Isaac Lobe v the People (Appeal No. 48/2022) [2022] ZMCA 184 (16 December 2022)

.. IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) Appeal No. 48/2022 BETWEEN: ISAAC LOBE AND THE PEOPLE CORAM: Mchenga DJP, Chishimba and Muzenga JJA On 12th October, 2022 and 16th December, 2022. For the Appellant: Mrs. M. Mulanda-Banda, Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. D. Mbao, State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA delivered the Judgment of the Court. Cases referred to: 1. Nyambe Mubukwanu Liyambi v. The People (1978) ZR 25 2. Jack Chanda and Another v. The People - SCZ Judgment No. 29 of 2002 3. Dorothy Mutale and Another' v. The People (1997) SJ 51 4. Whiteson Simusokwe v. The People- SCZ Judgment No. 15 of 5. Precious Longwe v. The People - Court of Appeal No. 182 of 6. Livay Mweene v. The People - CAZ Appeal No. 86 of 2020 J2 7. Malangisha Kapwepwe v. The People - CAZ Appeal No. 59 of 8. Simutenda v. The ·People {1975) ZR 294 9. Rodgers Kunda v. The People - SCZ Appeal No. 81/ 20:17 Legislation referred to: 1.. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The Appellant was sentenced to death by Katenekwa J following a conviction for murder in the High Court. He has appealed against sentence on the basis that his failed defence of provocation provided the necessary extenuating circumstances to warrant a sentence other than death. The particulars of the offence alleged that on 15th September, 2017 at Kalulushi in the Copperbelt Province of the Republic of Zambia did murder Phiddy Mishi. 2.0 PROSECUTION EVIDENCE IN THE COURT BELOW 2.1 The prosecution called a total of six witnesses. A summary of the evidence of PWl Isaac Lobe, a 14-year-old son of the deceased, was that on the material day they all retired to bed after having supper. He stated that the deceased went to bed first together with his younger sister baby Natasha. He told the trial court that the deceased invited J3 all the children to spend a night with her in her room and when he slept, the father was sitted on the bed. He narrated that when he woke up in the middle of the night, he saw his father, the appellant herein, sitted on the bed while his mother was asleep. He fell asleep again and was later awakened by the movements his mother was making in trying to get out of the house. He noticed his father was not in the house at that moment. He narrated that he noticed blood on the bed. His mother was bleeding profusely and fell down under a mango tree near the neighbour's house. 2.2 PW2, Agness, the daughter of the deceased told the trial court that on the material night she heard her mother calling her to come and see what her father had done to her. She narrated that her house was 12 metres away from her mother's house and that when she dashed to respond to her mother's call, she found her outside lying on the ground in a pool of blood under a mango tree four metres from the deceased's house. It was her further testimony that she then called her grandmother to come and see what had happened. She narrated that her mother died while lying under the mango tree. J4 2.3 Under cross-examination, she told the trial court that the appellant had no doubt murdered her mother. 2.4 The third prosecution witness was Musokoski Welo aged 83 years, the grandfather to the deceased. His testimony was centred on the conversation he had with the appellant before the incident. He told the trial court that on 25th August, 2017 around 19:00 hours, the appellant went to his house and confessed to him that between him and his wife one will die. He narrated that he asked the appellant what he meant and he explained that he would kill his wife because he found a message on her phone. He stated that he advised the appellant to settle the matter in court as he continuously suspected his wife of being promiscuous. 2.5 He averred that on 15th September, 2017, in the early hours, he was informed by someone who came to his house that Phiddy had been killed by her husband. He went to the scene around 06:00 am and found a lot of people. He proceeded to see where the deceased died from and he found a lot of blood. He then went inside deceased's house where he found a lot of blood on the bed and the wall . He told the trial court that he also saw a knife with a yellow handle stained JS with blood on the bed, a tool he suspected was used to murder the deceased. 2.6 In cross-examination, he stated that he could not confirm that the appellant and the deceased had marital problems as he lived in a different village. He stated that he tried to ask the appellant the content of the text message but the appellant did not tell him. He told the trial court that he had no motive to implicate the appellant in this matter but knew the appellant killed the deceased as he had told him. 2.7 Patson Mishi, a 78-year-old man of Mishi village testified as PW4. He narrated that on the material night around 02 :00 am, he heard PW2 shouting for help, calling people to go and see what her father had done to her mother. He rushed to the scene and found the deceased lying on the ground in a pool of blood. He tried to enquire on what had happened, he went inside the deceased's house, he did not find the appellant. He observed that there was a lot of blood on the bed, a knife stained with blood, blood on the wall and a trail of blood from the house to where the deceased died from. They moved the body to the house and went to call the police. The police arrived the following day at the crime scene and picked up the body. J6 2.8 Under cross-examination, PW4 stated that the alleged adulterous behaviour was admitted and discussed at a family meeting which was held in 2015. He told the trial court that the deceased's house was in order and nothing appeared scattered. 2.9 PW5 Ivy Mishi narrated that the appellant started accusing his wife of being in an adulterous relationship with one Davy Chambatwa in 2015. A family meeting was held in 2015 and the two reconciled. She told the trial court that after the two reconciled, there was no problem and they even had a child whom they named Natasha. It was her continued testimony that in 2017, the deceased started complaining that the appellant was spying on her. She told the trial court that she received a phone call on 16th September, 2017 that her sister had been murdered. She attended the post-mortem examination and she saw four stab wounds on the deceased's body. 2.10 Under cross-examination, she told the trial court that the appellant and the deceased had 8 children. 2.11 The last prosecution witness was Detective Inspector Mubita. He told the trial court that he received a call from PW4 on 16th September, 2017 informing him that his daughter had been murdered. Together J7 with other police officers, they followed up on the report and found that the deceased body had been moved to her parent's !house. He narrated that he saw where the deceased died from as there was a pool of blood and then he went into the house of the deceased and found a blood-stained mattress and blood stains on the wall. He narrated that he saw a blood trail from the house to the point where the deceased died under a mango tree. It was his further testimony that he picked up a blood-stained knife from the bed and was informed that the appellant was on the run. 2.12 It was his testimony that together with other police officers, they followed the lead until they managed to capture the appellant from the Sumbi mine area in Lufwanyama. He later examined the body of the deceased and found deep stab wounds on the neck, left ear, cheek and forehead. They later took the body to IKitwe Central Hospital where a post-mortem examination was conducted and the results confirmed that the deceased died as a result of the tatal stab wounds she suffered. 2.13 He told the trial court that later, he interviewed the appelilant after which he made up his mind to charge him with the subject offence.. J8 2.14 In cross-examination, he admitted that the bllood on the kniife and the wall was never investigated and that no one told them anything about Davy Chambatwa. 2.15 This marked the end of the prosecution case. The appellant was found with a case to answer and accordingly, he was put on his defence. 3.0 THE DEFENCE 3.1 In his defence, the appellant opted to give sworn evidence.. He narrated that on the material day, he was home w1itlh his fami,ly and that they all retired to bed early. He stated that around 23:00 hours there was a knock on the door and his deceased wife went to see who was knocking. 30 minutes later he decided to folllow up, only to find her committing adultery with one Davy Chambatwa near the deceased's house. He expressed displeasure about what was ,going and a fight ensued. The deceased went into the middle of the two in trying to stop the fight and Davy Chambatwa produced a knife and stabbed the deceased thinking he was stabbing h1im. He told the trial court that after noticing that his wife was blleeding a lot, he put her down and chased after Davy Chambatwa. Unfortunatelly, he could not catch up with him. Owing to how the deceased's family had treated J9 him over the alleged adultery issue, he decided not to return to his house. He proceeded to the Sumbi Mine where he was apprehended from . 3.2 Under cross-examination, he confirmed all the evidence proffered by the prosecution witnesses but denied stabbing the deceased. He stated that the deceased was stabbed by Davy Chambatwa. 4.0 FINDINGS AND DECISION OF THE LOWER COURT 4.1 After careful consideration of the evidence before her, the learned trial judge found that the prosecution evidence had not been challenged. The trial court found that the defence merely corroborated the prosecution evidence save that the accused alleged that Davy Chambatwa is the person who stabbed the deceased . She found that the appellant never called for any help and there was no physical confrontation with any other person on the material night. The trial court came to the conclusion that the deceased was attacked on the bed while sleeping. That the trail of blood from her bed to where she died from under the mango tree supports the evidence on record. 4.2 The trial court went on to observe that there is no direct evidence as to the stabbing of the deceased that night, but the circumstantial no evidence on record is so cogent and overwhelming that it takes this matter away from the realm of conjecture such that only a reasonable inference of guilty can be drawn that it is indeed the appellant who stabbed the deceased while she was asleep and later ran away. The trial court found that the story implicating one Davy Chambatwa knocking on the door and subsequently finding them infragrante de/icto, the physical confrontation and stabbing a mere afterthought story. 4.3 Further, the trial court found that the prosecution had proved their case beyond all reasonable doubt. The trial court warned itself on the dangers of convicting the appellant based on the testimonies of the witnesses who are related to the deceased and ruled out the possibility of falsely implicating the appellant. 4.4 The trial court concluded that on the totality of the evidence on the record, the appellant acted with malice aforethought when he caused the death of the deceased and accordingly convicted him. 5.0 GROUNDS OF APPEAL 5.1 Distraught with the conviction, the appellant filed one ground of appeal couched as fol lows: Jll (1) The learned trial court erred in law and fact when the court sentenced the appellant to death and neglected to into account provocation as an extenuating ta1ke circumstance when meting out the sentence. 6.0 APPELLANT'S ARGUMENTS 6.1 Learned counsel for the appellant Mrs. M. Mulanda-Banda informed the Court that she will rely on the filed heads of arguments. 6.2 In support of ground one, the learned counsel for the appellant contended that the allegations of adulterous behaviour began in 2015 and later resurfaced in 2017 with a text message which the appellant found in the deceased's phone. That it is plausible that even on the material night of the deceased's death the couple could have had a marital dispute. We were referred to the case of Nyambe Mubukwanu Liyambi v. The People1 where the Supreme Court held that: "There are three inseparable elements to the defence of provocation - the act of provocation, the loss of self control, both actual and reasonable, and the retaliation proportionate to the provocation. All three elements must be present before the defence is available. 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 his self-control and, having done so, would have reacted as the accused did." J12 6.3 It was further contended that the evidence of infidelity was raised by the defence throughout the trial and some of the prosecution witnesses confirmed the existence of marital problems as a result of the deceased's infidelity. Counsel stated that it is common knowledge that any reasonable person could have lost self-control if his spouse behaved in the manner in which the deceased did. 6.4 Counsel contended further that should we reject the defence of the appellant, then the court should accept the evidence of adultery amounting to provocation as extenuating circumstances. Counsel placed reliance on the case of Jack Chanda and Another v. The People2 where it was held that "a failed defence of provocation, evidence of witchcraft accusation; and evidence of drinking can amount to extenuating circumstances." 6.5 We were referred to the case of Dorothy Mutale and Another v. The People3 where it was held that: "Where two or more inferences are possible, it has always been a cardinal principle of criminal law that the Court will adopt the one, which is more favourable to an accused if there is nothing in the case to exclude such inference there was nothing in this case to exclude an inference favourable to the accused." J13 6.6 It was contended that the trial court accepted evidence of the prosecution and refused to accept that of the defence denying involvement in the commission of the offence. It was contended that if this court is of the view that the said provocation did not warrant the appellant's reaction, then the same fails as a defence but qual'ifies as extenuation. We were referred to the case of Whiteson Simusokwe V. The People. 4 6. 7 In conclusion, we were urged to allow the appeal and set aside the death penalty. 7.0 RESPONDENT'S ARGUMENT 7.1 On behalf of the respondent, learned Counsel! Mr. Mbao in responding to the sole ground of appeal argued that the trial court was on firm ground when it convicted the appellant. It was counsell's contention that the trial court was on firm ground when it found that there were no extenuating circumstances. 7 .2 Counsel observed that the appellant did not raise the defence of provocation at trial and he cannot raise it on appeal. In support of this we were referred to the case of Precious Longwe v. The P,eo1ple5 . According to counsel, during the trial, the appell!lant merely implicated • • • J14 one Davy Chambatwa as the one who stabbed the deceased. We were referred to our judgment in the case of Livay Mweene v. The People6 in which we held that: "We find ourselves in a similar predicament as the lower court where the appellant insists that he did not touch the deceased and yet relies of the defence of provocation which pre-supposes contact resulting in death." 7.3 It was argued that the appellant herein insisted that he did not stab the deceased yet he wants to rely on the defence of provocation. 7.4 It was learned counsel's contention that the combination of the facts or the series of circumstances in this case, has taken this case out of the realm of conjecture and has attained such a degree of cogency which can permit only an inference of guilty. It was contended that the evidence of PWl, PW2, PW3, PW4 and PWS implicates the appellant in a manner that points to nothing else than his guilty. 7 .5 In summation, it was contended that the trial court cannot be faulted for finding that there was non-existence of defence of provocation and there were no extenuating circumstances in this matter to warrant any other sentence other than death sentence. 7.6 Against this backdrop, we were urged to dismiss the appeal and uphold the sentence. • .. • JlS 8.0 CONSIDERATION AND DECISION OF THE COURT 8.1 We have considered the evidence on the record, the sole ground of appeal, the arguments by both counsel and the judgment under attack. 8.2 The law on the defence of provocation is well settled. In Precious Longwe v. The People supra, we stated that the evidence must show that there was a provocative act. In Malangisha Kapwepwe v. The People7 , we detailed that it is the existence of the provocative act which invokes the defence, and we referred to the case of Simutenda v. The People8 where the Supreme Court set out what constitutes the defence of provocation. There must be an act of provocation; followed by loss of self-control, actual or reasonable; and finally, retaliation that is proportionate to the provocation. 8.3 The essence of the appellant's argument is that he was provoked when he found his wife infragrante delicto and that should his defence of provocation fail, he has established the act of provocation and as such, his circumstances fell into the domain of extenuating circumstances. We reiterate our holding in the case of Precious Longwe v. The People supra in which we stated that in order for a failed defence of provocation to qualify as extenuation, there must be a provocative act • J16 and that there was loss of self-control but the retaliation was not proportionate to the provocation. 8.4 Further, in Rodgers Kunda v. The People9 the Supreme Court stated that once provocation is non-existent, the principal espoused in Whiteson Simusokowe v. The People supra that a failed defence of provocation affords extenuation for a murder charge will not apply. 8.5 Going back to the facts before us, in his defence, the appellant washed his hands clean and stated that he did not stab the deceased. Instead, he implicated one Davy Chambatwa as the one who stabbed the deceased. Given this background, on appeal, the appellant has decided to raise the defence of provocation and is imploring this Court to find that there was a defence of provocation or in the alternative a failed defence of provocation. 8.6 The trial court found in its judgment, that the appellant's story implicating Davy Chambatwa was a mere afterthought and that the appellant did not engage in a fight with anyone on the material night. The trial court resolved that the appellant's testimony actually supported the evidence of prosecution witnesses instead of challenging the same. We agree and we cannot fault this finding. This is on • , • J17 account also that if indeed the appellant found his wife having sex with the said man outside the house, how did blood find itself on the bed and on the wall in the bedroom? His story does not seem to add up. 8.7 There is no reliable evidence on record to support the Appellant's argument that he was provoked. The only evidence that seemingly suggests there was some semblance of provocation is from PW3 and PW4 who disclosed that there was some form of marital problems which were resolved in 2015 and the couple went on to have their eighth child . PWS also disclosed that the appellant followed him and told him that he would kill the wife due to the text message he found on the wife's phone. However, all this was negatived by the appellant's testimony that he did not stab the deceased. 8.8 The appellant is on record that he did not stab the deceased and yet seeks to rely on the defence of provocation which pre-supposes contact resulting in death. A person cannot seek to rely on the defence of provocation when he or she denies perpetrating the act causing death, at least not in the circumstances of this case. 8.9 We cannot, thus fault the trial judge and we hold that the question of a failed defence of provocation does not arise and we find that there I ' .. • J18 was no provocation at all. The trial court was therefore on firm ground when it found that the appellant assaulted the deceased while she was asleep and was possessed of the requisite malice aforethought thus committing the offence of murder. We find no merit in the single ground of appeal and we dismiss it. 9.0 CONCLUSION 9.1 Having dismissed the appeal, we uphold the conviction and sentence imposed by the lower court. F. M. CHISHIMBA COURT OF APPEAL JUDGE ·······~ ·······: ········ K. MUZENGA COURT OF APPEAL JUDGE