Timothy Muma v The People (APPEAL NO. 25 OF 2006) [2006] ZMSC 63 (11 July 2006)

' I i ' t ; ; !· t '. ' . , .. ;qi, . ' . I ; IN THE SUPREI:v1E COURT OF ZAMBIA HOLDEN AT NDOLA I LUSAKA (Criminal Jurisdiction) APPEAL NO. 25 OF 2006 BETWEEN: TIMOTHY MUMA APPELLANT AND THE PEOPLE RESPONDENT CORAM: SAKALA, C. J., CHITENGI AND SILOMBA, J. J. S. On the 6th June and 11 th July, 2006 For the Appellant: For the Respondent: Mr. C. F. R. Mchenga, Director of Public Prosecutions Mr. C. M. Sikazwe, Deputy Director of Legal Aid JUDGMENT SILOMBA, J. S., delivered the judgment of the court. Case referred to:- 1. 2. Ezara Moyo -Vs- The People (1981) ZR, 173. Stanley Kasungani -Vs-The People (1978), ZR, 260 This appeal is against conviction and sentence. The appeal follows the conviction of the appellant by the High Court on a reduced charge of manslaughter contrary to Section 199 of the Penal Code. The particulars of the offence alleged that on the 2nd of September, 2004, in Luwingu District of the Northern Province of the Republic of Zambia, the appellant unlawfully caused the death of Ponsho Mwewa. t f ,. . ' ! ? .. J2 At the trial of the case, the appellant pleaded guilty to the charge. From the statement of facts that . was read out to the trial court, the prosecution stated that on the 1st of September, 2004 the appellant and his wife were asleep; at about 24.00 hours his wife woke up to go and answer the call of nature outside the house. When she went outside, she saw a person she did not recognize and immediately rushed back into the house and informed the appellant. The appellant then went outside with an axe to see this person. He asked this person who he was and the person never answered. The appellant then realized that this person could be a boyfriend of his wife and a fight ensued between the two and in the process the appellant hit the person with the axe and he later died. The appellant reported himself to the police where he was detained and later arrested. When the appellant was asked by the learned trial Judge if he understood the facts to be true or not, his response was as follows:- "I have something to alter, My Lord. My Lord, when my wife was trying to get inside the house this person had to got hold of her hand and she shouted. That is how I went outside. My Lord, that is how we started dragging each other. Now I realized that he was more powerful than myself. So I wanted to defend myself by hitting him with the handle of the axe. Unfortunately, it is the blade that hit the deceased." Following the above narration, the learned trial Judge found the appellant guilty on his own admission of the facts and convicted him for manslaughter. After mitigation, the learned trial Judge sentenced the appellant to twenty (20) years imprisonment with hard labour with effect from the date of his arrest. I. l . ; '\ q ';' ii ' J3 1. 2. There are two grounds of appeal and these are:- The learned trial Judge erred and misdirected himself when he accepted certain material facts for purposes of securing conviction and rejected the same for purposes of sentencing. The sentence of twenty years imprisonment with hard labour was too excessive. At the hearing of the appeal, the court asked the learned Director of Public Prosecutions (DPP) if he supported the conviction. We raised the issue with the DPP before we could ask counsel for the appellant to argue the appeal. In his response, the DPP stated that after the facts were read to the court, the appellant raised the defence of self-defence and the trial court should have entered a plea of not guilty. In consequence thereof, the DPP told the court that he did not support the conviction. We have carefully considered the record ofth~ proceedings. The view we hold is that this is a clear case where the plea of guilty was equivocal as the words of the appellant, in reaction to the statement of facts, clearly disclosed a defence of self-defence to the charge of manslaughter. In the case of Ezara Moyo -Vs- The People (I) - a case tried by the Subordinate Court - the appellant was convicted of theft of a motor vehicle. When called upon to plead he stated:- "I understand the charge. I admit the charge. I stole the motor vehicle in question." The contents of social welfare reports were tendered in evidence and indicated that the appellant and the twq juvenile co-accused had taken the vehicle for a "joy ride." In that case, this court held, on appeal, that the words "I stole" did not constitute an unequivocal plea of guilty to the J4 offence of theft, even though the appellant stated that he understood the charge and admitted the offence. V{e also said that the appropriate charge should have been one of taking and driving away a motor vehicle without the owner's consent. We further observed that in any event the proceedings, based on an equivocal plea, were a nullity. We allowed the appeal, quashed the conviction and set aside the sentence of the trial court and ordered that the appellant be re-tried before a court of competent jurisdiction. In the case of Stanley Kasungani -Vs- The People < 2l the appellant pleaded guilty to a charge of manslaughter and in the course of his answers to questions from the court he said "I hit her with my hands." This statement was in conflict with the statement of facts, which alleged that the appellant had used an axe handle. On appeal, this court held that the conflict between the statement of facts and the words used by the appellant when pleading to the charge was of considerable importance in. assessing sentence; the court should have investigated the conflict and if necessary should have heard the evidence on the point. Similarly, even though the appellant in the present appeal ·pleaded guilty to the charge of manslaughter our view is that the plea was rendered equivocal when he responded to the statement of facts in the following O words: - "I have something to alter. My Lord, when my wife was trying to get inside the house, this person got hold of her hand and she shouted. That is how I went outside. My lord, that is how we started dragging each other. Now, I realized that he was more powerful than myself. So I wanted to defend myself by hitting him with the handle of the axe ... " JS .· ! ; f·' Our view is that the above quoted words, in their totality, show that the appellant had set up a defence of self-defence. On the basis of that, the learned trial judge was bound to enter a plea of not guilty and proceed to try the case. Since this was not done, the subsequent proceedings were rendered a nullity. In the circumstances, we allow the appeal; the conviction is quashed and the sentence is set aside. In addition, we order that the case be sent back to the High Court for plea and trial before another Judge. 0 ···········~·················· E. L. Sakala, CHIEF JUSTICE. ··········~··················· S. S. Silomba, SUPREME COURT JUDGE.