People v Shi Yaming (HP/62/2024) [2024] ZMHC 290 (13 August 2024)

I IN THE HIGH COURT OF ZAMBIA HOLDEN AT LUSAl{A (Criminal Jurisdiction) HP/62/2024 BETWEEN: THE PEOPLE V SHI YAMING Before t h e Hon . Mr. Jus tice E . Mwansa, this 13 th d ay of August, 2 0 24. For t h e People Mrs. G. M. Muham bi, State Advoc ate National Pros ecution Authority For the Accused Mr. M. Te mbo a n d Mr. M. Mwe ene of Mess rs. G. M. Legal Practitione rs Mr. N. Mu yatwa of Messrs Maye mbe Legal Practition ers RULING PURSUANT TO SECTION 291 OF CRIMINAL PROCEDURE CODE, CHAPTER 88 Cases R eferre d t o: 1. Th e People -V• Japau (1967) ZR 95. 2 . The People -V- Champako Joseph 2010 ZR 2 5 Vol l 3 . Th e Pe ople - V- The Principal R eside nt Magistra t e, Ex Parte Fa u stin Kabwe and Aaron Chungu 2009 ZR 170 Leg islation Referred to: 1. The Penal Code Chapte r 8 7 of the Laws of Zambia. 2. The Crim inal Procedure Code Chapter 88 of the Laws of Z amb ia. 1.0 PROSECUTION'S EVIDENCE 1.1 The accused person, Shi Yarning, stands charged with the offence of manslaughter contrary to section 199 of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of the offence are that on the 8th day of November 2023 at Lusaka in the Lusaka Province of the Republic of Zambia he did cause the death of Sharon Banda ("the deceased"). 1.2 The prosecution called nine witnesses . The first witness was Allan Banda and I will continue t o refer to him as PWl. PWl testified that he worked at the accused's farm, namely New Kingo Farm, in Lusaka West as a Poultry man. He stated that the conditions of their work were that when chickens are still small they would have to leave their homes and stay with their families in the poultry houses. PW 1 told the court that h e lived with his wife and two children Mutale and Sharon age 10 and 13 years respectively. There were other families on the farm that lived under similar circumstances. 1.3 PWl stated that there were about 10 dogs of mixed breed as well as a cat. He recalled that the dogs were not secure d and freely moved around the farm and sometimes they would sleep in the empty poultry. PWl stated that the accused instructed him to be feeding the dogs/ chickens that would die. Rl I 1.4 On the 8 th day of November 2023 at around 05:30 hours the farm supervisor told PWl to get feed as per usual. He woke up his two children who were going to school. PW 1 said Sharon ("the deceased") was not going to school on that particular day because she had to h elp out with cooking. Her mother was not around as she had spent a night in George Compound at her brother's place because she was going for a scan at Matero Hospital. 1. 5 PW 1 fu rth er recalled that his son left for school and after he collected the feed h e called for Sharon to bring him a knife but she was not answering. When h e checked where she used to sleep h e did not find h er and when he checked the corner of the poultry he noticed that dogs convened. PWl picked a stone to disperse them after which he noticed his daughter Sharon on th e ground bitten by the dogs with blood all over. He th en called his neighbor from poultry 3 wh o he went with close to the s cene. PW l could not manage to get close. PW 1 also called his supervisor who also stood far for from the scen e wh ere the deceased was. 1.6 PWl further testified that at this point th e dogs were standing at a distance . His supervisor went to inform the accused . All his neighbours came and one of th em called the police. The police went with PWl where his dau ghter was and they wer e capturing photographs . PWl recalled that he then covered her with a bedsh eet and carried h er bod th n the took it to the mortu ary. R2 PWl stated that h e observed that his deceased daughter was bitten on her legs, head and private part area. Her arms were also bruised and she was not breathing. 1.8 During the time he worked at the farm , PWl told the court that the dogs were viciou s and were only fed at a distance. He mentioned that the farm is in a fence and the dogs were insid e. PWl s tated th at the accu sed would bring sacks of fl dead ch ick en s to feed the dogs. He went on to positively identify th e accu sed in court. 1. 9 During cross-examination, PW 1 was a sk ed if he lied in his statement to the police, when he said his boss called his son at his other farm and they are the ones wh o called the p olice, to which h e answered in the negative. 1. 10 PW 1 was employed in September 2023 when h e joined from Kazilimani farm. He reached Kingo Farm on 19th Sep tem ber and phoned the supervisor when he arrived. He noticed there was no gate and so anyone would come and go. PWl was told to start work by Hysent, the supervisor, who took him to poultry 4. 1. 11 Furthermore, PW 1 stated that he was staying alone when h e left h is previous employer and for two years h e was s taying with his wife and two children. He mentioned that the children a ttended s chool a t moth ers without b order s school. R3 1.12 PWl further gave testimony that there were farm quarters, in a line and L shaped, for farm workers and he stayed in quarter number 2. The other farm workers also had school going children who would walk around the farm. He recalled that there were about 12 or 13 houses on the farm and one is able to see the wire fence at the other end of the farm. 1. 13 It was PW l's further evidence that when moving chicken feed ,, from the warehouse to the poultry house his supervisor would shout and he would hear him from poultry 1. He stated that despite the presence of the dogs he did not find it difficult to work and on the material day he managed to pick th e chicken feed. 1. 14 On the m aterial day, PW 1 also recalled in his testimony that h is deceased dau ghter Sharon wore a blue gym dress and a light blue sh irt. He explained that h e was inside the pou ltry house when h e called for her and only found h er about 30 minutes later. PW 1 threw stones at the dogs wh en he found Sharon. He admitted that he n ever heard the dogs bark nor did he h ear the girl scream. 1.15 On the question of dead chickens, PWl said th ere was a specific spot where these would be thrown and th e dogs would wait from th ere to eat the chicken mortalities . R4 1.16 In further cross-examination, PW 1 admitted that despite being first on the scene h e did not actually see the dogs kill his daughter. He also a dmitted that he was not aware of anyone else who had been attacked by the dogs despite stating that they were vicious. PWl 's neighbor Brighton from poultry 3 and his supervisor Hysent were also around on the material day and gave statements to the police. His neighbours from poultry 3 and 5, as well as a few others who were awake also did not hear anything on that day despite • being about 20 metres away from the scene. 1. 1 7 PW 1 in further cross-examination admitted that on the material day the accused was not on the farm premises and acknowledged that the accused's father came with the supervisor. He stated that he was not aware if the accused lived at another farm and that all he knew was that the dogs belonged to him even though he had no sight of the ownership papers . • 1. 18 In re-examination, PW 1 elucidated that when he found his daughter she was already dead and the dogs were dragging her around. 1.19 The second witness, PW2 , was Zauwa Zulu a neighbor from the next farm to New Kingo Farm. He recalls that the dogs from New Kingo Farm used to eat chickens and once caught a goat at the farm where he worked. PW2 took the dead goat to th e Chinese man at New Kingo Farm who denied the RS allegation stating that his dogs could not have killed the goat since he gave them dead chickens to eat. 1.20 PW2 positively identified the Chinese man as the accused person Shi Yarning. He m entioned that the accused told him that if the dogs continued killing their animals they should kill them because they were causing trouble. PW2 however refused to kill them because the dogs belonged to his neigh bor. He confirm ed that all this happened a day before the child was killed a t t h e said farm which is next to where h e stayed. New Kingo Farm, a ccording to PW2 is wire fenced bu t dogs can pass through it and were moving around unsecured . He s ta ted that the dogs were vicious but currently only two are r emaining as the rest were killed. 1.2 1 During cross-examination, PW2 told the court that the farm where he stayed with his boss, the size of the land was about 10 acres and ther e were about 15 goats tha t h e took care of. He stated that h e s aw the dogs kill one of their goats around 17 hours on 6 th November 2023 and was una ble to stop them. 1.22 PW2 also stated that after killing the goat h e ch ased the dogs and they ran back to New Kingo Farm. He a dded that the dog problem only started in 2023. R6 1.23 In further cross-examination, PW2 recalled that he did not report the issue of the dead goat to the police and they were never compensated by the accused. He added that only the Chinese had dogs in that area. On whether he knew the accu sed 's father , h e stated that h e was aware that he stayed at New Kingo Farm but did not know if th e accused himself had another farm somewhere else. PW2 confir med that he knew the two. 1.24 PW2 also told the court that he did not witness the attack on the deceased girl. He added that he knew John who was th e owner of the farm but was quick to mentioned that John was not in court. 1.25 In re-examination PW2 insisted that the accused and his father stayed at New Kingo Farm even though the owner of the farm was John. He referred to the accused as Magoggle. 1.26 The third witness was Brighton Mweemba. I will refer to him as PW3 . PW3 testified that when he started working at the accused's farm in March 2023 he found chickens and dogs. The dogs were of mixed breed and there was no one taking care of them except that the accused would tell PW3 t o feed th em dead chickens which he would throw a t a distance. Each of th e worker s would b e given some of the ch ickens and the rest would b e given to the dogs after stock t aking. R7 1.27 PW3 further recalled in his testimony that the dogs at the farm were vicious and were not secured as such the workers had to escort their children whenever they wanted to use the toilet in the night. They had to sp end 5 weeks at the farm poultry with their families. 1.28 According to PW3, on 8th November 2023 at around 05:30 PWl called h im t o see his dau gh ter and he noticed that she had been b itten and was lying down. Some dogs were near the wir e whilst the other s were close t o the deceased girl. PW3 observed that th e dogs h a d blood on th eir mouths and the girl had been bitten on the throat and all over h er body. 1.29 PW3 recalled that he called his second supervisor, Clever, since the a ctual supervisor, Hysent, was not around. Clever went to inform the Chinese man who was around. The Chinese man told them to continue working until a lot of p eople came and the police arrived not too long after that. The police took photographs, picked up the body and apprehended the accused. 1.30 In addition, PW3 testified that the distance from his p oultry house, number 3, to where the child was found was abou t 50 m etres. He also averred that the owner of the dogs was the accused whom h e positively identified at close range in court. PW3 confirm ed that h e wa s only seeing the accu sed for the first time again in court since the inciden t as he had been R8 relieved of his duties by the accused's replacement. He stated that the police came back to the farm to kill the dogs. 1 .31 In cross-examination, PW3 reiterated that he, his wife, and children stayed in the farm quarters but would move to the poultry houses for 5 weeks whenever chickens were brought to the farm. He stated that they were able to move around and in terms of communication the supervisor had to shout for them to h ear when being called to collect feed. PW3 confirmed that the farm had no gate and its boundaries could b e seen from the middle of the farm. 1.32 On the 8 th of November 2023 PW3 did not hear any dog barking or the girl screaming because of the noise from the chickens. He left his children sleeping when he went to pick feed from the supervisor, Clever. He heard PW 1 call for his deceased daughter, who had not gone to school that day • while a few other children including some from poultry number 6 did, although not the same school as the deceased. 1.33 After the deceased was found they did nothing and just watched from afar. She was in a torn uniform and looked dead already. PW3 confirmed that he called his supervisor Hysent immediately after. 1.34 PW3 a dmitted that pnor to the incident involving the deceased, there was no record of the dogs having attacked R9 any human b eing except for the goat from the neighboring farm and other people who brought similar complaints. He stated that h e was not happy about his exit from the farm but he accepted it. 1.35 PW3 also participated in feeding the dogs chicken mortalities. He further confirmed that the accused had three farms which he visited even though h e stayed at his other farm along Mumbwa road. The accused's father was the one who stayed at New Kingo Farm and ran the day to day affairs but it was the accused who would pay their salaries. Pw3 confirmed that it was clever who alerted the accused's father of the death of PWl 's daughter. 1.36 Furthermore, PW3 confirmed that in march 2023 , when h e joined, he found the accused's father staying at New Kingo Farm. He also found the dogs but did not know who brought them at the farm. He concluded that the dogs belonged to the accused because he was the one who instructed him and the other workers to feed them even though h e n ever came across any ownership documents. Also, he recalled that when PW2 brought the dead goat h e spoke to the accused who in turn spoke to his fa ther . 1.37 The fourth witness call d by the accus d v as Malinga Ngwengwe. I will refi r to h r as PW4. She , as an Environm ntal H allh Insp tor b s d in hilanga at hilang Town oun il wh os duti s in lu d d r gistr tion of RIO d ogs accor ding t o the Control of Dogs Act Ch apter 24 7 of the Laws of Zambia and ins pection of premises among other things. PW4 told the court tha t all dog owners with dogs older than 3 months ought to regis ter them and to do so they should go with a vaccination certificate a s well as p ay KSO and a dog collar was issu ed . 1.38 PW4 als o testified tha t the local authority facilitated th e d estruction of dogs together with Zambia Police. She sta ted th at they r eceived complaints of dogs th at were being a nuisance or a threat because they were not vaccinated. PW4 recalled in her testimony, that on or a bout the 8 th of November 2023 she was told about the mauling of a you ng girl in Mondengwa Ward of Lusaka West, by the coun cil secretary. The next day she, in the company of a council police officer and a driver visited New Kingo Farm where they found an officer from the Lusaka Provincial Vet office and a police officer from Mondengwa police post. Here they discovered that 3 dogs had been gunned down. 1.39 At New Kingo Farm, PW4 only found the workers who gave her an account of what transpired. She came b ack two d ays later with representatives from the office of the p residen t, la bour office, the police, the member of parliamen t's office, dis trict commis sioner's office, and the council secretary's office. This time they discovered 3 more dogs h a d been killed by members of the community. Rll 1.40 PW4 recalled thal lhey wrole a lelter to New Kingo Farm because there were a number of issues to address. Furthermore, sh e s ta ted th a t the local authority worked with a Non-Governmenlal Organisation, Captus Foundation, who offered to cap ture the r em aining d ogs. Sh e was informed that the owner of the farm was a Mr. Shi wh o was in custody at that time. 1.4 1 Regarding the dogs, PW4's findings were that they were n ot registered with the local authority and she was una ble to see any live dogs because they only came to the farm at night to feed. The law in the Control of Dogs Act allows a person to keep only two dogs and if they wanted more they would have to request the local authority for permission. The dogs must be confined and should not be a nuisance to other p eople . According to her, the dogs were not confined as there was no fencing and this posed a risk to the community. 1.42 PW4 further submitted a dog register book which was admitted as Pl. Pl had no record of New Kingo Farm meaning the dogs were not registered. The council secretary, Greyson Sakala, issued a compliance demand letter to New Kingo Farm which was apparently received but not produced in evidence. 1.43 During cross-examination, PW4 stated that she thor ou ghly investiga ted the New Kingo Farm prem ises. She acknowled ged tha t she could not find a provision in the Rl2 Contr ol of D ogs Act Ch apter 2 4 7 which mandated the confining of dogs in a premises or d og house. PW4 made observations of the su rroundings and buildings she found including wor k ers' houses, poultry houses and the owner's house which was not occupied at the time sh e was there. She also observed the boundarie s of the farm. 1.44 Furthermore, PW4 told the cou rt th at Chapter 247 provides that b efore a d og is destroyed it m u st b e a nuis ance or susp ect ed not t o h ave b een vaccinated . She conceded tha t they did not d etermine who th e owner of th e killed dogs was a s such they did not charge anyone under Ch apter 24 7. According to h er r egistration was prima facie evid ence of ownership of a dog and a dog that roams around with out an owner is considered a stray dog. She never saw the 8 to 10 dogs but was told that New Kingo Farm was a food haven for the said dogs. 1.45 In re-examination, PW4 explained that it was not illegal for the dogs not to be confined however dogs can be a nuisance terrorizing people at a business premises . 1.46 The fifth state witness was Detective Sergeant Brian Sihoka a scen es of crime officer from Matero Police. I will hereafter refer t o him as PWS. He was trained at lilayi p olice training college and obtained a certificat e 1n cnme scen e managem ent . R l 3 1.47 On 8 th November 2 0 23 a t around 0 8 hours in th e morning, PWS was assigned to attend to a crime scen e in a suspected manslaughter case. According to him, Sharon Banda, 13 years old, was b rutally attacked by a pack of a bout 10 dogs at Kingo Farm in Lusaka West wh ich is allegedly owned by th e accu sed . 1.48 PWS took with him a camera, serviced twice a month, to the scene. At the farm h e noticed that the p oultry house the victim's parents shared with chickens was a bout 5 0 metres from the scene . The victim's body was in a G-clamp p osition and her head was in her right elbow, she also suffer ed multiple dog bites. PWS also took photos of the gen er al view of the scene and the manner in which the body wa s found. He also interviewed the deceased's parent, PWl , wh o identified h er as his daughter. PWl apparently told PWS that the dogs ran into the nearby bush beyond the electric wire fence of New Kingo Farm. 1.49 According to PWS, three of the ten dogs were killed and h e photographed two of them. Another dog was gunned down after he left and he only saw this on the n ews. The photo album of the scene which was admitted as P2 wa s prepared by PWS at Zambia Police Head Quarters through an a ssigned officer . The photo album contained photos of the gen er al view of th e poultry house, the electric fence , wher e the b ody was found as s hown by one of the worker s, view of the body in G clamp pos ition, close view of the body s hmving dog bite Rl4 marks, lower part of the victim the multiple dog bite marks and two dead dogs. 1.50 PWS went on to disclose tha t h e was told th at the farm and the dogs were owned by the accu sed . He p ositively identified the accused. 1.51 During cross-examination, PWS conceded that this was his first case dealing with fatalities caused by animals . He used the camera, at around 10 hours, to document findings at the scene although he admitted not having taken any videos due to insufficient memory in the camera. PWS stated that there was no contamination and he did not need to investigate whether PW 1 had contaminated the scene despite indications that he shook his deceased daughter. He also confirmed that they used gloves when transporting the body to the University Teaching Hospital ("UTH") mortuary. The pictures were not developed by PWS but by Detective Kashimoto. 1.52 PWS's undocumented observations were that the deceased had punctured wounds most likely caused by over 5 dogs. The dogs were fed raw chicken mortalities which still had blood thus they could attack a human being. He also stated that he was part of the team of officers that gunned down 1:\:vo dogs outside the farm and brought them back to New Kingo Farm while he only saw the third one on Muvi TV n ews. R1 5 1.53 PWS testified that he did reconstitute the scene. The deceased was attacked a l the scene as at page 2 of the photo album as shown by eye witnesses and that is where he found the deceased's body. He explained that the body had already been moved to UTH so the farm worker, in the picture, stood where the body had been. Furthermore, page 3 of the photo album shows exactly where the incident happened. PWS conceded that he had no evidence as to when the deceased's body had expired. 1.54 The state called their sixth witness Dr. Luchenga Adam Muchelenganga a state forensic pathologist at the Ministry of Home Affairs Head Quarters. I shall refer to this witness as PW6. On the 10th of November 2023 PW6 received an order for postmortem examination to examine deceased fem ale Sharon Banda 13-years-old. In accordance with the Inquests Act he looked at the circumstances of death which were found to have been that the girl was bitten by 10 dogs in the I early hours of 8 th November 2023 when she went to urinate. 1.55 PW6 proceeded to examine the body and noted multiple cuts. The cuts were found on the deceased head, neck, torso area and lower limbs. The mortal wound was found on the neck where the main blood vessel taking blood to the brain was severed. Based on the above circumstances reported to him by the attending police officer, he was of the opinion that the cause of death was multiple dog bites. R16 1.56 PW6 authored and signed the postmortem report which was admillcd as P3 where h e made an inference that the cuts were canine in nature thus the conclusion that they were dog biles based on section 15 of the Inquests Act which mandated him to consider circumstances before concluding the cause of death. 1.57 Furthermore, PW6 could not ascertain the number of digs that bit the deceased but there were multiple bites by a canine animal. The manner of death was according to him accidental and this was for public health classification for statistical and not judicial purposes. 1.58 During cross-examination, PW6 stated that during his 8 years in the forensic department he had dealt with four cases involving dog bites. He confirmed that he conducted examination of the body but did not find it necessary to visit the scene. PW6 insisted that as a forensic pathologist he was I still qualified to identify bite mark wounds. He averred that despite the report not saying so he ruled out any other possible cause of death and that the injuries he noted were pre-mortem and not post-mortem. 1.59 The state's seventh witness was Hysent Siambulo a farm supervisor at one of the accused's farms . He will be referred to as PW7 hereafter. PW7's testimony was that h e worked for the accused , whom he positively identified . Th dogs at Kingo Farm also belonged to lhe accused. Regarding events of th Rl 7 November 2 023, he testified that PWl told him about the deceased girl's d eath but h e did not witness it. He added that prior to the incident of d eath the dogs were dangerous and unsecu red and the accused was aware of the trouble the dogs were cau sin g. 1.60 PW7 further testified that the said dogs were fed raw chicken mortalities, near poultry 1 and 2, and they would always leave in the night and come back around 05 hours in the morning. He stated that the dogs at New Kingo Farm would leave and come about through the wire fence. They would also fight with dogs from outside. 1.61 It was also PW7's testimony that indeed whenever chicks would come the poultry men would spend nights in the poultry house and that PW 1 and his deceased daughter were in poultry number 4 at the time the girl died. The toilets were not close to the poultry houses. 1.62 The court was moved to New Kingo Farm in Lusaka West for a scene visit while PW7 was still the witness on the stand. PW7 continued his testimony at the scene on 17th May 2023. He identified the 12 poultry houses as well as specifically pointing out house number 4 where the deceased and her family lived . The toilets were near the farm workers quarters close to th e entrance. R l 8 1.63 On the 8 th of November 2 023 when PW7 arrived back at the farm, he found that the police h ad already arrived where the body was behind poultry number 4. He noticed that the body had blood and bite marks and that the dogs were near the wire fence inside and outside the farm yard. PW7 averred that all the dogs were from New Kingo farm even though dogs from outside would come. He stated that nobody forced him to change the story about the dogs and they would leave and enter through the wire near poultry 3. PW7 mentioned that he did not know who brought the dogs to the farm. The death of the deceased was the first incident the dogs caused within the farm. 1.64 In cross-examination, PW7 told the court that the accused's father stayed alone within the storeroom near poultry 3 at the end of the building while the accused had no dwelling house at the farm but stayed at Sana Farm in Lusaka West Mumbwa road. He added that accused's father was in charge of farm activities. Also, he stated that feed was collected from the storeroom behind poultry 5. 1.65 In further cross-examination, PW7 confirmed that he was a supervisor at the farm and that it was the accused's father who instructed him on work as well as paid his salary at the time. He also confirmed that the dogs had no collars and that he n ever came across their vaccination certificates. Rl9 1.66 The s ta te called to th e s ta nd Stanley Kyenda a compliance officer from the Pa tents and Companies Registration Agency ("PACRA") as their eight witness. I will refer to him as PW8. His testimony was th a t in November 2 023 PACRA received a requ est from Zambia Police to provide information about a company called New Kingo Investments Limited. 1.67 PW8 told the court that his search in the PACRA system revealed that h e found that New Kin go Investments Limited ("the Company") was registered and h e m a de a print out for it. This print out wa s admitted into eviden ce as P4. 1.68 In cross-examination, PW8 confirmed that the com pany had three directors and shareholders. He conceded that he was not aware if any of them were in court or if th e accused was one of them. 1.69 The ninth state witness was Detective Inspector John Mwale from Lusaka Division. He is to be referred as PW9. PW9's testimony was that in November 2023 he was b a s ed at Matero police station. He received a docket for a case of Manslaughter, which is an offence contrary to section 199 of the Penal Code Chapter 187 of the Laws of Zambia, on 9th November 2023. 1.70 PW9 recalled that PWl reported that his d au gh ter female juvenile Sharon Banda aged 13 years between 05 :00 hours and 08 :00 hours on 8 th November 2 023 was bitten to death R20 by more than 10 dogs. On the s ame day, 9th November 2023, he visited the crime scen e wh ere h e interviewed PWl who told him that h e was attending to ch ickens while his daughter remained at the poultry house prep arin g her young brother to go to school. 1. 71 PW9 was told th at wh en PW 1 returned to the p oultry house h e n oticed a lot of dogs pulling som ething when h e looked in the western direction and when h e got closer he realized it was his dau ghter. He sta ted that PWl was with Brighton Mweemba, PW3, who was with him when they realized that the child was dead. 1. 72 PW9 recalled in his testimony that h e was also told that the dogs were fed with dead chickens which according to the veterinary department caused dogs to becom e vicious. Furthermore, h e stated that h e found out tha t the accu sed as well as PW7 were only called to come to the farm and the a ccused 's father wa s around. PW9 further interviewed PW3 who told him that the owner of the dogs was the accu sed. PW7 told him that the a ccused is the one who instructed them to feed the dogs dead chickens . 1. 73 PW9 proceeded to record statements from PW7 and PW2 who confirmed tha t the dogs were a nuisance and a danger. The two s ta ted that the accu sed did nothing to ensu re the s afety of the community and as su ch the child ended up being killed. PW9 p roceeded to consult the public h ealth R2 1 department on the Control of Dogs Act and related by-laws who informed him that a person is only allowed to keep two dogs otherwise they require a breeding license. 1. 7 4 In addition, the records indicated that the dogs were not vaccinated. PW9 failed to have a postmortem done on the 3 dogs that were killed because they were rotten. A postmortem of the deceased however was done which he attended and saw how deep the wounds were. There was a big wound on the thigh, multiple dog bites all over the body, on the head and part of the ear. 1. 75 PW9 interviewed the accused who was already in police custody in the presence of his lawyer and a chinese interpreter. He recorded a warn and caution statement but the accused elected to remain silent. Considering the negligence involved, PW9 then charged the accused with the offence of Manslaughter which was interpreted to him a charge the accused denied. 1.76 The records at PACRA admitted in court as P4, according to PW9, showed on page 2 that the accu sed was the owner of New Kingo Farm and therefore h e owned the dogs. He positively identified the accused and stated that the other owner was out of the country while the accu sed lived at New Kingo Farm near the poultry houses. PW9 insisted that none of the people he found at the farm told him tha t it was the accu sed 's father who was in charg but that they r eveal d R22 that it was the d . accuse who was responsible for the day to day affairs of the farm . l. 77 During cross-examination, PW9 conceded that in his 7 years as an investigator this was the first case he dealt with that involved dogs. He also confirmed that at the time of the incident the accused was not around but his father was even though he did not follow up on his whereabouts when he visited the farm. PW9 was also not sure if the accused's father was a shareholder of the company that owned the farm and also did not verify with the Ministry of Lands to ascertain who owned the land where New Kingo farms is situated. 1.78 Furthermore, PW9 was of the view that the accused had run away from the farm for fear of being beaten by the community. From the statement he recorded from PW 1 there was no indication that the accused stayed at the farm. When he took over the case the accused was already in custody. 1. 79 According to PW9, his investigation revealed that the dogs were vicious as such the accused ought to have engaged a dog handler and build a dog house. He admitted however that h e had no evidence that feeding them dead chickens made them vicious. 1.80 In relation to the post mortem examination he attended, PW9 testified that P3 is the r eport but the pictures that were taken R23 were not submitted. He also insisted that the manner of death was not an acciden t bu t the death was occasioned by negligence and not that the dogs were ordered to kill the deceased. PW9 stated that the accu sed made omissions by being reckless and by feeding the dogs dead chickens. He proceed ed to ch arge the accused after the p ostmortem. 1.81 In a ddition, to the sta tement from PWl , PW9 testified that he also got statements from the chilanga public h ealth office, PACRA as well as the farm workers and the n eighbor. His position is that there were more than 10 dogs by witn ess a ccount. The chilanga public health office also told him th at the owner of dogs is the one who feeds and controls them despite the fact that stray dogs also look for food . 1.82 PW9 admitted that he did not inquire whether the dogs were provoked or indeed the deceased had already died wh en the dogs got to her. 2.0 FACTS ESTABLISHED SO FAR 2. 1 That on 8 th November , 2023, Sharon Banda, a girl aged Thirteen (1 3) years was found dead outside a poultry house at New Kingo Farm. 2 .2 It is a fact th at at the time the body of Sh aron was discovered, there were many dogs arou nd her, or close by. R24 2.3 It is a fact that the body was found to h ave had a lot of wound s, on the h ead , the arms, the n eck and thighs, apparently inflic ted by dog bites. 2 .4 I find as a fact that, the a ccu sed p erson did not s tay at this farm. It is his father who did. 2.5 It is a fact that this farm was under the care of a company limited by shares called "New Kingo Investmen ts . • 2.6 I find as a fact that there were a lot of dogs tha t freely went in and out of this farm as the electric fencing was n ot effective or was not functional. 2.7 It is for this reason that the two dogs tha t were s h ot were shot outside the farm. 2.8 It is a fact that only two dogs out of over ten dogs m en tion ed • were killed. The others were never seen. 2.9 It is a fact the farm was a food haven for dogs. 3.0 FACTS IN DISPUTE 3. 1 Who was in charge of the farm? 3.2 Was being in charge of the farm synonymous with b eing in ch arge of the dogs? R25 3.3 Who was the own er of the dogs? e 4.0 THE COURT'S POSITION 4.1 At this juncture, the court is invited to determine if a prima f acie case has been made against the accu sed by the prosecution. This means establishing if the sum total of evidence at the close of the prosecutions case is sufficient to warrant the putting of the accused person on his d efence. 4.2 Section 206 of the Criminal Procedure Code Chap ter 88 of the Laws of Zambia provides that: "If, at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case, and shall forthwith acquit him". This provision is similar or has the same effect as Section 291 of the Criminal Procedure Code. This court is subject to section 29 1. • 4.3 In the case of The People -V- Champako Joseph 2010 ZR 25 Vol 1 it was held that a prima facie case does not mean pr oving each and every ingredient of the of~ n ee charged. If th ere is eviden ce to prove one elem ent th en th ere is a prima R26 facie case. To sufficienlly require the accu sed to make a defen ce does not mean lo prove beyond a reasonable doubt. 4.4 In the case of The People - V- Japau 1967 ZR 95 the Supreme Cou rt guided thus: "There is a case to answer if t he prosecution evidence is such that a reasonable tribunal might convict upon it if no explanation were offered by the defence. A submission of no case to answer may properly be upheld if an essential element of the alleged offence has not been proved or when the prosecution evidence has been so discredited by cross examination or is so manifestly unreliable, that no reasonable tribunal can safely convict on it". (Emphasis mine) • 4.5 Furthermore, in th e case of The People -V- The Principal Resident Magistrate, Ex Parte Faustin Kabwe and Aaron Chungu 2009 ZR 170 wh ere it was h eld inter alia as follows: "There is no re uirement under Section 206 o the Criminal Procedure Code that the Court must ive reasons or an Accused erson: That it R27 The converse therefore must also be true that where the Court finds an Accused with a case to answer it must merely appear to the Court that a case has been made out. A finding of a no case to answer is based on the Courts feelings or impressions and appearance of evidence". (Emphasis Provided). 4.5.1 The requirement under this provision is the same as that under Section 291 of the Criminal Procedure Code which applies to this case. 4.5.2 Section 291 of the Criminal Procedure Code provides as follows: • "291 (1) When the evidence of the witnesses for the prosecution has been concluded, and the statement of evidence (if any) of the accused person before the commuting court has been given in evidence, the court i it considers that there is no evidence that the accused or an one o the several accused committed the o ence shall a er ant ar uments which the advocate rosecution or the de ence may desire to submit, record a . " (emphasis provided) R28 4.6 I h ave h a d r ecourse to the above legal provisions and case la w and I have concluded that the principles relating to a finding of no case to answer means the matter s hould not be treated as if the whole trial has come to the end. 4. 7 The question before the court is whether the prosecution h as «• adduced sufficient evidence to prove that the accused p erson is guilty of manslaughter as charged. If an essential element has not been proved to the required standard (beyond reasonable doubt) then a case h as not been made out. And the court only needs to record a finding. Not to give reasons for that finding. 4.8 Section 199 of the Penal Code Chapter 87 of the Laws of Zambia provides that: "Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed "man-slaughter". An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm". R29 4.9 Furthermore, section 2 14 of lhe Penal Code Chapter 87 of the Laws of Zambia provides that: "It is the duty of every p ers on who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationery, of such a nature t hat, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he shall be deemed to have caused any consequences which adversely affect the life or health of any person by reason of any omission to perform that duty" . The impor t of the above provision is that the accused has a duty of care in term s of h ow the dangerou s thing under his charge or control affects the safety of other p eople. • 4. 10 Evidence from all the nme (9) witnesses does not indicate that a nyon e aclu aJly saw dogs kill the deceased. Hm e er, the circums tan ces are manit s tly clear that the d ath was, more probable than not cau sed by dogs. R30 4 . 11 There is h owever , so much conflicting evidence on who owned th e d ogs. PW3 and PW7 (th e su pervisor at this farm) stated that the accu sed did not live at this farm, it was his father who did and also managed the farm . As it were, on the fateful date the accused was not even there. He had to be phoned . It is only PWl, who stated that accu sed lived at this farm. • 4.12 There is evidence that the many dogs would leave the farm and get back mostly around 05:00hrs in time to feed. 4.13 In order for anyone to attach n egligence to any person, that person must be identified . In this case, it must be shown that it is the accused who owned the dogs that caused the death of Sh aron Banda. 4.14 The evidence before me is conflicting as to who owned the • many dogs. And that created many unanswered questions some of which are: 4.14.1. Were they stray dogs that only went to feed there? Since there was no fence? 4.14.2. Were they dogs that belonged to the farm? 4.14.3. Were they a combination of stray dogs and farm dogs? Especially that many of these dogs have since gone away!! 4 . 14. A submission of no case to answer may R3 1 properly be upheld if an essential element of the alleged offence has not been proved 1 (The People - V- Japau). i.15 One thing is clear that the accused person did not stay at this farm. And so, more probable than not, he was not the owner and had little or no control of these dogs. Only two may be 3 dogs out of over 10 were killed others have gone away. Where? I am doubting that the accused was the owner of these dogs. ,: 4 . 16 In view of the above, I cannot proceed to put the accused on his defence owing to reasons given above even though I am not mandated to provide reasons pursuant to Section 291 of Criminal Procedure. It only needs to appear to me that a case has not been made out against the accused. I accordingly discharge the accused and acquit him of the charge of manslaughter Contrary to Section 199 of the Penal Code, levelled against him . • IRA. Delivered at Lusaka this .. .......... day of .......................... 2024. E. MWANS~ HIGH COURT JUDGE R32