Pumulo Simasiku v The People (APPEAL No . 181/2022) (21 June 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No .181/2022 HOLDEN AT LUSAKA/ NDOLA (Criminal Juri sdiction) BETWEEN: •,C OF ZA 1' OF APPEAL PUMULO SIMASIKU APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Muzenga and Chembe , JJA On 23rd August 2023 and 21st June 2024 For the Appellant: A. Chimimba-Banda, Legal Aid Counsel , Legal Aid Board National For the Respondent: G. Zimba, Deputy Chief State Advocate, National Prosecution Authority J U D G M E N T Mchenga DJP, delivered the judgment of the court Cases referred to : 1 . Nyambe Mubukwanu Liyumbi v . The People [1978] Z. R. 2 . The People v . Njovu [1968] Z. R.132 J2 3 . Dickson Sembauke and Another v . The People [1988) Z.R. 144 4. Director of Public Prosecutions v . Lukwosha [1966] Z.R. 14 5 . Imusho v . The People [1972] Z.R. 77 6 . Simutenda v . The People [1975] Z.R. 294 7 . Precious Longwe v . The People, CAZ Appeal No .182 of Legislation referred to: 1 . The Penal Code, Chapter 87 of the Laws of Zambia INTRODUCTION The appell ant appeared before the High Court (Maka, c11 J) , charged with the offence of Murder contrary to Section 200 of the Penal Code . He denied the charge and the matter proceeded to c21 trial . At the end of the trial, he was found guilty of commit ting the offence and condemned to suffer capital punishment . He has appealed against the conviction C3J CASE BEFORE THE TRIAL COURT On 15Lh January 2018, around 23 : 00 hours, C4J J3 Shadreck Chiyobeka, was at his makeshift store near Mutonyo Night Club, in Mazabuka' s Zambia Compound . He was in the company of Likonge Kalimukwa . The appellant turned up and grabbed Likonge rs1 Kalimukwa, he reminded him of his misconduct sometime in the past, but did not disclose the details . A struggle ensued between the two and Shadreck Chiyobeka, saw the appellant stab Likonge Kalimukwa with an unidentified object . The appellant then tripped Likonge Kalimukwa, and C6J when he fell to the ground, the appellant fled . The appellant' s version of the events of that evening r11 was different . He said as he walked to Mutonyo Night Club, he met Likonge Kalimukwa who asked him for some beer . When he refused to give him the beer, Likonge Kalimukwa slapped him. A scuff le ensued, during which Likonge Kalimukwa rs1 produced a knife . When the two fell to the ground, Likonge Kalimukwa injured himself with that knife . J4 The appellant said he fled from the scene because he feared being lynched by the mob . Following the scuff le, the police were notified and l9J by the time they arrived, Likonge Kalimukwa had died. A post-mortem examination subsequently conducted on his body, found the cause of his death to be severe chest injuries . These were as a result of two deep stab wounds and a fractured rib . The trial Judge accepted Shadreck Chiyobeka' s c101 narration of the circumstances leading to Likonge Kalimukwa' s death . She rejected the appellant' s claim that Likonge Kalimukwa fell on a knife he produced, noting that he would not have suffered two stab wounds, had it been the case . She also f ound that that the appellant had malice c111 aforethought . This was on the basis that he knew the probable consequences of the stabbing; that grievous harm or death, would ensue . She found that this was confirmed by the appellant's running away after the stabbing . JS GROUNDS OF APPEAL Two grounds have been advanced in support of the c121 appeal . The first ground of appeal is that the charge of murder was not proved because mal ice aforethought was not established . The second ground of appeal is that the trial Judge erred when she di d not consider the defences of self-defence and provocation . CONSIDERATION OF THE APPEAL c131 Section 204 of the Penal Code, defines malice aforethought in the following terms : Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: (a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit a felony; (d) an intention by the act or omission to facilitate the flight or e scape from custody of any person who J6 has committed or attempted to commit a felony. Malice aforethought In her submission, Mrs . Chimimba-Banda argued that c141 malice aforethought was not established because Likonge Kalimukwa injured himself in the course of a fight , when he fell on a knife he had produced. She referred to the case of Nyambe Mubukwanu Liyurnbi v. The People1 and submitted that a person is guilty of , the offence of manslaughter if he kill s another in reaction to provocative conduct . In response, Mr . Zimba referred to the cases of The c1s1 People v. Njovu2 Dickson Sembauke and Another v. The , People3 and Director of Public Prosecutions v. Lukwosha4 and submitted that malice aforethought was , proved by evidence that the appellant stabbed Likonge Kalimukwa, and that evidence established the intention to either cause death or grievous harm. Before we consider the arguments in support of and c1G1 against the conviction, it is necessary to mention that even though there was no ground of appeal against the sentence, both parties argued on the question J7 whether there were extenuating circumstances, at length . Since the presence or absence of extenuating circumstances, is an issue that hinges on the sentence, our expectation is that it should have been raised as a ground of appeal and not sneaked in, as has been the case . Notwithstanding, the assertion that Likonge Kalimukwa c111 injured himself in the course of a fight , after he slapped the appellant, is not supported by the evidence . The trial Judge made a finding of fact that the appellant grabbed Likonge Kalimukwa and stabbed him, after which he fled . The line Mrs. Chimimba Banda has taken in arguing this appeal poi nts at her questioning this finding . In the case of Imusho v . The People5 it was held c1s1 , that , "An appellate court will not interfere with a finding of fact if there was reasonable ground for it, but such finding will be set aside if it was made on a view of the facts which could not reasonably be entertained" . J8 We have examined the evidence that was before the c191 trial Judge and find that she was entitled to conclude that the appellant actually produced a knife and stabbed Likonge Kalimukwa, and that Likonge Kalimukwa did not fall on the knife . The post-mortem examination of Likonge Kalimukwa established that he suffered two stab wounds and as rightly found by the trial Judge, that would not have been the case had Likonge Kalimukwa fallen on the knife , as claimed by the appellant . In the premises, there is no basis on which we can c201 set aside the finding that the appellant stabbed Likonge Kalimukwa as it is supported by the evidence that was before the trial Judge . Going by Shadreck Chiyobeka' s version of the c211 incident, which was accepted by the trial Judge, the appellant was not drawn in to a ' fight ' by Likonge Kalimukwa' s conduct . The attack was unprovoked. We are satisfied that the trial Judge rightly came to c221 J9 the conclusion that the appellant had malice aforethought, as it is set out in Section 204(a) of the Penal Code. This is on the basis that the appellant either intended to cause the death of, or to cause grievous harm, to Likonge Kalimukwa, when he stabbed him. The first ground of appeal therefore fails . c23J Coming to the second ground of appeal, Mrs . Chimimba c24J Banda submitted that the trial Judge fail ed to consider the defences of provocation and self defence, that the appellant advanced . In the case of Simutenda v. The People6 it was held, c2si , 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. ..... " Having i ndicated, a moment ago, that the trial Judge' s c261 acceptance of Shadreck Chiyobeka' s versi on of the incident, is unassailable, we find that there was no evidence before the trial Judge on which the JlO avail ability of the defences of provocation or self defence, could have been consi dered. It follows , that the submissions of both Mrs . c211 Chimimba-Banda and Mr . Zimba, on the availabi l i ty of extenuating circumstances , are not grounded on any evidence . I n the case of Precious Longwe v. The People7 we held t hat there ar e extenuat ing , circumstances on a failed defence of provocation, where the retaliation is not proportionate to the provocation . We also held that there are extenuating circumstances on a fail ed def ence of self-defence , where the force used is more than necessary to repel an attack . In this case, there was no provocative act, nor was c201 there evidence of the appellant acting in selfdef ence . This being t he case, the question of extenuati ng circumstances because of a f ail ed defence of provocation or self-def ence, does not arise . The second ground of appeal equal ly f ails . c291 Jll VERDICT Both grounds of appeal having failed, we find no [3oJ merits in this appeal and we dismiss it . We uphold the appellant' s conviction and t he sentence imposed on him by the trial Judge . C.F.R. Mcheng DEPUTY JUDGE PRESIDENT ··················~ ······················· K. Muzenga Y. Chembe COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE