Leviticus Tembo v The People (Appeal No.140/2022) [2024] ZMCA 154 (21 June 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE and LUSAKA (Criminal Jurisdiction) Appeal No.140/2022 BETWEEN: LEVITICUS TEMBO APPELLANT AND ~ ~ ' ' . --~ Ml ALREGlS THE PEOPLE aox soo67 RESPONDENT CORAM : Mchenga DJP, Ngulube and Muzenga, JJA ON: 16 th May 2023 and 21 st June 2024 For the Appellant: M. K. Liswaniso, Senior Legal Aid For the Respondent: N. Lubasi, State Advocate Counsel, Legal Aid Board National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to : 1 . Precious Longwe v . The People , CAZ Appeal No . 182/20 1 7 2 . Simutenda v. The People [ 1975] Z . R . 373 3 . Kalaluka Musole v . The Peop l e [ 1 963-1964] Z . R . and NRLR 206 (Reprint) 4 . Rodgers Kunda v . The People , SCZ Appeal No. 8 1 of 2017 5 . Whiteson Simusokwe v . The People , SCZ Appeal No . 15 of 2002 Legislation referred to : J2 l. The Penal Code , Chapter 87 of the Laws of Zambia INTRODUCTION c11 The appellant appeared before the High Court (Makubalo , J . ) , charged with the offence of murder contrary to Sec tion 200 of the Penal Code . c2 1 He denied the charge , and the matter proceeded to trial . At the of that trial , he was convicted for committing the offence and condemned to suffer capital punishment . C3J He has appealed against the sentence . CASE BEFORE THE TRIAL JUDGE C4J On 22 nd November 2020 , Levison Tembo of Chigumane Village in Chipata , was roofing a house with his brother , Mwanj i Zulu . After working on the roof , Levison Tembo and Mwanji Zulu took a break . Mwanji Zulu lay under a tree , while Levison Tembo retreated into a house . cs1 While in the house , Levison Tembo heard some J3 chopping sounds. He also heard the appellant say they had finally settled their differences , that had been outstanding for a long time. C6 J When Levison Tembo came out of house , he found the appellant , who was holding a bloodied axe, standing nex t to Mwanji Zulu ' s lifeless body . He also noticed two cuts on Mwanji Zulu ' s face . c11 In his defence , the appellant did not deny axing Mwanji Zulu . He said Mwanji Zulu attempted to strike him with the axe , before he disarmed and hacked him . csi He recounted being told by his daughter that one night , Mwanji Zulu spent a night in his former wife ' s bedroom . He also recounted how earlier that day , he found that his former wife had washed Mwanji Zulu ' s clothes . On being questioned, she attributed her association with Mwanji Zulu , to his inadequacies in bed . C9J The appellant said he only sought to confront him on the allegations , but Mwanji Zulu attempted to attack him with an axe . c101 A post-mortem on the body of Mwanji Zulu , found t he J4 cause of his death to be the injuries he had suffered to his head . GROUND OF APPEAL AND ARGUMENTS IN SUPPORT c11i The sole ground of appeal is t hat , the tr ial Judge erred when she held that the there were no extenuating circumstances on account of a failed defence of provocation , because no provocative act was proved . c12i Reference was made to the case of Precious Longwe v. The People 1 , and it was submitted that even though the defence of provocation may have failed , the provocative act was proved . c1JJ According to counsel , the provocative act was the picking of the axe by Mwanji Zulu , and his attempt to strike the appellant with it . It was submitted that even if no one saw what happened , the appellant ' s story was plausible . ARGUMENTS AGAINST THE APPEAL c14J In response to the so le ground of appeal , the cases of Simutenda v. The People2 and Kalaluka Muscle v. The People 3 , were referred to and it was submitted JS that even if there is no obligation on an accused person to prove the defence of provocation , there must be credible evidence either from the appellant or prosecution witnesses , supporting the elements of the defence , before its availability can be considered . [1si It was submitted that while the appellant claimed that Mwanji Zulu attempted to strike him with the axe , the evidence established that the axe , in fact , belonged to the appel l ant. c1GJ It was also submitted that since the allegation that he was inadequate in bed was not made in the presence of Mwanji Zulu , it could not have been provocative to warrant him attacking Mwanji Zulu . c111 Finally , the cases of Precious Longwe v The People1 and Rodgers Kunda v . The People 4 , were referred to and it was submi tted that where there is no evidence of any provocative act , e x tenua t ing circumstances on the basis of a failed defence of provocation , cannot arise . J6 CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT c1a1 It is settled law that a failed defence of provocation , can amount to an extenuating circumstance . There is plethora of authorities t o that effect , including the case of Whiteson Sirnusokwe v. The People 5 • c191 It was submitted that the provocat ive act was Mwanj i Zulu ' s attempt to str i ke the appellant when he went to question him over the affair he was having with his former wife . c201 The trial Judge made a finding that the appe l lant was the owner of the axe tha t he used to hack Mwanji Zulu. That fact discredited the appel l ant ' s claim that he only went to house were the roofing was taking place , to question Mwanji Zulu , and that Mwanji Zulu attempted to strike him . c21 1 In addition , the appellant ' s statement , as he hacked Mwanji Zulu , that t he ir differences had finally been sett led , is indicative that the appel l ant had set out armed with an a x e , to ' deal ' with Mwanji Zulu . c221 In the circumstances , we find no basis for faulting J7 the trial Judge ' s rejection of the appellant ' s c l aim that Mwanji Zulu attempted to strike him with an axe ; and her conclusion that , in fact , the appellant went there armed . c23 1 An examination of the evidence before the trial Judge establishes that what upset the appellant was his discovery that his former wife had washed Mwanj i Zulu ' s clothes , and being told that she was associating with him on account of his inadequacies in bed . c2 41 As it turned out , about 5 years prior to his killing , Mwanji Zulu used to live with the appellant . They parted company following reports that Mwanj i Zu l u was having an affair with the appellant ' s wife . Those allegations also led to the appellant breaking up with his wife . c2s1 The defence of provocation is set out in Section 206 of the Penal Code. The relevant parts of the provision read as follows : (1) The term "provocation" means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done or offered to an J8 ordinary person, or in the presence of an ordinary person to another person who is under his immediate care , or to whom he stands in a conjugal , parental , filial, or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered. For the purposes of this section, "an ordinary person" shall mean an ordinary person of the community to which the accused belongs. (th e underlining is ours and is for emphasis) c2G1 In this case , the annoying statements were not uttered by Mwanji Zu lu but t h e appellant ' s former wife . This being the case , the defence of provocation , as is set out in Section 206 of the Penal Code , was not ava ilable to the appellant because the provocative statements did not come from the person he killed . In effect , there was no ' p rovocat ive act ' as it i s se t out in Section 206 of the Penal Code. c27J In the absence of a provocative act , there cannot be J9 a failed defence of provocation , and extenuating circumstances on the basis of a failed defence of provocation . c201 We find no merit in the s ole ground of appeal , a nd we dismiss it . VERDICT c291 The sole ground of appeal having failed , this appeal is dismi s s ed for want of merit . The sentence imposed by the trial Judge is upheld . . F. R. Mch DEPUTY JUDGE PRES P . C . M. Ngulube COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE