Chilufya v People (Appeal 31 of 2015) [2020] ZMSC 143 (14 January 2020)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) Appeal No. 31/2015 BETWEEN: FRANK CHILUFYA AND THE PEOPLE RESPONDENT Coram: Phiri, Wanki, and Muyovwe, JJS on 14th April, 2015 and 14th January, 2020 For the Appellant: Mr. H. M. Mweemba, Principal Legal Aid Counsel, Legal Aid Board For the Respondent: Mrs. M. B. Nawa, Acting Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT MUYOVWE, JS, delivered the Judgment of the Court Cases referred to: 1. Regina vs. McCarthy (1954) 2 All E. R 262 2. Chibangu vs. The People (1978) Z. R. 37 3. Walker vs. R. (1969) 53 P. 195 4. Jack Chanda and Kenneth Chanda vs. The People (2002) Z. R. 124 5. Libuku vs. The People (1973) Z. R. 453 6. Lemmy Bwalya Shula vs. The People (1995/97) Z. R. 165 7. Nyambe Mubukwanu Liyumbi V The People (1978) Z. R. 25 8. Ndumba vs. The People (1978) Z. R. 93 Jl When we heard this appeal, we sat with the late Mr. Justice Wanki. Therefore, this judgment is by majority. This is an appeal against sentence. The appellant was tried and convicted of the offence of murder by Hon. Madam Justice Mulanda. It was alleged that on the 25th October, 2012 at Ndola in the Ndola District of the Republic of Zambia, he murdered Howard Chibuye (hereinafter called “the deceased”). The prosecution case was anchored on the evidence of two eyewitnesses, PW1 and PW3. The incident leading to the tragic death of the deceased occurred at a bar in Mine Masala Market in Ndola. According to PW3, he saw the appellant pick a plank which had nails on it from the toilet in the bar. After a few minutes, he saw the appellant and the deceased engaged in a fight and the appellant had the upper hand and he used the plank with nails to hit the deceased on the head. PW1 happened to be at Mine Masala Market around 20:00 hours when he heard some commotion nearby and he rushed there only to find the appellant and the deceased coming out of the bar engaged in a fight. PW1 knew them both. The deceased was J2 seriously injured. The appellant fled from the scene. Seeing the condition of the deceased, PW1 rushed to report the matter to the police. On arrival at the police station, he found the appellant also reporting that he had been assaulted by the deceased. The deceased was admitted in the hospital and he passed away four days later on the 29th October, 2012. The postmortem examination report indicated that the cause of death was severe head injuries. The appellant was apprehended and charged with the offence of murder. In his defence, the appellant stated that the deceased was the aggressor as he attacked him on suspicion that he was proposing his girlfriend. That they fought using fists and he was assaulted by the deceased to the extent of bleeding in the mouth. He stated that he went to report the matter to the police, but found PW1 already at the police station reporting the fight and he was detained. The appellant stated that he did not know PW1 and PW3 before the incident. The learned trial judge found that the prosecution had proved its case beyond reasonable doubt on the grounds that: The two witnesses had the opportunity to observe the happenings of that B night as there was sufficient lighting; they knew the appellant before the incident; and therefore, the question of mistaken identity was eliminated. She rejected the appellant’s story that the two only exchanged blows as the witnesses observed that the deceased suffered grave injuries to his head which was confirmed by the postmortem examination report. That there was overwhelming evidence leading to the conclusion that the appellant caused the death of the deceased. She found him guilty as charged. The learned trial judge found no extenuating circumstances as she found that in this case, the appellant was not intoxicated such that he was able immediately to go to the police to report the incident, he remembered what happened and even how the deceased allegedly provoked him. The learned trial judge opined that if there was any provocation, the retaliation was out of proportion and a reasonable person would not have reacted in the manner the appellant did. The appellant was sentenced to death. On behalf of the appellant, Mr. Mweemba filed one ground of appeal in which he contends that the learned trial judge erred in law and fact by holding that there were no extenuating J4 circumstances without considering the failed defences of provocation and intoxication. Mr. Mweemba referred us to the cases cited by the learned trial judge in her judgment namely: Regina vs. McCarthy,1 on the defence of provocation and drunkenness; and Chibangu vs. The People2 and Walker vs. R3 on the defence of provocation. Counsel reminded us of our holding in the case of Jack Chanda and Kenneth Chanda vs. The People4 in which we held that a failed defence of provocation, evidence of witchcraft and evidence of drinking can amount to extenuating circumstances. Mr. Mweemba submitted that there was evidence of drinking in this case and it was not in dispute that the appellant had been drinking. That it was a misdirection on the part of the learned trial judge for not considering the evidence of drinking and failed provocation as extenuating circumstances. Mr. Mweemba urged us to quash the death sentence and substitute it with a sentence other than death. In response, Mrs. Nawa left the matter to the discretion of the court. We have considered the submissions by Mr. Mweemba. J5 It is not in dispute that there was a fight between the appellant and the deceased. That the fight took place at a drinking place is also not in dispute. There was also evidence that the deceased was reeking of alcohol as he lay in agony after the appellant hit him with a plank on the head. The issue before us is whether the learned trial judge should have found the failed defences of provocation and intoxication as extenuating circumstances. We will first deal with the defence of intoxication. We had occasion to consider this defence in the case of Libuku vs. The People5 and the facts of the case are set out on Page 454 as follows: “... The prosecution case briefly stated that the appellant accosted the complainant on the night of the alleged offence whilst she was visiting a neighbour's house and tried to drag her away. The neighbour intervened and separated them. The complainant returned to her house and shortly afterwards two of her neighbours, who were nearby at the time, observed the appellant take a box of matches, set fire to the complainant's house and then run away. The appellant's defence was that he had been drinking heavily on the day in question and had no recollection of visiting the complainant's house. He had no knowledge of the offence alleged until he was arrested and charged with it. ...” J6 We held that: Evidence of drinking, even heavy drinking, is not sufficient in (i) itself to give rise to a defence of intoxication under section 14 (4) of the Penal Code. (ii) Although the appellant was probably drinking heavily on the day of the offence and may have subsequently suffered alcoholic amnesia the fact that he was seen by two witnesses deliberately to set fire to the complainant’s house and then run away conclusively negatived the defence that by reason of intoxication he was unable to form the necessary intent. This case can also be distinguished from the case of Lemmy Bwalya Shula6 where we held that the drunken circumstances generally attending upon the occasion sufficiently reduced the amount of moral culpability so that there was extenuation. Looking at the facts of this case, there was no evidence as to how long the appellant or indeed the deceased had been drinking. Nevertheless, there was evidence that before the fight started, the appellant went and got the plank from the toilet indicating that he had prepared his weapon in advance. After the fight, the appellant was able to flee from the scene realising what he had done and rushed to the police to report that he had been assaulted by the deceased. This is not the behaviour of a person who is intoxicated but rather of a person who was in control of what he was doing. J7 The defence of intoxication must fail in this case as well because the appellant cannot hide behind the alcohol as he knew the consequences of hitting the deceased with a plank laden with nails. The learned trial judge addressed her mind to this issue and rightly rejected it. Turning to the failed defence of provocation, in the case of Nyambe Mubukwanu Liyumbi vs. The People' we held, inter alia, that: (i) There are three inseparable elements to the defence of provocation - the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation. All three elements must be present before the defence is available. In the case of Ndumba vs. The People8 we had occasion to discuss the defence of provocation. In the Ndumba8 case, the appellant and the deceased were engaged in a fist fight and during the course of the fight, the deceased produced a knife which the appellant managed to snatch from him but ended up stabbing the deceased in the thigh causing him serious injury which killed him. We convicted the appellant of manslaughter after finding that the J8 defence of provocation was available to him. We had this to say when considering sentence: We have pointed out that the fact that the appellant was the original aggressor in the fist fight does not prevent him from pleading provocation. It is however a matter most material in considering sentence. The appellant and his friend set out to beat up the deceased and they pursued him for this purpose. Accepting that originally there was no intention to do more than inflict a hiding with fists, the fact remains that the appellant embarked on an unwarranted and unlawful assault which led to the production of a knife and as a result a man is dead. We have proceeded on the assumption that it was the deceased himself who produced the knife; had it been found that the appellant produced it the offence would at best have been a very much more serious case of manslaughter and at worst might have been murder. The appellant will be sentenced to imprisonment with hard labour for five years with effect from 7th January, 1974. We were satisfied in the Ndumba8 case that the appellant had set out merely to give the deceased a beating and that it was the deceased who produced a knife which ended up in his killing. In the case in casu, what constituted provocation, according to the appellant’s story, was that the deceased grabbed his shirt and accused the appellant of proposing his girlfriend. There was evidence which was accepted by the learned trial judge that before the fight ensued, the appellant went to get the plank which he used to assault the deceased in his head. The appellant got the plank J9 after quarrelling with the deceased. The learned trial judge considered the appellant’s defence and concluded that he had time for his passion to cool after the two had quarreled. However, the appellant embarked on preparing to fight with the deceased when he went to pick the plank laden with nails. Unlike the appellant in the Ndumba case, the appellant’s intention in the case in casu was to do grievous harm to the deceased. Clearly, malice aforethought was established in that the appellant attacked the deceased who had no weapon in his hand and who was drunk going by the evidence of the deceased’s brother who said he was reeking of alcohol as he lay in a pool of blood. The learned trial judge held that the so-called provocation was so trivial such that the appellant was not expected to lose the power of self-control to the extent of attacking the deceased in such a manner. In our view, for failed provocation to succeed as an extenuating circumstance, the defence of provocation must be available to the appellant in its fullness. Looking at the facts of this case, the defence of provocation was rightly rejected by the learned trial judge as it was not available to the appellant. The learned trial judge found as a fact that this was not just a fist fight but that the appellant intentionally used a J10 plank with nails to assault the deceased thereby causing serious injuries which were observed by the witnesses and alluded to in the postmortem examination report. Counsel for the appellant relied on the case of Jack Chanda and Another vs. The People4 in which we held that failed defence of provocation and evidence of drinking can amount to extenuating circumstance, meaning, it depends on the peculiar circumstances of the case. Having considered the circumstances of this case, we totally agree with the learned trial judge that there were no extenuating circumstances in this case. The sole ground of appeal fails for lack of merit and the appeal is dismissed. SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE JU