Dashoni v The People (ZR 58 (CA)) [1966] ZMCA 13 (21 June 1966)

DASHONI v THE PEOPLE (1966) ZR 58 (CA) COURT OF APPEAL BLAGDEN CJ, DOYLE JA, RAMSAY J 21st JUNE 1966 Flynote and Headnote [1] Criminal procedure - Judgment - Irregularity - Failure to sign judgment - Curable. The trial court's failure to sign the original judgment at the �me he delivered it is an irregularity (Criminal Procedure Code, s.158 (1)), but it is curable pursuant to s.14 (1) of the Court of Appeal Ordinance. Cases cited: (1) John v R (1956) 23 EACA. 509. (2) Samwiri Senyange v R (1953) 20 EACA. 277. Statutes referred to: Criminal Procedure Code (1965, Cap.7), S. 158 (1). Court of Appeal Ordinance (Cap.12, No.52 of 1964), S.14 (1). Jones, for the appellant Shoniwa, State Advocate for the respondent Judgment By the court: In this case the appellant, Eston Dashoni, was convicted of murder by the High Court in Ndola and sentenced to death. He now appeals against that convic�on. The par�culars alleged against him were that on the 27th November of last year at Ndola he murdered his wife, Milika Kasempa. The facts were that on the evening of that day the appellant, accompanied by his wife and others, visited the house of one Doubt Kasempa. Whilst he was there he cri�cised his wife's behaviour and said he would beat her. He then struck at her with a small table but missed her and struck instead the witness, Kasempa, who evicted him from the house. What happened a�er that was related to the trial court by Kasaka Mbunda, who was the deceased's brother. He and the deceased and another witness called Frank Tito le� the house to go home. They were walking along in file, when, as described by the witness Kasaka Mbunda, he heard a voice like that of his brother - in - law - that is the appellant - saying 'Milika, my shirt'. He turned round to find that the appellant was on the spot. Then he heard a sound, which he described as the sound of a stab, and saw the appellant running away. He gave chase and caught him in a ditch, but in the confusion the appellant got away again. The witness then returned to where he had le� Milika and found her s�ll alive but bleeding freely from a wound in the neck. This account of what happened was substan�ally corroborated by the witness Tito. The body of Milika lay for some �me where it had fallen in the road and there was 1966 ZR p59 BY THE COURT evidence that it was run over or run into by a motor car, causing further injuries to it. The evidence of Doctor Kanweka, however, who performed the post - mortem on the body and whose evidence was admited in the form of the deposi�on which he made before the magistrate, made it clear that the cause of death was bleeding from the severing of the caro�d artery or jugular vein in the neck. In his defence the appellant made an unsworn statement denying that he had had anything to do with the deceased's death, and that was his a�tude throughout. Mr Jones, on behalf of the appellant advanced addi�onal grounds which were in substance a cri�cism of of the evidence of the witnesses Kasaka Mbunda and Frank Tito, poin�ng to certain discrepancies in their evidence and cri�cising in par�cular their demonstra�on of how the stab wound was inflicted. He also urged that as these two witnesses had been walking in the dark for some �me that did not give them any greater vision than they would have had normally and that the learned trial judge had misdirected himself in supposing that their vision was improved by that circumstance. In our view, however, the appellant here was convicted in very clear evidence and we can see no substance in these grounds of appeal. There are two further maters to men�on in this case, one of which led to our adjourning the mater for further inves�ga�on. There was some confusion in the prepara�on of the record as to whether the learned trial judge had dealt with the ques�on of drunkenness in this case. That mater has now been resolved by reference to the belt recording of what was said, from which it is clear that the judge did take this mater into account. The other mater which I would men�on is that the learned trial judge evidently forgot to sign the original judgment as he should have done in accordance with s. 158 (1) of the Criminal Procedure Code at the �me at which he delivered it. That is an irregularity, but it is curable In the circumstances under the provisions of the proviso to s. 14 (1) of the Court of Appeal Ordinance. In support of this I would cite the cases of John v R [1] and Samwiri Senyange v R [2]. Appeal dismissed 1966 ZR p60