Rodgers Mbewe Phiri v The People [2019] ZMCA 353 (23 October 2019)

IN THE COURT OF APPEAL OF ZAMBIA (cid:9) HOLDEN AT KABWE APPEAL 89/2019 (Criminal Jurisdiction) RODGERS MBEWE PHIRI APPELLANT VS THE PEOPLE Mchenga DJP, Sichinga and Majula, JJA On 15th October, 2019 and 23rd October, 2019 RESPONDENT For the Appellant: (cid:9) Mr. H. M. Mweemba - Principal Legal Aid Counsel, Legal Aid Board. For the Respondent: (cid:9) Ms. N. T. Mumba - Chief State Advocate, National Prosecutions Authority. JUDGMENT MAJULA JA, delivcred the Judgment of the Court. Cases referred to: 1. Tembo vs The People (1972) ZR 220 (CA). 2. Nyambe Mubukwanu Liyumbi vs The People (1978) ZR 25 (SC). 3. Jack Chanda and Kennedy Chanda vs The People (2002) SCZ Judgment No. 20 of 2002. 4. Daudi Phiri vs The People SCZ No. 19212014. 5. Chibeka vs R. (1959) 1 RNLR 476. 6. Simusokwe vs The People (2002) ZR 63. INTRODUCTION J2 This is an appeal against the judgment of the High Court (Kawimbe J.), which tried and found the appellant guilty of the offence of murder contrary to section 200 of the Penal Code. Particulars of the offence were that the appellant, on 26th December, 2017 at Lusaka in the Lusaka District of the Lusaka Province, did murder Patricia Phiri. EVIDENCE IN THE COURT BELOW The prosecution's case was based on six witnesses. The summary of the prosecution's evidence is that the appellant and Patricia Phiri (the deceased) were a couple who were living together with their children as of 26th December, 2017. According to Daniel Mbewe who testified as PW4 in the lower court, he was at home with his parents (the appellant and the deceased) together with his young siblings. The appellant was unwell and thus lay on a mat in the living room. Later his mother 'the deceased' prepared dinner which they ate as a family. Subsequent to having their dinner, the deceased called the family together and asked her daughter Taonga to pray for the family before surrendering to sleep. On 26th December, 2017 PW4, who used to sleep in the living room, woke up around 06.00 hours. He immediately noticed the door was unlatched. He then went outside to wash his clothes. A short J3 while later, he heard his young sister Taonga screaming from his parents' bedroom. He rushed there and found the deceased lying lifeless on the floor. When he looked at the body closely, he observed deep cuts on the neck. He also saw a basin with a lot of blood in it. The appellant was not in the house at this time. The neighbours and family members were immediately informed of this traumatic episode. (PW1), Harrison Phiri, the deceased's brother, (PW2) Ephraim Banda the son in law to the deceased and the appellant and PW3 Emmanuel Mbewe were among the prosecution witnesses who were notified. Their cumulative evidence was that they rushed to the scene of crime on 26th December, 2017. They found the deceased's body in a pool of blood and also observed blood in a basin. They thereafter proceeded to the field in search for the appellant. At the field, they found that he had taken some unknown substance in an attempt to commit suicide. They picked him and handed him over to the police at Plane View Police Station. The testimony of PW5, Detective Sergeant Patron Kajimoto was that on 26th December, 2017, he was assigned to conduct investigations into the death of the deceased. He went to the scene of crime and found the deceased's body on the bedroom floor. He observed blood on the mattress and bedsheet and also saw that papers and clothes were scattered in the room. He recovered a metal axe which had blood stains suspected to have been used to chop the deceased. J4 An autopsy was later conducted on the deceased's body on 29th December, 2017 by Dr. Viktor Telendiy. According to the doctor, the deceased died as a result of subarachnoid hemorrhage which was due to the chop wounds of the head. APPELLANT'S DEFENCE In his sworn evidence in defence, the appellant narrated that on 25th December, 2017, he was unwell. Dinner was prepared by his wife and they later prayed as a family and retired to bed. Around 23.00 hours, he woke up and discovered his wife was not on the bed. After 30 minutes, he went out to search for her and found her having sexual intercourse with another man on the porch. A fight thereafter ensued with his wife which continued in the bedroom. In the heat of the moment the deceased picked a metal axe and attempted to assault him. The defence was not challenged. According to the appellant, he managed to overpower her and got the axe which he then used to slash her to death. He later realized his mistake and attempted to reconcile with God by asking for forgiveness. He also attempted suicide by drinking a noxious substance. FINDINGS OF FACT BY THE TRIAL COURT. After analysing the evidence before her, the trial Judge found that the appellant murdered the deceased with a metal axe. She considered the appellant's possible defence of provocation but was of J5 the view that this defence could not avail the appellant in light of the severe injuries inflicted on the deceased as recorded in the postmortem report. The learned trial Judge was also of the view that the defence of provocation was an afterthought. The appellant was found guilty and convicted of the charge of murder. He was given the death sentence after the trial Judge ruled out there being extenuating circumstances. GROUNDS OF APPEAL Disconsolate with the conviction and sentence, the appellant has appealed to this Court canvassing two grounds of appeal structured as follows: 1. The learned trial Judge erred both in law and fact when she convicted him of murder and sentenced him to death in the presence of the defence of provocation. 2. The learned trial Judge erred both in law and fact when she sentenced the appellant to death in the presence of a failed defence of pro vocation. APPELLANT'S ARGUMENTS Written heads of arguments were filed on behalf of the appellant which were also relied on at the hearing. With regard to ground one, the grievance of the appellant is that the lower court convicted him of murder and sentenced him to death despite the defence of provocation being put forward. Counsel submitted in effect that J6 there was evidence to show that the couple was peaceful and that the appellant had no intention to murder his wife until he found her in a compromising situation with another man. He pointed out that the family had dinner together and a child offered a prayer before they went to sleep. That he was clearly provoked by the sexual act of his wife which led to a fight and eventual death. Mr. Mweemba stoutly argued that the evidence of a fight was also from PW5 who stated in his evidence that he found things scattered. To support his argument, learned Counsel referred us to the case of Tembo vs The People' where it was held: "An argument followed by a fight can amount to provocation sufficient to reduce from murder to manslaughter a fatal blow struck with a lethal weapon in the heat of such afight." It was contended that in the present case, there was evidence of a fight and that it was during the fight that he struck the deceased several times without realizing it. Mr. Mweemba further sought refuge in the case of Mubukwanu Liyumbi vs The People2 where it was held that for the defence of provocation to succeed three elements must be proved namely; the act of provocation, the loss of self-control and the retaliation proportionate to the provocation. It was contended that the three elements were present in that the appellant suffered extreme shock and betrayal at the behavior of his wife whom he loved so much. It was argued that the trial court J7 should therefore have accepted the defence of provocation and found the appellant guilty of manslaughter instead of murder. With respect to ground two it submitted that in the alternative that the trial Judge should have considered a failed defence of provocation to be an extenuating circumstance in line with the holding in the case of Jack Chanda and Kennedy Chanda vs The People3. In the said case it was held that a failed defence of provocation, evidence of witchcraft accusations and evidence of drinking can amount to extenuating circumstances. Mr. Mweemba accordingly beseeched the court to allow the appeal, set aside the death sentence and impose any sentence other than death. RESPONDENT'S ARGUMENTS In her viva voce submissions on behalf of the State, the learned Chief State Advocate Ms. Mumba submitted with regard to ground one that the trial Judge was on firm ground when it convicted the appellant of murder and dismissed the defence of provocation. She equally called in aid the case of Nyambe Mubukwano Liyumbi vs The People2 in which the three elements for provocation were set out. In casu, she argued that while the two elements were present, namely the act of provocation and the loss of self-control, the retaliation was however not proportionate to the provocation. Ms. Mumba pointed out that according to the postmortem report the J8 deceased sustained 15 chop wounds which show that the retaliation by the appellant was excessive. Counsel also referred us to the cases of Daudi Phiri vs The People4 and Chibeka vs R.5 where it was held that the retaliation must not be excessive for the defence of provocation to succeed. She described the 15 chop wounds inflicted on the deceased by the appellant as being excessive, deadly and malicious. It was contended that the retaliation therefore having been excessive, the defence of provocation could not be available to the appellant. Turning to ground two, Ms. Mumba magnanimously conceded that as stated in the case of Simusokwe vs The People6 a failed defence of provocation does amount to extenuation. She vociferously argued that the unchallenged evidence in the present case did show that the appellant found his wife in a compromising situation although the retaliation was excessive. She implored the court to set aside the death sentence and impose any other sentence it deems fit. THE VERDICT The undisputed facts as can be gleaned from the record are that on the night of the 25th December, 2017, the family of the appellant had concluded their evening prayers and went to bed. During the course of the night, the appellant awoke only to discover he was alone on the bed and the deceased was nowhere to be seen. In the process of trying to ascertain her whereabouts he found her having sex with another man who fled from the scene. It is not disputed that a fight J9 subsequently ensued which continued when the couple went to the bedroom. It is further not in dispute that the appellant picked an axe and attacked his wife several times. The issue that has arisen is whether the defence of provocation can be availed to the appellant and if not, the failed defence of provocation can amount to extenuation. The opposing sides have spiritedly presented their arguments. Mr. Mweemba has argued that the defence of provocation which was rejected by the trial court was available to the appellant. This was on account of the circumstances the appellant found himself in, that is finding his wife in an act of intimacy. Further, it is against the backdrop of there being evidence of a fight between the two which led him to striking the deceased several times. That the appellant's reaction was sudden and there was no room to cool off. He did allude to the case of Liyumbi vs The People2 and submitted that the three elements required for the defence of provocation were met. On the other hand, Ms. Mumba strongly disagreed. In her considered view the third element i.e. of retaliation being proportionate to the provocation was missing. Having scrutinized the record, we do agree with Mr. Mweemba that there was evidence from PW5 that there was disturbance at the scene. PW5 did indicate that everything was scattered which indeed points to there having been a fight. In addition, the evidence to the effect that the appellant found his wife having sex remained J10 unchallenged. The appellant did give an explanation as to what led to him butchering his wife with an exe. The Judge rejected his explanation. It is our well-considered view that the test the trial Judge used for dismissing the explanation was wrong. The test should have been, could the appellant's explanation reasonably have been true? The explanation need not be true but could it be reasonably true? The view that we take is that the appellant's explanation was plausible. In any event as earlier stated he was not cross examined on the explanation he gave so it remained unchallenged. The next question that begs an answer is if the explanation is plausible could the defence of provocation avail him? It is settled that for the defence of provocation to be available there are three inseparable elements. These were espoused in the Liyumbi vs The People2 case. These are: 1. The act of provocation. 2. The loss of self-control. 3. Retaliation proportionate to the provocation. We are satisfied that as regards the first two elements; these were met. The appellant was provoked and he did lose self-control as a result. However, we have grave difficulties in accepting the submission that the retaliation was proportionate. It was excessive. The chop wounds being in excess of 15. The trial Judge cannot be ill faulted for rejecting the defence of provocation. The first ground of appeal fails and we uphold the conviction of murder. We now turn to the second ground of appeal which raises the question of extenuating circumstances. As rightly conceded by Ms. Mumba, a failed defence of provocation affords the appellant extenuation for the murder charge in line with the decision in Simusokwe vs The People6. We accept that having found the deceased committing adultery which led to the assault was an extenuating circumstance. In light of the foregoing, we hold that the appeal is meritorious to the extent that the death penalty is quashed. The appropriate sentence we shall impose is twenty (20) years imprisonment with hard labour with effect from the date he was arrested. Appeal against sent ce succeeds. C. F. R. Mchen DEPUTY JUDGE PRESI D. . . Sichinga COURT OF APPEAL JUDGE B. . Majula COURT OF APPEAL JUDGE