the record of appeal the first appellant claimed that he was nowhere near where the deceased was axed to death. The closest he came to placing himself on the scene was when he stated in his evidence that on the material day he was returning from a job-hunting endeavor in Baluba when he met a group of people in the bush and on the road near the farm. He did not claim to have lost anything as a result of the deceased’s action or words. (b) The evidence of the second appellant in the lower court showed that no property belonging to him was burnt or in anyway destroyed by the deceased. Though he placed himself on the scene, he did not admit to axing or striking the deceased. Rather he admitted that he merely grabbed the deceased’s gun and ran away with it in order to prevent the deceased from using it to harm anyone in the crowd. We need not repeat that this appellant died before the lower court judgment but after he had testified. J13 (c) In her evidence, the third appellant denied being at P.564 the scene of the crime. She claimed that she merely inquired of the people passing past her house where they were going to. She stated that she got a response to that inquiry, namely, that they were going for a meeting at the deceased’s farm house. (d) The evidence of the fourth appellant was that he repaired to the deceased’s farm some 40 minutes after the invitation to do so by some people in the crowd. At that time he saw people running towards him one of whom had a gun. He was terrified at what he saw and he ran and tried to climb a hill but failed to do so and was subsequently apprehended. (e) The fifth appellant, in his evidence, neither placed himself on the scene nor did he state whether any of his property was damaged or burnt. (f) The sixth appellant admitted that he was at the appellant’s farm but disassociated himself from the altercation. He claimed that he stood some 50 meters away from the scene, smoking tobacco. (g) The sum of the evidence of the seventh appellant was that he only heard something happening at the deceased’s farm and that as he proceeded in the J14 direction of the farm he heard people advancing towards him. P.565 Counsel submitted that as none of the appellants proved that the deceased did or said anything in relation to them which might have caused them to lose self-control and react proportionately against him, the defence of provocation was not available to them. The appellants did not show that their property was destroyed, nor did they explain their relationship with people whose property was destroyed. Failure to do so, according to counsel, proves that none of the appellants fell under any of the classes provided for under section 206(1) of the Penal Code. Counsel for the respondent further submitted that as none of the appellants were provoked in the sense envisioned in sections 205 and 206 of the Penal Code, there was no justification for the violence that they had exhibited towards the deceased. The learned counsel also argued that as the appellants did not, in their evidence, indicate the length of time that had elapsed between the deceased’s alleged acts of provocation and their supposed reaction to it, they had failed to prove the J15 P.566 requirements of the defence of provocation. That is, that they did not have time to cool off following the alleged provocative act. Counsel finally submitted that the appellants also failed to satisfy the proportionality test, namely that the mode of retaliation to the alleged act of provocation was proportionate. He ended his submission on ground one with a fervid prayer that we dismiss it for lacking merit. In regard to ground two of the appeal, the learned counsel for the respondent began by acknowledging that the Penal Code does in section 17 provide for self defence and defence of property. After quoting the section, counsel submitted that this provision allowed the use of force to repel an attack upon a person and/or property only to the extent that the force used is reasonable and necessary. We were referred to a passage in Halsbury’s Laws of England, Vol. 11 (i) 4th ed. at para 455 where it is stated as follows: In determining whether the force used was reasonable the court will take into account all the circumstances of the case, including the nature and degree of force used, the seriousness of the evil to be prevented and the possibility of preventing it by other means .... J16 P.567 The circumstances in which it can be considered reasonable to kill another in the prevention of crime must be of an extreme kind; they could probably arise only in the case of an attack against a person which is likely to cause death or serious bodily injury and where killing the attacker is the only practicable means of preventing the harm. It cannot be reasonable to kill another to prevent a crime which is directed only against property. After setting out the ingredients necessary for one to raise successfully the plea of defence of property, counsel contended that, that particular defence was not, on the facts and the evidence, available to any of the appellants for four reasons, namely: (i) none of the appellant’s property was destroyed or damaged by the deceased as at the time the appellants confronted the deceased, he had already burnt or destroyed the squatters’ huts and kilns. The appellants or any other squatters were furthermore not in any imminent danger from the deceased although he was carrying his gun; (ii) the appellants all denied being part of the group that attacked the deceased and in that sense, it is contradictory to argue that they were defending property which was theirs, or their friends’ or relatives’. Consequently, the appellants, or any of them, could not be said J17 P.568 to have been repelling an attack on themselves, their property or on behalf of others; (iii) the circumstances of the case show that the force used by the appellants to respond to the destruction of the huts and charcoal kilns of the squatters was both excessive and unreasonable. The appellants could have resorted to a pacific and civil way of resolving the conflict; and (iv) a man’s life cannot be equated to the value of property. It is not, according to counsel for the respondent, justified to kill a man in order to save property. The learned counsel concluded his argument on this ground with the submission that the appellants had failed to prove, on a balance of probability, that they axed the deceased in defence of property. We were urged to dismiss this ground of appeal. In regard to ground three of the appeal, it was argued on behalf of the respondent that the present case was unlike the cases of Kenious Sialuzi v. The Peopled and Lewis Chewe v. The Peopled). In the latter case, the appellants were able to prove the existence of the conditions necessary for a successful plea of defence of property, whereas in the present case the appellants failed to meet those preconditions. In any event, the appellants J18 P.569 in both those cases were held to have used excessive force in repelling the attacks and were thus convicted of manslaughter. Counsel further argued that the cases of John Mpande v. The People!2) and Esther Mwiinde v. The People!1), which were relied upon by the appellants, were distinguishable in that the evil in the present case (i.e. the destruction and burning) was not done against the appellants’ property. Furthermore, the appellants denied being part of the assailants. Counsel implored us to dismiss this ground as well. We are grateful to counsel for the parties for their exertions. As we observed early on in this judgment, in the lower court the appellants had distanced themselves from involvement in the deceased’s death. In this appeal they do not dispute that a death occurred, nor do they challenge the lower courts finding linking them to it. As we have pointed out already, the appellants essentially wish to rely on two defences, namely provocation, and defence of property. We must state nonetheless that although the facts reveal that the deceased was struck with a stick by an identifiable J19 P.570 individual, and later struck again by another identifiable individual with an axe in the head, leading to his death, the court found that all the appellants were guilty by reason of their common design. There is seemingly something artificial about attributing both the mens rea and the actus reus for homicide to a group of people when it is obvious that only one or two people carried out the wrongful act that caused the death. The position however, is that all the appellants were sucked into culpability for the deceased’s death by reason of section 22 of the Penal Code. That section provides that: When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. This provision, or materially similar provisions, have been a subject of extensive judicial interpretation. In the case of Mutambo and Five Others v. The People^7), the Court of Appeal, predecessor to this court, put the position very aptly when it held that: J20 P.571 To bring an appellant within that section as being guilty of murder, the following facts must have been proved against him beyond reasonable doubt. (i) That two or more persons, of whom the appellant was one such, formed an intention to prosecute a common purpose in conjunction with the other or others. (ii) That the common purpose was unlawful. (iii) That the parties, or some of them, including the appellant, commenced or joined in the prosecution of the common purpose. (iv) That in the course of prosecuting the common purpose, one or more of the participants murdered a person . . . (v) That the commission of the murder was a probable consequence of the prosecution of the common purpose .... The court also stated in that case that the formation of a common purpose does not have to be by express agreement or otherwise premeditated. In Winfred Sakala v. The People(8), we stated as follows: In our considered view, the section [Section 22] clearly contemplates that liability will attach to an adventurer for the criminal acts of his confederates, which will be considered to be his acts also, if what those confederates have done is a probable J21 P.572 consequence of the prosecution of the unlawful common design. In this regard, liability will attach for any confederate’s criminal act which is within the scope of the common unlawful purpose and this will be so whether the act was originally contemplated or not . . . There is no doubt whatsoever that the appellants, together with others of their kind, felt aggrieved by the deceased’s clear manifestation of a desire to take back portions of a farm from them. According to the evidence on record, prosecution witness No. 16, Sheda Nzima, heard people shouting that ‘today we are going to shock Chella’ and that ‘today Chella should shift or die.’ It seems to us that these statements were representative of the common wish of the people that gathered to confront and assault the deceased. There is, therefore, no question that even though some of the appellants may not have actually assaulted the deceased, they were nonetheless guilty by operation of the doctrine of common purpose. It is in this connection that, in her judgment, the learned trial judge quoted from the case of Haonga and Others v. the People(9) where we stated as follows: If a death results from the kind of act which was part of the common design then if the offence be murder in one then its murder in all. J22 P.573 Having clarified, for good measure, the basis of the lower court’s finding that all the appellants were guilty of the deceased’s death, we now revert to the substance of this appeal. As regards provocation, it is now settled that this is a mitigatory defence premised on a total loss of control as a reaction to another’s conduct, sufficient to turn what would otherwise have been murder into manslaughter. We must dispel the notion that appears to have animated the submissions on behalf of the respondent that the appellants bore the burden of proving that they were provoked. There is no burden on any accused person to prove provocation if he wishes to rely on it as a defence. While the appellants, as accused persons, were obliged to raise sufficient evidence of provocation, the burden of proof remained throughout on the prosecution. It is not for the accused persons [appellants] to establish their innocence but for the prosecution to prove them guilty. Once sufficient pointers to provocation are raised in their defence, it is up to the prosecution to rebut any suggestion that the accused were provoked. It is part of the prosecution’s burden to prove the case against the J23 P.574 accused beyond reasonable doubt. We shall later in this judgment revert to the issue of the burden of proof. As to what constitutes provocative conduct, the case R v. Duffyrt10) sheds some light. In that case, Devlin J defined provocation as: Some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. The Penal code, chapter 87 of the laws of Zambia, defines provocation in section 206(1) as follows: The term provocation means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely when done or offered to any ordinary person or in the presence of an ordinary person to another person who is under his immediate care or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master and servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered. Section 205 provides that: J24 P.575 (1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only. (2) The provisions of this section shall not apply unless the court is satisfied that the act which caused death bears a reasonable relationship to the provocation. Based on the provisions of sections 205 and 206 of the Penal Code, we gave some guidance in the case of Nyambe Mubukwanu Liyumbi v. The Peoplel11) as to what constitutes sudden provocation. There we stated that sudden provocative conduct will only be considered as such where it deprives an ordinary person of the community to which the man killed belongs, of the power of self-control and induces him to assault the person who does the wrongful act or utters the insult. Such provocation ought to be sudden and acted upon in the heat of passion without time to cool off. This was also clarified by Lewey C J, as he then was, in R v. AmulK12). There should equally be actual loss of self-control by the accused, meaning that the accused should be unable to control J25 P.576 his temper and should have attacked the victim without taking time to think through his actions. This was the holding in Mupota v. The People^3) and in R. v. Chintunkwe<14) in both of which the deceased persons taunted the accused over their sexual impotence. Similarly, Blagden CJ sitting in the High Court, had occasion to consider the import of sections 205 and 206 of the Penal Code. He concluded that: (a) The provocation must be some wrongful act or insult of such a nature as to be likely, when done or uttered an ordinary person of the community to which the accused belongs, would deprive him of the power of self-control and would induce him to assault the person by whom the act was done or offered. (b) The assault so induced must be committed before there is time for the accused’s passion aroused by the provocation to cool off and (c) The character and nature of the assault must bear a reasonable relationship to the provocation suffered. As regards the proportionality of the mode of retaliation to the provocation, we find helpful guidance in the dictum of Fenton Arkinfor LJ in Walker v. R,1S| where he said: J26 P.577 It has been the law that the man who completely loses his temper on some trivial provocation and reacts with gross and savage violence which kills his victim can hope for a jury to find a verdict of manslaughter on grounds of provocation. Likewise in the case of Mokomelo v. The People!16) the court observed at p. 254 as follows: It is important not to overlook that the question is not merely whether an accused person was provoked into losing his self­ control, but also whether a reasonable man would have lost self­ control and having done so would have acted as the accused did. Section 205(2), which requires the response of the accused to bear a reasonable relationship to the provocation, was interpreted in numerous Supreme Court decisions. In Milambo v. The People!17) the appellant, a soldier, was found committing adultery. A relative of the woman began to beat him. He swam naked across the Zambezi River. He was followed and brought back for continued beating. A hostile crowd surrounded him and the whole episode terrified him. He went to his army vehicle, collected a gun and opened fire on the crowd killing the deceased. We held that the mode of retaliation in that case was not out of proportion to the provocation offered. J27 P.578 In Chibangu v. The People(18), however, we held that the shooting of the deceased by the appellant bore no reasonable relationship to the provocation offered. There the appellant was trying to open the door to his house when he was taken by surprise by his wife who emerged from the house and pushed him to the ground. She hit him and called two other women who came and joined in the attack. The appellant produced a gun and shot the deceased. In applying the authorities we have discussed, to the present case, the question we ask is whether, on the evidence on record, there was provocation of the appellants or any of them by the deceased. Did the deceased do any wrongful act or issue any insult to the appellants which, if done to an ordinary person in the community in which the deceased lived, would deprive such person of the power of self-control and induce him to assault the deceased? Whether or not the situation here amounted to provocation which the trial judge ought to have considered, depends, in our view, pretty much on two factors. First, whether the evidence as J28 P.579 marshalled by the defence pointed to a situation suggesting provocation. In other words, did the appellants’ defence in the lower court show that it was anchored on provocation in the way it is defined in section 206(1) and elaborated in section 205 of the Penal Code? Put differently, did the appellants show that they caused the death of the deceased and yet their actions were justifiable to the extent allowable under the law as it relates to provocation? Here we well understand the predicament faced by the appellants, and for that matter, many accused persons who seek to invoke the defence of provocation. The first inclination is, as characterized by the reaction of all the appellants in this case, to deny having caused the death of the deceased. This naturally introduces a logical challenge to any subsequent attempt to rely on provocation. A denial, simple and pure, of involvement in a homicide, as the appellants did in this case, is under no circumstances compatible with the defence of provocation justifying the same homicide. It amounts to the accused person approbating and reprobating the homicide. A similar irony reverberates through an appeal against a conviction following a J29 P.580 superb mitigation which includes a statement that the convict is a first offender who would never engage in similar conduct. Second, and perhaps more significantly, do the events leading to the death of the deceased as recorded in the evidence, fit within the interpretation of provocation as explained and defined in sections 205 and 206(1)? Do the facts and the circumstances leading to the killing of the deceased satisfy the facets that constitute a successful plea of provocation namely, the act being one of provocation; loss of self-control; reasonable retaliation, proportional to the provocation and the killing being done in the heat of passion? We propose to deal with the first broad factor in detail in relation to the circumstances of the deceased’s death. The seven appellants were charged with the murder of the deceased. In their defence, each of them gave evidence denying involvement in the death of the deceased. That evidence was properly summarized by the respondent’s learned counsel in his submissions before us. We have captured the substance of that evidence earlier on in this judgment. The short of it is that none J30 P.581 of the seven appellants admitted involvement in the killing of the deceased, and yet they are here pleading that their killing of the deceased person was out of provocation. This alone raises a very profound credibility issue regarding the appellants. They have now turned their position 180° from complete denial that they killed the deceased, to admitting killing him under circumstances of provocation. The plea of provocation in this case is clearly unavailing to the appellants. Moving to the second factor, even assuming that provocation were to be taken to have been properly pleaded by the appellants, all the ingredients necessary for the successful invocation of the defence of provocation do not appear to have been satisfied. The deceased’s action of burning, destroying or otherwise damaging the squatters’ huts and charcoal kilns would, on the face of it, constitute a provocative act. Yet, none of the appellants pleaded that they reacted to such provocation in the spur of the moment and under the heat of passion. Following the destruction of the huts and kilns, the deceased had first gone to J31 P.582 his own house. The appellants and others then mobilized themselves and convened at a meeting at the third appellant’s house before confronting the deceased. There was clearly a lot of time that was allowed to elapse between the provocative act and the retaliation. Applying the authorities we have discussed above, there was clearly sufficient cooling off time and therefore, the reaction of the appellants and others came too late in time. Another significant question to ask is whether the retaliation of the appellants bore a reasonable relationship to the provocation offered by the deceased? Our view is that it did not. Although the deceased was indeed carrying a firearm when he was attacked, no evidence was led to show that he had threatened or prepared to use the firearm upon the rowdy crowd of which the appellants were part. All circumstances considered, the reaction of the appellants was quite clearly disproportionate to any threat to themselves and others which they may have apprehended. The burden, naturally, is on the defence to raise sufficient evidence of provocation. This does not change the burden of proof J32 P.583 which remains at all times with the prosecution to prove both the actus reus and the mens rea of the offence charged and to negative any possible defence of provocation. We can, of course, not leave the issue of the appellant’s timing in raising the defence of provocation. As we have already pointed out, provocation as a defence is being raised in this court on appeal for the first time. To introduce such a defence at appeal stage is clearly insipid. It seems in all probability to be an afterthought. Coming as it does after the judgment, the defence of provocation is anachronistic because the prosecution whose responsibility it is to prove through the evidence submitted at trial, the case against the appellants beyond doubt, cannot now controvert the plea of provocation at this stage. In our considered view, therefore, the defence of provocation would not be available to the appellant on this basis too. We, in this regard, entirely agree with the submissions of the respondent’s counsel. Ground 1 is, therefore, bound to fail, and it is dismissed. J33 P.584 Turning to ground two of the appeal regarding the plea of defence of property, it is settled that an owner of property may protect his property from harm or damage even where there is no physical risk of harm to the owner himself. Therefore, the use of force to protect self or property and the rights in it is acceptable. Section 17 of the Penal Code, chapter 87 of the laws of Zambia provides for both self defence and defence of property as follows: Subject to any other provisions of this Code or any other law for the time being in force, a person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his person or property, or the person or property of any other person, if the means he uses and the degree of force he employs in doing so are no more than is necessary in the circumstances to repel the unlawful attack. Self defence provides justification for the use or application of force in the circumstances set out in section 17 of the Penal Code. Such a plea, when successfully raised, provides a justification for the accused’s conduct thereby rendering his action lawful. Since in those instances the use of force is not an offence, the accused will be acquitted of the offence as the element of actus reus (the unlawful act) will not be present. (See Palmer v. R(1°). J34 P.585 Resort to force in defending self or property can, therefore, only be had if there is serious danger to oneself or property or the owner’s rights in such property. Such danger must involve risk of loss, damage or destruction to sell the asset. The assumption here always is that the person involved is defending himself or his property or the person or property of another from the wrongful conduct of the person killed. As regards property, it must be in danger of unlawful damage or destruction at the time the action is taken. For the defence to be available it must be demonstrated that: (a) the action taken was necessary to prevent danger; (b) the action was a reasonable response; (c) the action was directed against the attacker; (d) the attack was unlawful. We hardly need to emphasise that the action taken to protect the defender’s proprietary interests must have been the only means whereby danger could be avoided. Furthermore, it ought to be asked whether the means used to defend the property was reasonable having regard to all the circumstances such as J35 P.586 the nature and extent of the danger, the value of the property and the time and place of the occurrence. Like in all criminal cases, where an accused raises the plea of defence of property, the burden is still on the prosecution to prove him or her guilt beyond reasonable doubt. An accused raising that defence does not thereby assume any burden to prove his innocence. It is for the prosecution to show that the accused was not defending himself or his property or that of another person when the offensive act was committed. In other words, the prosecution must disprove the defence and this burden must be beyond reasonable doubt. This brings us to the vexing issue of ownership of the subject farm. At no point in the trial was the question of legal ownership of the farm raised as a distinct issue requiring proof. Though it is largely irrelevant to the question whether or not the deceased was unlawfully killed by the appellants, it has some significance in lending credence to the suggested defence of property which the appellants have raised. If the farm did indeed belong to the deceased, the question of the appellants killing the J36 P.587 deceased in order to protect the deceased’s farm from the deceased himself becomes a logical contradiction and thus a non-issue. PW2, Mary Nakazwe Chella, who was the wife of the deceased, did however, confirm in her evidence that the farm in question, as well as one other farm, belonged to the deceased. Prosecution witnesses also testified that when the deceased was confronted by the appellants and others, he had indicated that he was able to prove ownership of the farm by production of documents of title, but that the rowdy mob gave him no chance to do so. The bottom line remains that the defence of property, like that of provocation, was raised too late in the day, thus giving the prosecution no opportunity to disprove it. In any case, the action taken by the appellants was not necessary to prevent any danger either to themselves or their property, nor would it under any circumstances be described as a reasonable response to whatever the deceased did to people who had invaded his property. J37 P.588 Our conclusion is that the plea of defence of property cannot be available to any of the appellants for all the reasons we have articulated. The result is that this ground of appeal fails too. In sum, the whole appeal is without merit and is dismissed. The conviction and sentence of the lower court is confirmed. I. C. Mambilima CHIEFJUSTICE ArM. XWood SUPREME COURT JUDGE DrUdTMalila SC SUPREME COURT JUDGE