Willard Mwiinga v The People (Appeal No/167/2022) [2023] ZMCA 203 (24 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL NO/167/2022 • BETWEEN: WILLARD MWIINGA AND THE PEOPLE RESPONDENT CORAM: MCHENGA DJP, MUZENGA AND CHEMBE JJA ON 14th June, 2023 and 24th August, 2�23 For the Appellant: Mrs M. Makayi -Senior Legal Aid Counsel For the Respondent: Ms G. Nyalugwe-Deputy Chief State Advocate National Prosecution Authority JUDGMENT CHEMBE, JA delivered the judgment of the Court to:• Cases referred 1. Whiteson Simukokwe v The People SCZ judgment No 15 of 2002 2. Rodgers Kunda v The People Appeal No 81/2017 SC 3. Esther Mwiimbe v The People (1986) ZR 15 SC. 4. Precious Longwe v The People CAZ 182/2017 5. Willard Maasaka v The People SCZ/ APP No. 15/22 6. Rodgers Kaunda v The People Appeal No 81 of 2017 SC 7. The People v Njovu (1968) ZR 132 Legislation to: referred 1. The Penal Code Chaper 87 of the Laws of Zambia 1.0 INTRODUCTION J2 1.1 This appeal is against the sentence of the High Court passed by Maka J. on 22nd September 2022. The Appellant was convicted of one count of murder contrary to section 200 of the Penal Code and was sentenced to death. 1.2 The particulars of offence alleged that the Appellant on 17th December 2021 at Mazabuka did rriurder Patience Luba. CASE 2.0 THE PROSECUTION 2.1 The prosecution adduced evidence that on 17th December 2021, the Appellant left home with the deceased in a vehicle. He was supposed to drop her at the bus station. The following day the deceased's body was found in a pond along Mazabuka Kafue Road. There was evidence of assault as the body had a deep cut at the back of the head and the forehead and other bruises. A postmortem examination was conducted on the body of the deceased and it was established that the cause of death was head injuries. 2. 2 The arresting officer carried out investigations and discovered blood stains in the Appellant's vehicle. When confronted with this evidence, the Appellant confessed to J3 having caused the death of the deceased by hitting her with a wheel spanner and a jack. 2.3 The Appellant was arrested and charged with the offence of murder. He led the police to the scene of crime and where he had disposed of the body. 3.0 THE DEFENCE 3.1 The Appellant in his defence told the Court that his marriage to the deceased was full of strife as she treated him poorly. He narrated incidents where he had felt disrespected. He told the Court that on 14th December 2021, he waited for her at the bus station to arrive from Lusaka but later learnt that she had been driven straight home by unknown people. 3.2 It was his testimony that on 15th December 2021, she refused to accompany him home after their daughter's birthday party and stayed out drinking until about midnight. She refused to discuss her behavior and spent room. the night in the children's 3.3 The Appellant also testified that on 16th December 2021, the deceased lied to him that she was going for a funeral in J4 NegaNega but was spotted in town in white Toyota Hilux with a man. He later picked her up at her friend's house. 3.4 The Appellant told the Court that she rebuffed his sexual advances and informed him that she was going back to Lusaka the following day. 3.5 There was evidence that on the fateful day (17th December 2021) he decided to have a discussion with the deceased over her behavior as he drove her to the station. It was his evidence that he drove to Deniz Company where he parked by the side of the road so that they could talk. 3.6 When he confronted the deceased over the terminated pregnancy, she refused to discuss that the issue. He alleged she then hit him with her cell phone. The Appellant told the Court that she got out of the vehicle and picked a stone. He followed her and hit her with a plug spanner that was nearby. The deceased fell down and struck her head on a rock. The Appellant lifted her and placed her in the back seat. 3. 7 He waited for her to recover so that they could continue the discussion but later realized she was unresponsive. He became confused and decided to leave the body near the JS road side. He left her near the culvert and drove home. 4.0 THE DECISION OF THE COURT BELOW 4.1 After considering the evidence, the trial Court found that most of the facts were not in dispute. The Honourable trial judge accepted the Appellant's evidence that there was tension in the marriage during the fateful week and the period prior. 4.2 The trial Court found that the deceased had stayed out late on 15th December 2021, went on drinking spree on 16th December after lying that she was attending a funeral in Neganega, was seen in Hilux with a man and returned home after 22:00 hours. 4.3 The Court also accepted the evidence that on 17th December, the deceased left home in the company of the Appellant as she was scheduled to return to Lusaka. The following day the deceased's body was discovered in a pond near a culvert along Lusaka road with deep lacerations on her forehead and back of the head. 4.4 The learned trial Judge rejected the Appellant's evidence that he struck the deceased and outside the vehicle J6 concluded that the attack took place inside the vehicle. She rejected the Appellant's explanation that the injury to the back of the deceased was caused by falling on a rock. She found that the Appellant caused the death of the deceased. 4.5 The learned Judge also rejected the defence of provocation and self defence raised by the Appellant. She found that the Appellant acted with malice afore thought and convicted him of the offence of murder. She found no extenuating circumstances and sentenced the Appellant to death. 5.0 THE APPEAL 5.1 Dissatisfied with the sentence, the Appellant raised one ground of appeal as follows: "The learned trial Judge erred in law when she failed to hold that there were extenuating circumstances to warrant sentencing the Appellant to any other sentence other than the death penalty." 6.0 APPELLANT'S SUBMISSIONS 6.1 Counsel for the Appellant, Mrs Makayi, submitted that the trial Court having found that the defence of provocation could not stand because the retaliation was disproportionate should have found that there were extenuating circumstances. We were referred to the cases of J7 Whiteson Simusokwe v The People1 and Rodgers Kunda v ThePeople2 6.2 Counsel contended that there was that having found cumulative provocation throughout the Appellant's marriage which did not qualify as a defence, the trial Court should have concluded that the failed defence of provocation afforded him extenuation for the charge of murder. Our attention was drawn to the case of Esther Mwiimbe v The People3 6.3 It was submitted that the failure to consider the failed defence of provocation was an error on the part of the trial Court. We were urged to set aside the sentence and impose any other sentence other than the death penalty. 7.0 RESPONDENT'S SUBMISSIONS 7.1 The learned Counsel for the Respondent, Ms. Nyalugwe, supported the sentence of the trial Court and submitted and loss that the Court found that there was no provocation of self-control in the heat of passion. We were referred to this Court's decision in Precious Longwe v The People4 where this Court expounded on when a failed defence of JS provocation can amount to extenuating circumstances. 7.2 It was submitted that having found that there was no provocation, the trial Court could not hold that the failed defence of provocation amounted to extenuation circumstances. We were referred to the case of Willard Munsaki v The People5 where the Supreme Court pronounced itself on the circumstances under which a failed defence of provocation could afford extenuation. 7.3 It was submitted further that the trial Court found that the Appellant had planned to injure the deceased and was therefore guilty of murder. We were urged to dismissed the appeal. 8.0 HEARING OF THE APPEAL 8.1 At the hearing of the appeal both sides relied on their respective heads of argument. In answer to questions from the Court, Counsel for the Appellant maintained that because the trial Court rejected the defence of provocation, it should have considered it to be an extenuating factor. 8.2 Counsel for the Respondent conceded that there was a history of infidelity on the part of the deceased but J9 maintained that the defence of cumulative provocation was not available to the Appellant because there was no trigger. When referred to section 201 (2) (a)of the Penal Code, Counsel conceded that circumstances existed in the case which could have afforded the Appellant extenuation. 9.0 DECISION OF THE COURT 9. 1 We have carefully considered the judgment and sentence appealed against together with the ground of appeal and arguments advanced by both parties. The appeal is against the failure by the lower Court to find that extenuating circumstances existed so as to warrant the imposition of a sentence other than death. The issue that needs to be determined therefore is whether the evidence adduced revealed extenuating circumstances. 9.2 Counsel for the Appellant submitted that after analyzing the evidence the trial Court found that the defence of provocation could not stand because there was no evidence that the Appellant lost control or that the retaliation was appropriate. She contended that the Court should then have found that the failed defence of provocation afforded the Appellant extenuation as was held in the case of Whiteson Simutokwe v the People6 9.3 However, a careful perusal of the judgment of the lower JlO reveals that there was no finding that the Appellant was provoked by the deceased. The statement at page J42 of the judgment and 162 of the record is couched in speculative terms as follows: "supposing this explanation by the accused was true, then clearly the retaliation was inappropriate. Secondly at no time did the accused state that he lost self control and as such he acted in the heat of passion. Clearly the defence of self defence can not stand". 9.5 On the same page in line 15 of the record the trial Court discounted the Appellant's version of events. The defence of provocation was therefore non existent according to the trial Court and as a result it could not offer any extenuation to the Appellant. This position was an accord with Supreme Court decision 1n the case of Rodgers Kunda v The People7 where it was held that once provocation is nonexistent the rule that a failed defence of provocation affords extenuation cannot apply. 9.6 However, the question that needs to be resolved is whether on the evidence adduced, the trial Court was entitled to disregard the defence of provocation. At page 158 of the record, the trial Court analysed of the Appellant's version Jll events regarding provocation where he had complained about the deceased's behaviour of coming home late, terminating a pregnancy, having pornographic videos, pictures and messages from other men. The Court did not believe the Appellant's version of events and did not consider whether if true, the incidents could amount to cumulative provocation. 9.7 In the case of Rodger Kunda v the people (supra) the Supreme Court had occasion to consider the appellant's defence of provocation. In that case the findings of the trial Court that the accused's version of event could not possibly be true as he had been inconsistent and his behaviour in running away after hitting the deceased and asking to meet his family to discuss the death contradicted his assertion that he was provoked were upheld. 9.8 In the present case the trial Court appears to have rejected the Appellant's evidence merely because he did not give a timeline of when these incidents occurred. She did not find any inconsistencies in his testimony or other facts which could have shown he lied about the deceased's behavior. The trial Judge in fact found that the deceased's behaviour bordering on infidelity and disrespect towards the Appellant Jl2 had haunted the marriage for a long time. It is unclear why the trial court disbelieved the Appellant. 9.9 In our view, having made such a finding and in view of the events of that week including the fact that the deceased lied about going to a funeral at Nega Nega when in fact she was in the company of a man, which was confirmed by PWl, the trial Court should have come to a conclusion that there was cumulative provocation by the deceased. 9.10 Further, the Prosecution did not negative the Appellant's version of events despite being aware of his defence before the trial. PW3, the deceased's daughter confirmed that the deceased came home late on Thursday and slept in the children's bedroom corroborating the Appellant's evidence that she rebuffed his sexual advances. 9.11 In the case of The People v Njovu. 8 Blagden CJ, stated that; "Let me stress at once that where as here, the issue of provocation is raised, there is no burden the accused to establish it; the burden is on the prosecution to negative it and moreover negative it so convincingly that it can be said beyond reasonable doubt that the accused was not Jl3 provoked in the manner or to the extent specified in section 182 and 183 of the Penal Code ... " In view of the above holding, which we agree with entirely, the prosecution ought to have adduced evidence to negative the appellant's evidence. There was evidence that on 15th December 2021 the deceased went out drinking with PW 1 and her boyfriend and only returned home at 22:30 hours. There was also evidence that on her return she refused to have sex with the Appellant and slept in the children's room. The evidence of PWI also corroborated the Appellant's evidence that the deceased had lied to him that she was going to Nega Nega for a funeral and was in the company of a man. This evidence was not rebutted by the prosecution. In our view the above evidence pointed to extreme provocation against the Appellant who was her husband. 9.12 In the case of Precious Longwe v The People CAZ No 182/2017, we referred to the case of R V Ahluwalia er Appeal R 64 where it was held that the defence of provocation will not be ruled out merely because the provocative conduct had extended over a period of time or there was delayed to it. reaction 9 .13 However, we agree that the circumstances of the case do not J14 show that the Appellant was entitled to a defence of provocation as he did not act in the heat of passion. According to the case of Simutenda v The People (1975) Z. R. 294, the defence of provocation consists of three main elements being; the act of provocation, the loss of self­ control and proportionate retaliation to the provocation. These elements must all be present for one to successfully raise the defence. 9.14 Further we note that the definition of extenuating circumstances in the Penal Code is quite wide. Section (2) provides as follows: "(2) For the purpose of this section- (a) an extenuating circumstance is any fact associated with the offence which would diminish morally the degree of the convicted person's guilt; (b) in deciding whether or not there are extenuating circumstances, the court shall consider the standard of behaviour of an ordinary person of a class of the community to which the convicted person belongs." J15 As can be seen from the definition or description of extenuating circumstances, it can be any fact associated with the offence that would morally diminish the degree of the guilt. 9.15 The evidence adduced showed that the events of the three days that the deceased spent in Mazabuka were deeply troublin g. On 14 December 2021, when the deceased th arrived in Mazabuka, she was driven straight home and did not inform the Appellant who was waiting for her at the bus station. He only discovered her. she was home after calling 9 .16 On 15 December 2021, the deceased refused to go home th with the Appellant after the child's birthday party and spent the evening drinking with her friend and other men. When she eventually got home after 22:30 hours, she refused to discuss the issue. 9 .17 On 16 December 2021, the deceased lied to the Appellant th that she was going to Nega Nega for a funeral but was picked up by a man. She did not answer his phone calls until later in the evening. When he eventually picked her up, she rebuffed his sexual advances and slept in the children's bedroom. 9 .18 In our view any one of the above circumstances would have J16 annoyed any man and elicited a violent reaction. The Appellant was providing for the for his family and paying deceased's education. The behaviour of the deceased would no doubt have upset him resulting in violence. The deceased's behavior towards the Appellant, in our view, amounted to facts which could diminish his moral guilt. 9.19 According to Section 201 (2) (b) of the Penal Code, the Court is called upon to consider the standard of behaviour of an ordinary person of the community to which the convicted person belonged. Although there. was not much evidence on the personal circumstances of the Appellant or the community to which he belonged, the evidence suggested that he was an average man. We are satisfied that the Appellant's reaction to the deceased's behaviour was in accord with the behaviour of an ordinary person in the community to which he belongs. No person would have tolerated the behaviour that the Appellant was subjected to. We accordingly find that facts existed in the matter which afforded the Appellant extenuation. J17 10.0 CONCLUSION 10.1 In view of the aforestated, we have found that there is merit in this appeal and we allow it. We therefore set aside the death penalty. We instead impose a sentence of 20 years imprisonment with hard labour effective from 23rd December, 2021. MCHEN A DEPUTY JUDGE PRESIDENT C. F. R. K. MUZENGA COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE