Leviticus Tembo v The People (Appeal No.140/2022) (21 June 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No.140/2022 HOLDEN AT KABWE and LUSAKA (Criminal Jurisdiction) BETWEEN: LEVITICUS TEMBO APPELLANT ~ ~'' - -. ~ AND Ml ALREGlS THE PEOPLE aox soo67 RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga, JJA ON: 16th May 2023 and 21st June 2024 For the Appellant: M.K. Liswaniso, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: N. Lubasi, State Advocate National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to : 1 . Precious Longwe v . The People, CAZ Appeal No . 182/2017 2 . Simutenda v. The People [1975] Z.R. 373 3 . Kalaluka Musole v . The Peopl e [1963-1964] Z.R. and NRLR 206 (Reprint) 4 . Rodgers Kunda v . The People, SCZ Appeal No. 81 of 2017 5 . Whiteson Simusokwe v . The People, SCZ Appeal No . 15 of 2002 J2 Legislation referred to : l.The Penal Code, Chapter 87 of the Laws of Zambia INTRODUCTION The appellant appeared before the High Court c11 (Makubalo, J . ) , charged with the offence of murder contrary to Sec tion 200 of the Penal Code . He denied the charge, and the matter proceeded to c21 trial . At the of that trial, he was convicted for committing the offence and condemned to suffer capital punishment . He has appealed against the sentence . C3J CASE BEFORE THE TRIAL JUDGE On 22nd November 2020, Levison Tembo of Chigumane C4J Village in Chipata, was roofing a house with his brother, Mwanj i Zulu . After working on the roof, Levison Tembo and Mwanji Zulu took a break . Mwanji Zulu lay under a tree, while Levison Tembo retreated into a house . cs While in the house, Levison Tembo heard some J3 chopping sounds. He also heard the appellant say they had finally settled their differences, that had been outstanding for a long time. When Levison Tembo came out of house, he found the C6J appellant, who was holding a bloodied axe, standing next to Mwanji Zulu' s lifeless body. He also noticed two cuts on Mwanji Zulu' s face . In his defence, the appellant did not deny axing c11 Mwanji Zulu . He said Mwanji Zulu attempted to strike him with the axe, before he disarmed and hacked him . He recounted being told by his daughter that one csi night, Mwanji Zulu spent a night in his former wife' s bedroom . He also recounted how earlier that day, he found that his former wife had washed Mwanji Zulu' s clothes . On being questioned, she attributed her association with Mwanji Zulu, to his inadequacies in bed. The appellant said he only sought to confront him on C9J the allegations, but Mwanji Zulu attempted to attack him with an axe . A post-mortem on the body of Mwanji Zulu, found t he c101 J4 cause of his death to be the injuries he had suffered to his head. GROUND OF APPEAL AND ARGUMENTS IN SUPPORT The sole ground of appeal is t hat, the trial Judge c11i erred when she held that the there were no extenuating circumstances on account of a failed defence of provocation, because no provocative act was proved . Reference was made to the case of Precious Longwe v. c12i The People1 and it was submitted that even though , the defence of provocation may have failed, the provocative act was proved . According to counsel, the provocative act was the c1JJ picking of the axe by Mwanji Zulu, and his attempt to strike the appellant with it . It was submitted that even if no one saw what happened, the appellant ' s story was plausible . ARGUMENTS AGAINST THE APPEAL In response to the sole ground of appeal, the cases c14J of Simutenda v. The People2 and Kalaluka Muscle v. The People3 were referred to and it was submitted , JS that even if there is no obligation on an accused person to prove the defence of provocation, there must be credible evidence either from the appellant or prosecution witnesses, supporting the elements of the defence, before its availability can be considered. It was submitted that while the appellant claimed [1si that Mwanji Zulu attempted to strike him with the axe, the evidence established that the axe, in fact , belonged to the appell ant. It was also submitted that since the allegation that c1GJ he was inadequate in bed was not made in the presence of Mwanji Zulu, it could not have been provocative to warrant him attacking Mwanji Zulu . Finally, the cases of Precious Longwe v The People1 c111 and Rodgers Kunda v . The People4 were referred to , and it was submi tted that where there is no evidence of any provocative act, extenuat ing circumstances on the basis of a failed defence of provocation, cannot arise . J6 CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT It is settled law that a failed defence of c1a1 provocation, can amount to an extenuating circumstance . There is plethora of authorities t o that effect, including the case of Whiteson Sirnusokwe v. The People5 • It was submitted that the provocative act was Mwanj i c191 Zulu' s attempt to stri ke the appellant when he went to question him over the affair he was having with his former wife . The trial Judge made a finding that the appel lant c201 was the owner of the axe that he used to hack Mwanji Zulu. That fact discredited the appell ant' s claim that he only went to house were the roofing was taking place, to question Mwanji Zulu, and that Mwanji Zulu attempted to strike him . In addition, the appellant' s statement, as he hacked c211 Mwanji Zulu, that t heir differences had finally been settled, is indicative that the appell ant had set out armed with an axe , to 'deal ' with Mwanji Zulu . In the circumstances , we find no basis for faulting c221 J7 the trial Judge' s rejection of the appellant' s cl aim that Mwanji Zulu attempted to strike him with an axe; and her conclusion that, in fact , the appellant went there armed. An examination of the evidence before the trial Judge c231 establishes that what upset the appellant was his discovery that his former wife had washed Mwanj i Zulu' s clothes, and being told that she was associating with him on account of his inadequacies in bed . As it turned out, about 5 years prior to his killing, c241 Mwanji Zulu used to live with the appellant . They parted company following reports that Mwanj i Zul u was having an affair with the appellant' s wife . Those allegations also led to the appellant breaking up with his wife . The defence of provocation is set out in Section 206 c2s1 of the Penal Code. The relevant parts of the provision read as follows : (1) The term "provocation" means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done or offered to an J8 ordinary person, or in the presence of an ordinary person to another person who is under his immediate care , or to whom he stands in a conjugal, parental , filial, or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered. For the purposes of this section, "an ordinary person" shall mean an ordinary person of the community to which the accused belongs. (the underlining is ours and is for emphasis) In this case, the annoying statements were not c2G1 uttered by Mwanji Zulu but t he appellant' s former wife . This being the case, the defence of provocation, as is set out in Section 206 of the Penal Code, was not available to the appellant because the provocative statements did not come from the person he killed . In effect, there was no 'provocative act' as it i s set out in Section 206 of the Penal Code. In the absence of a provocative act, there cannot be c27J J9 a failed defence of provocation, and extenuating circumstances on the basis of a failed defence of provocation . We find no merit in the sole ground of appeal, and c201 we dismiss it . VERDICT The sole ground of appeal having failed, this appeal c291 is dismi s sed for want of merit . The sentence imposed by the trial Judge is upheld . . F.R. Mch DEPUTY JUDGE PRES P. C.M. Ngulube K. Muzenga COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE