Gift Chaiza Sumaili v The People (APPPEAL NO. 102/2022) [2023] ZMCA 350 (23 November 2023)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: APPEAL NO . 102/2022 GIFT CHAIZA SUMAILI APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga, JJA ON: 22 nd February 2023 and 23 rd November 2023 For the Appellant: L. Tembo-Tindi , Acting Senior Legal Aid Counsel, Legal Aid Board For the Respondent : C. Soko , Deputy Chief State Advocate , National Prosecutions Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to: 1. George Misupi v . The People [1978] Z . R . 271 2. William Muzala Chipango and Others v . The People [1978] Z . R . 3 3. David Chimwanga v . The People , CAZ Appeal No . 70 of 4. The People v . Kajilo Muzungu [2011] 1 Z . R . 5 . Dorcas Kasenge v . The People , CAZ Appeal No . 124 of 6 . Yokonia Mwale v The People , SCZ Appeal No. 58 of J2 ?. Ester Mwiimbe v . The Peopl e [1986] Z . R . 1 5 8. Simoom Miyoba v . The People [1977] Z. R . 218 9. Precious Longwe v . The People , CAZ Appeal No . 182 of 2017 Legislation referred to : 1. The Penal Code , Chapter 87 of The Laws of Zambia 2. The Criminal Procedure Code , Chapter 88 of the Laws of Zambia INTRODUCTION c11 The appellant appeared before the High Court (Makubalo , J . ) , charged with the offence of murder contrary to Section 200 of The Penal Code. [ 2 ] He denied the charge, and the matter proceeded to tria l . [ 3 ] At the end of the trial , he was convicted for committing the offence and condemned to suffer capita l punishment. [ 4 ] He has appealed against the conviction , and in the alternative , against the sentence. CASE BEFORE THE TRIAL JUDGE rs1 On the morning of 24 t h October 2018 , the appellant , who lived on the same farm with his parents , in J3 Chingo l a ' s Kawama area, went to h is parent's house and reported that h e had beaten his wife , and that he was in need of money to buy medicine for her. He left soon after reporting. His father's wife and his father , immediately went [6J [7J to his house and found his wife, who was unconscious. [SJ They started making arrangements to get her to the hospital. They a l so informed a member of the Community Crime Prevention Unit (CCPU) of the incident. [9J As the appellant ' s wife was being put in a car to be taken to the hospital , the appellant returned . However , he fled soon after seeing the CCPU member. [ 10] The CCPU member gave chase , but failed to apprehend him . [llJ The appellant ' s wife was taken to the hospital where she died the foll owing day . A post - mortem e xamination conducted on her body , f ound the cause of her death to be severe head injuri es and bleeding from several deep cuts. [12] There was also evidence from Teddy Mafo , tha t the night before the appellant ' s wife was found injured , J4 he heard her crying while in the house where she stayed with the appellant . [131 In his defence , the Appellant said he had been drinking at home with his father on the 24 t h of October 2018 . His father sent him to buy beer and on his return , he found his father ana his wife , having sexual intercourse in his house . [141 [151 When con f ronted them , his father attacked him . The appellant said he only slapped his wife , who managed to ran away . That was the last time he saw her alive . [161 He denied reporting to his mother that he had beaten his wife and said he be l ieved that the injuries observed on his wife , were caused by his father who was trying to rape her . FINDINGS BY THE TRIAL JUDGE [171 The trial Judge found that the appellant ' s testimony was inconsistent and not credible. [lBJ She rejected his claim that the last time he saw his wife alive , was on the 23 rd of October 2018 , when she ran away after he found her having sexual intercourse with his father. JS [19J She accepted the prosecution evidence that the appellant reported to his parents that he had assaulted his wife . [20J The trial Judge also accepted the prosecution evidence that the night before she was found injured , the appellant ' s wife was heard crying while i n t h e house where she was found unconscious and injured . [21J It was also the trial Judge ' s view that the act of running away when he saw the CCPU members collecting his wife , further incriminated the appellant ; that act , was not the conduct of the innocent man . GROUNDS OF APPEAL [22J Two grounds have been advanced in support of the appeal . They read as follo ws : (1) The learned trial court erred in law and fact when the court convicted the appellant for the offence of murder in the absence of evidence proving malice aforethought ; and (2) The learned trial court erred in law and fact when the court neglected to take into account the failed defence of provocation as an extenuating circumstance . J6 [23 J The issues that the two grounds of appeal raise are intertwined , we will therefore deal with the two grounds at the same time . ARGUMENTS IN SUPPORT OF THE TWO GROUNDS OF APPEAL [24 J In support of the 1 s t ground of appeal , Mrs . Liswaniso referred to the cases of George Misupi v. The People1 and William Muzala Chipango and Others v. The People2 , and submitted that the trial Judge should have treated the evidence of the appellant ' s father wi t h caution , because he was a s u spect witness . c2s1 He was a suspect witn ess because the appellant found him having sexual intercourse with his wife . In the circumstances , he had every reason for falsely inc r i minating the appellant. [26J Mrs . Liswaniso also subrni tted that al though his defence in court was a bare denial , the appellant told the p o l ice in a warn and caution statement , that he killed his wife after finding her having sexual intercourse with his father . [27J That being the case , the defence of provocation was available to the appellant . She referred to t he J7 case of David Chimwanga v . The People 3 in supp ort of the proposition . [2BJ She then submitted that there being evidence that supported the defence of provocation , and going by the decision in the case of The People v. Kajilo Muzungu 4 , the a p pellant should have been convi cted of the offence of manslaughter and not murder . [ 29J In support of the 2 nd ground of appeal , which was an a l t ern a ti ve to the 1 s t ground of appea l, Mrs . Liswaniso submitted that since there was evidence of a failed defence of provocation , the trial Judge should have found e x tenuating circumstances anchored on a failed defence of provocation . [30J She referred to the case of Dorcas Kasenge v. The People5 , in support of the proposition and submitted that there being extenuating circumstances , the trial Judge should have imposed a sentence other than capital punishment. ARGUMENTS IN RESPONSE TO THE GROUNDS OF APPEAL [311 In response to the 1 st ground of appea l , Ms . Soko referred to the case of Yokonia Mwale v The People 6 and submitted that going by that decision , there is no JS basis on which the appellant 's father can be classified as a suspect witness. [ 32 J As regards the availability of t he defence of provocation, Ms . Sako re fe rred us to the case of Ester Mwiimbe v. The People 7 , were the elements of the defence of provocation were set out . She then submitted that in this case , the appellant did not establish al l the elements of provocation and the defence was therefore not available to him . [3 3 ] Coming to the 2 nd ground of appeal , Ms . Sako submitted that since there was no evidence of a failed defence of provocation , there was no basis on which the trial Judge could have come to a conclusion that there were extenuating circumstances on the basis of a failed defence of provocation . COURT'S CONSIDERATION OF THE APPEAL AND DECISION [ 34 J The first issue we will deal with is Mrs . Lisaniso ' s submission that the appellant ' s father should have been treated as a suspect witne ss, because the appellant found him having sexua l intercourse with his wife. J9 [35J The evidence that incriminated the appellant , did not only come from his father. [36J The trial Judge also took into account the evidence of Teddy Mafo , who testified that he heard the appe l lant ' s wife crying the night before she was found injured. [37] She also considered the evidence of the appellant ' s father ' s wife, who testified that after the appellant reported that he had beaten his wife , she then went to check on her , in the company of the appellant's father. [38J In addition , the trial Judge took into account the evidence of the CCPU member , that when the appellant found them putting his wife into a car , he ran away. [3 9 J The trial Judge assessed the credibility of the testimony of all these witnesses , as against the version of events given by the appellant . [ 40 J In that assessment , she considered the possibility that the witnesses could have been biased , and she came to the conclusion that it was not the case . [ 41J Since the evidence that the appellant beat his wife came from sources other than his father , we are JlO satisfied that the trial Judge was entitled to accept the evidence of his father as being credible . (421 In the circumstances , even if there was evidence from witnesses that there was suspicion in the community , that the appellant ' s father was having an affair with the appellant ' s wife , there was evidence that supported the incriminating testimony from the a p pellant 's father , that the appellant told t h e m that he beat his wife . [43] Coming to the question of whether the defence of provocation was available to the appellant , Mrs . Liswaniso argued that although the appellant ' s defence was a bare denial , the availability of the defence was premised on the admission he made in his warn and caution statement . (441 In that statement , he told police officers who interviewed him , t hat he stabbed his wife after he found her having sexual intercourse with his father . [451 We have examined the record of proceedings and have detected that the confession statement Mrs . Liswaniso was referring to , was not produced into evidence during the trial . Jll [46J However , we note that the statement was part of the documents served on the court and the defence , pursuant to Section 258 of the Criminal Procedure Code. [47J In the case of Simon Miyoba v. The People8 , the Supreme Court considered the evidential value of such statements. The court held that since such statements are not formally before the court , they are of no evidential value . [ 4 8J Had the appellant desired to rely on the continents of the confession statement , even if it was not produced by the prosecution, he should have caused it to be produced into evidence during the cross examination of the arresting officer or the officer who recorded it . [49 J Since the confession statement was not produced into evidence during the trial , it cannot be relied on at this stage of the proceedings. [50J Neither can the trial Judge be faulted for not considering its contents . [51J In the case of Ester Mwiimbe v. The People 7 , the three elements of the defence of provocation were set J12 out as, the provocat ive act; the loss of self -c ontrol and ; the appropriate retaliation . [52J In this case , had the trial Judge accepted the appe llants claim that he found his father having sexual i ntercourse , the first element , the provoca tive act , would have been proved. [53J However , the defence would have failed because there was no evidence of loss of self - control and proportionate retaliation, resulting in his wife suffering the fatal injuries. [54J This is the case because the appellant ' s evidence was that he did not inflict the injures that caused the death of his wife , he only slapped her and she managed to run away. [55 J I n any case , given that the appellant ' s claim that he found his father having sexual intercourse with his wife was rejected , there was in fact no evidence on which the defence of provocation could have been considered . [56 J Having found that there was no evidence of any provocative act , a reduced charge of manslaughter , on J13 account of the successful raising of the defence of provocation , is inconceivable . [57J In the case of Precious Longwe v. The People 9 , we said that there are extenuating circumstances on the basis of a failed defence of provocation , where the provocative act and loss of self - control are proved , but the retaliation is found to be out of proportion to the provocative conduct. [58J In this case , it cannot be said that there was a failed defence of provocation because both the provocative act and loss of self - control , were not established . [59J That being the case , it is our view that the trial Jud ge had no basis on which she could have come to the conclu sion that there were extenuating circumstances on accou nt of a failed defence of provocation . [60J All in all , we find no merits in the both grounds of appeal and we dismiss them. J14 VERDICT [611 Having dismissed both grounds of appeal, this appeal is unsuccessful. C62J We uphold the conviction and sentence imposed by the trial Judge. C. F. R. Mcheng DEPUTY JUDGE PRE.a,~~= P. C . M. NGULUBE COURT OF APPEAL JUDGE uzenga COURT OF APPEAL JUDGE