Phiri v People (SCZ Appeal 117 of 1985) [1987] ZMSC 79 (8 December 1987)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 117 OF HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: CHANDIWANA PHIRI Appellant vs THE PEOPLE Respondent CORAM: Silungwe, C. J., Gardner, Ag. D. C. J. add Chaila Ag. J. S. 8 December 1987 S. K. Hunthall, Senior Legal Aid Counsel for the appellant F. N. Mwiinga, Director of Public Prosecutions for the respondent JUDGMENT Silungwe, C. J., delivered the judgment of the court. The appellant was charged with the murder, at Ndola, of Kingford Chisanga on July 31, 1984. He was tried and convicted as charged. At the appellant's trial, it was established that on July 31, 1984, Kingford Chisanga, the deceased, had hired PWl's motor vehicle - a vanette — in order to go and fetch iron sheets from a house in Chipulukusu compound, Ndola, on behalf of his father-in-law. The iron sheets were found stored at the house of a Mr. Victor Phiri, the appellant's elder brother. At the house, a quarrel ensued between the deceased and the appellant over the iron sheets. Consequently, PW1 and the deceased apparently agreed to go away without - J2 the iron sheets. The deceased got into the back of the vanette and PW1 §at behind the steering- wheel and switched on the ignition, ready to return home. What actually transpired thereafter between the appellant and the deceased is not dear. PW1 heard a bang at the rear of the vanette and when he got out and went there to investigate, he found the deceased lying down inside the back of the vanette. PW1 tried to talk to the deceased but there was no response; the deceased was dead. PHI saw someone he could not identify running away. According to medical evidence, the deceased died as a result of stab wounds. No witness, however, saw anyone stab the deceased. In giving evidence at his trial, the appellant testified that the deceased had answered him in a derogatory maimer, and that he had insulted him and assaulted him with a fist and a slap; when he felt pain, he pushed the deceased who then fell on the iron sheets and injured himself. The learned trial judge considered the defences of self defence and provocation. As to the first defence, the learned trial judge rejected it on the ground that if the appellant's version was correct, the deceased's body should have been found lying on the iron sheets on the ground rather than inside the back of the vanette where it was actually found. We are satisfied that the learned trial judge did not misdirect himself on this issue. With regard to the defence of provocation, the learned trial judge, having found that the appellant had stabbed the deceased with a knife or other sharp instrument, was prepared to accept the defence but ruled it out on the J3 ground that there was no reasonable relationship between the accused's action and the provocation offered. In our opinion, the learned trial judge was in error by his rejection of the defence on that basis as it cannot be said in the circumstances of this case that there was no reasonable relationship between the appellant's action and the deceased's provocation. In the result, it is unsafe to allow the conviction for murder to stand. The appeal against conviction is allowed and the sentence of death is set aside. We, however, substitute a conviction for manslaughter and sentence the appellant to a prison term of eight years with hard labour to take effect from August 4, 1984. Annel M. Silungwe CHIEF JUSTICE B. T. Gardner Ag. DEPUTY CHIEF JUSTICE h. s. ehaila Ag. SUPREME COURT JUDGE