Trevors Muma v the People (Appeal No 228/2020) [2022] ZMCA 204 (17 May 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No 228/2020 BE1WEEN: TREVORS MUMA AND THE PEOPLE APPELLANT RESPONDENT CORAM: Kondolo, Banda-Bobo and Muzenga JJA On 21st September, 2021 and 17th May, 2022 For the Appellant: Mr. Siatwinda, Senior Legal Aid Counsel - Legal Aid Board For the Respondent: M. Libakeni, Senior State Advocate - National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (SC) 2. Ndumba v The People (1975) ZR 93 (SC) 3. Nyambe Mubukwanu Liyumbi v The People (1978) ZR 25 4. Jack Chanda and Kennedy Chanda v The People - Supreme Court Judgment No. 29 of 2002 5. George Chombaoma v The People - Appeal No. 19 of 2017 6. Mulenga v The People (1966) ZR 118 7. Dorcas Kasenge v The People - Appeal No. 124/ 2018 8. Kabwiki and Others v The People (1974) ZR 78 9. Kalaluka Musole v The People (1963 - 1964) ZAND NRLR 173 10. Lee Chun-Chuen v R. [1963] 1 All ER 73 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia. 3. The Court of Appeal Act No. 7 of 2016. 1.0 INTRODUCTION 1.1. The appellant was convicted by Madam Justice P. Lamba for murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the offence were that on 13th October, 2017, at Kitwe, the appellant did murder one James Njabili. He was subsequently convicted and sentenced to death. 2.0 PROSECUTION EVIDENCE IN THE COURT BELOW 2.1 The case for the prosecution was constructed from the evidence of seven witnesses. The material evidence given by PW6 the wife to the deceased was that on the material day, around 22:00 hours the appellant who was widely known as "Modecai" also a neighbour of the deceased, was seen trespassing in the deceased's yard. The deceased and PW6 asked him what he was doing in their yard at that time. The appellant responded by uttering all manner of insults to J3 them. An altercation ensued and it degenerated into a full-fledged fight. After a short time, the deceased and the appellant disengaged and the deceased asked the appellant to leave his yard. 2.2 PW6 testified that the appellant proceeded to their gate made up of timber off-cuts. He pulled out timber off-cuts and went back to beat the deceased with the same. The deceased fell down and the appellant continued beating him. In her attempt to rescue her husband, PW6 pushed the appellant who in turn hit her with the said timber off-cuts on the left side of her face. After being beaten, she rushed to the police station to report what had happened. She told the court that she left the appellant hitting her husband. At the police, she was issued with a medical report form and the officer she found was unable to accompany her back to her house. She went to her in laws to ask for help and her brother-in-law accompanied her home. They found the deceased lying on the ground with broken timber off cuts and a concrete block near him. 2.3 In cross examination she denied having seen the appellant carrying the concrete block. 2.4 In narrating the same ordeal, Lydia Chama PW2, told the court that she was a tenant and neighbour to the deceased and PW6. That on the fateful night, around 22:00 hours as she was asleep, she heard J4 noise from outside. She peeped through her window and saw her landlady being hit with a timber off-cut by a young man who she could not clearly see. She told the court that she then saw her landlady run off, and the young man remained hitting the landlady's husband who was lying on the ground. She also saw the young man hit the deceased with a concrete block on the legs. She said there was enough light from the neighbouring houses on either side enabling her to see clearly. She told the court that she had never seen the appellant and that she had just moved into the said flats. 2.5 It was her further testimony that, after a short while the deceased's relatives arrived. The deceased's brother, Joseph Njabili, put the deceased on his back and rushed him to the clinic. At the clinic, he was referred to Kitwe Central Hospital, where he later died. 2.6 PW3, Catherine Mwansa, was the appellant's sister. She told the court that on the fateful day as she was at her home sleeping, she heard a voice outside. She peeped through the window and saw someone lying down in her yard. She listened carefully, and heard that person groan that he had been killed. She asked who it was and he responded that it was Trevors. She went to see him and identified him as her brother. She observed two big cuts on his head and a cut on the leg and that he was bleeding profusely. She further told the court that • JS she arranged for a vehicle from her neighbour who took her and the appellant to the police and lodged a complaint of assault. At the police ' station, they were issued with a medical report form. 2.7 They proceeded to Kitwe Central Hospital, where the appellant was put on a drip and his wounds were sutured. He was prescribed some medications and later discharged. It was her testimony that the following morning, she asked him what had happened. He told her that his neighbour was fighting with his wife and when he went to separate them, the deceased accused him of having a relationship with his wife and punched him twice and a fight ensued. She told the court that the appellant left for Lusaka on 9th October, 2017 and that on 13th October, 2017 when the deceased died, his brother Muma arranged for the appellant to be captured. 2.8 In his evidence, PW4 Douglas Muma confirmed the evidence led by PW3. He explained in detail how he arranged the capture of the appellant. 2.9 PWS, Lavious Simudimu, a police officer, told the court that while on duty on 6th October, 2017 he received a report of assault from one female Peggy Mwape (PW6) of house number 983 Kawama Compound. She had sustained a bruised cheek and he issued her a medical report form to seek medical attention at Kitwe General J6 Hospital. He told the court that Peggy informed him that there was a fight with the neighbour. 2.10 In his further testimony, he stated that around 23:30 hours, he received another case of assault from one female Catherine (PW3) of house number 1735 who brought her brother by the name of Trevors Muma who had injuries. He equally issued a medical report form to enable them seek medical attention at Kitwe General Hospital. 2.11 PW7, the arresting officer gave an account of how he received a docket of assault occasioning bodily harm in which a male Joseph Njabili reported on behalf of his young brother James Njabili. He told the court that he carried out investigations and that on 13th October, 2017 after the said James Njabili died, he changed the offence from assault occasioning actual bodily harm to murder. He told the court that the appellant was apprehended from Lusaka. 2.12 With the evidence before him, the learned trial judge was satisfied that a prima faciecase had been established against the appellant. He thus placed him on his defence. 3.0 THE DEFENCE 3.1 The appellant testified on his own behalf and called no witness. He gave what sounded on all accounts, like a marvellous explanation accounting for his injuries. He told the trial court that on the material • J7 night as he was heading to his home in Kawama, he found his neighbour, the deceased and his wife fighting on the road. He tried to separate the two and reason with the deceased. He told the trial court that the deceased then accused him of having an affair with his wife which he denied, stating that the deceased's wife was too old. It was his testimony that this remark infuriated the deceased who went towards him and stabbed him with a knife. They wrestled each other until the deceased fell on the gate made up of timber off-cuts. He told the court that he found himself on top of the deceased as he was defending himself. 3.2 He grabbed the deceased's hand and twisted it so that he could retrieve the knife. During this process, he was hit on the back twice by the deceased's wife and when she was about to strike him again, he ducked and she ended up hitting the deceased. The deceased started bleeding and she ran off to her house while the appellant went to his sister's house. He told the trial court that his sister later took him to the police to report the matter then went to the hospital where he was discharged the following morning. He told the court that on his way to the police station, he passed out and that is why he was unable to give a statement. • • JS 3.3 In cross examination he told the court that he never used a block to hit the deceased and that he only meant to separate the couple who were fighting. He accepted that his medical report did not indicate that he had stab wounds. 4.0 FINDINGS AND DECISION OF THE LOWER COURT 4.1 The learned High Court Judge reviewed the evidence and convicted the appellant. She disbelieved the appellant's version of events and stated that from the appellant's own testimony, it was clear that he continued to use excessive force against the deceased, whom he had already overpowered. The trial court found no extenuating circumstances and sentenced the appellant to death. 5.0 GROUNDS OF APPEAL 5.1 Dissatisfied with the decision, he now appeals to this court on two grounds framed as follows: (i) (ii) The court below erred in both law and fact by convicting the appellant of murder when the evidence on record discloses provocation by the deceased and fighting which supports a conviction of manslaughter or alternatively; The trial court misdirected itself by holding that there were no extenuating circumstances when it could have found, from the evidence, that a failed defence of provocation amounts to an. extenuating circumstance. • • J9 6.0 APPELLANT'S ARGUMENTS 6.1 In support of ground one, the thrust of counsel's arguments is that the trial court failed or merely glossed over the evidence before it. He submitted that the trial court preferred the version given by PW2 and PW6 whose evidence does not explain how the appellant could have sustained injuries which PW3 and PWS observed and which were corroborated by the medical report. 6.2 It was submitted that the failure by the trial court to make a finding of fact that the appellant was equally injured in the fracas was a misdirection. It was contended that it is trite law that an appellate court cannot lightly interfere with findings of fact by the trial court. Counsel argued however, that it was held in the case of Wilson Masauso Zulu v Avondale Housing Project Limited 1 that where the findings in question were perverse or made in the absence of any relevant evidence or upon misapprehension of facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make, then the appellate court can reverse such findings of fact. We were urged to find that the appellant was equally severely injured from the fight with the deceased. 6.3 Learned Counsel took issue with the holding of the trial court that there were no extenuating circumstances. According to him, what can be no discerned from the versions given by PW6 and the appellant, both of whom were present when the fracas started, is that there was an intense fight characterised by struggling between the appellant and the deceased. 6.4 Counsel stressed that according to the evidence of PW6, the fight started with fists before the appellant got timber off-cuts which he used to hit the deceased. However according to the appellant, the deceased produced a knife, resulting in a struggle between him and the deceased, which continued even after the two fell down. According to counsel, the production of a knife by the deceased from what started as a fist fight constituted provocation by which the appellant reacted in the heat of the moment by getting any nearest available object to hit the deceased. 6.5 The learned counsel referred us to the case of Ndumba v The People2 where the Supreme Court held inter a/ia that: "(i) If in the heat of a fist fight the deceased produces a knife and the appellant snatches it and uses it on the deceased, the fight and the production of the knife can constitute provocation. (ii) The fact that the appellant was the original aggressor in the fist fight does not destroy the availability of the defence of provocation." Jll 6.6 Counsel stressed that on the authority of the above cited case, it does not matter who the original aggressor was, but rather what matters is that there was provocation and the person acted in the heat of the moment. 6.7 To further the submission, counsel argued that he is alive to the caveats on the defence of provocation which were well espoused by the Supreme Court in the case of Nyambe Mubukwanu Liyumbi v The People3 • He contended that from the evidence on record, the appellant satisfies all the elements of the defence of provocation and thus the defence of provocation should be availed to him. 6.8 According to Counsel, in order to arrive at a conclusion that the retaliation was proportionate to the provocation, recourse must be had to the findings on the appellant's medical report, wherein it is evidenced that the appellant sustained multiple cuts on the head and wounds on the scalp which were found to be actively bleeding. And that an unknown instrument was used. That the only logical conclusion to be drawn from the appellant's medical report is that, the appellant was struck first by the deceased on the head and it was only after overpowering the deceased that he managed to pick up the nearest object and hit the deceased in the heat of the moment. We J12 were urged to uphold this ground of appeal, quash the conviction of murder and substitute it with the conviction of manslaughter. 6.9 In support of ground two, argued in the alternative, Counsel contended that should this court be of the view that the retaliation by the appellant was not proportionate to the provocation, we should find that the failed defence of provocation amounts to an extenuating circumstance which reduces the degree of moral guilt of the appellant. We were referred to the case of Jack Chanda and Kennedy Chanda v The People4 where the Supreme Court held that "a failed defence of provocation can amount to extenuating circumstances." We were also urged to uphold this ground of appeal, set aside the conviction of murder and substitute it with that of manslaughter, or alternatively, substitute the conviction of murder with that of murder with extenuating circumstances, set aside the death sentence and substitute it with any other sentence. 7.0 THE RESPONDENT'S ARGUMENTS 7.1 Learned counsel for the respondent submitted that there is no evidence to support the appellant's defence of provocation. Counsel contended that the learned trial judge adequately assessed the evidence before her and came up with the finding of fact from her assessment. According to counsel, the findings she made were not J13 perverse or made in the absence of any relevant evidence or upon a misapprehension of facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make. 7.2 According to counsel, the trial court did not gloss over the appellant's testimony, but interrogated the same and rejected it. He referred us to the case of George Chombaoma v The People5 where the Supreme Court stated that where it comes to a question of credibility, an appellate court which has not had the advantage of seeing and hearing witnesses will not interfere with findings of fact made by a trial judge unless it is clearly shown that he has fallen in error. 7.3 Counsel contended that from the evidence on the record, the appellant was the aggressor in this matter and that the loss of self-control was not reasonable. He stresses that the reaction of clubbing a man with a piece of timber until he was unconscious and defenceless, and thereafter dropping a concrete brick on him is totally disproportionate. We were referred to the case of Mulenga v the People6 where it was held that "where the force was grossly excessive it would be strong evidence that the acts were not done in good faith, but in the earlier words of Briggs F. J; showed an intention to take violent and murderous revenge." J14 7.4 In summing up arguments for ground one, counsel submitted that on the evidence on record, the defence of provocation was not available to the appellant and that the trial court was on firm ground when it found the appellant guilty of murder. 7.5 In opposing ground two, counsel submitted that the defence of provocation not being available to the appellant, the trial judge was on firm ground when she found that there was no extenuation in this matter thereby warranting a death sentence. We were referred to Dorcas Kasenge v The People7 where we guided that: "A failed defence of provocation can afford extenuation to an accused person, as rightly argued by Mrs. Banda. Our considered view is that for this to occur, some elements of provocation should have been met. However, it should have failed due to disproportionate retaliation by the accused person. Here, the elements of provocation having not been met, it cannot be said that extenuation arises." 7.6 We were urged to dismiss ground two of the appeal. 8.0 THE HEARING 8.1 At the hearing of the appeal, learned counsel for the appellant Mr. Siatwinda, Senior Legal Aid Counsel, informed us that he would rely on the filed grounds and heads of argument. Learned counsel for the JlS respondent Mr. Libakeni, Senior State Advocate, equally informed us that he would rely on the arguments which he filed in response. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have thoroughly considered the record, the arguments by the parties and the judgment sought to be assailed. The issue in ground one is whether evidence is available to reduce the charge from Murder to Manslaughter. The issue in ground two, which is argued in the alternative, is whether on the facts of this case there exist extenuating circumstances. 9.2 We wish to note from the onset that the manner in which the learned trial court analysed the evidence seems to appear as though the burden of proof was shifted to the appellant. The learned trial court almost throughout its analysis of the evidence focussed on what the appellant told the trial court and what he told the police in his warn and caution statement which was produced in evidence at the instance of the defence. The trial court went at great length to analyse the actual and perceived inconsistences in his evidence. 9.3 We wish to emphasise that the burden of proof throughout the proceedings lies squarely on the prosecution, from the prosecution's case through to the defence. The standard of proof is very high; beyond all reasonable doubt. We wish to remind trial courts that it J16 has always been a fundamental principle of criminal law that it is better to have ten guilty men acquitted than have one innocent person convicted. The foregoing is what the Supreme Court said in the case of Kabwiki and Others v The People8 to the effect that: "It is a fundamental principle of the criminal law that it is better that ten guilty men go free than that one innocent man be convicted. We fear that the second and third appellants in this case are probably two of the ten; but the law is clear and it is our duty to apply it." 9.4 The focus is therefore not on whether the defence explanation is plausible or consistent but on whether the prosecution evidence has met the threshold. It must be emphasised that an accused person bears no burden to prove his defence, save for a few exceptional defences such as insanity, wherein the standard of proof is on the balance of probability. All the accused person needs to do is raise sufficient evidence to support his/her defence. The onus to disprove the defence thus still lies on the prosecution beyond all reasonable doubt. 9.5 The foregoing position was discussed by the Court of Appeal in the case of Kalaluka Musole v The People9 in the following terms: "But in saying this I would stress that with the exception of the defence of insanity, with which we are not concerned in this appeal, there is no onus on an accused person to prove or establish any of the these defences. The onus remains on • J17 prosecution throughout to prove the accused's guilt as charged beyond reasonable doubt; and it is for the prosecution to negative these defences when they arise. (Emphasis ours) But naturally there is no onus on the prosecution to negative something that is not there. The defence must be raised. Lord Devlin's words in Lee Chun-Chuen v R, 10 at 77 letter I, are appropriate here. He was dealing specifically with the defence of provocation, but his dicta apply equally to the other defences introduced by these sections in the Penal Code. He said: "It is not of course for the defence to make out a prima facie of provocation. It is for the prosecution to prove that the killing was unprovoked. All that the defence need do is to point to material which could induce a reasonable doubt." And then again at page 79 letter D: " the defence cannot require the issue to be left to the jury unless there has been produced a credible narrative of events suggesting the presence of these three elements" (of provocation); and finally at page 80 between letters C and D: "What is essential is that there should be produced, either from as much of the accused's evidence as is acceptable, or the evidence of other witnesses, or from a reasonable combination of both, a credible narrative of events disclosing material that suggested provocation in law. If no such narrative is obtainable from the evidence, the jury cannot be invited to construct one. Ordinarily, these special defences, are specifically raised by or on behalf of the accused. But a defence may arise by itself as a result of the evidence adduced before the court. In either event it becomes an issue which the court must decide and the burden of proof in regard to it is upon the prosecution to satisfy the court beyond reasonable from • J18 doubt that the defence so raised cannot be maintained. (Emphasis ours) 9.6 The learned trial court did not analyse the prosecution evidence in order to satisfy itself as to whether or not a case had been made to the required standard. As a result of this lapse, the trial court neglected to make very important findings, especially those based on demeanour and other factors a trial court is supposed to consider before making findings. 9.7 It is clear that the trial court made a finding of fact that there was a fight between the deceased and the appellant and that the fight took place within the yard of the deceased's premises where Lydia Chama was a tenant. However, the trial court did not make any finding as to what precipitated the fight. 9.8 There is evidence from the deceased's wife (PW6) to the effect that before the fight, she and her deceased husband heard sounds like people chasing each other in the yard. When they came out they found the appellant. The deceased enquired from him what was happening. The appellant allegedly started insulting the deceased. This infuriated the deceased and it led to the fight. 9.9 The appellant's evidence in court and what he said to the police was that he found the deceased and his wife PW6 fighting. He intervened by restraining the deceased from beating his wife. Then the deceased • J19 accused him of going out with his wife to which the appellant responded that she was too old for him. That is what infuriated the deceased and led to the fight. So this issue remains unresolved as to what led to the fight. 9.10 Further, according to the appellant, PW6 attempted to hit the appellant with an iron bar in the course of the fight, he ducked and she hit thel deceased on the head and the second time she attempted to hit the appellant on the legs, he dodged and she again hit the deceased on the legs. On the other hand, PW6 told the trial court that after the deceased and the appellant punched each other, the two started struggling, after which the appellant went to the gate, got off-cuts and hit the deceased mainly on the head until he fell down. PW6 attempted to intervene, she was hit with an off-cut on the left side of the face, after which she decided to run to the police. The issue of which version to believe, which is a credibility one, was not resolved by the trial court. These were serious omissions by the trial court. 9.11 In the absence of important findings by the trial court, we are left to consider uncontroverted evidence and some findings made by the court below. 9.12 It is clear that there was a misunderstanding between the appellant and the deceased, which led to the fight between the two. There is • J20 no doubt from the injuries sustained by the deceased leading to his death and also the injuries sustained by the appellant that the fight was intense. The two were combatants, each possessed of similar opposing desire to vanquish the other. There is also no doubt that either of them would have died from the fight. 9.13 Had the trial judge properly evaluated the evidence before her, she would not have found that the prosecution evidence established the charge of murder beyond all reasonable doubt. We therefore quash the conviction for murder. 9.14 We find manslaughter to be the most tenable offence in the circumstances of the case. Manslaughter is provided for under Section 199 of the Penal Code. That section provides thus: "199. Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed "man-slaughter." An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm." 9.15 A fight is an unlawful act and in this case, it resulted in the death of the deceased. We agree with counsel for the appellant that on the strength of the case of Ndumba supra a fight can be provocative in itself. We wish to state that a fight such as occurred in this case can • J21 be intense and parties may in the heat of the fight resort to all sorts of weapons and tactics. It therefore follows that even in such situations, where a weapon is used to inflict fatal injuries, it could ordinarily lead to a manslaughter verdict unless the facts can clearly not support the verdict, especially where there is very strong evidence to the contrary. 9.16 Therefore in terms of Section 181 of the Criminal Procedure Code and Section 16(4) of the Court of Appeal Act, we find the appellant guilty of the offence of Manslaughter, contrary to Section 199 of the Penal Code. In deciding what sentence to impose, we have considered that the appellant is a first offender and also the circumstances of this case. We thus sentence him to seven (7) years imprisonment with hard labour, with effect from the date of his arrest. Since ground two was argued in the alternative, we find it unnecessary to consider it. 9.17 To the extent of our decision above, the appeal is successful. C. :::----., ····-=·······················<'!.:_········· M. M. KONDOLO, SC COURT OF APPEAL JUDGE .............. ~ ............... .. A. M. BANDA-BOBO COURT OF APPEAL JUDGE . .... ~ ................ . K. MUZENGA COURT OF APPEAL JUDGE