Siseho v People (Appeal 64 of 1984) [1987] ZMSC 63 (14 July 1987)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 65 OF 1984 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: SAMUEL LISWANISO SISEHO Appellant vs THE PEOPLE Respondent CORAM! Ngulube, D. C. J., Gardner and Sakala JJ. S 14 July 1987 For the Appellant : Mr. C. P. Sakala, Ag. Director of Legal Aid For the Respondent : Mr. F. M. Mwiinga, Director of Public Prosecu­ tions JUDGMENT Sakala, J. S. delivered the judgment of the court. The appellant was convicted of murder contrary to Section 200 of the Penal Code. The particulars of the offence alleged that on 28th July, 1983 at Mutungi village in the Kalabo district of the Western Province, he murdered Nelson Kabika Mukwenje. The substantial facts of the case, which were not in dispute, were that on 28th July 1983 a misunderstanding erupted over fish ponds between George Kalaluka, the appellant’s son, on one side and Patrick Mukwenje Kabika and Nelson Kabika Mukwenje, both brothers, on the other side. The cause of the misunderstanding was that the appellant's son was fishing from a pond not currently in use when . thev.i two brothers asked him not to fish from that pond but to do so from the one which was in use. As the appellant’s son continued to fish from the closed pond Patrick Mukwenje Kabika grabbed him by the throat and squeezed him and attempted to drown him. The appellant heard his son screaming and went to the scene. - J2 - The sequence of the events when the appellant arrived at the scene is not very clear and it is in actual fact conflicting. What is clear, however, is that from the events that followed Patrick Mukwenje Kabika was speared, to death by the appellant and the appellant was himself speared while Nelson Kabika Mukwenje was shot dead by the appellant. The appellant who had first to be treated of the spear wounds was subsequently charged with murdering Nelson Kabika Mukwenje. The case for the prosecution centred on the evidence of two witnesses namely, PW's 2 and 3 both of them children of tender years. The trial judge conducted a voire dire before each of the two witnesses gave evidence. PW2 gave unsworn statement while PW3 gave evidence on oath. The statement of PW2 was to the effect that when the two deceased arrived at the pond George was rebuked for fishing in a closed pond. This resulted in some noise which attracted the appellant who came to the scene armed. According to PW2's statement the appellant on arrival at the scene fired at Mukwenje and when Kabika tried to stop the appellant he, Kabika, was also fired at. The evidence of PW3 on oath was that he went fishing with George Kalaluka. George went fishing at the closed pond while he went fishing at the open pond. When Kabika arrived he asked George to stop fishing from the closed pond. George continued. When Mukwenje arrived he also asked George to stop fishing from the closed pond. George did not. Mukwenje then pushed George, squeezed him and tried to drown him. The appellant, this witnesses’s grand father, arrived at the scene with a gun and fired at Kabika, Mukwenje ran to the appellant and stabbed the appellant with a fishing spear. The appellant fell to the ground. According to PW3 the appellant removed the spears and joined by George stabbed Mukwenje. J3 - The prosecution adduced evidence from nine witnesses in all. The other evidence relates to matters not in dispute and on account of the nature of the issues raised in this appeal we find it unnecessary to recount that evidence. The appellant gave evidence on oath in his defence. The appellant's evidence was that at about 18 hours on 20th July, 1983, George Kalaluka went to check his hooks at the pond. While at the pond he heard him crying and calling. According to the appellant Patrick Mukwenje was beating his son. He squeezed his throat and dragged him towards a mango tree. The appellant's evidence is further to the effect that he ran to the scenes and asked Mukwenje why he was killing his son. According to the appellant Mukwenje said: "You are always dodging me but today you are going to die". Thereafter, according to the appellant, Mukwenje threw six spears at him. Two stabbed him tn the stomach while four missed him. The appellant also testified that when Mukwenje tried to get hold of the two spears which were stuck into his stomach, he pushed him and fell on the four spears on the ground that had missed him. The appellant further testified that he took the four spears and stabbed Mukwenje who died immediately. Nelson then threw a spear at him but ^**8**^ *t. According to the appellant Nelson further chased him. He ran to his house, and entered the house with the two spears still stuck into him. In the house he collected his gun loaded it and shot at Nelson as he, Nelson, was about to enter the appellant's house. The appellant stated in his evidence that Nelson fell down; got up and walked away and later fell Into the water. The learned trial judge found that it was not in dispute that the appellant shot Nelson Kabika and that Nelson's death was as a result of the injuries he sustained in this shooting. The learned trial judge also found that what was in dispute was the reason that led the appellant to shoot Nelson. The learned trial judge observed - J4 - that the prosecution's case was that Nelson was shot for no apparent reason while the appellant's case was that he shot the deceased in self-defence after Nelson had thrown a spear at him and because Nelson followed him at his house from where he, the appellant, collected his gun and shot Nelson in his defence. The learned trial judge further observed that the main issue rested on the sequence of events which culminated In the death of Nelson Kabika. After a very careful review of the prosecution and defence case, the trial judge noted that the determination of the issue in the case rested on the question of credibility between the prosecution witnesses and the appellant. He was mindful that the prosecution case rested on the evidence of PW2 and PW3 aged eight and eleven years respectively. He specifically considered that PW2 should give an unsworn statement and t that was intelligent enoughto do so although he did not appreciate the nature of an oath. The trial judge was also mindful that the evidence of PW2 and PW3 required corroboration. He found that the two children gave two different versions as to what happened. He observed that according to PW2‘s evidence the appellant tried to shoot Patrick when he got to the pond and that Nelson was shot when he, Nelson, was trying to stop the appellant from shooting Patrick. The learned trial judge further observed that according to PW‘s3 evidence the a appellant shot Nelson when he immediately got to the pond. Despite the differing versions the learned trial judge found that the two children were agreed on the question of Nelson having been shot at the pond before the appellant stabbed Patrick. The learned trial judge accepted PW2's evidence as to what the appellant did at the pond namely, that when the appellant got to the pond he first went to Patrick before shooting at Nelson. The court found this to be supported by the appellant's evidence. The learned trial judge finally accepted the children's versions of the sequence of events, and rejected the appellant's version. He then considered the defence of J5 self-defence. He found that while the appellant was entitled to defend his son against Patrick, Nelson was not shot in self-defence as he did not take part in the molesting of the appellant's son. The learned trial judge also rejected the evidence of provocation on the ground that the use of a firearm in the circumstances was unreasonable. Three grounds of appeal have been argued on behalf of the appellant by the learned Acting Director of Legal Aid. The first ground related to a misdirection on the part of the learned trial judge in allowing PW's2 and 3 to give evidence in the absence of a proper voire dire. The contention on this ground by Mr. Sakala was that tne record should have shown the questions put to the children and the nature of discussion which enabled the trial judge to accept their evidence either as unsworn statement or as evidence given on oath. The submission by the learned acting Director of Legal Aid was that the evidence of the two children should be ignored on account of an improper voire dire. The learned acting Director referred to a number of decisions of this court in particular the case of Zulu v The People (1973) ZR 326 where at page 328 Baron D. C. J. as he then wa‘s said "We stress again, as we did in Sakala's case (2), that not only must the record show that a voire dire has been conducted, but also the question asked, the answer deceived and the conclusion reached by the court". The second ground argued was that the evidence of PW3 required corroboration. The gist of the submission was that once the unsworn statement of PW2 is ignored the evidence of PW3 also a child of tender years, though given 6 - on oath required corroboration on the authority of Bernard Chisha v The People (1980) ZR 36. On behalf of the prosecution the learned Director of Public Prosecutions submitted that a proper voire dire was conducted in this case but properly conceded that there was no evidence corrobo­ rating that of the children. We agree with the learned Director of Public Prosecutions that when the whole record of the case is examined the learned trial judge conducted a proper voire dire in respect of tne witnesses of tender years. We also agree with both lea­ rned Directors that there was no evidence corroborating the evidence of the children of tender years. In terms of Section 122 (1) of the Juveniles Act Cap. 217, the children's evidence must be corroborated as a matter of law because a conviction shall not be competent on the uncorroborated evidence of a child of tender years. In the case of Chisha v The People (1980) ZR 36 we pointed out that evidence of children requires corroboration before a conviction based on that evidence is competent. The learned trial judge was mindful ,of such requirement of the children's evidence being corroborated before he could rely on it, but in relying on it he did not point out what was the corroboration evidence. This in our view was a serious misdirection. The other ground taken up by the learned Acting Director of Legal Aid related to self defence and provocation. Counsel argued that if the evidence of the children is ignored the court is left only with the appellant's story which must be accepted. It was bsubmitted that the appellants story raises the defences of self- defence and provocation. It was contended that the killing of Mukwenje as well as the killing of Kabika were both in self-defence. In the alternative it was argued that the appellant was provoked in that he had a duty to protect his son and that the act of Kabika in trying to stop him also amounted to provocation. It was further - J7 - argued that the appellant having been stabbed and, therefore, not in a position to control himself the defence of provocation must succeed. Mr. Sakala also submitted that should the defence of self-defence succeed the appellant is entitled to an acquittal. In the alternative it was submitted that in the event of the defence of self-defence failing, on the evidence the defence of provocation should succeed thereby reducing the conviction to that of manslaughter. On behalf of the prosecution the learned Director of Public Prosecutions submitted that the killing of Kabika does not raise the defence of self-defence because the use of the gun amounted to excessive force, particularly bearing in mind that the appellant had run to a safer place at that time and was, therefore, out of danger. On the question of provocation the learned Director submitted that if anybody nad been provoked it must have been Kabika when he saw his brother being speared. The learned Director was agreeable that snould the court accept that the appellant was provoked first by Mukwenje and second by being chased by Kabika then the appellant should be found guilty of manslaughter. We have very carefully considered the submissions by both learned Directors. We have said that the evidence of the two children was not corroborated. It follows that we must ignore it. The killings in this case were common cause. The issue was we now see it is whether the shooting resulting in Nelson's death was done at the appellant's house or at the ponds. Since the children's evidence stands uncorrobo­ rated. in law we cannot accept it. This being the case we are left only with the appellant’s own evidence which we accept. On the appellant's own evidence, however, the defence of self-defence cannot succeed. This is so because after ne had been speared as he said and as he was being chased by Kabika he had been out of danger. In that event he did not need to run in to his house, pick up an unloaded gun then load it and shoot at the deceased. J8 - We are, however, satisfied on the facts of this case that even on the story of the children, if it had to be accepted, there was severe provocation in this case. On the evidence of the appellant, which we accept, we are satisfied that this was a case of severe provocation. The killing in our view .was, therefore, manslaughter. We acquit the appellant of the charge of murder and substitute a conviction of manslaughter. As to sentence we cannot overlook the fact that although a gun was used the appellant was also wounded by a spear. We consider a proper sentence on the facts of the case to be one of six years which we impose. This sentence is with effect from 4th August, 1983 the date of the appellant's arrest. To that extent the appeal succeeds. M:S. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE