Matindi v People (SCZ Appeal 80 of 1998) [1998] ZMSC 99 (3 November 1998)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 80 OF 98 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: JIMMY CHANGWE MATINDI APPELLANT VS THE PEOPLE RESPONDENT Coram: Chai la, Chirwa and Lewanika, JJS 9th September and 3rd November, 1998 For the Appellant : Mr. Mwila Chitabo of Chitabo Chiinga Associates. For the Respondent: Mr. R. Okafor, Principal State Advocate. JUDGMENT Chaila, J. S. delivered the judgment of the court. This is an appeal by the appellant against a decision of the High Court (Sakala C, J), convicting him of the offence of murder and sentencing him to death. The brief facts as found by the learned trial judge were that the appellant on 1st January, 1997 at Mufulira murdered one HAPPINESS NAKAMBA. The appellant had impregnated Happiness Nakamba and a child was born. On 1st January, 1997 the appellant went to Mufulira to the house of the elder sister to the deceased person to see the child. The appellant had come from Chililabombwe. He was well received and he was allowed to see the baby. At about 17.00 hours the appellant bade farewell to go back to Chililabombwe but could not make it. He came back to the deceased's elder J2 sister's home and spent a night. The deceased's sister and the husband gave a room to the appellant where Happiness the deceased, and the child slept. At about 05.00 hours the deceased's sister heard the child cry and she went to knock where the three had slept. But upon getting no response the sister opened the door only to find Happiness bleeding from the nose and the child was in the kitchen. The elder sister took the child and went back to the room where Happiness was. Upon examination, the elder sister found that the sister was dead. The appellant was not there. The elder sister called the husband to see what had happened. The appellant left behind his trousers , a picture and a letter. The matter was reported to the police who investigated thoroughly. After two weeks the appellant was found in Kabwe rural and was taken to Mufulira. To the police, the appellant denied having murdered the deceased. During the trial, the appellant admitted having assaulted the deceased under provocation. The appellant alleged that the deceased had told him that he was not the father of the child and urged him not to visit them any more. The medical evidence showed, however, that the deceased had been severely assaulted and strangled. The evidence further showed that she had died of strangulation. The appellant, through his advocates, has advanced two grounds of appeal: 1. The learned trial judge erred in law in having rejected the defence of provocation merely on the ground that the injuries inflicted were too excessive to the provocation of being told that the Appellant was not the father of the child. 2. The learned trial judge erred in fact and in law to hold that there were no extenuating circumstances when in fact there were extenuating circumstances. Section 202 (a) and (b) of Cap. 87 regulates that in deciding whether or not there are extenuating circumstances the J3 court shall consider the standard of behaviour of an ordinary person or class of the community to which the convicted person belongs and to take into account facts associated with the offence. Mr. Chitabo in support of the grounds has submitted that the learned trial judge was wrong in not having considered that there was a special relationship between the appellant and the deceased. If the learned trial judge had done so, he was going to afford the appellant the defence of provocation. Mr. Chitabo relied on the case of BANDA (BEZALIEL) vs THE PEOPLE 1973 ZR III at page 112. In that case the appellant was convicted of murder. The trial judge found that it was highly probable that the appellant had come across his girlfriend making love with another man and had killed them both with an axe. He rejected the defence of provocation because he held that before such defence is available the partner must be a legal spouse. The court on appeal held: "(i) The question is not what is the formal relationship but what is the factual relationship and how would an ordinary person react to finding his partner with someone else in circumstances of intimacy. (ii) The defence of provocation is available where a man and a woman are living together in a stable relationship and are not formally married. (iii) The availability of the defence is not necessarily confined to cases where the partners were living together in a stable relationship, but the defence would not be available on the basis of a previous casual relationship." J4 The learned advocate further referred to the case of KALI NPA vs THE PEOPLE 1966 ZR 29 at page 30. He further referred to the case of THE PEOPLE vs NJOVU, where Chief Justice Blagden said: "Quite clearly, the accused lost all control of himself on this occasion and not without hesitation. I have come to the conclusion that extreme though his retaliation was to his wife's provocation, I am satisfied that on the standards of the community to which he belongs that retaliation did bear a reasonable relationship to his provocation." In considering the facts before him, the learned trial judge took into account the injuries sustained and the assault which the appellant alleged to have made to the deceased. It must be borne in mind that the appellant told the court that he slapped the deceased and the deceased fell to the ground. The judge said: "If Happiness had died as a result of the injuries she allegedly sustained after being slapped and falling to the ground, I would have doubted the presence of any intention to kill. As I have said, all the injuries on Happiness were caused by the accused. I do not expect anybody to survive who has his neck firmly tied with a string and whose throat is broken and hemorrhagic." The accused at no time in his evidence or in his statement to the police told the court or the police that he strangled the deceased. He admitted having had a string which he said was intended to hang himself. Faced with the serious evidence of injuries which were inconsistent with the accused's story, the learned trial judge said: "The issue of provocation does not suffice in this case because the injuries inflicted were too excessive to the provocation of being told that he was not the father of the child. The accused acted like a wild animal in order to achieve his goal as he did." The learned trial judge did not specifically refer to any authorities on J5 provocation but he was aware of provocative words which were allegedly spoken by the deceased. The learned trial judge concluded that the violence was too excessive. In his judgement, the learned trial judge did not refer to the special relationship but he was alert to the faqt that there was some provocation. We have seriously considered the evidence on record and the learned advocate submissions. We have considered further the authorities referred to by the learned counsel. The facts do show that there was a relationship between the deceased and the appellant and that there was a child born out of that relationship. The facts further show that the deceased was severely attacked and strangled by use of a string. We have considered the approach by the learned trial judge and the conclusion and we entirely agree that the provocation did not bear reasonable relationship to assault. The learned trial judge concluded that the force used was too excessive and the learned trial judge was on the firm ground. We agree that the defence of provocation in the circumstances of this case would not reduce the offence to that of manslaughter. On this ground the appeal against conviction would not succeed. The second ground deals with extenuating circumstances. The learned counsel has referred to the case of HERMAN MVULA vs THE PEOPLE SCZ NO. 6/1991. We have read this case. We do not think that this case is applicable to the present situation. The facts in this case show that there was a special relationship. The learned trial judge accepted that there was some provocation when the appellant was told that he was not the father of the child. The learned trial judge found that that provocation was not enough to reduce the offence to that of manslaughter but we are satisfied that this provocation would come within the score of extenuating circumstances J6 under Section 202 (a) and (b) of Cap 87. This provocation, although it has failed to reduce the offence from murder to manslaughter will succeed in bringing the case under provisions of the section referred to. the appeal against sentence is, therefore, allowed. The sentence of death is set aside and in its place we substitute a term of imprisonment of 10 years with effect from the date of arrest which is 19th January, 1997 M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE IN THE SUPREME COURT OF ZAMBIA SCZ JUDMENT NO, 13 OF 1998 HOLDEN AT NDOLA APPEAL NO. 164 OF 1997 (81) (Criminal Jurisdiction) BETWEEN: EMMAMUEL CHIFWEMBE APPELLANT VS THE PEOPLE RESPONDENT CORAM: NGULUBE, CJ, SAKALA AND LEWAN1KA, JJS On 2nd June, 1998 For the appellant - Mrs. Judith Kaumba, Assistant Principal Legal Aid Counsel For the respondent - Mr. R. O. Okafor, Principal State Advocate. JUDGMENT Ngulube, CJ, delivered the judgment of the Court. The appellant was tried and convicted on two counts of aggravated robbery. The first count alleged that on 16th October, 1995 at Ndola, while armed with an axe he robbed Elias Chama of his bicycle and at the time used or threatened to use violence. The second count was that on 28th October, 1995 at Ndola, and whilst armed with an axe he robbed Zindikila Manda of his bicycle and at the time used or threatened to use violence. The evidence established that the robberies were committed in broad day light. The complainant on the second count was PW1 while (82) the complainant on the first count was PW2. The witnesses had more than ample opportunity to make a reliable observation. The argument presented is that the Court below was in error not to have given credit to the appellant for the days already spent in custody prior to the date of judgment and sentence. We agree that while it is in the discretion of the trial Court, as to when the Court would like the sentence to take effect from, it is customary in the absence of any good reasons to the contrary to back-date sentences to the date when a person was first taken into custody. However, in this particular case, the learned trial Commissioner was wrong in two other respects none of which are in the appellant’s favour. The first was that these were two robberies committed on two separate days. Quite clearly it is wrong in principle to fail to make a distinction between a robber that has committed one offence and a robber who has embarked on a series of robberies. Secondly, there was evidence from PW2 who was axed that he was severely injured. It is totally wrong in principle to inflict the minimum mandatory sentence in such a case. The 15 years mandatory sentence for aggravated robbery we accept covers a wide spectrum of offences and a wide variety of situations. But to commit several offences and to axe complainants is aggravation which goes beyond the aggravation contemplated in the section. This must be reflected in the sentences the trial Courts impose. The result therefore is that we dismiss the appeal against sentence but will interfere with the sentence. We set aside the sentence of 15 years. In its place we (83) impose a sentence of 18 years imprisonment with hard labour which will start on 20th October, 1995 the date the appellant was arrested. M. M. S. W. NGULUBE CHIEF JUSTICE E. L. SAKALA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE