Loyd Haamwambwa v The People (Appeal No 129/2022) [2023] ZMCA 367 (20 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No 129/2022 BETWEEN: LOYD HAAMWAMBWA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA On 25th April 2023 and 20th November 2023 For the Appellant: Mr. M Kapukutula, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mrs. S. Kachaka, Senior Stated Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Tembo v the People (1972) ZR 220 (CA) 2. Lengwe v. the people (1976) ZR 127 (C. A) 3. Esther Mwiimbe v The People (1986) ZR 15 4. Micheck Tolosi v the People appeal No 69/2022 Legislation referred to: 1. The Penal Code Chapter 87 of the laws of Zambia. 1.0. INTRODUCTION J2 1.1. The appellant was charged with one count of the offence of murder contrary to Section 200 of the Penal Code Chapter 87 of the laws of Zambia. He was subsequently convicted and sentenced to death by Maka-Phiri, J. 1.2. The particulars of offence alleged that the appellant on 11th July 2021 at Monze in the Southern Province of the Republic of Zambia murdered Benson Kaunga. 2.0. EVIDENCE IN THE COURT BELOW 2.1. The evidence of five prosecution witnesses secured the appellant's conviction. A summary of the prosecution evidence was that the appellant had a dispute with the deceased and PW4 over the parentage of PW3. The appellant treated PW3 as his daughter. PW4 the mother to PW3 and the deceased who was an uncle to PW4 habitually and publicly mentioned that the appellant was not the father to PW3. 2.2. On 10th July 2022, the appellant went to get PW3 and spent a night with her at his house. The following day, the appellant met PW2 whom he told that he spent a night outside his house with a spear ready to kill the deceased, PW4 or any other person who would follow his daughter to his place. Immunity in this regard was only given to PW2, as the only person who was allowed to come to the appellant's place. PW2 then rushed to alert the deceased and PW4 not to go there but it was too late as the deceased had already left. The deceased turned up at the appellant's house and found J3 PW3 outside. He questioned her as to what she was doing there. PW3 got scared and ran into the house. 2.3. The appellant then came out of the house with knives and a spear. When PW3 came out of the house, she found the deceased and the appellant were fighting and the deceased was being beaten with fists. PW3 then chased after a child who was naked as she wanted to dress her. When she returned, she found the deceased on the ground gasping for breath. It was then that she saw the appellant stabbing the deceased in the ribs and thighs with a knife. The appellant then pulled the deceased near the fireplace and started beating him with a stick. PW3 subsequently left with the appellant to hide in the bush. The appellant was later apprehended by PWS. 2.4. This marked the end of the prosecution evidence. The appellant was found with a case to answer and he was put on his defence. 3.0. DEFENCE 3.1. In his defence, the appellant opted to give sworn evidence and did not call any witnesses. The appellant raised self-defense and provocation. He told the trial court that the deceased was the aggressor, who came to his house and threw stones at him and his children. 4.0. FINDINGS AND DECISION OF THE TRIAL COURT 4.1. After careful consideration of the evidence before her, the learned trial judge found that the facts in this matter were mainly not in dispute. The trial court went on to find that the findings as recorded in the post-mortem report on J4 examination were consistent with the prosecution's evidence that the deceased did not die of natural causes. The trial judge went on to find that the defence of provocation was not available to the appellant. 4.2. The learned trial judge also found that the appellant had lamentably failed to establish the existence of the conditions for self-defence or defence of any of his daughters who were already safe. The learned trial judge further found that the prosecution had proved its case beyond a reasonable doubt and that there were no extenuating circumstances in this matter. The appellant was later sentenced to death. 5.0. GROUNDS OF APPEAL 5.1. Disgruntled with the conviction and sentence the appellant launched the present appeal fronting two grounds structured as follows: (1) The learned trial court below erred in law and in fact in convicting the appellant of the offence of murder when the prosecution did not prove its case beyond all reasonable. (2) The learned trial court erred in law and fact when it sentenced the appellant to death when there was evidence of extenuation. 6.0. THE APPELLANT'S ARGUMENTS 6.1. In support of ground one, learned Counsel for the appellant, contended that the element of malice aforethought was not proved. It was contended that PWS told the trial court that he did not ascertain who may have started the fight. We were referred to the case of Tembo v. The People1 where it was JS held that: "An argument followed by a fight can amount to provocation sufficient to reduce the offence from murder to manslaughter a fatal blow struck with a lethal weapon in the heat of such fight." 6.2. We were further referred to the case of Lengwe v. the People2 where it was held that: "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 which he picks up and uses in the heat of the moment is or is not more than the occasion warrants." 6.3. It was contended that the prosecution in the court below did not prove the offence against the appellant. We were urged to allow this appeal, quash t he conviction, set aside the sentence and set the appellant at liberty. 6.4. In support of ground two of the appeal, learned counsel for the appellant contended that the trial court having found at pages 16 and 17 of the judgment that the defences of provocation and self-defence failed, it follows that extenuating circumstances were present. We were urged to allow this appeal, quash the conviction, set aside the sentence and set the appellant at liberty. 7.0. RESPONDENT'S ARGUMENT J6 7.1. On behalf of the respondent, the learned Counsel contended that the prosecution proved their case beyond reasonable doubt. It was contended that there was malice on the part of the appellant given the manner in which the appellant attacked the deceased. Learned counsel contended that the appellant was never provoked and that he killed the deceased with malice aforethought. 7.2. In summation, it was contended that the trial court was on firm ground when it convicted the appellant. We were implored to dismiss this appeal for lack of merit and uphold the conviction of the lower court. 8.0. CONSIDERATION AND DECISION OF THE COURT 8.1. We have carefully considered the evidence on the record, the arguments by counsel for the appellant and the judgment under attack. 8.2. The issue in this appeal is whether the defences of provocation and self defence were available to the appellant. The ancillary issue is whether in the circumstances, extenuating circumstances existed. 8.3. The legal principles on the defence of provocation are settled in our jurisdiction. For the defence of provocation to be available to an accused person, there must be the act of provocation, the loss of self-control both actual and reasonable and the retaliation proportionate to the provocation. We note that for provocation to be established, there should be evidence that the deceased did or said something to the accused, which would cause J7 an ordinary person of the accused's standing to lose self-control and act in the heat of passion and cause the death of the provocative person. 8.4. The appellant did not deny having killed the deceased . In his defence, he narrated how he had been frustrated for some time by his wife and her relatives especially the deceased who habitually and publicly told people that PW3 was not his daughter. The appellant also told the trial court that the deceased was the aggressor, who came to his house and threw stones at him and his children. 8.5. The learned counsel for the appellant, Mr. Kapukutula argued that the prosecution did not prove that the appellant had malice aforethought when he committed the crime. On the other hand, the state emphasised that the appellant masterminded and devised a plan on how he was going to kill the deceased. The state dwelled much on the evidence of PW2 who stated that the appellant told him that he was planning on killing the deceased or PW4 if they come to his house. It was the state's further argument that even after the deceased had fallen on the ground and gasped for air, the appellant proceeded to stab him. According to the state, the appellant had aimed to kill the deceased in cold blood. We agree with learned counsel for the State that the appellant had the requisite malice aforethought. The post-mortem examination revealed that the cause of death was blunt force trauma consistent with being hit with a stick. He planned the murder and caused grievous harm. This argument is without merit. 8.6. In this case, the appellant held himself out as being the father to PW3, when J8 he was clearly told that he was not by PW4 the mother to PW3 and the deceased (who was the uncle to PW4). He imposed himself in a position he was not. The fact that the truth was openly communicated in public cannot be provocative, especially in the circumstances of this case. The circumstances leading to the murder are that the appellant went to get PW3 from the deceased's house without his consent to spend a night at his house. He openly declared to PW2 that he was going to kill PW4, the deceased or anyone who would follow the child and that he lay in ambush with spear and knife. 8.7. When the deceased followed up on the child at the appellant's house he was assaulted to death. We cannot say that the fact that the deceased followed up on PW3 was a provocative act. He was perfectly entitled to do so. The trial court cannot be faulted for rejecting the defence of provocation as there was absolutely no provocative act on the part of the deceased. 8.8. With regard to the argument that the appellant was acting in self defence when he killed the deceased, this argument is not supported by evidence on the record. According PW3, whose evidence the trial court accepted, when the deceased turned up at the appellant's house, he was unarmed. When the appellant came out to confront him, he was wielding a spear and a knife. These are the exact weapons the appellant had prepared to cause harm, according to his statement to PW2. Clearly, the appellant was not in any J9 imminent danger to require him to use force to repel an attack or protect himself as there was no such threat or danger. This was a clear militia behaviour which was well-orchestrated by the appellant. The trial court cannot thus be faulted for rejecting self defence. We therefore find no merit in ground one and we dismiss it. 8. 9. Coming to ground two which was argued in the alternative, learned counsel for the appellant contended that the trial judge having held that the defences of provocation and self-defence failed, it follows that extenuating circumstances were present. In the case of Misheck Tolosi v. The People4 we guided that a failed defence of provocation can afford extenuation to an accused person when some elements of provocation have been proved. However, it should have failed due to disproportionate retaliation or where an accused person had sufficient time to cool down. In the case of self defence, where the defence fails due to excessive force. 8.10. In this case, there was absolute no provocation or self defence. It follows, therefore, that there is no failed defence of provocation or self defence to extenuate the death penalty. This ground equally fails. 9.0. CONCLUSION J10 9.1. Having found no merit in both grounds of appeal, we dismiss the appeal for want of merit. The conviction and sentence imposed by the lower court is upheld. DEPUTY JUD P. C. M. NGULUBE COURT OF APPEAL JUDGE K. ENGA COURT OF APPEAL JUDGE