Kawanga Sabata v The People [2022] ZMCA 198 (17 November 2022)

-a. IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA AND NDOLA (Criminal Jurisdiction) Appeal No 115/2021 BETWEEN: LIC OF 3-0tjR1 OF KAWPaNGA SABATA (j 11 NOV 2022 REGISTRY CRIMI -c€2x 50067. APPELLANT THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Makungu and Muzenga JJA 22'' March 2022 and 17 th November 2022 ON: For the Appellant: N. M. Mweemba Acting Director of Legal Aid, Legal Aid Board For the Respondent: 0. Muvwende, Senior State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. CASES REFERRED TO: l. Lengwe v. The People [1976] Z. R. 127 2. Tembo v. The People [1972] Z. R. 220 3. Victoria Kamusembe v. The People, SCZ Appeal No. 286 of 204 4. People v. Njobvu [1968] Z. R. 132 5. Whiteson Simusokwe v. The People, SCZ Judgment No. 15 of 2002 1. INTRODUCTION J2 1.1. The appellant appeared before the High Court (Chibbabbuka, J.) on a charge of murder contrary to Section 200 of The Penal Code. 1.2. He denied the charge, and the matter proceeded to trial. 1.3. At the end of the trial, he was convicted for committing the offence and sentenced to life imprisonment. 1.4. He has appealed against the conviction, and in the alternative, against the sentence. 2. CASE BEFORE THE TRIAL COURT 2.1. On the 16 of June 2018, in the evening, the appellant was selling chevon (goat meat) at Club Alex, in Nkeyama District, when he was approached by Yenda Tapula.. 2.2. Yenda Tapula took a piece of meat worth K1.00 out of the appellant's pot, withoUt paying for it, and ate it. He then threw the pot of meat on to the ground. 2.3. A fight then ensued between the appellant and Yenda Tapula. During the fight, Yenda Tepula fell to J3 the ground, and the appellant trampled on his head and ribs. 2.4. Three days later, Yenda Tapula died having suffered a ruptured kidney during that fight. 3. FINDINGS BY THE TRIAL JUDGE 3.1. The trial Judge found that the manner in which the appellant stepped on Yenda Tapula, when he fell to the ground, proved malice aforethought. This is because he ought to have known that stepping him on the head and ribs, was going to cause grievous harm. 3.2. She also considered the availability of the defence of provocation. She found that Yenda Tapula's throwing of the appellant's pot was provocative, but that the retaliation was not proportionate because the meat was only worth K1.00. 3.3. However, the trial judge found that the failed defence of provocation afforded the appellant extenuating circumstances and thus avoided imposing capital punishment. 4. GROUNDS OF APPEAL 4.1. Two grounds have been advanced in support of the appeal. It is contended that: J4 4.2. The trial Judge, erred in law when she convicted the appellant for the offence of murder when the evidence proved a charge of manslaughter; and 4.3. The trial Judge erred in law and fact when she sentenced the appellant to life imprisonment in the absence of any aggravating factors. 5. ARGtTh4ENTS IN SUPPORT OF THE FIRST GROUND OF APPEAL 5.1. In support of the first ground of appeal, Mr. Mweemba referred to the cases of Lengwe i The People" Tenibo v The People' and Victoria Kansanthe The People and submitted that had the trial judge properly assessed the evidence, she would have found that the defence of provocation was available to the appellant. 5.2. He argued that the appellant's reaction to Yenda Tapula's provocative conduct was proportionate and it was in the heat of the moment. He had no time to cool off and that being the case, he should have been convicted of the lesser offence of manslaughter. 6. ARGUMENTS AGAINST THE FIRST GROUND OF APPEAL J5 6.1. In response, Ms. Muvwende referred to the case of the People v Njobvu4 and submitted that the trial judge was on firm ground when she found that malice aforethought had been proved. 6.2. She also referred to the case of Whiteson Simusokwe v The People5 and submitted that the defence of provocation was not available because the retaliation was not proportionate to the provocative act. 7. COURT'S CONSIDERATION OF THE FIRST GROUND OF APPEAL 7.1. The defence of provocation is set out in Section 205 of The Penal Code, which reads as follows: (1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion, caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only. (2) The provisions of this section shall not apply unless the court is satisfied that the act which causes death bears a reasonable relationship to the provocation. - 7.2. For the defence of provocation to succeed, it must be proved that the unlawful act that caused J6 death was in the heat of the moment, but that it bore a reasonable relationship to the provocative conduct. In other words, it must be proportionate to the provocation. 7.3. In the case of Lengwe v The People', Baron DCJ, commenting on the concept of proportionality in the defence of self-defence, said the following: "In these circumstances, a man cannot be expected to consider dispassionately precisely what force he may use or whether a weapon which happens to be ready to hand and which he picks up and uses in the heat of the moment is or is not more than the occasion warrants. This court has held in a number of cases that one cannot apply over-fine tests to the actions of people involved in fights of this kind." 7.4. Even though these comments were made in relation to the defence of self-defence, we find that they equally apply to the defence of provocation that is anchored on a fight. 7.5. The "proportionality" of the retaliation where a fight ensues soon after the provocative act, cannot be assessed the same way it is assessed in a one sided attack by an offender after the provocative utterance or act. J7 7.6. Thus in the case of Tembo v. The People', the defence of provocation was still found to be available to an offender who used a knife. he got hold of in the course of a fight and used it to cause the death of a person he was fighting. 7.7. In this case, a fight ensued after Yenda Tapula's provocative conduct. The appellant subdued him and trampled on him during the course of the fight. 7.8. The approach the trial judge took would have been apt if there was no fight and the appellant attacked Yenda Tapula and trampled on him after he had eaten the meat and thrown down the pot. 7.9. This being the case, it is our view that the trial judge erred when she found that the force used was not proportionate to the retaliation. A proper assessment of the evidence points at the fact that the appellant did not do anything way out of what V any person provoked into a fight, in those circumstances, could have done. 7.10. Consequently, we find merit in the 1st ground of appeal and we allow it. 8. VERDICT J8 8.1. The first ground of appeal having succeeded we find it otiose to consider the 2nd ground of appeal. 8.2. We set aside the conviction for murder and instead convict the appellant for the lesser offence of manslaughter, contrary to Section 199 of The Penal Code. 8.3. We also quash the sentence of life imprisonment and in its place we impose a sentence of 4 years imprisonment, with hard labour. The sentence will run from the 16t1 of April 2019, the day on which the appellant was arrested. C. F. R. Mchenga DEPUTY JUDGE PRESIDENT C K Makungu COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE