John Banda v The People (Appeal No. 97/2023) [2024] ZMCA 182 (20 August 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal No. 97/2023 BETWEEN: JOHN BANDA AND THE PEOPLE 2 0 AUG 2024 APPELLANT / RESPONDENT CORAM: Mchenga DJP, Muzenga and Chembe, JJA On 13th August and 20th August 2024 For the Appellant Ms. M. Nzala, Senior Legal Aid Counsel, Legal Aid Board For the Respondent : Mrs. A. Kennedy-Mwanza, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Muvuma Kambanja Situna v. The People (1982) Z. R. 115 2. Whiteson Simusokwe v. The People, SCZ Judgment No. 15 of 3. Jack Chanda and Another v. The People, SCZ Judgment No. 29 of 2002 4. Precious Longwe v. The people, CAZ Appeal No. 82 of 2017 J2 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellant was convicted of the offence of murder by Makubalo, J, contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. 1.2 The particulars of offence alleged that the appellant on the 15th October 2021 at Chipata in the Chipata District of the Eastern Province of the Republic of Zambia did murder Shambayawo Tembo. The trial court having found no extenuating circumstances, he was sentenced to life imprisonment. 2.0 PROSECUTION EVIDENCE 2.1 On the 14th October 2021, the appellant turned up at his in-laws' house looking for his wife. He found and picked her to go with her to their house. The appellant was furious. As they were going, he started tearing the wife's clothes. The mother to his wife attempted unsuccessfully to separate them. The appellant and his wife went to their home. J3 2.2 The following day in the morning, the wife to the appellant was found dead in their matrimonial home with multiple injuries. The appellant was nowhere to be seen. Things in the room, where the deceased was found, were scattered, as though there was a struggle. At the scene, near the body, the arresting officer found a spade with a short handle and a broken castle lite bottle. 2.3 A postmortem examination was carried out by Dr. Richard Miti (PW4) who found a knife in the abdomen which he concluded was inserted through the vagina. He opined that the cause of death was hemorrhagic shock. 2.4 The appellant was apprehended on the 23 rd November 2021 by members of the public led by PW2, who took him to the police. He was subsequently charged with the offence of murder. 2.5 After hearing the evidence for the prosecution, the trial court found the appellant with a case to answer and placed him on his defence. The appellant opted to give sworn evidence and called no witnesses. 3.0 DEFENCE 3.1 In his defence, the appellant did not dispute causing the death of his wife. He told the trial court that on the 13th October 2021, he went J4 with a truck to Lundazi in his duties as a loader. He returned home the same day around 24:00 hours. 3.2 When he reached home he found his wife with a man, whom he knew as Brian, in his bed. He did not do anything. He simply told his wife that he had seen her and would talk about it in the morning. In the morning on the 14th October 2021, he went for work and when he returned home, in an attempt to discuss the issue, he found that his wife was not home. He followed her at her parents' home, got her and brought her back to the matrimonial home after which he started questioning her about the incident of her having been with a man. 3.3 She then responded that the man he found was the father to her third born daughter and their son John Banda Junior. A fight then ensued leading to him stabbing her on her thighs between the legs. He then ran away after the incident. 4.0 DECISION OF THE COURT BELOW 4.1 The learned trial court found that there was no dispute that the appellant caused the death of the deceased and that the only dispute related to whether there was provocation. JS 4.2 The learned trial court also found that the appellant cannot allege that he was provoked when he found Brian having sex in their matrimonial bed because he did nothing when he allegedly found them and that that was the time he should have beaten her. 4.3 The trial court rejected the defence of provocation stating that it was an afterthought in the circumstances and consequently found no extenuating circumstances. 5.0 GROUNDS OF APPEAL 5.1 Unsettled by the sentence imposed by the lower court, the appellant appeals to this court fronting one ground of appeal couched as follows: "The learned trial Judge erred in law and fact when she failed to find extenuating circumstances so as to impose any other sentence other than the mandatory maximum penalty on the facts of this case." 6.0 APPELLANT'S ARGUMENTS 6.1 In support of the ground of appeal, learned counsel submitted that the trial Judge erred when she did not find extenuating circumstances despite the evidence on the record. Counsel contended that according to the appellant's evidence, he was angered by the words used by the J6 deceased when she stated that their son was not his and that he was the son to the man he found her with in his matrimonial bed. 6.2 Learned counsel took issue with the failure by the trial court to consider this version given by the appellant. We were referred to the case of Muvuma Kambanja Situna v. The People 1 in arguing that the failure by the trial court in considering all the relevant facts before it, was a misdirection. 6.3 It was learned counsel's further argument that the trial court having found that the insertion of a 30 centimeter knife into the vagina of the deceased was not proportionate to the alleged defence of having things thrown at him ought to have found a failed defence of provocation amounted to extenuating circumstances. Reliance was placed on the case of Whiteson Simusokwe v. The People 2 , where it was held that: "In a claim of provocation, the reaction of the accused person must be proportionate with the result that any evidence of excessive force defeats the defence." 6.4 We were also referred to the case of Jack Chanda and Another v. The People3 in arguing that a failed defence of provocation amounts J7 to extenuating circumstances. We were urged to allow the appeal and impose any other sentence. 7.0 RESPONDENT'S ARGUMENTS 7.1 In opposing the appeal, learned counsel for the respondent submitted that the defence of provocation was not available to the appellant to afford him extenuating circumstances. It was contended that from the totality of the evidence, there was no provocation to warrant the appellant to fall under the protection of extenuation available under Section 206 of the Penal Code. 7.2 It was learned counsel's submission that contrary to counsel for the appellant's submission that the trial court's argument that the trial court did not consider the appellant's defence, the trial court sufficiently considered his defence. We were referred to a portion of the judgment where the trial court considered his defence. 7.3 Counsel contended that the assertion that the appellant was provoked because he found his wife in bed with another man cannot hold water because he did nothing and according his defence, he was calm when he went to get his wife. Counsel further argued that the appellant could not have been provoked by the being told that the child was not his as J8 from his evidence, the alleged utterances did not trigger any reaction from him. 7.4 It was counsel's argument that by tearing the clothes of his wife when he went to pick her subsequent death clearly showed that the appellant was the aggressor. We were referred to the case of Precious Longwe v. The people4, among other cases in arguing that the evidence on the record must show the existence of the defence of provocation and that in casu there was no evidence of provocation. We were referred to a plethora of cases on the subject, after which counsel concluded that there having been no defence of provocation, it followed that no defence of provocation was in existence. We were urged to dismiss the appeal. 8.0 THE HEARING 8.1 At the hearing, learned counsel for the appellant, Ms. Nzala placed reliance on the filed arguments. Learned counsel for the respondent equally placed reliance their arguments in opposition. 9.0 DECISION OF THE COURT 9.1 We have carefully considered the evidence on the record, the judgment of the court below, the arguments for and against the J9 appeal. The issue in this appeal is whether there exists extenuating circumstances, which could warrant the imposition of any other sentence, other than life. 9.2 It is not in dispute that the appellant caused the death of his wife with malice aforethought. The circumstances leading to the murder and the motive is given by the appellant. By stating that he found the deceased in his bed making love to a named man, the appellant put forward the defence of provocation. According to the appellant, after he followed the wife at her parents' home, he brought her to their matrimonial home. After questioning her about the incident, the deceased told him that the man he found was the father to her other children, including junior, his son. 9.3 The learned trial court rejected the assertion that the appellant was provoked by the deceased when they reached their matrimonial home on account that when the appellant picked the deceased from her parents' home, he started beating her right from there and tore her clothes. We cannot fault the learned trial court for this finding. This is because although the appellant in his evidence purported to have calmly picked his wife up and went with her to their matrimonial home, JlO there is eye witness testimony to the effect that he started assaulting the wife, even tearing her clothes right from the time he picked her. In fact according to PWl, the appellant was actually furious at that time. It is clear from these undisputed facts that the trial court was entitled to reject the assertion that appellant was provoked while they were in their matrimonial home by the deceased person's utterances. 9.4 The tria l court, however, glossed over the evidence of the previous events of the appellant finding his wife, the deceased, in flagrante delicto with another man in his matrimonial bed. The trial court seems to have rejected the provocation on account that the appellant should have beaten the deceased the time he caught her and not later, and that because he did not act at the time, the defence of provocation was an afterthought. 9.5 The learned trial court lost sight of the issue. The fact that a person does not react immediately when provoked does not of itself make the . raising of the defence an afterthought. The question the trial court ought to have determined is whether there was a provocative act or not. The uncontroverted evidence on the record is that the appellant found his wife with a named person in his bed. This is clearly a Jll provocative act. The appellant's failure to react immediately deprived him of the defence of provocation. It is trite that a failed defence of provocation affords extenuation, where there is evidence of provocation and the defence fails due to sufficient time to cool down or where there is disproportionate retaliation. 9.6 In this case, the appellant had sufficient time to cool down. He nonetheless committed the assault while laboring under influence of the provocative events of the previous day. This is clear, even from his furious and violent conduct when pursued his wife and returned with her to their matrimonial house. Having found that the appellant should have assaulted the deceased the day of provocative act, the trial court was in effect, saying he had time to cool down as he had not acted in the heat of the moment. Had the trial court properly directed herself, she would no doubt have found that the defence of provocation failed and consequently found extenuating circumstances. We therefore find merit in the appeal. 10.0 CONCLUSION 10.1 Having found merit in the appeal, we allow it. We set aside the sentence of life imprisonment and in its place we impose 30 years J12 imprisonment with hard labour, with effect from the 23 rd November 2021, the date he was apprehended and taken into custody. C. F. R. M'CHENG DEPUTY JUDGE PRESIDENT K. MUZENGA COURT OF APPEAL JUDGE ············· ~ ·················· Y. CHEMBE COURT OF APPEAL JUDGE