Yotumu Banda v the People (Appeal No. 239/2014) [2022] ZMSC 60 (7 June 2022)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 239/2014 J-,,\ brcuvi s' c.. HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: YOTUMU BANDA AND THE PEOPLE v_:_.- 2. •'+. . ! . JUDtC',!-~:',....-4 ( 7 !u" ';···· " . C,, :.\ ,.,.-----~• -·' .. ----- ·- .. ::~ ~~·;, ... L .. ~ ~·~ "" ~ ,.,, .1 ' APPELLANT ME CltUR1 R£ .sox~- RESPONDENT Coram: Harnaundu, Kaoma and Chinyama, JJS On 5th April 2022 and 7 th June 2022 For the Appellant: Mrs. S. C. Lukwesa -Acting Chief Legal Aid Counsel For the Respondent: Mrs. M. Muyoba-Chizongo - State Advocate JUDGMENT Kaoma, JS, delivered the Judgment of the Court. Cases referred to: 1. John Mpande v The People (1977) Z. R. 440 2. The People v Njovu (1968) Z. R. 132 3. Litepo v The People - SCZ Judgment No; 20 of 2014 4. Joseph Mwandama v The People - SCZ Judgment No. 5 of 1996 5. Jose Antonio Golliadi v The People - Appeal No. 26 of 2017 6. Kanyanga v The People - SCZ Judgment No. 1.45 of 2011 7. Shadrick Kasongo v The People - Appeal No. 154 of 2018 8. Kazembe Zulu v The People - SCZ Judgment No. 29 of 2015 . Legislation referred to: 1. Penal Code, Cap 87 of the Laws of Zambia, sections 200, 201(1)(a) and 204 1. Introduction J2 1.1 Justice M. S. Mulenga, sitting at Chipata High Court tried and convicted the appellant of murder contrary to section 200 of the Penal Code. He was alleged to have murdered George Phiri on 26th September 2013. This appeal is against conviction and sentence. 2. Evidence in the High Court 2.1 The prosecution based its case mainly on the evidence of PWl, the wife to the deceased. In brief, her evidence was that on the material date, the appellant and deceased, who were friends, were at the deceased's house, chatting peacefully from 16:00 hours and drinking a traditional brew called kachasu. 2.2 Around 18:00 hours, after PWl went in the house to put her baby to bed she heard the deceased scream that he was dying. She rushed outside and found the appellant on top of the deceased, holding a big bloodstained, broken bottle, the ones they use for kachasu. The deceased had deep injuries to the head and neck, his jugular was cut, and he was bleeding profusely. 2.3 PWl pulled the appellant from the deceased and inquired why he had injured his friend. The appellant simply ran away. When she asked the deceased the same question, he replied that the appellant assaulted him with . the bottle when he asked for the K3 the appellant owed him and he repeated the statement to PW2. J3 2.4 After the appellant's father was informed of the assault, he released an ox-cart to ferry the deceased to the clinic; which referred them to the hospital but the hospital asked them to first report the matter to the police. Sadly, the deceased died on the way to the police. 2.5 Whilst the appellant agreed in his defence that he went to the house of the deceased and chatted with him, he denied drinking or fighting with him or inflicting the injuries that caused the death. However, he admitted that his father gave them an ox-cart to take the deceased to the clinic and that after the deceased died, his family left the body with him to bury, not because he was responsible for the death but possibly, because he assisted with the transport. 3. Decision by the High Court 3.1 The trial judge found that the deceased was assaulted with a broken bottle on 26th September 2013, that he sustained deep wounds on the head and neck and his jugular was cut and that the postmortem report attributed the cause of death to the injuries. 3.2 She found as incriminating evidence, PWl's testimony that the appellant was on top of the deceased holding a blood stained broken bottle whilst the deceased was bleeding. She also found the appellant's admission that he was at the deceased's home as proof or "something more" to corroborate the evidence of PWl and PW2 whom she considered as witnesses with a possible interest to serve. 3.3 The judge alluded to the inconsistencies in the appellant's evidence J4 regarding his movements and the undisputed fact that he ran away and was seized by members of the public on 3 rd October, 2013. She further accepted the evidence of PWl and PW2 on the contemporaneous statements by the deceased that it was the appellant, after he demanded for his K3, who assaulted him. 3.4 The judge was satisfied that the prosecution had proved its case beyond reasonable doubt, convicted the appellant for murder and sentenced him to life imprisonment though the record suggests, wrongly in our view, that the judge was confirming a life sentence passed by a lower court. 4. Appeal to this Court 4.1 Aggrieved by his conviction and sentence, the appellant appealed on two grounds. First, he faults the trial court for finding him guilty of murder despite evidence that warranted a conviction for a lesser offence of manslaughter. Alternatively, he attacks the life sentence, which he says was harsh in the circumstances of the case. 4.2 In the first ground of appeal, Mrs. Lukwesa accepted, and properly so, that the appellant's act caused injury and harm to the deceased resulting in his death. However, she argued that the evidence of PWl and PW4 showed that the two were fighting, even if the appellant did not say so and that it is trite that an accused may JS decide to tell a lie but the court must not infer his guilt from the lie; it ought to consider the totality of the evidence before it. 4.3 According to counsel, since there was evidence of a fight, the appellant did not intend to murder the deceased, so the court should have convicted him for manslaughter. She relied on the case of John Mpande v The People 1 as authority for this proposition. 4.4 In contrast, the learned State Advocate Mrs. Muyoba-Chizongo supported the conviction for murder on ground that there was evidence of intention to kill and the circumstances did not merit a conviction for manslaughter. She cited section 204 of the Penal Code and the case of The People v Njovu 2 , which explained what elements the prosecution must prove in order to establish malice. 4.5 Counsel argued, as regards section 204(b), that the appellant knew that his act of hitting the deceased, not once but twice to the head and to the neck with a broken bottle, would probably cause grievous harm or death. She also quoted the case of Litepo v The People3 . 4.6 She further submitted that the appellant's act of running away from the crime scene proved that he knew what he had done, the consequences of what he did, and that from the location of the injuries as revealed in the postmortem report, he aimed to kill. 4.7 In reaction to the John Mpande 1 case and the contention that death resulted from a quarrel, followed by a fight, counsel submitted that even though there may have been an altercation, it does not automatically follow that there was lack of intention to kill to justify J6 a conviction for manslaughter. 4.8 The appellant's main argument in ground two is that as there was evidence of beer drinking and a quarrel and fight the court should have given the appellant a sentence that reflected his youthful age and the circumstances of the case. Therefore, the life sentence ought to come to us with a sense of shock to enable us to interfere. Counsel relied on the case of Joseph Mwandama v The People4 . 4.9 In response, Mrs. Muyoba-Chizongo noted that the trial court misdirected itself when it sentenced the appellant to life imprisonment after convicting him of murder, bearing in mind the provisions of section 20l(l)(a) of the Penal Code and there being no indication on the record as to why he was sentenced to life. 4.10 In distinguishing the Joseph Mwandama4 case, counsel argued that there are no extenuating circumstances; and that even if the defence counsel had alluded to the issue, the trial judge did not reveal her mind on it. She pointed out that the appellant denied having any confrontation with the deceased or taking any alcohol; that there was no evidence of a fight or provocation or evidence that the deceased was the aggressor; or evidence of self defence. 4 .11 Counsel further argued that even if we were to consider PW 1 's evidence that the two had been drinking for about two hours, it does not follow that whenever an accused drinks beer or takes part J7 in drinking, then extenuating circumstances are available to them. She relied on the cases of Jose Antonio Golliadi v The People 5 and Kanyanga v The People 6 • Moreover, she argued, PWl found the appellant on top of the deceased and if he was drunk, he could not have managed to mount the deceased or to inflict the fatal injuries. 4.12 Counsel also submitted that the trial court accepted as res gestae, PWl's evidence of the deceased's statement that the appellant attacked him after he asked for his K3. Finally, she invited us to dismiss the appeal for lack of merit. 5, Our consideration of the appeal and decision 5.1 The appellant has conceded that he inflicted the fatal injuries that caused the death of the deceased. However, his position now, based on the John Mpande 1 case is that because there was evidence of a quarrel and fight, malice aforethought was not present and the court ought to have convicted him for manslaughter and imposed a sentence lesser than life imprisonment. 5.2 Mrs. Lukwesa strongly argued, before us that we must depend entirely on the prosecution evidence when resolving this appeal and ignore the appellant's evidence, which was a lie. Interestingly, counsel had made the same argument in the case of Shadrick Kasongo v The People 7. We distinguished the John Mpande 1 case, rejected the plea by counsel for us to ignore the appellant's defence JB because it had no legal basis and counsel did not cite any authority to back her submission, and we stated that it is trite that a court must consider all the evidence adduced by the parties. 5.3 For the same reason, we reject Mrs. Lukwesa's plea that we should ignore the appellant's evidence, as it was a lie. As counsel rightly said, in determining the appeal we shall take into account the totality of the evidence on record, including the appellant's defence. 5.4 As to the argument that there was a quarrel and fight, we note that PWl did not, in fact mention any quarrel or fight in her evidence in chief. The defence counsel had asked her in cross-examination, if, according to her, the fight started when she was inside the house. Her simple response was, "When she was inside the house". PWl heard the deceased scream when she went in the house to put the baby to sleep. If there, had been a quarrel and a fight, PWl would have heard the altercation just as she heard the scream. 5.5 With regard to PW2's evidence, it is clear that he did not mention the name of the person who told him that· the appellant was quarrelling with the deceased while drinking beer. However, when he asked the deceased why the appellant injured him, the deceased replied that he asked about his K3, that was when the fight started and the appellant hit him with the bottle. The learned defence counsel had suggested to PW2 that the deceased insulted the appellant, leading to the fight but PW2 refused hearing about that. 5.6 Although the learned trial judge believed the evidence of PWl and J9 PW2 on the contemporaneous statements uttered by the deceased shortly after the event, she did not find as a fact that there was a quarrel and fight. The appellant himself denied drinking kachasu with the deceased, fighting with him, or inflicting the fatal injuries. 5.7 This might explain why Mr. Phiri, the learned Legal Aid counsel did not mention a quarrel or fight in mitigation of sentence before the trial court. Counsel had invited the court to consider, as an extenuating factor, PWl's testimony that the deceased and appellant were drinking kachasu together, despite the appellant's denial, as he placed himself at the scene. However, the learned trial judge did notreveal her mind on the issue. 5.8 In our view, the totality of the evidence did not establish that the deceased had engaged the appellant in a quarrel or fight. It revealed that the appellant was the aggressor, the attack was unjustified and the trial judge rightly found that there was no provocation. 5.9 Even if we were to accept that the two had quarreled, such brutal force over a K3 would not justify a conviction for manslaughter especially that the appellant did not explain what could have triggered the fight or such savage assault on his friend. 5.10 We are satisfied, having regard to the severe injuries the deceased sustained, that the appellant, acted with malice aforethought. If he had no actual intention to kill when he attacked his friend with a JlO broken bottle, he ought to have known that severing his friend's jugular would cause death or grievous harm. We firtd and hold that the trial judge was on firm ground when she convicted the appellant of murder and we dismiss ground one for lack of merit. 5.11 Coming to ground two, we accept that the learned judge misdirected herself when she imposed a sentence of life imprisonment without disclosing what extenuating circumstances (if any), she took into account, be it the drinking which the defence had alluded to or the alleged quarrel and fight which has only been raised now. 5.12 We guided in the case of Kazembe Zulu v The Peopl08 that: "It would be absolutely unconscionable to suggest that any person who merely states that he drunk beer must be presumed to have been either drunk or adversely affected by it, and therefore, morally diminished in responsibility. There is no such presumption acceptable at law. To the contrary, when a person commits an act constituting a criminal offence, the law presumes that he was of full mental capacity and responsible for the consequences of such an act unless the contrary is proved. The onus of such proof lies on him or her ... " 5.13 We emphasised in Jose Antonio Golliadi v The People 5 that: " ... trial courts must be wary of finding drunkenness as an extenuating circumstance in every case where the offence is committed at a drinking place or where the accused claims he was drinking or drunk, it is important to consider the peculiar facts instead of applying drunkenness as an extenuating circumstance in every single case which would lead to injustice," 5.14 In this case, the appellant denied consuming any alcohol or engaging in a quarrel or fight with the deceased and distanced himself from any involvement in the deceased's death. We are shocked that he now wants to benefit from evidence of drinking, altercation and fight that he outrightly denied. Jll 5.15 Even if we were to accept that, he drunk some kachasu with the deceased for two hours, before the savage attack, the onus lay on him to establish that he was of such a degree of mental incompetence that he suffered a diminished responsibility but this he did not even try to do. 5.16 We find that the sentence of life imprisonment was wrong in principle because there were no extenuating circumstances in this case. AGcordingly, the second ground of appeal fails. 6. Conclusion 6.1 We dismiss the appeal, uphold the conviction, set aside the sentence of life imprisonment and impose the death penalty. E. M. ;ilt~;;j' SUPREME COURT JUDGE J.c~A SUPREME COURT JUDGE