Mwanamoonga v People (Appeal 20 of 2010) [2012] ZMSC 114 (10 July 2012)

-OCX IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CRIMINAL JURISDICTION) APPEAL NO .20/2010 BETWEEN: JULIOUS MWANAMOONGA Appellant AND THE PEOPLE Respondent Coram : Sakata, CJ., Chirwa and Chibomba JJS On 26th June 2010 and 10th July 2012 For the Appellant Mr. K. Muzenga, Senior Legal Aid Counsel - Legal Aid Board For the State Mrs. R. M. Khuzwayo, Deputy Chief State Advocate, DPP’s Chambers JUDGMENT Chirwa, J. S, delivered the Judgment of the Court:- Cases referred tot- , 1. DAVID ZULU V THE PEOPLE [1977] Z. R 151 2. SALUWEMA V THE PEOPLE [1965] Z. R 4 3. DOROTHY MUTALE & ANOTHER V THE PEOPLE [1997]Z. R 51 J2 The appellant, Julious Mwanamoonga, was charged and convicted on one Count of Murder Contrary to Section 200 of the Penal Code, Cap. 87. The particulars alleged that the appellant on a date unknown but between 17th and 18th November 2006 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia murdered one MONDAY MAINZA. Upon his conviction, he was sentenced to 20 years imprisonment with hard labour. He has now appealed against that conviction and sentence. The facts of the case are very common and are that the deceased and the appellant were friends. The deceased was a polygamist married to Elizabeth Tonga who was PW1 and Idah Situbisha who was PW2 in the court below. Elizabeth Tonga was also girlfriend to the appellant. On the material date the deceased had a quarrel with Elizabeth Tonga, PW1, who was his first wife. PW1 ran away from the matrimonial home ostensibly running to her mother. On the way she met the appellant who inquired where she was going and she told him that she was running to her mother as the deceased wanted to beat her. The appellant came to where J3 PW1 was and they started fondling and kissing. The deceased shortly came to the scene and asked the appellant what he was doing with his wife at night. On hearing this, PW1 ran away leaving the deceased and the appellant chasing each other and heard the deceased insulting the appellant and that he was going to beat him for being found with his wife at night. When PW1 was running away, the chitenge material that she had wrapped herself with fell from her. The insults and threats of the deceased beating the appellant were heard by PW2, second wife to the deceased. In the morning of the following day, PW2 went to the home of PW1 and inquired from the children if their mother was still sleeping, the children answered that both of their parents were not home. PW2 went to the field and started planting maize. Later she saw chitenge material of PW1 and when she went closer she observed some footprints. She then went to her father-in-law to report what she had seen. The father-in-law came to the scene with his other sons and followed where the footprints were leading. At the end of the field they found the body of the deceased. J4 The matter was reported to the police who came and collected the body of the deceased. At the village as PW2 had heard the previous night that the deceased had shouted that he had known Julius as there was only one Julius in the village, the villagers went to the house of Julius and on seeing them Julius ran away, and hid in his elder brother’s house. Villagers waited there until police came and apprehended Julius. The appellant was interviewed and under warn and caution he admitted the encounter with the deceased the previous night but that when the deceased wanted to fight him he ran away and went to his house to sleep and that he did not know who killed the deceased. A postmortem examination was conducted on the body of the deceased and the major findings were swollen face, bleeding from the nose, fractured nose and bruised, fractured neck. The cause of death was multiple injuries due to assault. When put on his defence, the appellant told the court that in the evening of 16th November 2006, he was coming from his J5 brother-in-law’s house and on the way he met his sister-in-law by the name of Eliza who when asked where she was going at night, responded that she had been beaten by her husband. The Eliza is PW1. As they were talking the deceased came at the scene and PW1 ran away and the deceased gave chase. He, the appellant, went to his house and slept. The following morning, he went to the co-operative shop to buy some seed and whilst there the nephew to the deceased informed him that there was a funeral. After buying seeds he went to his house and whilst at his house Shamboko came to his house and aimed a catapult at him and said go and eat your meat and when he inquired as to what meat, more people came. He ran away and hid in his brother’s house. People surrounded the house and he was there until police came and apprehended him. He denied being a friend to PW1 or ever committing adultery with her. He further said that PW1 falsely implicated him and it was not true that he was chased by the deceased. On the evidence before him, the learned judge found as a fact that the deceased’s first wife was a girlfriend to the appellant and J6 were found together fondling each other after the deceased’s wife ran away from her matrimonial home. He accepted the evidence that when the appellant and PW1 were found together, PW1 ran away. Her evidence of her running away was confirmed by the appellant to the arresting officer. As PW1 ran away and the deceased was chasing the appellant and according to the learned trial judge, they obviously fought. The learned trial judge was alive to the fact that this case depended on circumstantial evidence and the conclusions of which must be drawn from prevailing circumstances. On the basis of the guideline given in the case of DAVID ZULU V THE PEOPLE111 the learned trial judge was satisfied that the fight that ensued the chase of the appellant by the deceased resulted into the deceased’s death. The learned trial judge then considered whether the defence of self-defence was available to the appellant. After looking at the post mortem examination report, the learned trial judge opined that the defence of self-defence failed and found the appellant guilty of murder. The learned trial judge further opined that circumstances of this case were such that he would not impose the mandatory death sentence, he sentenced the J7 appellant to 20 years imprisonment with hard labour. It is against the conviction and sentence that the appellant has appealed to this court. Mr. Muzenga, Counsel for the appellant, presented the appeal on two alternative grounds of appeal. The first was that the learned trial judge misdirected himself in convicting the appellant on circumstantial evidence when an inference of guilty was not the only reasonable inference which could be drawn from the facts. The second ground was in the alternative to ground one that the learned trial judge erred in law and in fact in his failure to convict the appellant of the offence of manslaughter having found that there was a fight between the deceased and the appellant. In elucidating the first ground of appeal, Mr. Muzenga submitted that the evidence of the appellant in court was similar to the one given by PW1 in relation to what happened on the fateful night except that the appellant said that when the deceased found them, he chased his wife, PW1 and the appellant himself just went J8 home. It was argued that the evidence of the appellant is likely to be true as the following day, when PW1 heard that her husband had died, she ran away and this conduct was not of an innocent person. As the appellant’s evidence could reasonably be true, the learned trial judge ought to have accepted it on the authority of SALUWEMA V THE PEOPLE(2) and the prosecution cannot be said to have proved their case against the appellant beyond reasonable doubt and he should be given the reasonable doubt. It was further submitted that it is possible that when the deceased chased PW1, there might have been a fight leading to the deceased’s death and that as there were two inferences to be drawn, the one more favourable to the appellant should be taken on the authority of DOROTHY MUTALE & ANOTHER V THE PEOPLE (3>. In arguing the second ground as alternative to the first ground, it was submitted that as the learned trial judge found that there was a fight between the deceased and the appellant and that the deceased was the aggressor but was just later overpowered by the appellant, the learned judge should have found the appellant J9 guilty of manslaughter. It was submitted that failure to consider this aspect was a misdirection and the conviction of murder should be quashed and that of manslaughter substituted and the sentence of 20 years imprisonment be reconsidered. In answer to the submission, Mrs. Khuzwayo in supporting the conviction submitted that the appellant was convicted on circumstantial evidence and the appellant puts himself at the scene when he admits that he was found with PW1. Further, when PW3 & 4 approached the appellant the following morning, he ran away and that if he was innocent why did he ran away. On the alternative ground, it was argued that from the pathologist’s evidence, the injuries were severe meaning that the appellant had an intention to kill and the learned trial judge erred in sentencing him to 20 years as there were no extenuating circumstances. J10 We have considered the evidence and judgment on record and the submissions of both Counsel. It is a fact that there was no eye witness to the crime and the case depended on circumstantial evidence and the learned trial judge was alive to the dangers of circumstantial evidence and was alive to the guidelines given by this court in the case of DAVID ZULU V THE PEOPLE (D. In addition to the appellant’s own admission that he and PW1 were found by the deceased at night that evidence is confirmed by PW2 who heard the deceased saying that he had recognized the appellant. The evidence of PW1 that she was the girlfriend of the appellant was never contradicted and it is too much of a coincidence that PW1 would quarrel with the deceased to run away to her mother only to find herself in the hands of the appellant, the boyfriend. When they were found by the deceased she ran away leaving behind her chitenge material and the deceased recognized the appellant and asked him what he was doing with his wife at night and threatened to beat him. In fact, after PW1 ran away there was a fight between the appellant and the deceased. In his statement on arrest and under warn and caution, the appellant told Jll the police that he was found in the bush by the deceased with the deceased’s wife and wanted to fight him, the appellant, but he ran away. Having been caught and the deceased threatening to beat up the appellant the only reasonable inference to draw from the circumstances is that the deceased followed the appellant and the deceased must have caught up with appellant and a fight ensued. This is the only reasonable inference from the circumstances. As a result of the fight the deceased sustained fatal injuries from which he died. We therefore do not agree that there could have been any other inference from the circumstances, ground one is therefore dismissed. Coming to the second ground that since there was a fight the appellant should have been found guilty of manslaughter and not murder, the observation of the pathologist is very pertinent. The pathologist comments are as follows “It looks he was beaten on the face and by leg at his abdomen. When he became unconscious his neck was twisted.” J12 We do not agree that the deceased was the aggressor, he merely reacted to finding his wife in the hands of the appellant. It is the appellant who was the aggressor. Therefore it cannot be said that the appellant was provoked and that failed defence of provocation could be taken as extenuating circumstance. However, as there is evidence of a fight, the sentence of 20 years comes with sense of shock. We set aside the sentence of 20 years and in its place we substitute a sentence of 10 years imprisonment from the date of arrest. To this extent only, the appeal succeeds. E. L. Sakala CHIEF JUSTICE D. K. Chirwa AG. DEPUTY CHIEF JUSTICE H. Chibomba SUPREME COURT JUDGE