Chama v People (SCZ Appeal 175 of 1997) [1999] ZMSC 81 (6 April 1999)

IM THE SUPREME COORT OP ZAMBIA SCZ APPEAL NO. 175 OF 1997 HOLDEN AT NDOLA (CrinInal Jurisdiction) KAFIKILA CHAMA APPELLANT VS TBS PEOPLE RESPONDENT Coram Bweupe, DCJ; Chaila and Chirwa, JJS Sth March, 1998 and Sth April, 1999 For the Appellant x In person For the Respondent) M. J. Mwanakatwe, Principal State Advocate JUDGMENT Chaila, JS, delivered the judgment of the court* Thia is an appeal by the appellant against the conviction and sentence. The appellant stood charged with the offence of murder. The particulars being that on 30th January, 1997 at Ndola in the Ndola District of the Copperbelt Province of the Republic of Zambia did murder ISAAC KUNDA. Brief facts as found by the learned trial judge were that the appellant who was working for the Tines of Zambia, on material date travelled with the deceased in his car from Ndola towards Kapiri Mposhi. Ths deceased had worked as a house servant for the appellant in 1995. While the deceased was working as a house servant for the appellant, the appellant developed intimate relationship with the deceased's wife and the relationship ended in making her pregnant. The deceased knew about the relationship. Ths J2 - matter was settled out of court and the appellant paid Kim to the deceased as compensation. The deceased later left employment but kept on calling on the appellant and made further demands. The demands turned to be some form of blackmail* On the fateful day, the deceased travelled from his home in Serenje to Ndola. The appellant was not willing to see the deceased since he was very busy. The appellant was preparing to go on duty to Kapiri Mposhi. When the deceased learnt that the appellant was making a trip to Kapiri Mposhi, he convinced the appellant to give him a lift since he had some big story to tell him and that he would get off at Kapiri Mposhi to proceed to his village. The appellant was using a company vehicle and from the prosecution's evidence, it was clear that it was his practice to move with knives for security reasons. The appellant and the deceased left after 14.00 hours for Kapiri Mposhi. After travelling for a while, the deceased requested the appellant to stop on the way so that he would answer the call of nature. The appellant found after Tug-ar-gan turn-off seme gravel road and branched off and drove for about 250 metres, then stopped. Then the deceased Introduced ths subject of the appellant's relationship with the deceased's wife. The appellant informed the deceased that as far as the matter was concerned, the issue was resolved and had documents to show that the deceased had been finally paid and had no more claims to sake. An argument ensued between the deceased and the appellant while both of them were sitted in the car. The appellant had safety belts on. The deceased grabbed the appellant by the throat than ths appellant, according to his evidence, lost control; looked for one of the knives in the car and stabbed the deceased several times causing serious injuries to his body. The deceased got out of the car and ran to the road. The appellant still being upset, drove off and reported the matter to the police. He made a statement under warn and caution in which he explained what happened. The deceased person was still alive and was J3 - taken to the hospital where he died a few hours later. In his evidence, the appellant admitted having knifed the deceased but stated that he did so under provocation and/or self-defence. The learned trial judge considered all the evidence and arguments before hie and disnissed both defences and convicted him of murder. On the sentence the learned trial judge took into account the evidence concerning blackmail and concluded that there were some extenuating circumstances and sentenced him to life imprisonment. The appellant submitted and relied on three grounds of appeal. He handed to us detailed written grounds and submissions and amplified them in his oral submissions. He will deal with these grounds in the order in which they were argued. The first ground is that the police were guilty of dereliction of duty by their failure to record a statement from the deceased. The appellant argued that the central tenet in the entire judgment was the trial judge's assertion that this case was a peculiar case in that there were no eyewitnesses to the event in the bush that led to the death of the deceased and that the prosecution relied on circumstancial evidence and the confesion of the accused. The appellant argued that the claim that there were no eyewitnesses to the events in the bush was a serious misdirection. He argued that there was evidence from the police which confirmed that when they found the deceased he was alive, conscious and able to talk. The deeased was able to shout for help. The deceased was able to mention the appellant's place of work and colour and registration number of the vehicle. To the appellant, there were therefore, eyewitnesses to the events) that was the deceased himself. He wondered why the two police officers who went to the scene did not find time to record a statement from the deceased. The appellant argued that the opportunity to record a statement from the deceased was initially missed - J4 - by PW2 and PW3 for reasons which ware not satisfactorily explained. He argued that if they had recorded a statement from the deceased, the deceased would have explained as to what transpired and what led to the stabbing. We would like to refer to the evidence of PW2, which showed that around 15.00 hours when he was driving from Lusaka to Ndola, he noticed a person lying down just before Tug-ar-gan turn-off covered in a pool of blood. While at the scene the appellant arrived in a red vehicle registration No* ACC 2216 and introduced himself as Mr. Kapilika Chana and said he knew the person lying down and knew sonething of what had happened to the man who was in a pool of blood. The deceased was taken to Ndola Central Hospital. The appellant reported the natter to Ndola Central Police Station where Superintendent Chlleshe interviewed the appellant who surrended three knives, one of which was allegedly used in stabbing the deceased. PW5 Superintendent Chlleshe testified that they received three knives, one of which bad some blood stains. He interviewed the appellant and the appellant admitted stabbing the deceased. There was also evidence from Detective Constable PW6 who Investigated the matter* He recorded a warn and caution statement which was produced without objection. Thora was further evidence from the prosecution that the deceased was admitted in intensive care unit and the following day he died* It is the appellant's contention that the police were guilty of dereliction of their duty by not recording statement from the deceased. We have considered the entire evidence adduced by the prosecution and by the defence] we do not see where the police went wrong. The police went to the scene much later and were led by the appellant himself. The deceased was taken J5 - by the appellant and PW2 to the hospital. We are convinced, therefore, that there was no dereliction of duty on the part of police. The second ground of appeal was self-defence. The appellant argued in his written submission that there was ample and irrefutable evidence that the appellant claimed that he had been attacked by the deceased whom he had then stabbed in self-defence was timely and was given to the police at the earliest opportunity. The appellant argued that the learned trial judge was in error in dismissing self-defence. He argued further that they were sitted in the car when a quarrel erupted* The deceased went for his throat, he was going to die. He did not know whether the deceased was armed or not. In his written submission, the appellant referred us to various authorities which included! * - • Chiyovu Kosamu vs The People (1978) XX 252; Rueben Sjobvu vs The People (1978) 2R 372; Peter Totamu Haaaenda vs The People. We have read these authorities and we have considered then. In his oral submission, the appellant informed us that there was an unlawful killing to which he admitted. The police did not get a statement from the deceased. That statement, according to him, would have affected the sentence. He argued that he admitted to the police that he had stabbed the man under circumstances which he had explained to them and he maintained that the learned trial judge misdirected himself by dismissing self-defence. The prosecution evidence confirmed by the appellant himself is that the deceased had gone to his working place. The deceased had wanted to see him but unfortunately the appellant was too busy. The deceased waited until in the afternoon when the appellant agreed to go with the deceased in his car since he was going to Kapiri Mposhi. They travelled J6 - together for some distance. The appellant would have noticed if the deceased was armed. The evidence on the attack showed that the appellant went off the sain road into the gravel road, stopped the vehicle and they engaged into some discussion. The evidence further showed that the appellant was attacked by using mere hands. No weapon was used. The learned trial judge took this into consideration and dismissed the defence of self-defence, in his evidence the appellant said on the evidence leading to the attack: "Get out of the car and leave. I an going to give you transport money. Just get out. At that moment everything just changed. He shouted in Bemba saying: *Don't you know that people die over such matters,' and he raised his hands to strike me. We were still sitting in the car. I was sitting on the driver's seat. He was in the passenger seat. We were inside the car and people were passing some 200 metres away at probably 14.20 hours on a Tuesday afternoon in a broad day light. He then went straight for ay throat with both of his hands handing across the seat as he shouted the words which X have just spoken. I grabbed the knife which I kept in the driver's seat door and there is another one which X kept in the passenger compartment and one under the seat. I grabbed the knife which X got under the driver's door itself. There is that compartment and X can remember stabbing him across the stomach The description of the events shows that the deceased never used any weapon on the appellant and that the appellant did not make any other effort to ward off the attack, apart from going for the knife. We entirely agree with the conclusion of the learned trial judge. The learned trial judge properly directed himself and on the facts, we cannot see any self-defence. The other defence was provocation. The appellant in his own submissions has argued that the deceased person had been paid compensation and ha came on the material date for making more demands. He argued that there was a lot of blackmail and that when ths deceased renewed his demands, he was provoked more when the deceased went to attack him by grabbing his throat. In dealing with this issue in his judgment, the - J7 - learned trial judge considered the facts together with that of self-defence and dismissed it. The learned trial judge came to the conclusion that the reaction of using a knife did not bore reasonable relationship to the provocation. The learned Principal State Advocate Hr. Kwanakatwe supported the learned trial judge in dismissing both defences of self-defence and provocation. Nr. Nwanakatwe referred us to the evidence on record and argued that the deceased never used any weapon. The appellant did not retreat or attempt to do so before he stabbed the deceased five to six times and proceeded to use excessive force. We seriously read the evidence and considered the judgment of the learned trial judge and we fully agree with his conclusions on provocation. The learned trial judge was on the firm ground when he rejected the defence* In his written grounds, the appellant talked about malice aforethought. He argued that he did not intend to kill the deceased and he did everything possible to assist the deceased and took him to the hospital. The evidence on record clearly shows that the use of the knife provided ingredients necessary for causing grievous bodily harm. The appeal would not succeed on this ground. In sentencing the appellant, the learned trial judge took into account that there were extenuating circumstances and sentenced him to life imprisonment. The evidence on record shows that the deceased had been paid for the adulterous association the appellant had with the deceased's wife. Evidence further showed that the deceased had been pestering the appellant and making frequent or several trips to the appellant's working place; he had been making a lot of demands for more money; the deceased had waited the whole day to make further demands on the appellant. The evidence further snowed that there was blackmail. Taking all these into account, J8 - we feel that the sentence of life imprisonment was wrong in principle and excessive* We allow the appeal against sentence and the sentence of life imprisonment is set aside and we impose a tern of 10 years imprisonment with hard labour with effect from the date of arrest* B. K. BWEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRNA SUPREME COURT JUDGE