Godfrey Chomba v The People (Appeal No 134/2022) [2023] ZMCA 323 (20 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No 134/2022 BETWEEN: GODFREY CHOMBA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA On 26th April 2023 and 20th November 2023 For the Appellant: Mr 0. Mudenda - Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. B. Mainza - Senior Stated Advocate/ National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Mwambona v the People (1973) ZR 28 2. Mwape Kasongo v the People Court of Appeal Judgment No 36 of 2016 3. Francis Mayaba v the People (1999) S. C. Z Judgment No 5 4. Alubisho v the People {1976) ZR11 5. Chitalu Musonda v The People SCZ Appeal No. 38 of 2014 6. Yokoniya Mwale v the people 7. Kamfwa v the People SCZ APPEAL No 125/2017 8. Clint Mwila v the People, appeal No 164 of 2017, J2 Legislation referred to: 1. The Penal Code Chapter 87 of the laws of Zambia. 1.0. INTRODUCTION. 1.1. The appellant was charged with two counts of the offence of murder contrary to Section 200 of the Penal Code Chapter 87 of the Laws of Zambia. 1.2. The particulars of the offence in count one allege that the appellant on an unknown date but between the 28th January 2018 and the 20th January 2018 at Katete District in the Eastern Province of the Republic of Zambia murdered one ISABEL MBEWE. 1.3. The particulars of the offence in count two allege that the appellant, on an unknown date but between the 28th January 2018 and the 20th January 2018 at Katete District in the Eastern province of the Republic of Zambia murdered one Isaac Mbewe. 1.4. The appellant was convicted of murder with extenuating circumstance and sentenced to life imprisonment on each of the counts by Chinyanwa Zulu, J. 2.0. EVIDENCE IN THE COURT BELOW 2.1. The appellant's conviction was secured by the evidence of seven prosecution witnesses. A summary of the prosecution evidence was that the appellant went to Mr. Masaidi's farm. to do piecework with his wife and son who was a toddler. After two weeks of working, the couple started quarrelling. One J3 evening PWl heard the couple quarrelling. According to him, the wife (now deceased) was accusing the appellant of being careless with money and on the other hand, the appellant accused the deceased of going out with PWl's son, Aswell. 2.2. PWl went to settle the dispute and also informed their boss Mr. Masaidi about the quarrel. The appellant had initially complained about Aswell sleeping with his wife to Mr. Masaidi. After PWl reported the quarrel the appellant and his wife had, Mr Masaidi told PWl that he did not want such type of people on his farm and ordered them to leave. PWl told them to leave in the morning as it was late (18:00 hours). The following morning, PWl escorted them and they left. 2.3. Two days later PWl was informed that two bodies had been found a few farms away from theirs. He went to the scene only to discover it was the appellant's wife and son. 2.4. This marked the end of the prosecution case. The appellant was found with a case to answer and he was put on his defence. 3.0. DEFENCE. 3.1. In his defence, the appellant opted to give sworn evidence and did not call any witnesses. He admitted having assaulted his wife and that he was provoked as a result of an affair she had with Aswell and also having seen his wife wearing Aswell's Manchester United T-shirt. JS interest to serve without warning herself of the dangers of relying on the evidence of a witness with interest to serve. According to counsel, PWl was the father to Aswell Mbewe, who the appellant had accused of having an affair with the deceased and thus had an interest in saving his son. We were referred to the case of Mwambona v. The People1 where it was held that: "The evidence of a biased witness should be treated with caution and suspicion and failure to regard him as such is a misdirection on the part of the court, which could lead to a conviction being quashed. In order to eliminate apparent bias from a relative or a family member, there is need of independent evidence or "something more". 6.2. It was learned counsel's further submission that the trial court erred when it failed to consider the defence of provocation on the evidence on record. Counsel submitted that adultery coupled with the insults and the appellant being chased from the farm because of the love affair his wife was having with PWl's son made the provocation sudden and very grave. In his conclusion, counsel urged us to allow the appeal, set aside the conviction of murder and substitute it with the conviction of manslaughter. 6.3. In support of the second ground of appeal, it was contended that the prosecution failed to prove the offence in count two beyond a reasonable doubt. It was submitted that there is no evidence on record to show that J6 the appellant had the intention to kill or cause grievous harm and that the prosecution did not led any evidence as to what would have caused the death of Isaac Mbewe. Counsel submitted that PW7 the doctor who performed a post-mortem examination on the child testified that he was unable to issue a report because he was unable to form an opinion as to the cause of death. We were referred to our judgment in the case of Mwape Kasongo v. The People2 in which we held that: "Proof either of an express intention to kill or to cause grievous harm to the deceased or that the person knew that what he was doing was likely to cause death or cause grievous harm to someone" 6.4. We were urged to allow this ground of appeal, set aside the conviction in count two and set the appellant to liberty. 6.5. In support of ground three of the appeal, it was learned counsel's submission that the trial court erred when it meted out life imprisonment on the appellant in both counts after finding that indeed there existed extenuating circumstances without giving reasons. We were referred to the case of Francis Mayaba v. the People3 where it was held that "20 years imprisonment even for extenuated murder is excessive and it comes with a sense of shock." According to counsel, the life imprisonment sentence imposed by the trial court was excessive and we J4 4.0. FINDINGS AND DECISION OF THE TRIAL COURT 4 .1. After careful consideration of the evidence before her, the learned trial judge found that the evidence implicating the appellant was mainly circumstantial evidence. The trial judge found that the appellant was indeed provoked but had cooled off after PWl intervened to settle the dispute. Consequently, the trial court convicted him of murder on both counts with extenuating circumstances and sentenced him to life imprisonment. 5.0. GROUNDS OF APPEAL 5.1. Discontent with the conviction and sentence the appellant filed the present appeal fronting three grounds structured as follows: (1) The learned trial court below erred both in law and fact when it rejected the plea of provocation on the facts of the case to negate malice aforethought. (2) The learned trial judge misdirected herself in convicting the appellant in count two when the prosecution did not prove the case against him beyond a reasonable doubt. (3) In the alternative, the trial court erred in law and in fact when it meted out a harsh sentence on the appellant without giving reasons for imposing such a sentence. 6.0. THE APPELLANT'S ARGUMENTS 6.1. In support of ground one of the appeal, learned Counsel contended that the trial court erred in accepting the evidence of PWl a witness who had the J7 were urged to set it aside and impose one which resonates with the facts of this matter. 7.0. RESPONDENT'S ARGUMENT 7.1. On behalf of the respondent, the learned Counsel contended that the trial court rightfully rejected the appellant's defence of provocation as the appellant did not find the deceased in flagrante de/icto with Aswell Mbewe but was merely told by someone and that he had time to cool down. Learned counsel went on to submit that the facts on record do not review the existence of any form of provocation and that the appellant premeditated to kill the wife and his son. 7.2. In responding to ground two of the appeal, it was submitted that the circumstantial evidence on the record was so cogent that only the inference of the appellant's guilt could be drawn. We were urged to dismiss this appeal. 7.3. In responding to the last ground of appeal, it was submitted that notwithstanding that the court did not cite any aggravating circumstances as reasons for imposing such sentences, the court has the discretion to impose any sentence as was guided in the case of Alubisho v. The People4 where it was held that: "With the exception of prescribed minimum or mandatory sentences a trial court has a discretion to select a sentence that J8 seems appropriate in the circumstances of each individual case. An appellate court does not normally have such a discretion." 7.4. In conclusion, we were urged to dismiss this appeal in its entirety and uphold both conviction and sentence. 8.0. HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1. At the hearing of the appeal, learned counsel for the appellant, Mr. Mudenda placed full reliance on the documents filed. On behalf of the state, Mr. Mainza informed the court that the state would equally rely on the heads of argument filed before the court. 9.0. CONSIDERATION AND DECISION OF THE COURT 9.1. We have carefully examined the evidence on the record, the arguments by both counsel and the judgment of the lower court. We have also considered the grounds of appeal on which the appellant is seeking to assail the judgment of the lower court. 9.2. In support of ground one, learned counsel for the appellant has argued that the trial court erred in accepting the evidence of PWl without warning itself of the danger of relying on the evidence of a suspect witness. Further, the learned counsel queried the trial court's failure to find that the appellant was indeed provoked by the actions of the deceased. On the other hand, the state submitted that the trial court was on firm ground when it rejected the appellant's defence of provocation. J9 9.3. We note that the evidence implicating the appellant was tendered by PWl, who counsel for the appellant has described to be a witness with possible interest to serve for being the father to a person who was suspected to have been having an affair with the appellant's wife (the deceased). In the case Chitalu Musonda v. The People5 the Supreme Court stated that "A relative is not automatically a suspect witness, it is the circumstances of the case that can render a relative to be a suspect witness." Further, in the distinguished case of Yokoniya Mwale v the people6 it was held that: " .... The point in all these authorities is that this category of witnesses may, in particular circumstances, ascertainable on the evidence, have a bias or an interest of their own to serve, or a motive to falsely implicate the accused. Once this is discernable, and only in these circumstances, should the court treat those witnesses in the manner we suggested in the Kambarage case. A conviction will thus be safe if it is based on the uncorroborated evidence of witnesses who are friends or relatives of the deceased or the victim, provided the court satisfies itself that on the evidence before it, those witnesses could not be said to have had a bias or motive to falsely implicate the accused, or any other interest of their JlO own to serve. What is key in our view, is for the court to satisfy itself that there is no danger of false implication." 9.4. What we discern from these authorities is that by merely being a relative or friend to the deceased, one does not automatically become a witness with an interest to serve thereby requiring his or her evidence to be routinely corroborated. There must be something in the evidence which suggests presence of such motive. In casu, there is nothing on the record which shows that PWl had a bias or an interest of his own to serve, or a motive to falsely implicate the appellant. He was in fact a peace maker in the argument or misunderstanding between the appellant and the deceased. We cannot fault the trial judge for holding as he did especially in the presence of the appellant's admission that he did assault the deceased. 9.5. With regards to the defence of provocation, the law on the defence of provocation is well settled. The case of Esther Mwiimbe v. The People7 illustrates that the act of provocation must be such as to lead to sudden loss of self-control as a result of which the accused person causes the death of another in the heat of passion. In this case, we note that the appellant and the deceased had a quarrel and PWl went to sit them down. They spent a night together and the following day, PWl escorted them out of the farm. This clearly shows that the appellant had time to cool down. We find no fault in the trial court's finding that not all elements of the defence of provocation were satisfied. Jll 9.6. In this case, the learned trial Judge found that in as much as the deceased behaviour was provocative, the appellant did not act in the heat of the moment and went on to find that extenuating circumstances were present. We take no issue with the trial court's finding in count 1 as far as extenuating circumstances are concerned. We therefore find no merit in ground one of the appeal and we accordingly dismiss it. 9. 7. Coming to ground two of the appeal, the appellant contended that the prosecution did not provide any evidence as to what would have caused the death of Isaac Mbewe. On the other hand, the state argued that the circumstantial evidence on the record was so cogent that only the inference of the appellant's guilt could be drawn. 9.8. We agree with counsel for the appellant that there is no evidence on the record pointing to what may have caused the death of the child. We hold the firm view that in the absence of evidence of the cause of death, it is difficult to conclude that the appellant intended to kill or cause grievous harm to his son. 9.9. We note that the appellant did testify that the boy was on the deceased's back at the time he assaulted the deceased and fell in the ditch. The visible injury on him was that the eye was protruding or swollen. It is not clear whether it was as a result of falling or decomposition or any other cause. The Medical Doctor who carried out the postmortem examination also failed to form an opinion of what may have caused the death of the boy. It is our J12 view however that the appellant when hitting or assaulting the deceased, who had a baby strapped on her back was reckless as to the possibility of injury being inflicted to the baby as a consequence thereof. In the circumstances, we find merit in ground two and we allow it. The conviction for murder is hereby quashed and we substitute it with one for manslaughter in count two. 9.10. We now turn to consider ground three, which takes issue with the life imprisonment sentence meted out by the trial court. The Supreme Court in the case of Francis Kamfwa v. The People7 guided that: "Generally the principles of sentencing are well settled; and so too is the need for the exercise of prudence, consistency and fairness by the sentencing judge, among many other justifiable considerations. All these attributes are found in numerous decisions which this court has made in the past and which it will continue to make now and in the future" 9.11. Furthermore, in the case of Clint Mwila v. The People8 the Supreme Court opined that: "The record shows that the learned trial judge simply agreed with counsel that there were extenuating circumstances and proceeded to impose the life sentence without giving reasons. This is unacceptable. A court must reveal its mind as to the reasons for imposing any sentence. The accused has a J13 right to know why he is receiving such a light or given sentence." 9.12. Clearly, the learned trial court fell into grave error when it proceeded to impose a sentence without disclosing its mind over the matter. A court is expected to weigh the circumstances of the case, the mitigatory and aggravating factors if any and give reasons for preferring the sentence it has settled for. Given the foregoing, we find the sentence of life imprisonment in count one to be wrong in principle and too excessive for murder with extenuating circumstances, especially given the circumstances of this case. We therefore find merit in ground three and we allow it. 10.0. CONCLUSION 10.1. Grounds one is dismissed for want of merit. 10.2. Having allowed ground two, we quash the conviction of murder in count two and its attendant sentence and substitute it with a conviction for manslaughter and sentence the appellant to 15 years imprisonment with hard labour. 10.3. Having found merit in ground three, we set aside the life sentence imposed in count one and substitute it with a sentence of 30 years imprisonment with hard labour. J14 10.4. The two sentences will run concurrently and will take effect from the 4th February 2018 the date appellant was apprehended and taken into custody. P. C. M. NGULUBE COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE