Soviet Gama v The People (Appeal No. 72/2023) [2024] ZMCA 298 (12 November 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No. 72/202~ BETWEEN: SOVIET GAMA I APPELLANT AND THE PEOPLE • ·· r ·-i J 1::·\ ....... . . J RESPONDENT CORAM: Mchenga, DJP, Muzenga and Chembe, JJA On 22nd May 2024 and 12th November 2024 For the Appellant: Mrs. M. Katila-Mulubwa, Legal Aid Counsel, Legal Ai, Board For the Respondent: Mr. S. Mainza, State Advocate, National Prosecutior Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Zitandala Nyendwa and Samilani Ngoma v. The People (1978 ZR 399. 2. Kalinda v. The People (1966) ZR 29. 3. Phiri and Others v. The People (1973) ZR 47. J2 4. James Chibangu v. The People (1978) ZR 37. 5. Fredrick Mulusa and 6 Others v. The People - SCZ Selectec Judgment No. 14 of 2018. 6. Jack Chanda and Kennedy Chanda v. The People - SC~ Judgment No. 29 of 2002. 7. Whiteson Simusokwe v. The People - SCZ Judgment No. 1~ of 2002. 8. David Chimwanga v. The People - CAZ Appeal No. 070/2020. 9. Dorcas v. The People - CAZ Appeal No. 124 of 2018. 10. Richard Daka v. The People - SCZ Appeal No. 333 of 2013. 11. Padford Mwale v. The People - CA~ Appeal No. 8 of 2016. 12. Gift Chipunde v. The People - CAZ Appeal No. 109 of 2021. 13. Goba v. The People (1966) ZR 113. Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 2. Criminal Procedure Code, Chapter 88 of the Laws of Zambia. 3. The Juveniles Act, Chapter 53 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellant was convicted by B. C. Mbewe, J, of Murder contrary t< Section 200 of the Penal Code, Chapter 87 of the Laws o Zambia and sentenced to death. 1.2 The particulars of offence alleged that on the 30th day of Decembe 2021, at Siavonga in the Siavonga District of the Lusaka Province o the Republic of Zambia, did murder Nelly Rosia Malimbika. 1.3 He has now appealed against the conviction and sentence. J3 2.0 EVIDENCE IN THE COURT BELOW 2.1 The appellant and his beloved wife (now deceased) had a history o· marital misunderstandings. On the 30th December 2021, when the appellant returned home during the day, he found his wife was no· home. He enquired from his daughter (PW2) who informed him tha· her mother had gone in search of mobile network in the bush. Wher she returned, he accused her of having gone to be with another man Later that evening, PW2 left the deceased and the appellant home a~ she went to play at the neighbour's village with her friends. 2.2 When PW2 got back, she found her mother lying down at the doo with an axe embedded in her head. She looked closer, called her anc she responded. PW2 then called out people who lit a fire and startec mourning. 2.3 According to PW3, who was one of the people who rushed to thE scene, she found the deceased was still alive and there was < suggestion that the axe be removed from the deceased's head. ShE proceeded to remove it, and that is how the deceased stoppe< breathing and died. J4 2.4 This marked the end of the prosecution evidence. The appellant wa! found with a case to answer and he was put on his defence. 3.0 DEFENCE 3.1 The appellant did not dispute hacking the deceased. He narrated tha1 on the fateful evening, he left home to go and hang out with his friend! around 19:00 hours. At the time he left, PW2 was not around as she had gone to play with her friends. 3.2 When he returned in the night, he found Timothy Mweemba havin~ sex with his wife (the deceased) in his house. Timothy Mweemb, quickly escaped through the door as the appellant was trying to pu· the light on. He then got an axe which was in the house and hackec his wife. He stated that what she did pained him and that he was nn prepared to harm his wife. 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4.1 The trial court considered the evidence and held the view that then was no eye witness to the murder, and considered that the evidencE was largely circumstantial. 4.2 The trial court went further to consider the defence of provocatior which the appellant raised and found that he had time to cool off as i JS considered a period of 30 minutes to be sufficient to cool down. ThE trial court concluded that as such, the defence was not available to thE appellant. 4.3 The trial court went further to hold that the ingredients for the offencE of murder were satisfied, convicted the appellant and sentenced hin to death. 5.0 GROUNDS OF APPEAL 5.1 Disconsolate with the conviction and sentence, the appellant launchec the present appeal fronting two grounds of appeal structured a! follows: (1) The learned trial court erred in law and fact when i· dismissed the defence of provocation contrary to th« evidence before the court. (2) The court below erred in law and fact when it sentencec the appellant to death despite the existence o extenuating circumstances in the form of a failec defence of provocation, which ought to have persuadec the court to impose any other sentence other than death 6.0 THE APPELLANT'S ARGUMENTS 6.1 The appellant filed heads of arguments in support of the grounds o appeal. In support of ground one, counsel for the appellant submitte1 that the court below found against the defence of provocation. Hi JG submitted that it was settled law that provocation constituted threE elements namely; the provocative act, loss of self-control and thE retaliation causing death being proportionate to the provocation. HE placed reliance on the case of Zitandala Nyendwa and Samilan Ngoma v. The People1 • 6.2 Counsel submitted that the record would show that what transpirec and the possibility of provocation between 19:00 hours and 23:0C hours on 30th December 2021 was only in the words of the appellan in defence while the prosecution did not account for this period. 6.3 On the first element of provocation, counsel submitted that the act o adultery had long stood as one of the worst forms of provocation ai noted by Doyle J. A. in the notorious case of Kalinda v. The People: when delivering the judgment of the Court of Appeal made thE following observation: "To be found in adultery has in the English in commor law always been considered one of the gravest forms o· provocation. In Zambia and other African territories , confession of adultery has been held to be equivalent o· being found in adultery, and to be grave and sudder provocation." J7 6.4 It was submitted that in the case before the court below and in thE Judgment rendered, the fact of adultery was uncontrovertec particularly in that the prosecution did not counter this position anc the events of the day between 19:00 hours and 23:00 hours. Furthe1 that it could be deduced that the decision of the court was whethe1 there was sufficient time for the appellant to calm down and whethe the act leading to the death of the deceased bore a reasonablE relationship to the provocation. 6.5 Counsel argued that the presence of a provocative act was properl) established in evidence and this element of provocation was evident. 6.6 On the second element of provocation, counsel submitted that a prope look at the evidence before the court below would show that there wa! nothing to properly exclude the possibility that the act leading to deatt could have been done in the heat of the moment by a man who hac lost self-control. 6. 7 It was submitted that the finding by the court below that there was c period of 30 minutes between the discovery of the adultery and thE act leading to the death and that this was sufficient time to cool dowr was perverse and warranted being overturned by this Court. J8 6.8 It was submitted that the loss of self-control was clear in the evidencE as the appellant stated that in the face of the provocative act, he die something he did not intend to do, and his evidence was that he wa~ not prepared to harm her with an axe, it just happened . 6. 9 Counsel contended that the court below was bound to decide withir the evidence before it and not infuse facts such as the time estimatec without any evidence to support the same. To support this argument the case of Phiri and Others v. The People3 was relied on. 6.10 It was submitted that the element of self-control was properly set ou· in the evidence of the appellant and not countered by the prosecution'i evidence. 6.11 On the element of proportionality, the third element of provocation counsel submitted that the aspect of proportionality was one tha should have carefully been canvassed. He referred to the case o James Chibangu v. The People4 where the Court stated that: "I think this may help to explain ... the subsections, an< to reinforce the views we expressed in Chibeka's case that the subsections really mean that one must conside1 the whole of the provocation given and the whole of th• accused's reaction to it, including the weapon, if any used, the way it came to hand, the way it was used, an< every other relevant factor and must finally decid• whether an ordinary man of the accused's community J9 with his ordinary allowances of human wickedness· might have done what the accused did."(underlined fo1 emphasis} 6.12 It was submitted that the mere use of a weapon like an axe should no on the face of it be taken to denote the act being out of proportion Reliance was placed on the case of Zitandala Nyendwa anc Another v. The People supra in support of this argument. 6.13 Learned counsel argued that the judgment of the court below did no disclose the reasoning of the court on how it arrived at the conclusior or finding that the act did not bear a reasonable relationship to thE provocation and in so doing breached the settled and mandatot: requirements of a judgment of the court as prescribed in Section 16~ of the Criminal Procedure Code. 6.14 Counsel further contended that following the appellant's raising of thE defence of provocation from, the interaction with the arresting office as admitted in cross examination, to the appellant's testimony in court the burden of dispelling the defence, fell on the prosecution. Supper for this argument was drawn from the case of Fredrick Mulusa anc 6 Others v. The People5 • JlO 6.15 Learned counsel argued ground two in the alternative to ground orn that the court below erred in law and in fact when it imposed the deatt penalty when the evidence before it offered extenuating circumstance~ in the form of a failed defence of provocation. 6.16 It was argued that the death penalty as it stood at the material timE of the death was strictly reserved for instances where there were nc extenuating circumstances in a conviction for murder in line Sectior 201{1} of the Penal Code. 6.17 Counsel submitted that what could be considered as extenuatin~ circumstances included a failed defence of provocation as espoused ir the case of Jack Chanda and Kennedy Chanda v. The People' where the Supreme Court reiterated the position by stating that: "What we have said is that failed defence of provocation evidence of witchcraft accusation and evidence o· drinking can amount to extenuating circumstances." 6.18 It was submitted that the court noted that the appellant had raised th1 defence of provocation but the court dismissed it. 6.19 Counsel contended that the decision on the case against the appellan should have followed the course taken in the case of Whiteso, Simusokwe v. The People7 where it was stated that: J11 "However, we accept that a failed defence of provocatior nonetheless affords the extenuation for the murde1 charge. The intimate relationship and alleged infideli~ which led to the assault were therefore an extenuatin~ circumstance. This justifies the non-imposition of c mandatory capital sentence. In the circumstances, WE quash the death sentence. We must point out that as c general rule an extenuated murder will still be treated c little bit more severely than manslaughter case althougt both might carry the life sentence. From the facts of thi! case, a very suitable sentence to impose is one of twent, (20) years imprisonment with hard labour." (underline< for emphasis). 6.20 It was contended that this Court was entitled to set aside the sentencE imposed by the court below and in its place impose a sentence tha reflected the existence of extenuating circumstances in the form of c failed defence of provocation. 6.21 All in all, we were beseeched to allow this appeal, quash the appellant': conviction, set aside the sentence and substitute it with a lighte sentence. 7.0 RESPONDENT'S ARGUMENT 7.1 On behalf of the respondent, the learned counsel contended that th1 trial court was on firm ground when it dismissed the defence o provocation and convicted the appellant for murder. Counsel referre1 J12 the Court to the case of David Chimwanga v. The People8 wherE it was stated that: "We however, note that for provocation to be establishec there should be compelling evidence that the deceasec did or said something to the accused, which would causE an ordinary person of the accused's standing to lose self· control and act in the heat of passion and cause thE death of the provocative person." 7.2 Counsel submitted that there were suppositions under cros! examination of PWl, PW3 and PW4 of either the deceased being founc with another man or the deceased having told the appellant she hac sex with another man. Other than that, there was nothing compellin~ in the evidence to demonstrate that the appellant could have beer remotely provoked by any words or actions of the deceased. 7 .3 It was argued that the unchallenged evidence of PW2 demonstratec that the appellant was simply an insecure man who purely from hii continued accusations of unproved infidelity and threats of killing thE deceased eventually killed her. It was contended that the evidence o PW2 was further crucial as it demonstrated the state of mind of thE accused in the intermediate hours before he killed the deceased There was thus nothing that could lead to avail the appellant with th1 J13 defence of provocation. Reliance was placed on the case of Dorca! V • The People. 9 7.4 Counsel argued that it was not sufficient for the appellant to simpl) state that he was provoked by an unsubstantiated act or statement o· infidelity on the part of the deceased. He relied on the case o· Fredrick Mulusa & Others v. The People supra . . 5 It was argued that the conduct of the appellant during the purportec discovery of the deceased having intercourse with his friend was ver) strange as his first resolve was to look for light, after recognising hi~ friend he opted to axe the deceased. That the evidence of infidelity wai only mentioned to PW4 and the identity of the person with whom hE purportedly found the deceased with was not even raised during thE prosecution's testimony. ·.6 Counsel's contention was that the finding of the lower court wai supported and that there was in fact no act of provocation establishec to support the defence sought. '. 7 In arguing ground two, counsel submitted that the lower court was or firm ground in sentencing the appellant to death as there were nc extenuating circumstances in the form of a failed defence o J14 provocation. Counsel reiterated his argument in ground one that there was no act of provocation that existed for purposes of considering the failed defence of provocation as an extenuating circumstance. ·.s All in all, we were urged to dismiss the appeal as it lacked merit. :. O THE HEARING ,.1 At the hearing of the appeal, learned counsel for the appellant, Ms Tatila-Mulubwa placed full reliance on the documents filed . On behal of the State, Mr. Mainza informed the court that the State would equal I~ rely on the filed heads of argument. 1.0 DECISION OF THE COURT 1• l We have carefully considered the appeal, the authorities cited and the arguments advanced by the parties. 1.2 Before considering the grounds of appeal, we feel compelled to conside the issue surrounding the receipt of the evidence of PW2, a child witnes~ aged 9 years at the time. 9.3 When the matter came up for trial on the 12th May 2022, the Stat< Advocate called PW2 and indicated to the trial court that the witnes: was a juvenile, upon which the trial court conducted a viore dire. WE wish to guide that the requirement to conduct a viore dire accordin~ JlS to the Juveniles Act, now repealed was not dependant on thE intending witness being a juvenile. According to Section 122 of thE Juveniles Act, a court needed to conduct a viore dire when thE intended witness was below the age of 14. 9.4 The trial court then proceeded to conduct a viore dire at page 7 of thE record as follows: "Q: What is this place? A: It is the police. Q: What have you come to do? A: To explain. Q: Do you go to school? A: Yes, my Lord. Q: What grade are you in? A: In grade 4. Court: I am different from the police. This is a Court. S< I will listen to what you have to tell me, do not fear me. Q: Do you tell lies? A: I do not. Q: Why is it not good to lie? A: Because God can punish you and burn you. Q: Do you go to Church? A: Yes. Q: Which church? J16 A: Salvation Army. Court: Upon conducting a viore dire I am convinced tha1 the witness possesses intelligence to testify." 9.5 From the Ruling, it is clear that the trial court was only satisfied witt one aspect of the two requirements before receipt of the evidence o a child. The learned trial court found that PW2 possessed intelligencE to testify, without satisfying itself that she also understood the duty tc tell the truth. Section 122 of the Juveniles Act provided that: "Where, in any criminal or civil proceedings against an, person, a child below the age of fourteen is called as , witness, the court shall receive the evidence, on oath, o· the child if, in the opinion of the court the child i~ thE possessed of sufficient reception of the child's evidence, on oath, an< understands the duty of speaking the truth." (Emphasi~ ours) intelligence to justify 9.6 Section 122 supra, placed a pre-condition on the receipt of evideno of a child below the age of fourteen, on oath, if, the court is satisfiec that the child is firstly, possessed of sufficient intelligence to justifl the reception of the child's evidence and secondly, understands thE duty of speaking the truth. In other words, the receipt of sworr J17 evidence of a child is two-limbed, and the court has to be satisfied or the fulfilment of both limbs before receiving this evidence. The tria court only found that the child possessed intelligence, when thE requirement was not just "intelligence" but "sufficien1 intelligence." The Supreme Court in the case of Richard Daka v The People10 had the following to say on the subject: "The court concluded that the child possessed sufficien1 intelligence to give evidence on oath but it did no1 specifically state thE importance of telling the truth. Therefore, from thE requirements of the law under Section 122 of thE Juveniles (Amendment) Act, 2011, we are satisfied tha1 the voire dire was defective." the child understood that 9. 7 In the case of Padford Mwale v. The People11 , we noted that afte conducting a viore dire, the trial court concluded by stating that, "thE prosecutrix has sufficient intelligence to warrant receivin~ the evidence on oath." We proceeded to find that the viore din was defective based on the guidance of the Supreme Court in thE Richard Daka case supra. 9.8 In our later case of Gift Chipunde v. The People12 , we ha( occasion to consider whether or not a voire dire was defective or account of the trial court's Ruling. We stated that: J18 "It is therefore evident, that the trial court did not makE a finding in conformity with Section 122 of the Juvenile! Act. We are satisfied that the voire dire was in fac1 defective, and as such the evidence of the prosecutrix i! discounted entirely, meaning it is void ab initio." 9. 9 The Court of Appeal, the precursor to the Supreme Court, in the case of Goba v. The People, 13 a case which dealt with a defective vion dire, observed that "when no proper voire dire is carried out thE evidence of the witness should be discounted entirely." 9.10 From the perusal of page 7 of the record of proceedings, it is clea 1 that the trial court fell into grave error when it received the evidence of PW2, a child witness below the age of 14, based on the incompletE findings made. 9.11 We are thus satisfied that the voire dire was defective, and as sud the evidence of PW2 is discounted entirely, making it void ab initio. 9.12 Having discounted the evidence of PW2, we hold the view that thE appeal has merit, albeit not on the grounds advanced by thE appellant. For the reasons we have highlighted, we are preclude< from considering the merits of appeal on the grounds sought. J19 10.0 CONCLUSION 10.1 In the premises, we quash the conviction and set aside the sentence imposed on the appellant. It is our considered view that the circumstances of this case warrant a re-trial. We therefore order tha the matter goes for re-trial before another Judge. ··· ··· ··· ···~ ··· ···· ···· K. MUZENGA COURT OF APPEAL JUDGE ······ ·· ·· ~ ········· .... .. . . Y. CHEMBE COURT OF APPEAL JUDGE