Pumulo Simasiku v The People (APPEAL No . 181/2022) [2024] ZMCA 151 (21 June 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA/ NDOLA (Criminal Juri sdiction) APPEAL No . 181/2022 •,C OF ZA 1' OF APPEAL BETWEEN: PUMULO SIMASIKU AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga DJP, Muzenga and Chembe , JJA On 23 rd August 2023 and 21 st June 2024 For the Appellant : A . Chimimba-Banda , Legal Aid For the Respondent : G. Zimba , Deputy Chief State Counsel , Legal Aid Board National Advocate , National Prosecution Authority J U D G M E N T Mchenga DJP , delivered the judgment of the court Cases referred to : 1 . Nyambe Mubukwanu Liyumbi v . The People [1978] Z . R . 2 . The People v . Njovu [1968] Z . R . 132 J2 3 . Dickson Sembauke and Another v . The People [1988) Z . R . 144 4. Director of Public Prosecutions v . Lukwosha [1966] Z . R . 14 5 . Imusho v . The People [1972] Z . R . 77 6 . Simutenda v . The People [1975] Z . R . 294 7 . Precious Longwe v . The People , CAZ Appeal No . 182 of Legislation referred to: 1 . The Penal Code , Chapter 87 of the Laws of Zambia INTRODUCTION c11 The appel l ant appeared before the High Court (Maka , J) , charged with the offence of Murder contrary to Section 200 of the Penal Code . c21 He denied the charge and the matter proceeded to trial . At the end of the trial , he was found guilty of commit ting the offence and condemned to suffer capital punishment . C3J He has appealed against the conviction CASE BEFORE THE TRIAL COURT C4J On 15 Lh January 2018 , around 23 : 00 hours , J3 Shadreck Chiyobeka , was at his makeshift store near Mutonyo Night Club , in Mazabuka ' s Zambia Compound . He was in the company of Likonge Kalimukwa . rs1 The appellant turned up and grabbed Likonge Kalimukwa , he reminded him of his misconduct sometime in the past , but d id not disclose the details . A struggle e n sued between the two and Shadreck Chiyobeka , saw the appellant stab Likonge Kalimukwa with an unidentified object . C6J The appellant then tripped Likonge Kalimukwa , and when he fell to the ground , the appellant fled . r11 The appellant ' s version of the events of that evening was different . He said as he walked to Mutonyo Night Club , he met Likonge Kalimukwa who asked him for some beer . When he refused to give him the beer , Likonge Kalimukwa slapped him . rs1 A scuff le ensued , during which Likonge Kalimukwa produced a knife . When the two fell to the ground , Likonge Kalimukwa injured himself with that knife . J4 The appellant said he fled from the scene because he feared being lynched by the mob . l9J Following the scuff le , the p olice were notified and by the time they arrived , Likonge Kalimukwa had died . A post-mortem e x amination subsequently conducted on h is body , found the cause of his death to be severe chest injuries . These were as a result of two deep stab wounds and a fractured rib . c101 The trial Judge accepted Shadreck Chiyobeka ' s narration of the circumstances leading to Likonge Kalimukwa ' s death . She rejected the appellant ' s claim that Likonge Kalimukwa fell on a knife he produced , noting that he would not have suffered two stab wounds , had it been the case . c111 She also f ound that that the appellant had malice aforethought . This was on the basis that he knew the probable consequences of the stabbing ; that grievous harm or death , would ensue . She found that this was confirmed by the appellant's running away after the stabbing . JS GROUNDS OF APPEAL c121 Two grounds have been advanced in support of the appeal . The first ground of appeal is that the charge of murder was not proved because ma l ice aforethought was not established . The second ground of appeal is that the trial Judge erred when she d i d not consider the defences of self-defence and provocation . CONSIDERATION OF THE APPEAL c131 Section 204 of the Penal Code, defines malice aforethought in the following terms : Malice aforethought shall be deemed to be established by evidence proving any one o r more of the following circumstances: (a) an intention to cause the death of or to do grievous harm to any person , whether such person is the person actually kille d or not ; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person , whether such person is the person actually killed or not , although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not , or by a wish that it may not be caused ; (c) an intent to commit a felony ; (d) an intention by the act or omission to facilitate the flight or e scape from c ustody of any person who J6 has committed or attempted to commit a felony . Malice aforethought c141 In her submission , Mrs . Chimimba-Banda argued that malice aforethought was not established because Likonge Kalimukwa injured himself in the course of a fight , when he fell on a knife he had produced . She referred to the case of Nyambe Mubukwanu Liyurnbi v. The People1 , and submitted that a person is guilty of the offence of manslaughter if he kil l s another in reaction to provocative conduct . c1s1 In response , Mr . Zimba referred to the cases of The People v. Njovu2 , Dickson Sembauke and Another v. The People3 and Director of Public Prosecutions v. Lukwosha4 , and submitted that malice aforethought was proved by evidence that the appe llant stabbed Likonge Kalimukwa , and that evidence established the intention to either cause death or grievous harm . c1G1 Before we consider the arguments in support of and against the conviction , it is necessary to mention that even though there was no ground of appeal against the sentence , both parties argued on the question J7 whether there were extenuating circumstances , at length . Since the presence or absence of extenuating circumstances , is an issue that hinges on the sentence , our expectation is that it should have been raised as a ground of appeal and not sneaked in , as has been the case . c111 Notwithstanding , the assertion that Likonge Kalimukwa injured himself in the course of a fight , after he slapped the appellant , is not supported by the evidence . The trial Judge made a fin ding of fact that the appellant grabbed Likonge Kalimukwa and stabbed him , after which he fled . The line Mrs. Chimimba Banda has taken in arguing this appeal poi nts at her questioning this finding . c1s1 In the case of Imusho v . The People 5 , it was held that , "An appellate court will not interfere with a finding of fact if there was reasonable ground for it, but such finding will be set aside if it was made on a view of the facts which could not reasonably be entertained" . c19 1 We have examined the evidence that was before the J8 trial Judge and find that she was entitled to conclude that the appellant actually produced a knife and stabbed Likonge Kalimukwa , and that Likonge Kalimukwa did not fall on the knife . The post-mortem examination of Likonge Kalimukwa established that he suffered two stab wounds and as rightly found by the trial Judge , that would not have been the case had Likonge Kalimukwa fallen on the knife , as claimed by the appellant . c20 1 In the premises , there is no basis on which we can set aside the finding that the appe ll ant stabbed Likonge Kalimukwa as it is supported by the evidence that was before the trial Judge . c211 Going by Shadreck Chiyobeka ' s version of the incident , which was accepted by the trial Judge , the appellant was not drawn in to a ' fight ' by Likonge Kalimukwa ' s conduct . The attack was unprovoked . c221 We are satisfied that the trial Judge rightly came to J9 the conclusion that the appellant had malice aforethought , as it is set out in Section 204(a) of the Penal Code. This is on the basis that the appellant either intended to cause the death of , or to cause grievous harm , to Likonge Kalimukwa , when he stabbed him . c23J The first ground of appeal therefore fails . c2 4J Coming to the second ground of appeal , Mrs . Chimimba Banda submitted that the trial Judge fai l ed to consider the de fe nces of provocation and self defence , that the appellant advanced . c2s i In the case of Simutenda v. The People 6 , it was held , inter alia , that , "A court is not required to deal with every possible defence that may be open to an accused person unless there is some evidence to support the defence in question ...... " c261 Having i ndicated , a moment ago , that the trial Judge ' s acceptance of Shadreck Chiyobeka ' s vers i on of the incident , is unassailable , we find that there was no evidence before the tria l Judge on which the JlO avai l ability of the defences of provocation o r self defence , could have been cons i dered . c21 1 It follows , that the submissions of both Mrs . Chimimba-Banda a n d Mr . Zimba , on the ava il ab i l i ty o f e x tenuating circumstances , are not grounded on a n y evidence . I n the case o f Precious Longwe v. The People 7 , we held t h at there a r e extenua t ing circumstances on a failed defence of provocation , where the retaliation is no t proporti onate to the provocation . We also held tha t there are extenuating circumstances on a fai l ed de f ence o f s el f-defence , where the force used is more than necessary to re p el an attack . c20 1 In this case , there was no provocative act , nor was there evidence of the appellant acting in self- de f ence . This being t h e case , the question of e xtenuat i ng circumstances because of a f ai l ed defence of p rovocation or self-de f ence , does no t arise . c29 1 The second ground o f appea l equa l ly f a il s . Jll VERDICT [3oJ Both grounds of appeal having failed , we find no merits in this appeal and we dismiss it . We uphold the appellant ' s conviction and t h e sentence imposed on him by the trial Judge . C. F. R. Mcheng DEPUTY JUDGE PRESIDENT K. Muzenga ··················~ ······················· Y. Chembe COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE