Muyambango Sikabongo v The People (APPEAL NO. 31/2023) [2024] ZMCA 217 (27 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) APPEAL NO. 31/2023 BETWEEN: MUYAMBANGO SIKABONGO APPELLANT AND THE PEOPLE 2 7 FEB 2024 .... - LREGIS RESPONDENT CORAM: Ngulube, Muzenga and Chembe, JJA On 21st February, 2024 and 27th February, 2024. For the Appellant: D. Kabuka, Legal Aid Counsel, Legal Aid Board For the Respondent: M. P. Lungu, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Kazembe Zulu vs The People- SCZ Judgment No. 29 of 2015 2. Musonda Mwenge vs The People (2012) Z. R. 36 3 . Precious Longowe vs The People - CAZ Appeal No. 182/ 201 7 4. Simutenda vs The People (1975) Z . R . 294 5. Rodgers vs The People - SCZ Appeal No . 81/2017 Legislation referred to: 1. The Penal Code, Chapter 8 7 of the Law s of Zambia. 1.0 INTRODUCTION 1. 1 The appellant was tried and convicted of one count of the offence of murder contrary to section 200 of the Penal Code, by Maka, J, at the Livingstone High Court. The particulars are that the appellant, on a date unknown, but between 28 July, 2021 and 29 July, 2021 at Kalamo in the Kalamo District of the Southern Province murdered Casious Masaka. 1.2 After hearing the evidence for the prosecution and upon considering the appellant's defence, the court came to the conclusion that the prosecution had proved its case against the appellant beyond all reasonable doubt and he was convicted of ' the offence of murder as charged. The court did not find any extenuating circumstances and sentenced the appellant to death. 2.0 EVIDENCE BEFORE THE LOWER COURT 2.1 In support of their case, the prosecution called seven witnesses. The evidence of PWl, Alety Siamatendu, the appellant's grandmother, was that on 29 July, 2021 at 08:00 hours the appellant went to her house to ask for a hand pump which she gave him. As she interacted with him, she noticed that he had dry blood in his finger nails, his face and on his shoes. 2.2 PWl informed her husband Milton Muyambango about the appellant's presence at their home. She decided to trail him and received a phone call from George Munkombwe, who informed her that he had seen a motor vehicle and a dead body in the bush on her farm. She rushed to the scene where she found a silver Toyota Corolla and noticed a deep cut on the left side of the deceased's chest. 2.3 PW2, Peter Kate be was the owner of the motor vehicle that the deceased operated as a taxi within Livingstone. He stated that his motor vehicle was a Toyota Corolla, silver in colour which bore the registration number ABV 992. On 29 July, 2021, he received a phone call from Kalomo Police and was informed that his motor vehicle was at the Police Station and that the driver had been murdered. 2.4 On 30 July, 2021, PW2 went to the mortuary at Kalomo Hospital and identified the body of his driver. In the process, he noticed a deep wound of the left side of the deceased 's chest as well as some bruises on the head. 2.5 PW3 George Munkombwe was the owner of the farm where the deceased's body was found. On 29 July, 2021 he was informed that there was a motor vehicle parked on his farm. He went to the place where the motor vehicle was and found the appellant pumping one tyre. Upon inquiring from the appellant what he was doing, he told PW3 that he was going to his mother's place to collect some charcoal but his motor vehicle had developed a fault. PW3 asked the appellant about the blood that he had on his hands and his face and he told PW3 that he had been bleeding from his nose. 2.6 PW3 followed the tyre marks of the motor vehicle and noticed that there were some drops of blood which led him to a pool of blood which was covered by a fan blade. PW3 subsequently noticed that the appellant had run away but he trailed the blood stains to an ant hill where he found a body of a male person. 2.7 He noticed a wound on the left side of the deceased's chest and also saw some blood stained clothes near the body as well as two sticks which were also blood stained. The deceased's body was subsequently picked up by the police. 2.8 PW4, Howard Musa, the CIO at Mbita Police Post in Livingstone testified that on 29 July, 2020 he received information from an informer to the effect that the appellant, who was a suspect in a murder case was seen in Malota compound. PW4 and other Police officers went to Malota compound where they apprehended the appellant from his house. PW4 also recovered a pair of black jeans and a pair of blood stained shoes from the appellant's house. 2.9 PWS, Honesty Hamatendu was a motor vehicle mechanic in Mukwela, Kalomo. His testimony was that on 29 July, 2021 at about 06:40 hours he was informed by Bruce Siamunzwe that someone had a problem with a motor vehicle and when he went to the place where the motor vehicle was, he recognized the person who needed help as the appellant. 2.10 PWS worked on the motor vehicle and the appellant later told PWS that the tyre on the passenger's side of the vehicle needed to be pumped as it was flat They went to collect a pump and when they returned, PWS saw people standing around the motor vehicle. He heard the people asking the appellant how come he had blood on his clothes and he replied that he had been bleeding. At this stage, PWS then noticed that the appellant had blood on his hands, trousers and shoes. As the people further questioned the appellant, he ran away. 2.11 PW6, Eugene Hamambo , the Scenes of Crime officer's testimony was that on 29 July, 2021, he went to Siankanga farm in Mukwela area where he took still photos of the surrounding and of the body that he found at the scene. He noticed a deep cut on the left side of the chest. He also saw a motor vehicle which was 15 metres away from the body of the deceased. When the appellant was apprehended, PW6 went back to the scene and took still pictures. 2.12 PW7, Detective Inspector Moonga Frederick Chizhyuka, the arresting officer testified that on 29 July, 2021, at 09:00 hours, he received a phone call from Milton Sikabongo who informed him that he had discovered a dead body on Mr. Siakanga's farm. PW7 rushed to the scene with other police officers where he found a body of a man. He also saw a motor vehicle and noticed blood along a foot path as well as a motor vehicle fan blade that was at the scene. He saw a lot of blood on the ground. 2.13 The body was at an ant hill and was covered with shrubs. He examined it and noticed a deep cut on the left shoulder and that there was a heap of blood stained clothes two metres away. There were also some seat covers which were blood stained. The motor vehicle and the body of the deceased were taken away. 2.14 PW7 attended a postmortem that was conducted on the body of the deceased on 1 August, 2021. The appellant was apprehended on 30 July, 2021 and he was charged and arrested for the offence of murder. 2.15 In his defence, the appellant stated that on 28 July, 2021 he and the deceased, Joe Masaka who was his friend , left Livingstone to go to Siankanga farm to steal a cow. They arrived at about 20:00 hours and met his contact who was supposed to help him steal the cow but was informed that it was not possible because there was a watchman at the kraal. 2.16 The appellant informed the deceased about the development but he demanded to be paid Kl ,000.00 for the service of driving him to Kalamo. They differed because of this and the deceased got very angry and slapped the appellant on the right cheek. The appellant assured the deceased that he would pay him when they would return home. The deceased got a stick and hit the appellant with it. 2.17 There was a struggle between them. The deceased got a knife from the motor vehicle and charged towards the appellant to stab him. However, he managed to grab the knife from the deceased and stabbed him with it. He realized that the deceased was injured and looked for people to help him to take his friend to the hospital. He denied killing the deceased deliberately, it was as a result of them fighting over money . 3.0 DECISION OF THE LOWER COURT 3.1 The lower court considered the evidence that was adduced before it. The court found that the appellant told PW3 and the arresting officer, PW7 that he went to Mukwela area to buy charcoal from his mother's place and this was the evidence that the court accepted as opposed to his version of evidence in his defence that he went to Mukwela to steal a cow. 3.2 The court stated that the appellant's story that he and the deceased went to Mukwela on a joint mission to steal a cow was not logical and it was dismissed . The court found that the deceased died at Siankanga farm in Mukwela area on 28 July, 2021. Further, that the deceased died as a result of a stab wound that was inflicted on him by the appellant. The court found that the cause of death was external bleeding due to a deep wound on the upper chest and concluded that the deceased was stab bed to death. The court was satisfied that the appellant's conduct of stabbing the deceased showed that he had a pre-determined motive , to kill the deceased . The court found that the appellant intended to abandon the deceased's body in the bush and that the appellant acted with malice aforethought when he stabbed the deceased and caused his death. He was accordingly convicted of the offence of murder. The court did not find any extenuating circumstances and sentenced the appellant to death. 4.0 THE APPEAL 4.1 The appellant was dissatisfied with the decision of the lower court and appealed to this court, advancing one ground of appeal couched as follows - The lower court/ell in error when it failed to put into consideration the failed defence of self defence as an extenuating circumstance when sentencing the appellant. 4 .2 It was submitted on behalf of the appellant that the deceased was the aggressor as he charged at the appellant with a knife after he was informed by the appellant that he would not be paid as previously agreed. The case of Kazembe Zulu vs The People, 1 advancing the argument that a failed defence of provocation can amount to extenuation in a murder case , was cited. 4.3 It was argued that the appellant was overcome with shock when the deceased charged at him wielding a knife and attempted to defend himself and in the process , stabbed the deceased, leading to his death. It was submitted that the lower court should have considered the failed defence of provocation at sentencing as an extenuating circumstance. 4. 4 The learned counsel for the appellant urged the court to quash the sentence of death and in its place impose an appropriate sentence, in the circumstances. 5.0 RESPONDENT'S HEADS OF ARGUMENT 5.1 The State filed heads of argument in response to those of the appellant. Responding to the sole ground of appeal, it was submitted that the evidence of what transpired on the material night was given by the appellant, who stated that there was a struggle between him and the deceased which resulted in him stabbing the deceased to death. 5.2 It was contended that if the appellant managed to grab the knife from the deceased, his life was not in imminent danger and that he could have thrown the knife away, instead of stabbing the deceased to death. 5.3 It was argued that the lower court was on firm ground when it held that self defence could not stand. It was submitted that there were no extenuating circumstances in the matter. According to counsel, a failed defence of self defence cannot entitle the appellant extenuation. !:).4 The court's attention was drawn to the case of Musonda Mwenge vs The People, 2 where the court defined extenuating circumstances as - "Mitigating circumstances, facts or situations which do not justify the commission of the offence but reduce the degree of culpability. They have no bearing on the accused's guilt but may be considered by the court in lessening the severity of the sentence." 5.5 It was argued that there were no mitigatory circumstances to warrant lessening the severity of the appellant's sentence. 5.6 It was submitted that when PW5 asked the appellant about the vehicle, he told him that it was for his boss and that he was sent to buy charcoal. He also gave a false account about where the blood that was on his person was from. 5. 7 It was submitted that the appellant ran away as PW3 followed the trail which led to where the deceased's body was found. That there was no provocation in the matter and that no evidence was led by the appellant to support the defence of provocation. As such, there cannot be a failed defence of provocation that can be considered as an extenuating circumstance. 5.8 It was submitted that by stabbing the deceased with a knife, malice aforethought as provided in section 204(b) of the Penal Code was established. That according to the postmortem report, the deceased's left lung was raptured. 5.9 It was argued that on the totality of evidence, the lower court was on firm ground when it found that there were no extenuating circumstances and convicted the appellant for the offence of murder without extenuating circumstances. 5.10 We were urged to dismiss the appeal and uphold the sentence of the lower court. 6.0 THE HEARING 6. 1 At the hearing of the appeal, the learned Legal Aid Counsel Ms Kabuka submitted that she would rely on the sole ground of appeal and heads of argument filed. 6.2 On behalf of the respondent, the learned Deputy Chief State Advocate, Mrs. Lungu submitted that she would rely on the heads of argument filed. 7 .0 DECISION OF THIS COURT 7.1 We have considered the record, the sole ground of appeal and the arguments advanced by counsel. 7 .2 In analysing the law on the defence of provocation, we refer to the case of Precious Longwe vs The People3 where we stated that the evidence on record must show that there was a provocative act. The existence of the provocative act in turn invokes the ctetence. ln the case o! Stmutenda vs The People,4 the Supreme Court set out what constitutes the defence of provocation. This is that, there must be an act of provocation, loss of self-control and retaliation that is proportionate to the provocation. 7.3 The learned counsel for the appellant has advanced the argument that even if the appellant's defence of provocation had failed, he has proved that there was an act of provocation, which should have led to the court finding extenuating circumstances in the matter. 7.4 In the case of Rogers Kunda vs The People5 the Supreme Court guided that where provocation is non-existent, the principle that a failed defence of provocation affords extenuation in a murder charge, will be inapplicable. 7.5 The findings of the lower court, are that the appellant had a predetermined motive to kill the deceased and further that he acted with malice aforethought when he stabbed the deceased in the manner that he did. We agree with the lower court's findings of fact in this regard. There is no evidence on record that supports the appellant's argument that he was provoked by the deceased. We are of the view that there was no evidence of provocation on record. As such, the issue of a failed defence of provocation does not arise and the defence is not available to the appellant. 7.6 In the case of Kazembe vs The People supra, Phiri JS had this to say - "What we consider paramount to note is that the question of extenuating circumstances is a question off act to be decided on the merits of each case. The finding must be evidence based and not based on speculation and arising statements or claims." 8.0 CONCLUSION 8.1 The sum total of this appeal is that the sole ground of appeal lacks merit and it is accordingly dismissed. 8.2 The conviction and sentence of the lower court are upheld. ······ ······~ ············· P. C. M. Ngulube COURT OF APPEAL JUDGE