Chinyange Muyenga v People (APPEAL NO 153/2008; SCZ Judgment No. 14 of 2009) [2009] ZMSC 179 (4 June 2009)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: SCZ Judgment No. 14 of 2009 P253 APPEAL NO 153/2008 CHINYANGE MUYENGA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Chibesakunda, Silomba and Mwanamwambwa, J. J. S. On ~h March 2008 and ~h June 2009 For The Appellant: Mr. K. Muzenga, Senior Legal Aid Counsel, Legal Aid Board. For the People: Mrs. F. L. Shawasiyungi, Deputy Chief State Advocate. JUDGMENT Mwanamwambwa, JS, delivered the Judgment of the Court. Cases referred to: 1. Lubendae v The People [1983] Z. R. 54 2. Tembo v The People [1972] Z. R. 220. Legislation referred to: The Penal Code, CAP 87, Section 201 (2). The appellant is appealing against his conviction for murder and death sentence, of 11th May 2007, by the Lusaka High Court. -J2- Particulars of the offence were that he, and his co-accused, Muyenga Chinyange, on 5th July 2005, at Chongwe, jointly and whilst acting together, did murder Evaristo Kamiza. The co-accused was acquitted. P254 The facts of the case were that on the material date, the appellant, a suspected poacher, was spotted, in the Game Park, by the deceased, a Z. A. W. A. game scout. The deceased was in the company of two other game scouts. The appellant was armed with a firearm. When spotted, the appellant ran away. The deceased and his colleagues fired warning shots in the air. They were trying to apprehend the appellant. In response, there was a gunshot from the opposite direction. Then there was an exchange of fire. In the process, the deceased was shot in the thigh and he died later in the day. A post mortem report showed that the cause of death was post hemorrhagic anemia due to entrance and exit gunshot bullet wound of right hip with fracture of bone and bleeding. The appellant was seen by P. W.2, running away with a firearm, from the scene of the shooting. P. W.2, who had known the appellant for about 7 years before, saw and observed the appellant for about 15 minutes, at around 10:00 hours. After being apprehended, the appellant led the Police to recovery of a firearm, which was proved to have fired the spent cartridges found at the scene of shooting. Identity of the appellant as the person who shot dead the deceased is not issue. In fact in the heads of argument, the appellant admits that he is the person who shot dead the . -J3- deceased. His case, as the details will show shortly, is that the shooting did not constitute murder. P255 On behalf of the appellant, Mr. Muzenga advanced three grounds of appeal. The 1st ground is that the learned trial Judge erred in law and in fact in convicting the appellant of murder in the absence of evidence proving malice aforethought beyond reasonable doubt. Ground two is that the learned trial Judge erred in law and in fact in his failure to consider the availability of self defence. Ground three is an alternative one. It alleges misdirection on the part of the learned trial Judge, in failing to consider extreme fear for the appellant's life as a possible extenuation factor. In support of the 1st ground, Mr. Muzenga argues that the fact that the appellant shot the deceased in the thigh shows that he did not intend to kill the deceased or cause grievous bodily harm. That the appellant's intention was to flee from being apprehended and discourage the game scouts from pursuing him further. That had the appellant shot the deceased in the head, chest or any other fatal part of the body, then he would be properly said to have intended to kill or cause grievous bodily harm. He urges us to find that the deceased's death was caused by an -J4- unlawful act by the appellant and that we substitute the conviction for murder with that of manslaughter. P256 The gist of Mr. Muzenga's submissions on ground two is that on the evidence of P. W.3, Z. A. W. A. officers were the armed aggressors. That they fired only two warning shots. That the appellant fired back in self defence. On ground three, Mr. Muzenga argues that from the evidence on record, the appellant was under severe gun fire from the well trained rangers. He submits that the extreme fear that gripped the appellant greatly diminished, morally, the degree of his guilty. In support, he referred us to Section 201 (2} of the Penal Code. This section defines an extenuating circumstance as any fact associated with the offence which would diminish morally the degree of the convicted person's guilt. On behalf of the People, Mrs. Siyunyi supports the conviction. In response on ground one, she submits that the fact that the appellant fired a gun at ZAWA officials shows that he had the intention of causing grievous bodily harm or to kill. He ought to have known that it could injure or cause death. She points out that at page 68 (lines 11-19) of the case record, the learned trial Judge considered malice aforethought. -J5- As to ground two, she argues that there is no evidence of self defence on record. The appellant fired the fatal shot at ZAWA officers. P257 On the third ground, she did not respond. We have examined the evidence in the Court below, and have considered the submissions and arguments by Counsel. We shall deal with grounds one and two at one go because they are related. In our view, a wrong doer who causes or provokes a fight, in the process of which he kills the deceased, cannot avail himself of the defence of self-defence or provocation. Self defence or provocation is available only when the deceased was the assailant or the provoker: See:- (a) Lubandae v The People (1) and (b) Tembo v The People (2). In the present case, the appellant was the wrong doer. He entered the game reserve with a firearm, with a view to poaching. That was an illegal act. He ran away when the deceased, a ZAWA officer and his colleagues, tried to apprehend him. When they fired warning shots in the air for him to surrender, he fired at them. This started a gun fight. In the process, the appellant shot dead the deceased. Resisting arrest and firing at law enforcement officers are wrongful acts. The appellant had no lawful justification to be in the Game Reserve with a firearm. The -J6- deceased and his colleagues had a right to be there with firearms. They were enforcing the law. We agree with Mrs. Siyunyi that on the evidence on record, the appellant had no right of self-defence. P258 The learned trial Judge found that . the appellant caused the deceased's death with malice aforethought. He found that the appellant had the intention to cause the death of the Wild Life Officers or intended to do grievous bodily harm, by shooting at them; and in fact did actually kill the deceased. That the appellant knew, or must have known, that the act of shooting at Wild Life officers would probably cause death or grievous bodily harm to any of them. We agree with these findings and accept Mrs. Siyunyi's submissions on the issue. Accordingly, we dismiss grounds one and two. We now come to ground three. We understand it to be an alternative one as to sentence only. For the reasons we have given on Ground one and two above, we do not accept the argument that there were extenuating circumstances in this matter. In effect, we dismiss the appeal and uphold both the conviction for murder and death sentence . • -J7- P259 L. P. CHIBESAKUNDA SUPREME COURT JUDGE ······~ ·············· S. S. SILOMBA SUPREME COURT JUDGE RI IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) SCZ Judgement No 19 of 2009 SCZ/8/288/2007 ( 311 ) BETWEEN RUTH KUMBI AND APPELLANT ROBINSON KALEB ZULU RESPONDENT Carom: Chibesakunda, Chitengi, & Mwanamwambwa JJS 23rd May, 2009 and 28th July, 2009 For the Appe llant: Mr V. Malambo, SC and Mr Sionondo of Messrs Malambo & Company. For the Respondent: Hon E. Mwansa of Messrs Mwansa, Phiri & Partners. Chibesakunda, JS., Delivered the Ruling. RULING Cases referred to: 1. University of Zambia Council vs. Jean Margaret Calder 1998] ZR p.48. 2. Samuel vs Linzi Dresses Limited [1981] ALL E. R. 803. 3. Pereira vs. Beaulands [1996] 3 All E. R. p.528. 4. Nahar Investments Limited vs. Grindlays Bank International (z) Limited, [1982] ZR p.81. Legislation referred to: 5. Section 2 of the English Law (Extent of Application Amendment) Act. Cap 11. 6. Section 10 of the High Court Cap 27. 7. Rule 12 and Rule 70(1) of the Supreme Court Rules Cap 25. 8. Act No. 15 of 2002 Supreme Court of Zambia Amendment Act. 9. Act No. 16 of the High Court Amendment Act. 10. Order 3 Rule 5 of the RSC l 965 and Order 3/ 5/ 9 of the RSC 1999 edition. 11 . Act No. 14 of 2002, 1999 edition. 12. Order 48 of the Supreme Court Rules Cap 25. R2 (312) This is a motion to move the Court to restore Appeal No. SCZ/8/288/2007, under Rule 70(1) of the Supreme Court Rules Cap 25{7) to active cause list. The brief history of this motion is that on the 28th of January, 2008 a single Judge of the Supreme Court granted leave in an application to dismiss this Appeal No. SCZ 28/288/2007 by the Respondent. At the hearing of the motion to dismiss this appeal No. SCZ28/288/2007, the Judge on her own volition granted leave in an 11unless" order directing the applicant to file her record of appeal out of time within 14 days. The other condition of this 11unless 11 order was that failure to file the record of appeal within 14 days would result in the Appeal being dismissed. The applicant failed to comply w ith the order. So the Court dismissed the Appeal. The applicant, by this motion, has come to this Court to restore this same Appeal No. SCZ 28/288/2007, to active cause list. Before this Court, Mr Malambo, SC, for the applicant very persuasively urged this Court to distinguish this case from a plethora of authorities in which this Court has constantly held that once there is failure to comply with the conditions stipulated in a Court Order - an "unless" order, that failure would end the life of that appeal in question. In the celebrated case of University of Zambia Council vs. Jean Margaret Calder [19981 ZR p.48( 1 ), this Court held inter alia that, once an "unless" order has taken effect, the appeal is deemed to have been dismissed. Mr Malambo SC, argued R3 (313) that, that used to be the position at law in Zambia althoug h Rule 12 of the Supreme Court Cap 25(7) provided otherwise. He pointed out that, that used to be p osition at law even in England before the English Court of Appeal overturned that position in the case of Samuel vs Linzi Dresses Limited [1981)(2). He submitted that, that decision gave the right interpretation to the provisions of Order 3 Rule 5 of the RSC 1965{ 1 O} edition of the White Book. State Counsel further submitted that in Zambia before the amendment of Section 2 of the English Law (Extent of Application Amendment) Act Cap 11 (5), by the insertion of new para. (e), after (d), the Rules of the Supreme Court only filled gaps in our own Practice and Procedure. With the insertion of (e) in Section 2 of the English Law (Extent of Application Amendment) Act(5} No. 14 of 2002, the 1999 edition ( 11} of the White Book has now been incorporated in our own rules of procedure. Now by statute, the Zambian Courts are o bliged to follow all rules of procedure and p ractice a s stated in the 1999 edition of the White Book. He argued that all along, Section 2 of this English Law (Extent of Application Amendment)Act, Cap .11(5) spelt out the extent of the application of the English law to the Republic of Zambia and therefore by inclusion of the new p ara. (e), to Section 2 of the Principal Act(5), the Supreme Court Rules of 1999 edition as explained in the White Book have the force of law in the Republic of Zambia. So now the entire provisions of the Rules of the Supreme R4 (314) Court as expounded in the White Book, 1 999 edition, including the decided cases, have been incorporated in our laws and are enforceable in Zambia. He continued to argue that, basing on the amendment to Section 2 of Cap 11 (5), the decision of the Court of Appeal in the case of Samuel vs. Linzi Dresses Limited(2} has a binding effect on the Zambian Courts, as such it is no longer a persuasive authority. It is a binding authority. He went on to argue that similar amendments have been introduced to Section 8 (bl of the Supreme Court of Zambia Act, Cap 25(4) and Section 10 of the High Court Act(5) by amendment of Supreme Court of Zambia (Amendment) Act No. 15 of 2002 and the High Court (Amendment) Act No. 16 of 2002(7) regarding the extent to which the practice and procedure of the English Courts in Civil matters should be applied in the Zambian High Court and Supreme Court. According to him, had Parliament restricted itself to the amendment of Section 8 of the Supreme Court Act and Section 10 of the High Court Act(5) as was clearly intended by Act No. 15 of 2002 and Act No. 16 of 2002 limiting the importation of the rules of practice and procedure of England to Zambia, no major shift would have occurred in our law. However by enactment of Act No. 14 of 2002, the Civil Court Practice and Procedure of England(l l) as pronounced the White Book up to 1999 is no longer procedural gap filler but is now law in Zambia. RS (315) He canvassed the view that even if the position at law as stated in Samuel Vs Linzi Dressed Limited /2), were to be disregarded, the Supreme Court, as stipulated by the provisions of Rule 12(1) of the Supreme Court Rules, Cap 25( 6) has still a discretion to grant an extension of time even after the "unless" order has taken effect. He cited the English case of Pereira vs. Beauldnds (19961 3 All E. R(3l where the House of Lords held that: "the Court's discretion to decide the consequence of non-compliance with an "unless" Order was not fettered by any binding principle that the default whether of act or omission, of a litigants solicitor should always be visited on the litigant himself. In the circumstances, the Order for summary Judgment was sufficiently irregular to be set aside ..... "a nd cited another case of Re Jokai Tea Holdings Limited [199931 All E. R 630, p. 636, and argued further that as indicated, Rule 12(1} of Cap 25 and Order 3/5/9( l O} of the White Book the Court has been given a discretion to decide whether or not to extend time even where time has expired to avoid injustice to parties. The question is what matters must the Court take into account when exercising its discretion? In response to that question, he contended that the Court is obliged to take into account all matters of fact tending to explain the applicant' s failure to comply with the "unless" order. He argued that in this case, the Court should have taken into account the affidavit sworn by the applicant in exercising its R6 discretion. He referred to the affidavit sworn by the then advocate for the applicant, Mr Sibanze Simuchoba, in paragraph 4 of that affidavit, the reason given is: (316) " ...... That the Final Judgment in Cause No. 2002/HP/0753 was handed down on 27.9.07 against the Defendant, giving rise to the appeal herein. The puisne Judge granted an Order Staying Execution pending appeal on 26.10.07 and upon expiry of the 60 day period of appeal, on 28.01.08 a single Judge of this Honourable Court gave an "unless" Order of leave to file the Record of Appeal within 14 days failing which the appeal would stand dismissed; That Even though the Record of Appeal had been settled within the 14 days given, reproducing the 12 copies required filing turned out to be an unforeseeable nightmare; in the sense that Reprographix, a fully equipped mass-production outfit in Farmers House on Cairo Road failed to reproduce the 12 copies on time owing to malfunctioning of their machinery/equipment owing to ZESCO power outages; That the master copy could not be removed from the jammed equipment until it was repaired after flying in spare parts from Durban in South Africa then only could the equipment be reset for reproduction; this only happened on Tuesday 12.02.08 after the expiry of the time given in the "unless'' Order. He therefore argued R7 (31 7) that this Court can distance itself from the previous decisions in which it followed the Calder case. He argued that this Court is not bound by the previous authorities in which it followed the Calder case. The case before this Court is different in that: ( 1) the law has changed by the amendment of Section 2 of Cap 11 by Act No. 14 of 2002(11) and the subsequent amendment of Section 10 of the High Court Act and Section 8 of the Supreme Court Act(6); (2) and even before the Calder case, Rule 12 of the Supreme Court Rules(7) gave the discretion to Court to extend time even after the "unless 11 order period had expired given sufficient reasons. He urged this Court because of the foresaid to exercise its discretion to grant leave to the applicant to file her record of appeal even after the Judgment had been perfected. Hon Mwansa in response to these arguments both in his affidavit in opposition of the motion and in both his written and oral submissions, submitted that; ( 1) this application for abridgment of time is misconceived as according to him under Order 48 of the Supreme Court Rules Cap 25( 12), an application to the full Court, following an order by a single Judge of the Court, has to be based on the same application, which was before a single Judge and not a totally new application. He submitted that before a single Judge, the motion moved by the Respondent was to dismiss the appeal for want of prosecution. A single Judge decided RS (3 18) on her own accord, to grant the "unless" order directing the applicant to file the record of Appeal within 14 days and that, failure to do so would result in the Appeal being dismissed. Thus, a single Judge after failure to comply with an 11 unless 11 order within 14 days, dismissed the appea l. Counsel argued that the applicant should have filed for extension of time during the existence of the period allowed in an "unless" order. He further submitted that, what is cardinal and of central importance in the dispensation of justice is for the Court Order to be obeyed. So, according Counsel, as this action has been dismissed, there was no appeal before this Court. This application by the applicant presupposes that the appeal is still pending before this Court which is not the case. He submitted therefore that, the correct approach for the applicant should have been to appeal against the dismissal order by a single Judge. His argument is that as there is no appeal pending before this Court, there cannot be any motion to file the record of appeal out of time as there is no appeal and that it was within the Respondent's legal right to apply to dismiss the appeal for want of prosecution as per Order of 55 of the Supreme Court Rules. In line with the case of Nahar Investments Limited vs. Grindlavs Bank International (z} Limited,(4) according to him, under Order 55 of our own rules: "if an appeal is not lodged as aforesaid, [see Order 54 which allows for extention of time] the Respondent may R9 (319) make an application for an Order dismissing the appeal for want of prosecution ... " His arguments are that when a single Judge of this Court made that ' 1unless 11 order after the expiry of the time stipulated in that ''unless" order, the Respondent was expected to apply to dismiss the appeal as per Court's directives. He quoted again the same case of Nahar Investments Limited vs. Grindlays Bank lnternational(zl Limited;(4) in which the Court held 11 inter alia" that: '1ln the event of inordinate delay or unfair prejudice to the Respondent, the Appellant can expect the appeal to be dismissed." He argued that when the 1'unless" order was made according to his own recollection, Counsel for the applicant assured the Court on 28th January, 2008 that there was going to be no further delay in filing the record of appeal and the applicant regretted having not applied for extention of time before the expiry of the stated period. He cited words of Stuart Sime in his book 11A Practicol Approach to Civil Procedure, Blackstone Press Limited (19941 at p.499 para. 42.5.14 where he states that: 1'where the rules of lodging documents, skeleton arguments etc are broken, an appeal may be listed in the Daily cause list for dismissal. The Court of Appeal sees it, as its duty, to protect the interest of the Respondents, who already have a decision of a competent authority in their favour, by insisting on all reasonable expedition and strict compliance with the time table laid down." He also cited another author, D Casson in RlO (320) the Book; Odgers on High Court Pleadings and Practice 23rd Edition Sweet & Maxwell 1991 at p. 404 where it is said: "Generally the Court has no desire to deprive a successful litigant to the benefit of the Order below pending appeal.'' According to Counsel, this application has been overtaken by events as the Judgment has already been perfected. He submitted that long before this matter came before this Court by way of motion, the judgment of Zikonda J, had already been perfected. He traced the history of this motion that the Appellant after Zikonda J's Judgment had gone before Kakusa J to try and obtain a mandatory injunction but this was not successful. According to him, by this time, the Judgment by Zikonda J had already been perfected. Thereafter the applicant went before Hon Chirwa JS., for Stay of Execution. The application for Stay of Execution was granted ex-parte to maintain status quo pending hearing of this same motion. When it came before Chirwa JS., inter partes, again the motion was dismissed on the 20th February, 2009. Dissatisfied with the decision of the same application, the applicant sought to amend the same order of Chirwa JS., rendered on the 20th February, 2009. Chirwa JS., dismissed the entire application. According to Counsel, this demonstrated how the applicant has been forum shopping. Lastly Counsel argued that the application before the Court was unobtainable seeing that; currently there is no Notice of Rll (321) appeal against which the record of appeal can be filed. He repeated moreless the arguments already advanced. We have seriously considered the motion as this motion seeks to challenge a proposition at law which has time and again been pronounced by this Court as per plethora of authorities. (See the Calder case). The Courts in Zambia have time and again pronounced that, failure to comply with an "unless' 1 order within the stipulated time would result in the appeal being dismissed. In our view therefore, our pronouncement in this challenge will contribute to the vitality and growth of our jurisprudence. The questions before this Court are: ( l) what is the effect of the "unless" order after failure to comply with the order within the stipulated period. Hon Mwansa has reminded this Court as per plethora of authorities that failure to comply with an "unless order have meant the end of the appeal; (2) whether or not an application for restoration of an appeal after failure to comply with an "unless" order can be overtaken by events as argued. On the first question, it is common ground that the position at law in Zambia as well as in England up to 1981 was that failure to comply with the conditions stipulated to an 1'unless 11 order resulted in the appeal being dismissed and as such not capable of restoration to active cause list. According to our research, there has handily been an authority demonstrating the use of the discretion provided R12 {322) under Rule 12 of Cap 25 (7)or Order 3/15 of RSC l 965 edition( 1 O). What has come out so far is that, that discretion has been rarely invoked. The rationale of taking such an approach by Courts in the 11 unless 11 orders has been that, orders of the Court have to be complied with and that once the Court has pronounced itself, failure to comply with such order must result in the appeal being dismissed. The other cardinal consideration by Courts is as put by Stuart Sime in his book quoted at quoted R9: that the Courts have seen it as their duty to protect the interest of a successful litigant who has already a decision of a competent authority in his favour. However, the case of Samuels vs Linzi Dresses Limited(2) brought about a different approach to such "unless" orders in England. According to Roskill L. J. in this celebrated case of Samuels, in interpreting Order 3/ 15 of 1965 edition p.126 to 127 ... 11 ln my Judgment, therefore, the law today is that a Court had power to extend the fime where an "unless" Order has been made but not been complied with; but that is a power which should be exercised cautiously." This Order 3 Rule 5 of 1965 edition( 1 OJ of the White Book has been replicated in Order 3/5/9 of the RSC 1999 edition( 10). It says: 11 Unless" or conditional order to extend time - Where the Court makes an .. unless" order or conditional order that a party is required to do an act within a specified time but the order to do that act is not complied with within the time specified, the Court nevertheless retains R13 (323) the power to extent the time within which such act should be complied with." As argued by State Counsel, before Section 2 of the English Law (Extent of Application Amendment} Act(5), Cap 11 was amended by Act No. 14 of 2002, the Rules of the Supreme Court only filled gaps in our own Practice and Procedure, with the insertion of e) in Section 2 of the English law ( Extent of Application Amendment) Act, Cap 11 (5), the whole of 1999 edition of the White Book has been incorporated in our Rules and Procedures. Now by statue, the Zambia Courts are bound to follow all the Rules and Procedure followed in England as stated in the 1999 edition of the White Book. The entire provisions of the Rules of the Supreme Court as expounded in the White Book, 1999 edition, including the decided cases, are now Zambian law by statute and as such binding on the Zambian Courts. So the case of Samuel vs. Linzi Dresses Limited(2) is no longer a persuasive authority, it is a binding authority in Zambia. This means that in Zambian Courts where the "unless" order has been made, and there has been failure to comply with the order within a specified period, that does not necessarily mean that, the action is dead or defunct or that the Court is thereby deprived of the jurisdiction or power to extend time for doing a specific act within a specified time. This proposition is even strengthened by the provisions of Rule 12{7) of our own Supreme Court Rules, which says: 11The Court shall have power for sufficient reason to extend time for R14 (324) making any application, including an application for leave to appeal, or for bringing any appeal, or for taking any step in or in connection with any appeal notwithstanding that the time limited therefore may have expired, and whether the time limited for such purpose was so limited by the order of the Court or by these Rules, or by any written law." We therefore, agree with Mr Malambo SC., that even in this case now before us, this Court has power or jurisdiction to look at the reasons the applicant had of not complying with the "unless" order and can use its discretion to either grant her leave or reject her application for leave. The view we hold is that looking at the reasons in her Affidavit In Support to this application and the affidavit deposed by Mr Simuchoba, we hold the view that the reasons given for abridgment of time are persuasive enough for us to exercise our discretion to grant the applicant the abridgment of time in which to file her record of appeal. Coming to the second question, which is inter related to the first question, it follows from what we have afore stated in relation to failure to comply with an 11 unless 1 ' order that the applicability of Order 3/5/9 of the RSC 1999 edition and Rule 12 of the SCR( l 0) depend on the reasons given by the applicant for applying for abridging of time. We hold the view that the application for restoration of the appeal can either be granted or rejected depending on the given circumstances of the case. Looking at the affidavit of Mr Simuchoba and looking at Hon Mwansa's affidavit in Rl5 (325} opposition, we hold the view that there is no evidence before us as to how the judgment has been perfected. The appeal is capable of restoration. We order restoration of the appeal. We grant leave to the applicant to file her record of appeal within the period of 45 days. We award costs to the Respondent. ctJ~, ......... •·• ........................ . L P Chibesakunda SUPREME COURT JUDGE ----.. ~·----------- -·-··P-cliintegi SUPREME COURT JUDGE