Chibale v The People (Appeal 62 of 2013) [2014] ZMSC 9 (3 February 2014)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 62/2013 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: STEAK CHIBALE APPELLANT AND THE PEOPLE RESPONDENT Coram: Mumba, Ag. DCJ, Muyovwe, JS and Hamaundu, A/JS On 7th May, 2013 and 4th February, 2014 For the Appellant: Mr. A. Ngulube, Director of Legal Aid For the Respondent:Mrs. M. P. Lungu, State Advocate J U D G M E N T MUYOVWE, JS, delivered the Judgment of the Court Cases referred to: 1. Jack Chanda and Another vs. The People (2002) Z. R 124 This is an appeal by the appellant against the sentence imposed on him by the lower Court. The appellant was charged with one count of murder contrary to Section 200 of the Penal J1 Code. The particulars alleged that on the 11th November, 2008 at Samfya District in the Luapula Province of the Republic of Zambia, the appellant did murder one Patson Nyimbili. The brief facts which were accepted by the Court below are that on 26th November, 2008, PW2 Palena Pionete and PW3 Febi Mwewa received information from some children that the appellant was chasing the deceased (their father) while armed with a spear and an axe. That they both rushed towards the deceased’s house where they saw the appellant throw a spear at the deceased which landed on his shoulder and he fell to the ground. The appellant then axed the deceased three times on the head and then ran away leaving the tools he used at the scene stained with blood. Both witnesses said prior to the gruesome attack on the deceased, they knew the appellant as their uncle. PW1 Julian Nyimbili said she received the information of the death of her husband from her daughter PW2 and that the appellant was the one who had killed him. She rushed to the scene and found her husband lying in a pool of blood with injuries on his head and she also saw the spear and the axe which were used during the attack. She said the appellant was her brother. J2 PW4 Ernest Kabamba Kasalu was the one who apprehended the appellant and took him to the police. PW5 Constable Kainde Damson was the arresting officer. He said he visited the scene where he found the deceased lying in a pool of blood and besides his body was a spear and an axe stained with blood which had been used in the commission of the crime. That he took the body of the deceased from the scene for postmortem examination and also collected the spear and the axe. Postmortem results indicated that the deceased died from severe injuries to his head. He said he interviewed, warned and cautioned and later charged the appellant with the offence of murder. This witness produced the spear, the axe, postmortem report and warn and caution statement as exhibits P1 to P4 respectively. In his defence, the appellant admitted attacking the deceased using the spear and the axe because he suspected him of bewitching him. He said he used to dream about the deceased wanting to kill him so he had to kill him first. On this evidence, the learned trial Judge convicted the appellant and sentenced him to the mandatory death sentence. J3 The appellant has appealed to this Court against sentence. The appellant filed one ground of appeal namely that: 1. The Court below erred in fact and in law by finding that there were no extenuating circumstances and thereby imposing the mandatory death sentence. At the hearing of the appeal, the learned Director of Legal Aid relied on his heads of argument filed herein. In his brief submission, the learned Director of Legal Aid submitted that the appellant believed that the deceased wanted to kill him through witchcraft in the dream and that he was even unwell. Counsel contended that in murder cases, it is trite that the belief in witchcraft is an extenuating circumstance. On behalf of the State, Mrs. Lungu submitted that the State agreed with the submission by the Director of Legal Aid that the appellant’s belief in witchcraft was an extenuating circumstance. We have considered the Judgment of the Court below and the submission by the learned Director of Legal Aid and that of the learned State Advocate. From the evidence on record, the appellant’s evidence was that he used to dream of the deceased attacking him with a view J4 to kill him. He also said he was feeling sick and also alluded to finding medicine along the path leading to his field. However, he stated that he did not see the deceased put the said medicine but merely suspected him. We have noted that out of all the prosecution witnesses only the arresting officer said the appellant told him that he was unwell on the day that he committed the subject offence. Further, in his submission, Counsel did not cite any authority for his proposition that dreaming of someone and waking up feeling unwell is an extenuating circumstance. The State did not cite any authority for supporting Counsel for the appellant’s position. We are alive to the provisions of Section 201(1)(b) and (2) of the Penal Code in relation to the issue of extenuating circumstances. We are also alive to the case of Jack Chanda and Another vs. The People¹ where we held that: (ii) Failed defence of provocation; evidence of witchcraft accusation; and evidence of drinking can amount to extenuating circumstances. However, it is our considered view that each case should be dealt with on its merit and the trial court must properly consider the facts of the case in order to determine whether extenuating circumstances exist. In this case, the appellant alleged that he J5 dreamt of the deceased and when he woke up he was not feeling well and suspected that he was bewitching him and that this is what led him to kill the deceased. We do not agree that dreaming about someone and waking up feeling sick can amount to an extenuating circumstance in terms of Section 201 of the Penal Code. In our view, lawlessness would prevail in our communities where dreams would be used as an excuse to take away other people’s lives. From the foregoing, the learned Judge was on firm ground when he found no extenuating circumstances in this case. This ground of appeal fails lamentably. In the premises, we uphold the judgment of the lower Court and dismiss the appeal. RETIRED ……………….……….……………….…….. F. N. M. MUMBA ACTING DEPUTY CHIEF JUSTICE J6 …………………………….……….. E. N. C. MUYOVWE SUPREME COURT JUDGE JUDGE …………….…………….……………………. E. M. HAMAUNDU ACTING SUPREME COURT J7