Berry Chuta v People (Appeal 28 of 2018) [2019] ZMSC 327 (10 June 2019)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) APPEAL NO. 28/2018 APPELLANT RESPONDENT Coram: Phiri, Muyovwe and Chinyama, JJS On the 4th June, 2019 and 10th June, 2019 For the Appellant: Ms. K. Chitupila, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mrs. M. M. Bah-Matandala, Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT MUYOVWE, JS, delivered the Judgment of the Court Cases referred to: 1. Simutenda vs. The People (1975) Z. R. 294 2. Jack Chanda and Kennedy Chanda vs. The People (2002) Z. R. 124 3. Whiteson Simusokwe vs. The People (2002) Z. R. 63 4. Nyambe Mubukwanu Liyumbi vs. Th*.? People (1978) Z. R. 25 5. Makomela vs. The People (1974) Z. R. 254 6. The People vs. Mwendaweli Nyambe (2011) Z. R. 130 (Vol. 3) Ji The appellant was found guilty and convicted by the High Court sitting at Kabwe of the murder of Getrude Kalekanya (hereinafter called "the deceased") and was sentenced to suffer the mandatory death penalty. The brief facts are that on 30th May, 2012 the deceased aged 13 years left for school as usual in the morning and was expected home around 16:00 hours. However, she did not return causing anxiety and alarm in the village. Coincidentally, the appellant who was a relative to the family and who was ordinarily resident about 20 metres away from the main house where the deceased lived was also conspicuously missing. A search for the deceased proved futile until the next day when the search was extended into the bush and a blue tropical belonging to the appellant was discovered in the bush. A further search in the area led to the discovery of the deceased’s body which lay facing downwards and next to the body was the appellant’s other blue tropical. About 70 metres away from the body was the appellant’s axe handle. The post mortem examination revealed that the deceased had been strangled and had a broken lower jaw. The cause of death was asphyxia, acute J2 respiratory failure. This was the summary of the prosecution evidence. The appellant elected to give unsworn testimony. He stated that on the material day as he was returning from his charcoal kiln, he met the deceased. According to the appellant, the deceased teased him that he was a son of a dog and was a mad man which angered him, and he pushed her from behind and she fell. At the time, he had an axe in his hands and when he noticed that she was hurt, he fled to Kabwe. The appellant stated that the family used to tease him that he was mad and that some elders usually sought medication to cleanse him of an unknown disease. In his judgment, the learned trial judge rejected the appellant’s defence and found that he caused the injuries that led to the death of the deceased. The learned trial judge also rejected the appellant’s claim that the family usually teased him that he was suffering from some mental illness. He found that the prosecution witnesses all described him as a normal person. After considering the evidence in total, the trial court concluded that the appellant J3 caused the death of the deceased with malice aforethought and convicted him of murder as charged. The appellant now appeals against conviction and sentence advancing two grounds of appeal couched in the following terms: 1. The learned trial judge erred in law and in fact in his failure to consider the availability of the defence of provocation on the evidence on the record. 2. In the alternative to ground one, the learned trial judge misdirected himself in his failure to find the existence of extenuating circumstances so as to impose any other sentence other than the mandatory death penalty on the facts of this case. Ms. Chitupila learned Counsel for the appellant relied on her filed heads of argument. The gist of Ms. Chitupila’s argument in ground one is that the learned trial judge should have considered the defence of provocation in view of the evidence on record. According to Counsel, there was unchallenged evidence on record that the deceased insulted the appellant which gravely provoked the appellant who in turn lost control of his mind. Counsel relied on the case of Simutenda vs. The People1 in which we laid down the J4 elements which constitute provocation. She submitted that the issue is whether a reasonable man would have lost his self-control given the same set of facts and reacted in the manner the appellant did. It was pointed out that the appellant’s explanation shows that he did not intend to kill the deceased and the trial court should have convicted the appellant of the lesser offence of manslaughter as malice aforethought was not established. We were urged to quash the conviction, set aside the sentence of death and instead find him guilty of the lesser offence of manslaughter and impose an appropriate sentence. In the event that ground one failed, Ms. Chitupila took refuge in the cases of Jack Chanda and Kennedy Chanda vs. The People2 and Whiteson Simusokwe vs. The People3 where we held that a failed defence of provocation, evidence of witchcraft accusation and evidence of drinking can amount to extenuating circumstances. Counsel urged us to find that the failed defence of provocation is an extenuating circumstance in this case and set aside the death sentence and impose an appropriate sentence. J5 In response, Mrs. Bah-Matandala the learned Deputy Chief State Advocate supported the conviction. She pointed out that the appellant placed himself at the scene. Counsel submitted that the question here should be, if at all there was provocation, was the retaliation proportionate to the provocation and whether a reasonable man could react in the same manner. Mrs. Bah- Matandala argued that there was no provocation as the appellant was in his right mind. Counsel submitted that there was no merit in this appeal and it should be dismissed. We have considered the submissions. We will deal with the two grounds of appeal together as they are inter-related. This court has pronounced itself on the defence of provocation in a plethora of cases. In Simutenda vs. The People1 which was heavily relied on by Ms. Chitupila we held, inter alia, that: A court is not required to deal with every possible defence that may be open to an accused person unless there is some evidence to support the defence in question.... (Emphasis ours) In Simutenda1 and Nyambe Mubukwanu Liyumbi vs. The People4 we held, inter alia, that provocation consists mainly of three J6 elements - the act of provocation, the loss of self-control both actual and reasonable, and the retaliation proportionate to the provocation. These elements must be present before the defence is available. The central issue for our determination is whether there was any evidence of provocation worthy of consideration by the trial court in line with our holding in Simutenda.1 Ms. Chitupila’s argument is that there was unchallenged evidence that the appellant was provoked by the deceased when she insulted him by calling him a mad man. We do not agree with Ms. Chitupila that this evidence was unchallenged. It is important to note that the so-called unchallenged evidence was actually the appellant’s version of the events leading to the tragic death of the deceased and specifically his explanation of what led him to attack the deceased. Therefore, to state that it was unchallenged is not correct. It is common cause that the appellant placed himself at the scene of crime as he admitted that he had a confrontation with the deceased and that he pushed her, she fell and hurt herself and he J7 fled after realising that she was seriously injured. According to Ms. Chitupila, the act of provocation lay in the words or insult by the deceased when she called him a mad man. In the case of Makomela vs. The People5 we held, inter alia, that: (ii) The question is not merely whether an accused person was provoked into losing his self-control but also whether a reasonable man would have lost his self control and, having done so, would have acted as the accused did. (iv) A man who completely loses his temper on some trivial provocation and reacts with gross and savage violence cannot hope for a verdict of manslaughter on grounds of provocation. In light of the appellant’s testimony, we ask ourselves: if a reasonable person of the appellant’s community is called a son of a dog or a mad person by a 13 year old, will that insult evoke such a rage as to cause that person to lose control and kill the child? We do not think so. Our first reaction looking at the circumstances of this case is that this was a trivial matter involving a child. In our communities, a child is a child who should be treated as such. And if a child errs, an appropriate punishment is imposed. The J8 appellant s reaction to the deceased’s alleged insult does not reflect the reaction of a reasonable man towards a child. The post-mortem reveals that the deceased was strangled, she had a fracture of the jaw, missing upper teeth, multiple abrasions and haematomas on the face and neck. Such serious injuries cannot by any stretch of imagination be proportionate to the so- called provocation of insulting words from a child who was related to the appellant. In the case of The People vs. Mwendaweli Nyambe6 a decision of the High Court, it was held, inter alia, that: 3. A wrongful act or insult is not provocation unless it is such as would deprive an ordinary person of the community to which the person who kills belongs to, the power of self-control, and induce him to assault the person who does the wrongful act or utters the insult. We agree with the holding of the lower court in the above stated case which we find applicable to the case in casu. In our considered view and having regard to the facts of this case, the defence of provocation was non-existent. The appellant had the opportunity to commit the offence as he met the child alone. To make matters worse the appellant who lived J9 within the vicinity left her for dead and fled to another town. Certainly, his conduct of fleeing from his area of residence spoke volumes and pointed to his guilt that he intended to kill and killed the deceased which was the only reasonable inference in this case. His election to give unsworn testimony did not assist him as the veracity of his evidence could not be tested through cross- examination. We find that his defence could not hold water in the face of the overwhelming prosecution evidence. Ms. Chitupila’s argument that the learned trial judge should have found him guilty of the lesser offence of manslaughter cannot be sustained and our holding in the case of Makomela vs. The People5 is instructive on this issue. The learned trial judge considered his defence against that of the prosecution and in the light of the relevant law and authorities, he arrived at the inescapable conclusion that the appellant murdered a defenceless 13 year old school girl in cold blood. Ground one fails. In this appeal and on these peculiar facts, it follows that once ground one fails, the second ground becomes otiose. In the case in casu, there was no provocation and, therefore, the question of failed J10 provocation warranting the existence of extenuating circumstances cannot arise. Ground two fails as well. The net result is that the appeal has collapsed for lack of merit and it is dismissed. G. S. PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE SUPREME COURT JUDGE Jll