Lufunda Shindola v People (Appeal 48 of 2003) [2003] ZMSC 148 (4 November 2003)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 48/2003 HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: LUFUNDA SHINDOLA APPELLANT AND THE PEOPLE RESPONDENT Coram: Sakala, CJ, Chibesakunda and Chitengi, JJS on 3rd June 2003 and 4th November 2003 For the Appellant: Capt. F. B. Naguzyambo, Director of Legal Aid For the Respondent: Mr. C. F. R Mchenga, Chief State Advocate JUDGMENT Chibesakunda, JS, delivered the Judgment of the Court Laws referred to: 1. 2, Buchman v The Attorney General Q1993/94Q ZR 131 Jack Chanda and Another v The People No. 19/2000 (Unreported) In this appeal the Appellant was charged and convicted on one count of Murder, contrary to Section 200 of the Penal Code, Cap 87. The particulars of the offence are that on 3oth March 2001, at Kalulushi in the Kalulushi district of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did murder one Florence Mwansa Kaluba. He was sentenced to death. He had appealed against sentence only. J2 The facts on which he was convicted are that in March 2001, the Appellant and the deceased were boyfriend and girlfriend and had been staying together. The Appellant on 3rd March 2001, gave some money to the deceased for her to look for new accommodation. The deceased, accompanied by PW4, set out to look for this accommodation. They first went to Central tavern, drunk some Chibuku and then went to look for a house to live in. After failing to get one, they then sent to another tavern known as Lukompa, as according to PW4, the deceased was to link up with the Appellant, as per arrangement, at this tavern. The Appellant had not arrived at the time the deceased and PW4 arrived at the tavern. So the deceased bought beer as she waited for the Appellant with PW4. The Appellant arrived at 19.00 hours. He was in company of his brother and two friends, Tryson and Muso. He wondered why the deceased was at the tavern. He got annoyed and started fighting with the deceased outside the bar. The Appellant left with the deceased. This was the last time PW4 saw the deceased alive. Later in the night, the Appellant came home with his brother and friends but not with the deceased. Early in the morning of the same night, the body of the deceased was discovered a few metres from the house, which the deceased and the Appellant were living, next to the house of the mother of the deceased was also living. On that night, the Appellant, in company of the two friends was seen by PW3 at Limtex bar. The Appellant bought some beer and was drinking with his mates when the deceased was seen at the entrance. PW3 testified that he witnessed a quarrel between the deceased and the Appellant. He also saw the Appellant beating the deceased outside the bar. PW1 confirmed PW4 evidence’ that the Appellant was with the deceased in the same night the Appellant was in the company of his brother and his other two friends. - J3 - PW1 was a sister to the deceased. She was staying with the deceased and her boyfriend, the Appellant. In fact, the Appellant, when he came home around 24.00 hours, then confirmed that he had left the deceased at the grocery. PW1 testified to the court that when she saw the Appellant around 24.00 hours he had a swollen upper lip. The Appellant had explained his swollen upper lip to PW1 that he had been dancing with another lady when the deceased became jealousy and started a fight roughing up his shirt in the course of the fight. The Appellant in his testimony before the court denied being in the company of the deceased that night. His story was that he came from Nkana towards the end of the day. He denied that he ever gave instructions to the deceased to look for a house. He testified that on his way back from Kitwe around 18.00 hours his brother informed him that his wife - deceased was at some grocery. He confirmed that he we went to Lukompa bar but never found the deceased there. According to him he found her at Limtex bar. According to him the deceased and PW4 left him in the company of his group at this bar. He testified that when he came to their home, his brother and to other friends accompanied him. He did not know what had happened to his girlfriend. That the last time he saw her she was with PW4. Capt. Naguzyambo in his arguments before us has asked that we hold that the learned trial Judge misdirected himself in sentencing the Appellant to death, as there were extenuating circumstances. He referred to two failed defences, which according to him provided extenuating circumstances. He went to argue that it was common ground that the deceased and Appellant were drinking on the night in questioned. - J4 - They drunk at Lukompa and Limtex bar. He referred to the evidence of PW1, PW3, PW4 and PW5, which supported this assertion that there was beer drinking on the night in question. He referred to the fight and argued that the fight between the deceased and the Appellant was as a result of provocation by the deceased’ drinking. He referred to PW3’s evidence about the fight at Limtex bar. He argued that these are failed defences of provocation and intoxication. He referred to thelong outstanding relationship of boyfriend and girlfriend between the deceased and the Appellant. He submitted that the conduct of the deceased, of drinking, which was her habit must have upset the Appellant and that is what brought about the fighting. All these facts put together, he argued, should have been regarded by the learned trial Judge as extenuating circumstances to merit the reduction of capital punishment to custodial punishment. Mr. Mchenga in response argued that the lower court was correct in not taking into account all these circumstances as extenuating circumstances. He submitted that the mere fact that the Appellant drunk on the night in question without further evidence on how excessive he drunk, is not sufficient to bring the defence of intoxication. On the question of failed provocation, he argued that there was no evidence on provocation. He further stated that even the fact that the Appellant found the deceased in the tavern drinking, could not be said to be provocation as the deceased was fond of going to the tavern, a fact the Appellant knew well before this night. He further argued that, according to the evidence, the initiator of the fight, on the night in question, was the Appellant, not the deceased. He therefore urged this court not regard all these as extenuating circumstances, even be together. J5 We have considered the evidence and arguments before us. We have been asked to reconsider the sentence. It should be noted that it is a well- established principle, at least in our civil justice system, that points not raised before the lower court cannot be raised before this court, vide Buchman v The Attorney General (1). These arguments, advanced by Capt. Naguzyambo, were never canvassed before the lower court. Therefore, strictly speaking, in civil cases these arguments cannot be raised before us. However, this principle seems not to be as well settled in criminal cases as it is in civil cases. So if we do accept that these arguments can be raised before us we have to analyse the points raised by Capt. Naguzyambo. Mr. M’chenga pointed out that there was no evidence adduced before the court as to how much alcohol or how excessive the consumption of alcohol was by the Appellant or even the deceased for that alcohol to have influence on the Appellant’s power of control as expected of a reasonable man. We are also asked to consider the question of provocation as a failed defence. This court in the case of Jack Chanda and Another v The People (2), a recent case, held that the mere fact that these defences are raised in the High Court, even if the Appellant has failed to establish them before the High Court, must be sufficient for the court to consider them as extenuating circumstances to merit a reduction of a capital sentence to a custodial punishment. In the case before us the Appellant had raised them before the High Court as defences. We hold that these defences amount to extenuating circumstances to merit reduction of a capital punishment to one of custodial. We therefore find merit in the appeal on sentence. We disturb the sentence by squashing the capital punishment and substituting that with 15 years IHL with effect from the date of the Appellant’s arrest. J6 E L Sakala Chief Justice L P Chibesakunda SUPREME COURT JUDGE P Chitengi SUPREME COURT JUDGE