Gideon Habenge and Anor v People (SCZ Appeal 172 of 1998) [2000] ZMSC 127 (11 July 2000)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) SCZ APPEAL NO, 172/98 GEDION HABENGE MEKI SHABENGE AND THE PEOPLE Is® APPELLANT 2nd APPELLANT RESPONDENT Coram: Ngulube, CJ., Sakala and Lewanika JJS 4th April and 11th July, 2000. For the Appellants Mr. D. K. Kasote of Levy Mwanawasa and Company. For the Respondent Mr. V. A. L. Kabonga,Assistant Principal State Advocate, _________________________ JUDGMENT_________________________________ Sakala JS delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. Kambarage Mpundu Kaunda Vs The People (1990'1992) ZR 215. Simon Malambo Choka Vs The people (1978) ZR. George Musupi Vs The People (1978) ZR 243. Kunda Vs The People (1972) ZR 196. Mulenga Vs The people (1972) ZR 271. The two appellants, father and son, respectively, were sentenced to death following upon their convictions on two counts of murder, contrary to section 200 of the penal Code; and they were also sentenced to life imprisonment following upon their convictions on two counts of attempted murder, contrary to section 215 of the Penal Code. The particulars on the two counts of murder were that, the two appellants, on 13th August 1997, at Namwala, jointly and whilst acting together, murdered Simon Chuula on the first count and murdered Oncent Chuula on the second count. The particulars on the two counts of attempted murder were that, on the same date at Namwala, they attempted to murder Edson Chuula on the third count and William Chuula on the fourth count. The facts of the case as accepted by the learned trial judge were not in dispute. The first appellant, a local court justice at Nalubamba Local : J2 : Court, had, prior to the incident, a civil dispute with his sister at Baambwe Local Court. The local court had ordered that he pays a sum of K510,000 as costs. On the day in question, two local court messengers were sent from Baambwe Local Court to execute a Warrant of Distress against the first appellant. The two messengers were accompanied by some members of the Chuula family and others. When the first appellant reported for duty, the messengers informed him of the existence of a Warrant of Distress. After some discussions with the messengers, it was agreed that the matter be discussed at the first appellant's home. The first appellant, the two messengers, this time accompanied by a messenger from the appellant's Local Court, as well as the members of the Chuula family left for the first appellant's village. The first appellant arrived at the village first followed by the messengers. The members of the Chuula family arrived later. At the village, the first appellant refused to allow the messengers to execute the warrant. He disputed the amount on the warrant. During the discussions between the first appellant on one hand, the messengers and the Chuula family on the other hand, at the first appellant's house, the second appellant was not present. It was also not in dispute that subsequently, while the discussions were still going on, the second appellant emerged at the scene carrying a gun. It was common cause that Simon Chuula, the deceased in the first count, was killed at the scene by a gun shot from the gun carried by the second appellant. On the same day and at the same time, Oncent Chuula, deceased in count two, was shot dead while two others the subject of counts three and four, were also shot at and wounded on the same day. The eye witnesses to the whole shooting incident were PWs 1,2,3,5 and 6. The court having considered the evidence of these prosecution witnesses, identified the questions for determination as being: whether the four men were shot at by the second appellant, whether they were shot deliberately : J3 : and whether the two appellants conspired to shoot the four men. In relation to the first count, the prosecution evidence was that the deceased was shot in the back while squatting on the ground. But the evidence of the second appellant was that, the deceased, in the first count, was killed when the gun went off accidentally. The learned trial judge accepted and found that PWs 1,5,and 6 were brothers to the deceased persons and that PWs 5 and 6, who had also been shot at and wounded, were complainants and as such witnesses with a possible interest to serve. But the court found that PWs 2 and 3, Court Messengers, were independent witnesses to the incident and corroborated the evidence of PWs 1,5 and 6. The learned trial judge considered the evidence of the two appellants that PW4 was seen at the scene carrying a gun and that some gun-shots were heard coming from the direction of PW4. The court considered the evidence of PW4 too that on that day he was not at first appellant's house as he was not feeling well. The court accepted the evidence of PW2,a Court Messenger, that he never saw PW4 armed with a gun. The court also accepted the evidence of PW3, another Court Messenger, that PW4 was not at the first appellant's house. The court concluded that the truth was that PW4 was never armed with a gun. The court examined the evidence of PWs 2 and 3 in some great detail in relation to how the chuulas were seated at the first appellant's house. The court took note of these two witnesses' s evidence of how the first appellant was seen leaving the gathering at the scene together with his brother Lazarous Shabenge. The court also took into account PWs 2 and 3's evidence in relation to the behaviour of the first appellant while holding a stick writing on the ground and how the second appellant emerged at the scene carrying a gun. The court accepted the evidence of PWs 1,2,3,5, and 6, that the two deceased and the two wounded complainants were shot at by the second appellant. The court rejected the contention of accidental shooting or shooting by PW4. On the evidence as a whole, the court concluded that : 4 : all the four men were shot at from behind. The learned trial judge noted that if the second appellant knew that the gun was defective as contended and that it was incapable of firing, he should not have subsequently shot at the three others after shooting at Simon Chuula and should also have not gone into hiding. The court held that the shooting was deliberate. It rejected the defence of self defence and held that the first appellant had conspired with his son the second appellant, to have the members of the Chuula family killed or injured. The court concluded that the killing and the wounding was clearly with malice aforethought and also dismissed the defence of property as well as provocation, and convicted the two appellants as charged. Mr. Kasote, on behalf of the appellants, advanced two arguments namely, that the evidence adduced was inadequate to sustain a guilty verdict; and that the learned trial judge should have found extenuating circumstances to warrant a favourable sentence. Mr. Kasote contended in his written and oral submissions that the only evidence connecting the first appellant to the offences charged was that of PWs 1,5 and 6 who testified that they heard the first appellant ordering the second appellant to "fire", while the other eye witnesses, PWs 2 and 3 did not testify to hearing the first appellant ordering the second appellant to "fire". Mr. Kasote pointed out that PWs 5 and 6 were shot at in the same incident, they were brothers to the two deceased, and they were sons of the person who sent them to collect money. He submitted that PWs 5 and 6 were therefore witnesses with an interest of their own to serve. For this submission he referred the court to the cases of Kaunda Vs The People (1), Choka Vs The People(2) and Musupi Vs The People(3) Mr. Kasote contended that the evidence of PWs 2 and 3 who stood by the first appellant, did not support the evidence of PWs 5 and 6 as found by the learned trial judge. Mr. Kasote further argued that while the appellants implicated PW4, it was a misdirection on the part of the learned judge to have held that : J5 ; PW2 said that PW4 was never armed with a gun because according to the evidence, PW2 did not see PW4 during their discussions and at the time they were running away but that PW2's evidence of not seeing PW4 armed with a gun referred to the time before they separated on their way to the first appellant's village. Counsel submitted that it was a misdirection to hold that none of the four victims was shot at by PW4 . Mr. Kasote attacked the trial judge's finding that the two appellants conspired to commit the offences charged in the face of both the prosecution and defence evidence that the second appellant was not at scene of the incident . He complained that the prosecution deliberately omitted to call Lazarus Shabenge listed as their witness who could have informed the court what he discussed with the first appellant. Counsel submitted that the only inference that can be drawn from this omission was that Lazarus Shabenge's evidence was favourable to the defence. For this submission Mr. Kasote referred us to the cases of Kaunda Vs The People (4) and Mulenga Vs The People (5)■ Mr. Kasote also argued that there was nothing strange in the conduct of the first appellant and that there were six different versions of the story of the stick from which the court concluded that the behaviour of the first appellant was criminal. In relation to the second appellant Mr. Kasote pointed out that his defence was one of accidental shooting. He did not know that the gun was loaded and that he wanted to scare the people as the gun could not fire as it was defective. According to Mr. Kasote, the second appellant accidentaly shot the deceased in count one but that the deceased in count two was shot at by PW4. On the counts of attempted murder, Mr. Kasote submitted that these were not proved beyond reasonable doubt as there was no evidence that the two complainants had gunshot wounds and that they had been treated at any hospital. : J6 : As to sentences, Mr. Kasote argued that the evidence established extenuating circumstances in that; the whole incident stemmed from the custody of the deceased estate cattle and that the second appellant wanted to protect the animals of his absent elder brother. On behalf of the State Mr. Kabonga too filed written heads of argument supplemented by oral submissions. In supporting the convictions, Mr. Kabonga submitted that there was overwhelming direct evidence connecting both appellants with all the four offences because they acted in concert in prosecuting a common purpose. According to Mr. Kabonga, the first appellant ordered the second appellant to "fire," while the second appellant responded by firi ng and after gunning down the deceased on count one, he chased those flee;ing and shot at the other three. He submitted that all this was done in broad day light. Mr. Kabong a contended that PWs 4,5 and 6 were not witnesses with an interest of their own to serve and submitted that PW4 could not have shot anyone at the scene as he did not go to the house of the first appellant. Mr. Kabonga also argued that the failure to call Lazarus Shabenge as a prosecution witness could not raise a favourable presumption in favour of the appellants and that even if he had been called he would have been a proper witness with an interest of his own to serve as he had been seen discussing something with the first appellant while at the scene shortly before the incident. Mr. Kabonga also cited a number of authorities in support of his submissions. We have carefully considered the evidence on record, the judgment of the trial court and the submissions by both learned counsel. These offences were committed in broad day light. PWs 1,2, 3,5 and 6 were all present and they were eye witnesses. The learned trial judge accepted the evidence of these witnesses. In his submissions Mr. Kasote has attacked