KENIOUS SIALUZI v THE PEOPLE (2006) Z.R.

87

SUPREME COURT

CHIBESAKUNDA, SILOMBA AND MUSHABATI JJS

6TH APRIL, 2005 AND MAY 2006

(SCZ JUDGMENT No. 21 OF 2006)

Flynote

Criminal Law and Procedure – Self - Defence Force used should not be more than is necessary in the
circumstances.

Criminal Law and Procedure – Accused remaining silent – Duty of Court to draw proper inferences from
the evidence before it.

Headnote

This is an appeal against conviction and sentence by the appellant on three counts of murder contrary to
section 200 of the Penal Code.

Held:

1. Where in an information the statement of offence is correct, but the particulars omit the
necessary words, this does not render the information bad, but simply defective.
2. A person shall not be criminally responsible for the use of force in repelling an unlawful attack if
the means he uses and the degree of force he employs in doing so are no more than is necessary in the
circumstances. The force used was more than necessary and excessive.

3. There is no obligation on an accused person to give evidence, but where an accused person does
not give evidence, the Court will not speculate as to possible explanations for the event in question. The
Court’s duty is to draw the proper inferences from the evidence it has before it.

4. 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

Cases referred to:

1. Mutale v The People (1973) Z.R. 25

2. Simutenda v The People (1975) Z.R. 294 81

Legislation referred to:

Penal Code Cap. 87 ss. 17 and 200

Supreme Court Act Cap. 25 S. 15

Criminal Procedure Code Cap. 88 State Security Act Cap. III

F.S. Mudenda of Messrs Lewis Nathan and Advocates for the appellant

C.F.R. Mchenga Director of Public Prosecutions, for the respondent.

JUDGMENT

MUSHABATI J, delivered the judgment of the Court.

The delay in delivering this judgment is deeply regretted. It was caused by some reasons beyond our
control. This is an appeal against conviction and sentence by the appellant on three counts of murder
contrary to Section 200 of the Penal Code. The appellant was jointly charged and convicted together
with one Gibson Robert Zimba, now deceased. The particulars of the offence in the first count are that
the appellant on the 8th day of September, 2001, at Lusaka, jointly and whilst acting together with
another man, did unlawfully cause the death of Kelvin Nyirongo. The second count alleges that the
appellant on the same day of Lusaka jointly and whilst acting together with another man did unlawfully
cause the death of Mfumu Chimuongu. The last count alleges that the appellant on the same say jointly
and whilst acting together with another man did unlawfully cause the death of Edon Mupenda. The
appellant was sentenced to death on all the three counts.

First and foremost we wish to state that the appeal of Gibson Robert Zimba, who was the first appellant,
abated with his death hence our judgment will only relate to the second appellant whom we shall simply
refer to as the appellant. The undisputed facts of this case are that the appellant was assigned to
perform sentry duties at Mr. Gibson Robert Zimba’s home. In the course of his duties, he shot at the
three men who died almost immediately or shortly after such shooting. No weapons were found on the
three deceased men. The appellant was the only eye witness to this fatal incident, but opted to remain
silent at his trial. The prosecution case rested mostly on circumstantial evidence given by various
witnesses. The evidence in support of the charges was that on the 7th day of September, 2001, P.W.1
Miriam Nyirongo was visited by her son Kelvin Nyirongo, a teacher at Kasisi, with whom she later went
to Chelston to buy some groceries. After they had done the shopping, P.W.1 went back home whilst her
son went to the market for a hair cut. The said Kelvin Nyirongo later went home for super with his two
late friends he had met.82

After they had their meals, the three men decided to go for a drink. They carried with them the keys to
P.W.1’s house to avoid disturbing her when they returned to sleep. The three men, hereinafter
collectively referred to as the deceased men, did not come back. On the following morning, P.W.1 has to
ask her nephew, Davy Moyo, to force the door open with the use of a screw driver. P.W.1 got
concerned about her son’s absence and silence on Tuesday and as a result of which she rang Kasisi
Secondary School. In the course of that day, P.W.1 received some information that some three men,
who were believed to have carried some guns, were killed at Mr. Zimba’s home. P.W.1 went to see Mrs.
Zimba who confirmed the three men’s deaths. In the meantime, P.W. 2, Judith Chimuongu Mtonga, was
on 12th September, 2001, informed that her son had been shot dead. A visit at the University Teaching
Hospital mortuary confirmed that the three Kasisi teachers were in fact the people who were killed at
late Mr. Zimba’s house. Their bodies were mutilated.

The shooting incident was first reported to P.W. 3, Inspector Paul Nkandu. The initial report was to the
effect that the appellant had seen some people climbing over the wall fence at Mr. Zimba’s residence
and as a result the appellant gunned down some of the suspects. The other version of the report was
that the appellant had been under fire i.e. that he had been attacked by some suspected robbers. P.W.
3 in company of P.W.4, Billian Ngalabika and P.W.5, Sylvester Hibajene, went to Mr. Zimba;s house
whereupon being let in the yard he saw three bodies lying in a pool of blood within the wall fence.
P.W.5 testified that the three bodies were still gasping and were lying two to three metres of each
other. The late Mr. Zimba, who had a shotgun, came to the scene and talked to P.W.3. He then shot
once at each of the three deceased men. P.W.4 picked nine AK47 spent cartridges, one live bullet and
two shotgun spent cartridges. P.W.6, Winnie Zaloumis, who shared the back wall fence with the late
Mr. Zimba, was awakened by some continuous gunshot sounds and she immediately telephoned the
Police on 999. Whilst the firing was going on, P.W.6 heard some screams of “Mayo, mayo, mayo”, but
eventually both the gunshot sounds and screams died down.

The bodies were picked and taken to U.T.H mortuary by P.W.9, Edward Kabwe, who confirmed that the
bodies lay within a few metres of each other. One of the bodies lay by the gate. The post-mortem
examination, conducted by P.W. 17, Dr. Mahendra Prakash Garg, was attended by P.W.13, Samson
Banda and P.W.15, Constable Zama Kakoma. All the three bodies had fractured skulls and other bullet
wounds. Some shotgun pellets were removed from the bodies of Kelvin83 Nyirongo and Edon
Mupenda. When all the investigations were completed, P.W. 18, Senior Assistant Commissioner Robert
Nyumbu, interviewed and arrested the appellant together with his late co-accused for the three counts
of murder. The appellant did not adduce evidence in his defence as he sought refuse in silence. At the
conclusion of the trial the court convicted the appellant and his co-accused of murder and were
sentenced accordingly, hence the appeal.

The appellant originally filed five grounds of appeal which are as follows:-

(i) that the learned trial judge erred in holding that the prosecution had proved the charge of
murder beyond reasonable doubt in view of the nature and quality of evidence adduced.

(ii) that the learned trial Judge erred in holding that the defence of self-defence was not available
to the appellant in the circumstances of this case;

(iii) that the learned trial Judge erred in law in dismissing the defence of mistake of fact without
evaluating the evidence surrounding the shooting;
(iv) that the learned trial judge erred in law in pronouncing the sentence without allowing the
appellants advocates an opportunity to offer mitigation;

(v) that the learned trial judge misdirected himself that the 1st appellant shot at all the deceased
persons in view of the unsatisfactory nature of the prosecution evidence.

A supplementary ground of appeal was later filed and reads as follows:-

“that in merely reproducing the submissions for the prosecution as his judgment to the
exclusion of any reference to the submissions for the accused, the learned trial judge erred in law and
failed to exercise his jurisdiction properly in this case”.

We wish, at this stage, to comment on the particulars of offence as contained in the information laid
before the trial court. They are couched in such a way as if the appellant was charged with the offence
of manslaughter. For example, the particulars in the first count, which of course are the same as those
in the second and third counts, reads as follows (quoting the relevant portion) “,,,jointly and whilst
acting together did unlawfully cause the death of Kelvin Nyirongo”.84

The statements of offence were, however, correctly framed. The question we must ask ourselves is
whether the erroneous drafting of the particulars of offence was prejudicial to the appellant’s case and
whether the charges were rendered bad. The charges that were read to him were those of murder. His
mind must have been focused on the said charges. He had the benefit of a full trial with powerful legal
representation. We are therefore, satisfied that this error did not occasion any embarrassment or
prejudice to the appellant’s case. The charges were merely rendered defective but not bad. We once
dealt with a similar situation in the case of Mutale v The People (1), whose brief facts were that the
appellant was charged with four counts of espionage, contrary to section 3(c) of the State Security Act
and one of office breaking, contrary to section 273(1) of the Penal Code. The particulars of the four
counts of espionage omitted the words “for any purpose prejudicial to the safety or interest of the
Republic”.

We held as follows:-
(i) Where in an information the statement of offence is correct but the particulars omit necessary
words, this does not render the information bad, but simply defective.

(ii) Where no embarrassment or prejudice to the accused has been occasioned by a defective
information, it is proper to apply the proviso to Section 14 of the Court of Appeal for Zambia Act (now
section 15 of the Supreme Court Act).

We must, however, remind the drafters of charges to correctly do so and in this regard we refer the
State to the 1st precedent in the second schedule at page 148 of the Criminal Procedure Code, Chapter
88 of the Laws of Zambia. The learned Counsel for the appellant filed some heads of arguments which
he buttressed with oral submissions. He began to argue the appeal on the supplementary ground which
was the last one. The learned Counsel argued at length stating that the learned trial judge heavily relied
on the learned Director of Public Prosecutions’ submissions, which he merely reproduced in his
judgment without formally acknowledging that he was adopting the same as his own. The learned
Counsel cited pages 274 to 288 of the trial judge’s judgment as a mere reproduction of the Director of
Public Prosecutions’ submission from page 261 to 273.

We have considered this argument and indeed we had an opportunity of comparing the two versions in
contention. For example, the third and 85first paragraphs in the Director of Public Prosecutions’
submission at pages 261 and 262 respectively read as follows:-

In support of the case for the prosecution, eighteen witnesses were called. P.W.1 Miriam
Nyirongo told the court that she was the mother of the late Kelvin Nyirongo. Her evidence was that on
the 7th of September, 2001, her late son Kelvin Nyirongo came home with his friends. The witness
identified her son’s friends as Edon Mupenda and Mfumu Chimuongu. She knew them as teachers at
Kasisi Secondary School. Her son and his friends had supper at around 19:00 hours and thereafter left
for a drink. That was the last time she saw them alive. P.W.2 Judith Chimuongu Mtonga told the Court
that the late Mfumu Chimuongu was her brother. On the 13th of September, 2001, she identified the
body of Mfumu Chimuongu at the mortuary. The clothes on the deceased’s body had been bought by
her in South Africa. She noticed that the face of the deceased had been blown beyond recognition; his
right eye, the chin and nose were all blown off. The shirt was riddled with bullets.

The extracts from the learned trial judge’s judgment as contained in paragraphs 1 and 2 at page 275 (J2)
read as follows:
 In support of the case for the prosecution, eighteen witnesses were called. The first witnesses
was Mirriam Nyirongo who told the court that she was the mother of the late Kelvin Nyirongo. Her
evidence was that on the 7th of September, 2001, her late son Kelvin Nyirongo came home with his
friends. The witness identified her son’s friends as Edon Mupenda and Mfumu Chimuongu. She knew
them as teachers of Kasisi Secondary School. Her son and his friends had supper around at 19:00 hours
and thereafter left for a drink. That was the last time she said she saw them alive. The next witness,
Judith Chimuongu Mtonga told the court that the late Mfumu Chimuongu was her brother. On the
13thof September, 2001, she identified the body of Mfumu Chimuongu at the mortuary. She told the
Court that the clothes on the deceased’s body had been bought by her in South Africa. She said she
noticed that the face of the deceased had been blown beyond recognition; his right eye, the chin and
nose were all blown off. The shirt was riddled with bullets.

We have no doubt that the learned Counsel’s argument had substance in it. Another short extract we
wish to refer to is paragraph 4, at page 272, of the learned Director of Public Prosecutions’ submissions.
It is exactly, word for word, the same as the last paragraph at page 287 and ending at page 288, (which
is at J14 and J15 of the trial Judge’s judgment). The extract from the Director of Public Prosecutions’
submission reads as follow:-

Accused one may have felt provoked by the situation, as he had been a victim of robberies in
the past. However, the law prohibits the use of a shotgun to86 vent out his anger on unarmed persons
even if they were criminals is prohibited by law.

The judge had this to say:-

Accused one may have felt provoked by the situation, as he had a victim of robberies in the past.
However, the law prohibits the use of a shotgun to vent out his anger on unarmed person even if they
were criminals is prohibited by law.

It is clear from the above extracts that the learned trial judge must have entirely agreed with all what
the learned Director of Public Prosecutions had said in his written submissions. The appellant’s Counsel
argued that the lower court ignored or failed to consider the arguments advanced on behalf of the
appellants and that it did not evaluate the evidence on its own, but merely accepted what the Director
of Public Prosecutions said and convicted the appellant thereof, hence the supplementary ground of
appeal. We have therefore decided to evaluate the evidence on our own. The main evidence on record
on how the deceased men were shot at was given by P.W. 3, Paul Khandu, who received a report from
the appellant to the effect that the appellant was under fire and that he had seen some people climbing
over the wall fence. P.W.3 raised the appellant after the communication was interrupted and when the
appellant come back on the radio he informed P.W.3 that he had in fact gunned down some suspects.
Indeed, when P.W.3 rushed to the scene of the alleged crime, in company of other officers, namely,
P.W.4, Billian Ngalabika and P.W.5, Sylvester Hibajene, he found three bodies lying in pools of blood.
The area was searched to see if there were any other suspects, but none were found. Those bodies
were lying near the gate within a few metres of each other. Whilst P.W.3 and his officers looked at the
deceased men’s bodies, the late Mr. Zimba came and also shot at the three deceased men who,
according to P.W.5, Constable Hibajene, were still gasping.

The other piece of evidence on the shooting was from P.W.6, Winnie Zaloumis, a neighbour to the late
Mr. Zimba. P.W.6 was awakened by some gunshot sounds and this prompted her to ring the Police. In
the meantime, she could hear screams of “mayo, mayo, mayo” whilst the firing continued. The above
piece of evidence was uncontroversial, but the learned Counsel for the appellant, Mr. Mudenda, raised
the defences of mistake of fact and self-defence. On mistake of fact, he contended that the appellant
must have laboured under a mistaken belief that the three men were armed robbers, more so that the
late Mr. Zimba had in the past87 experienced some robberies at his premises. In response to his
submission, the learned Director of Public Prosecutions merely said the question before the Court is
whether there was any evidence either from the prosecution or from the defence that suggested the
existence of the defences of mistake of fact and self-defence. He submitted there was none. The
appellant did not give evidence and so the Court had to draw inferences from the available evidence
adduced by the prosecution. The appellant’s silence did not change the burden of proof cast on the
prosecution to prove his guilt beyond all reasonable doubt. It is however, clear from the evidence that
no weapon of any kind was found on any of the three deceased men. The record is silent on how the
three deceased men found themselves inside late Mr. Zimba’s premises. It is also not clear as to what
time they went in there. The evidence on record merely states that P.W.3, Inspector Paul Nkanu,
received the report of the shooting between 23:30 hours and 24:00 hours from the appellant. The exact
time and the circumstances under which the three men entered into late Mr. Zimba’s premises shall
remain unknown more so the appellant who could have shed light on these issues elected to remain
silent, of which he was entitled to do because there was no burden of proof cast on him to prove any
particular fact. The three men were killed within a few metres of each other and they were lying near
the gate. If it were true that the three men were seen jumping over or scaling the wall fence they would,
at least one of them, have fallen outside. The inference that can be drawn from the evidence on record
is that they were shot inside the premises and that it was then night time. We have drawn these two
inferences because they had left P.W.1’s home after supper at 19:00 hours and their bodies were found
within the premises. There was no evidence of any signs that they were killed and pulled from
somewhere else to where they were found. The incident having taken place at night and within the late
Mr. Zimba’s yard, the next question we must consider is whether the entry into the yard by the three
men was innocent or not. The Court was left to speculate how they entered into the said premises. The
three deceased men could have been suspected thieves, more so there was evidence, on record under
cross examination at page 20 of the record by P.W.3, that at one time there was an incident in which a
motor vehicle was stolen at gunpoint from the same house (Mr. Zimba’s house) or they could have been
mere trespassers without any intention of committing a crime therein. Whatever the case, when the
appellant saw the three deceased men, perhaps entering into the premises in question, his first reaction
must have been to protect and defend the lives and property therein, including his own life. Section 17
of the Penal Code entitled him to use reasonable force. This provision of the law reads:88

“Subject to any other provisions of this Code or any other law for the time being in force, a
person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his
person or property, or the person or property of any other person, if the means he uses and the degree
of force he employs in doing so are no more than is necessary in the circumstances to repel the unlawful
attack.”

In view of the revelation by PW3 of the previous attack on late Mr. Zimba’s property, the appellant
could have haboured reasonable belief that the three men were possible thieves, depending on the
circumstances under which they found themselves in that premises. He could therefore, use force to
repel the intruders as per law. The law, however, says “the means he uses and the degree of the force
he employs in doing so are no more than is necessary in the circumstances to repel the unlawful attack”.
Whereas he was entitled to use force, he ought to have acted reasonably by applying force which was
no more than necessary, of course depending on the facts of the case.

He was therefore, expected to defend and protect any human life and property on Mr. Zimba’s
premises. The question we must ask and answer is whether the force and the degree of the force used
by the appellant was necessary or not. In executing his duties, he ought to have taken reasonable steps
regarding the force he used. He could have, for example, challenged the three men to surrender or
could have fired warning shots to scare them. If they failed to heed to that only then could he have at
least, aimed at incapacitating them, unless he believed that his own life or the lives of the occupants of
the premises were in great danger, and only then could he shoot to kill. The post-mortem reports
showed that the deceased’s bodies were riddled with multiple bullet wounds. Was it really necessary for
him to have inflicted those multiple injuries on the three men? In our view the force used was more
than necessary in that it was excessive. Admittedly PW5 said in his evidence that the late Mr. Zimba
came with a shotgun and shot at each of the three men once. It is, therefore, common cause that the
three men, apart from being shot at by the appellant, were shot at also by the late Mr. Zimba. The
question that may arise is who caused the deaths of the three men, between the two men? According
to PW5, at the time the late Mr. Zimba shot at the three bodies two of them were still gasping. He did
not specifically identify the two who were still gasping. The bottom line is that the three men died
shortly after they were fatally wounded by the two men. The action of the two men were so close to
each other that it was hard to separate them.89
Even if we were to assume that only one of the men died immediately from the appellant’s gunshots
and that two of them were finished off, so to say, by the late Mr. Zimba, the appellant would still not
have been absolved from the offence because of what we have just said above, that their actions were
so close to each other that they amounted to one action.

We have so far said that the three men were all unarmed and at the time PW6 heard gun shot sounds
from the late Mr. Zimba’s premises, there were cries for help saying: “mayo, mayo, mayo”. The firing
only stopped when the cries had died out. The bodies were found riddled with multiple bullet wounds.
This, to us, meant that the appellant was not only interested in preventing a commission of a possible
crime by the three deceased men, but to kill them at all cost. All in all, whatever the motive or
circumstances under which the three men found themselves in Mr. Zimba’s yard were, the bottom line
is that the force used was unreasonable because it was excessive, as we earlier said above. In fact, as
the evidence stood, the trial court was left to look for possible defences in favour of the appellant that
led him to shoot at the three men. Assuming that they were thieves, we are still not satisfied that the
force which was used could be viewed as being reasonable, even if we were to apply a subjective test. It
would still be unreasonable because the multiple injuries which were inflicted on defenseless people,
were uncalled for. The deceased men were not armed. The fact that he believed that the three men
were thieves it was not reasonable for him to kill them in the manner he did. We cannot find any
evidence which could have made him to hold a mistaken belief of fact that the three men were in fact
robbers. This defence therefore, fails.

Mr. Mudenda further argued in the alternative that the defence of self-defence was available to the
appellant. The learned Director of Public Prosecutions submitted that there was no evidence on record
from either the prosecution or from the defence that suggested that the appellant acted in self-defence.
We have already stated that the three slain men were unarmed. It is our well considered view that
there was no justifiable defence in favour of the appellant and so we find no reasonable excuse for the
killings. Admittedly, some witnesses testified to the effect that there were some bullet holes or marks
on the gate suggesting that some other people, other than the appellant, could have caused those holes
or marks on the gate. We do not appreciate this suggestion or arguments because it is not supported by
any cogent evidence. On the contrary the inference that can be drawn from the presence of those
bullet holes in the gate, in view of the positions of where the three bodies lay, is that they were caused
by the90 appellant himself because there is no evidence to prove that they could have been caused by
the three men who, in fact were unarmed. Assuming that the three men had fired at the appellant, we
could not see how their bullets could have hit on the gate because they themselves must have been
shot at or near the gate. Furthermore, the deceased men’ bodies were badly mutilated. They had their
skull fractured. Mr. Zimba still shot at them despite the fact that they no longer posed any danger to
anybody, in the state they were. The acts of the two men i.e. the appellant and the late Mr. Zimba were
so close to each other that they could not be separated. Whether the fatal shots were fired by the
appellant or the late Mr. Zimba, the killings must be attributed to both of them because we are satisfied
that there were no intervening factors which could have separated their acts. We could not find any
danger which the three helpless and unarmed men must have posed to the appellant. Had he been
under attack, as he portrayed in his report of the incident to PW3, one of them would have been found
with some kind of a weapon, but none of them possessed any. All in all we are satisfied that there was
no sufficient evidence on record, which supported any of the pleaded defences. We have said before in
Simutenda v The People (2), that it is not for the Court to speculate as to what happened at a given
point if an accused person fails to give evidence. Neither is it the duty of the Court to consider any
possible defence available to an accused person unless there is evidence to justify such consideration.
An accused person is by law entitled to remain silent in Court. If however he wishes to rely on any
particular defence, it shall be incumbent upon him to adduce evidence to support such a defence.

In order to clarify this position we must reiterate what we stated in Simutenda (supra) and this is what
we said:-

(1) there is no obligation on an accused person to give evidence. But where an accused person does not
give evidence the court will not speculate as to possible explanations for the event in question. The
court’s duty is to draw the proper inference from the evidence it has before it.

(2) 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 i.e. “evidence fit to be left to a jury”.

We must categorically state that even where self-defence is raised, use of excessive force will not
reduce a charge of murder to manslaughter. The use of a gun on a defenceless and unarmed person
under any circumstances91 cannot be said to be reasonable. In the instant case before us, we have no
doubt that the appellant used excessive force. The extent of injuries found on the deceased men’s
bodies by the pathologist, Dr. Mahendra Garg, clearly showed that the force the appellant used was
excessive. He should have aimed at maiming them, instead of killing them, more so they were unarmed.
In fact, the use of a lethal weapon by the appellant, was to us, uncalled for and without justification. We
are satisfied that any reasonable tribunal, given the facts of this case, would find the appellant guilty of
the charged offences of murder because the evidence on record supports the charged offence. Had the
learned trial judge properly directed himself, he would still have arrived at the same conclusion of guilty.
We, therefore, find no merit in the appeal against conviction. So we dismiss it.
On the sentence the learned Counsel for the appellant submitted that the learned trial judge
misdirected himself when he failed to give a chance to the learned defence Counsel to address the court
on possible extenuating circumstances. He argued that the appellant had mistaken the deceased men
for criminals and so they were not killed in cold blood. The learned Director of Public Prosecutions
submitted that there were no extenuating circumstances. We have carefully perused the whole
evidence for extenuating circumstances. If the appellant had intended to maim the three deceased men
we would have been convicted that he had acted professionally. This is not the case here. The
appellant did not consider the possibility of saving the lives of the three men. We cannot, therefore,
find any extenuating circumstances as to persuade us to interfere with the sentence imposed on the
appellant by the lower Court. Neither do we find anything wrong with the sentence both in principle
and in law. The appeal against sentence has also no merit and so it is dismissed.

Appeal dismissed.

ELISHA MALUME TEMBO v THE PEOPLE (1980) Z.R. 209 (S.C.)

SUPREME COURT

KAPEMBWA, AG. CJ, GARDNER, AG. JCD AND CULLINAN, AG. J.S.

1ST JUNE, 1979 AND 24TH JANUARY, 1980

S.C.Z.JUDGMENT NO. 1 OF 1980

Flynote

Criminal law and procedure - Murder - Self defence - Shooting - Principles to be Applied in determining
reasonableness.

Headnote

There was a disturbance in the appellant's chicken run and the deceased, a servant from next door went
unarmed into the chicken run to find out the cause. In so doing he presumably frightened away a former
intruder who was the fully dressed man seen running away behind the servant s quarters by the
appellant.209

Having seen one man run away, the appellant went back to his house and obtained a pistol which he
fired into the air as a warning. When he received no reply to his challenge of who is there, he walked
about forty-five metres towards the chicken run until he saw a dark figure inside the run at whom he
fired.

The trial judge found that the shooting of the deceased was a use of force wholly out of proportion to
the necessities of the situation. He convicted the appellant and sentenced him to three years'
imprisonment with hard labour for manslaughter. On appeal:

Held:

(i) In order for the appellant to succeed in justifying his shooting, of the deceased, it is necessary for his
mistaken belief and his action to be reasonable.

(ii) In considering whether the appellant was reasonable in assuming that he was in danger to such an
extent that it was necessary to shoot at the figure, the court should distinguish between a man who is
attacked and has to decide how to defend himself in the anguish of the moment and a man who has
heard a disturbance in an out-building at a distance and has had time to challenge his intruder and also
the court should consider the difference between these circumstances and those in which the occupants
of a dwelling house hear a physical assault on an entrance at their house.

(iii) In the circumstances in which the appellant found himself, he was not faced with a moment of
unexpected anguish such as that which would be experienced by a man subjected to direct assault and
his belief that the intruders were armed robbers likely to attack him was unreasonable.

Cases referred to : 143

(1) Wasamunu v The People (1978) Z.R. 143

(2) Benmax v Austin Motor Co. Ltd (1975) A.C. 370.

(3) Challoner v Williams & Croney (1975) Lloyds Law Reports 124.
(4) Palmer v R. [1971] All E.R. 1077.

(5) R. v Mckay (1957) V.R. 560.

(6) The People v Trywell Julius Phiri HP/175/1972 (Unreported)

(7) Mulenga v The People (1966) Z.R. 118.

(8) R. v Scully 1 C. & P. 319.

For the appellant: E. J. Shamwana, S.C., Shamwana and Co.

For the respondent: K. C .V. Kamalanathan, Senior State Advocate.

Judgment

GARDNER AG. D.C.J.: delivered the judgment of the court.

The appellant was charged and convicted of manslaughter and210 sentenced to three years'
imprisonment with hard labour. The particulars of the charge were that on the 19th May, 1978, at
Lusaka he unlawfully caused the death of Rhodwell Sinyangwe.

The prosecution evidence was to the effect that, a short while after midnight on the day in question,
PW2, a neighbour of the appellant in Arakan Barracks, Lusaka, heard noises made by ducks, chickens
and dogs, so she called for her servant, the deceased, who opened his window in the servant's quarters.
She told him to find out what had caused the noises, and she then returned to bed. Later she heard a
loud noise and went outside her house and saw two people standing in or near her neighbour's chicken
run. She then again returned to her bedroom. A short while later, after hearing a shot and then a second
shot, she went out of her front door and saw the appellant and his family running to and fro. She then
went into the garden of the appellant's house where she saw her servant, the deceased, covered with
blood and with his eyes closed. The deceased was put in the appellant's car and driven away.

PW5, an army medical officer stationed at Arakan Barracks, was called in the middle of the night by the
appellant to go to the camp hospital, where he found the deceased, with a gun shot wound in his left
thigh, bleeding severely. A dressing was applied to stop the bleeding and the deceased was taken to the
University Teaching Hospital where, despite attempts to revive him, he died shortly after arrival.
A statement was taken by the Police from the appellant, who is a Lieutenant - Colonel in the Zambia
Army, which reads as follows:

"It was on the 19th May, 1978, at about 0015 hours, when I was awakened by barking dogs. I
got up, got dressed, went to the sitting room, switched on the light. I then opened the curtain of the
back door window where the dogs were barking. I looked at the chicken run which is about 65 to 70
metres away. I noticed that the over flap fence which covered the door leading into the chicken run was
open. The door leading into the chicken run was open. The door leading into the chicken run was wide
open and the door of the chicken house which is inside the chicken run was also open. Then I saw a fully
dressed man running away behind the servants' quarters. There was a lot of noise still in the chicken
house. I then went back to my bedroom, took a pistol then got outside while on the back door verandah,
I fired a shot into the air and then I said, 'who is there.' After that I walked towards the chicken run
because I could not see properly what was inside as one side of the chicken run was covered by sacks.
When I was about 20 metres away from the chicken house and outside the chicken run all of a sudden I
saw a dark figure in the chicken house moving towards the chicken door. I stopped and aimed low at the
dark figure in the chicken house and fired one round. The figure fell in a sitting position. I then ran round
and entered the chicken run and looked into the chicken house and then asked, 'who is there', he
answered, 'ninewo bwana ndebomba pa next door'. Then I asked him what he was doing in the chicken
house, naked at that hour. He just211 said, 'iyai bwana'. I then noticed that he was bleeding in the
underwear. My servant and his friend had awakened and I asked them to assist me to carry him out of
the chicken house to the car and then I rushed him to the camp hospital. I then contacted the doctor on
call Dr Sinyangwe who attended to him and later, Dr Sinyangwe and myself rushed him to the University
Teaching Hospital where he eventually died and later on I reported the matter to Kabwata police who I
took to the scene. I and the police tried to look for the empty casings at the scene but we could not
locate them because of the grass surrounding the yard. The accused was then asked the question: 'The
first time you asked: 'who is there?' Did you get any reply' the answer was, 'No'."

When called upon for his defence at his trial the appellant elected to remain silent.

There was no dispute as to the facts of this case and the learned trial judge properly approached the
matter on the basis that the appellant was entitled to assume that the deceased was an unauthorised
intruder in his chicken run and presumably a thief. In considering the defence put forward at the trial
the learned trial judge considered whether the appellant was acting in defence of his property, and in so
doing did not use excessive force, and secondly whether the appellant made a mistake of fact in thinking
that the deceased or the other man who ran from the chicken run, or both, were armed or might have
been armed so that the appellant was acting in self-defence. In this connection the learned trial judge
noted the cross-examination of some of the prosecution witnesses concerning crimes of violence in
Zambia, and tools judicial notice that there has been a noticeable increase in the Lusaka district of
crimes of violence, and particularly of aggravated robbery, involving the use of firearms.

The learned trial judge held that the law relating to the matter was governed by s. 17 of the Penal Code
which reads as follows:

"Subject to any express provision in this Code or any other law in operation in Zambia, criminal
responsibility for the use of force in the defence of person or property shall be determined according to
the principles of English law."

In conformity with this section the learned trial judge held, and we respectfully agree, that the Criminal
Law Act of 1967 applies to this case.

Section 3 of the Criminal Law Act, 1967 reads as follows:

"1. A person may use such force as is reasonable in the circumstances in the prevention of crime, or in
erecting or assisting in the lawful arrest of offenders or suspected offenders or of person, unlawfully at
large.

2. Subsection (1) above shall replace the rules of the common law on the question when force used for a
purpose mentioned in the subsection is justified by that purpose."212

In the course of the judgment, the learned trial judge said as follows:

"It is not suggested by the defence that the accused was preventing the commission of a crime,
or was attempting to lawfully arrest the deceased. If he was the law permits the use of such force as is
reasonable in the circumstances."

And further:
 "The contention by the defence that the accused was apprehensive or both, might have been
armed and that his own safety could be in danger is not borne out by the evidence nor the accused's
statement to the police. If there was any potential danger in the situation the accused would not hate
walked towards the fowl run from his house. The evidence was that the fowl run as about forty-three
paces from the accused's house; the accused had walked about twenty-three paces towards the fowl
run when he saw the deceased move and fired at him. The accused's house and fowl run are situated
within Arakan Barracks. The accused could have raised the alarm and help would undoubtedly have
been readily forthcoming in an army camp; nor is there any evidence upon which the accused could
reasonably hate thought that any danger existed. If the deceased was armed, this would in all
probability have become apparent when the accused fired the warning shot and called out to him, and
before he had reached the spot from where he fired the second shot. If the accused thought the
deceased was trying to run away with some of the accused's fowls, the accused could at least have
warned him that he would shoot if the deceased did not stop and even in those circumstances the
shooting of the deceased would hardly be justified."

The learned trial judge then found that the shooting of the deceased was use of force wholly out of
proportion to the necessities of the situation, that the shooting was not done by way of self-defence nor
by way of defensive action of his property, nor was it reasonable for the purpose of preventing theft of
his property or of apprehending the deceased.

Mr. Shamwana, for the appellant, put forward a number of grounds of appeal, one of which was that
the evidence did not disclose an offence in law. The argument in support of this ground was that, as the
appellant was defending his property, which was lawful, he committed no thence by so doing. The law
allows only the use of reasonable force in defence of person or property. Although the onus is on the
prosecution to prove beyond reasonable doubt that the appellant exceeded the legitimate bounds of
such defence, the offence is established if such bounds are exceeded.

A further ground of appeal put forward by Mr. Shamwana was that the learned trial judge had
misdirected himself when he said that it was not suggested by the defence that the appellant was
preventing the commission of a crime, and that the evidence did not bear out the suggestion that the
appellant was apprehensive, because in that every he would not have walked forward and would hare
raised an alarm,213 and, generally, that, in the passage from the judgment which we have quoted, the
learned trial judge made unwarranted assumptions against the appellant which were not supported by
the evidence Mr. Kamalanathan, for the State, properly conceded that the learned trial judge did so
misdirect himself and we agree that the judge's approach as indicated by the remarks in his judgment
amounted to a misdirection.

We bear in mind that the dictum of Baron, D.C.J., in Wasamunu v The People (1), that, as the question is
purely one of inference from the facts about which there is no dispute, this court has both the right and
the duty to substitute its own views for those of the trial judge. (See Benmax v Austin Motor Co. Ltd (2)
and Challoner v Williams & Croney (3)).
A number of cases were cited to us and most of these related to convictions for murder and the
absolute defence of self-defence to such a charge. In the case of Palmer v R. (4), the Privy Council
considered some Australian cases, and in particular the case of R. v McKay (5), in which a caretaker of a
poultry farm fired at a chicken thief, who was running away carrying some chickens; an act which
resulted in the death of the thief. The Australian court held, after a trial for murder, that the caretaker
wads guilty of manslaughter on the basis that -

"If the occasion warrants action in self-defence or the prevention of felony or the apprehension
of the felon, but the person taking action acts beyond the necessity of the occasion and kills the
offender, the crime is manslaughter - not murder."

The Privy Council held that there is no rule that a jury must be directed that they should return a verdict
of manslaughter if they find that plea of self-defence fails because the force used in self-defence was
more than a reasonable man would consider necessary. In the result, the Privy Council held that if a
person is charged with murder and raises the defence of self-defence he must either be acquitted, if the
force he used was reasonable, or convicted of murder, if the force he used was unreasonable.

In the case presently before this court the appellant was originally charged with manslaughter, and the
question of whether a charge of murder can be reduced to manslaughter where excessive force is used
in self-defence does not arise. However, the principles of reasonableness apply in this case as much as
they would had the appellant been charged with murder, and, in applying such principles, we take note
of the comments of Lord Morris of Borth - Y-Gest in the Palmer case (4), when he said at p. 1089:

"If a jury thought that in a moment of unexpected anguish a person attacked had only done
what he honestly and instinctively thought was necessary, that would be most potent evidence that only
reasonable defensive action hod been taken."

Our attention has been drawn to the unreported case of The People v Trywell Julius Phiri (6), in which, in
his judgment dated the 17th November, 1972, Muwo, J., held that the accused, who was charged with
murder, WBS not guilty in circumstances where he heard a number of persons214 walking round his
house, and the breaking of a window in the house, whereupon he took a shot gun and unintentionally
killed one of the would be intruders by firing at another window of the house with the intention of
frightening them. We have also considered the cited case of Mulenga v The People (7), in which the
Court of Appeal reduced to manslaughter a conviction for murder of a night watchman at a chicken
farm, who found thief trying to escape in an old building adjoining a chicken run. After firing a warning
shot in the air the night watchman fired at the legs of the thief who was trying to escape through a
window. As a result the thief suffered gun shot wounds from which he bled to death. In the latter case,
Doyle, J.A., quoted with approval the Australian case of McKay (5), and held that Mulenga was moved
not by a revengeful desire to cause grievous harm but by his lawful intention to arrest the deceased so
that, in the circumstances, his honest, though mistaken, use of excessive force did not result in murder,
but in manslaughter only.

As we have mentioned, the cases to which we have referred relate to murder reduced to manslaughter,
but there is one case cited by Mr. Shamwana which relates to an original charge of manslaughter. In the
case of R. v Scully (8), a watchman saw a man on his master's garden wall in the night, and hailed him.
The man said to another, whom the prisoner could not see, "Tom, why don't you fire?" and then to the
same person "Shoot and be damned", whereupon he fired at the legs of the man on the wall, whom he
missed, and shot the deceased whom he had not seen because he was behind the wall. In his judgment,
Garrow, B., said:

"Any person set by his master to watch a garden or yard, is not at all justified in shooting at or
injuring in any way, persons who may come into those premises, even in the night and if he saw them go
into his master's hen-roost, he would still not be justified in shooting them. He ought first to see if he
could not take measures for their apprehension. But here the life of the prisoner was threatened, and if
he considered his life in actual danger, he was justified in shooting the deceased as he had done; but if,
not considering his own life in danger, he rashly shot this man, who was only a trespasser, he would be
guilty of manslaughter."

It was Mr. Shamwana's contention that because of the accepted situation, that crimes of violence by
armed robbers are prevalent, the appellant was justified in fearing that the thief or thieves in his hen-
run were armed, and it was reasonable for him to fire a shot aimed low at the legs of one of the
intruders.

As the appellant did not give evidence, there was nothing except the surrounding circumstances to
indicate to the court what was in the appellant's mind at the time he shot the deceased, and, before
considering whether the circumstances were such as to render it reasonable for the appellant to act as
he did, it is necessary for us to consider further the law in general as it relates to the circumstances in
which the appellant found himself.

Section 10 of the Penal Code reads as follows:

"10. A person who does or omits to do an act under an honest and reasonable, but mistaken,
belief in the existence of any state of215 things is not criminally responsible for the act or omission to
any greater extent than if the real state of things had been such as he believed to exist. The operation of
this rule may be excluded by the express or implied provisions of the law relating to the subject."
It will be seen therefore that the test to be applied in considering whether the defence of mistake is
available to an accused person is whether he honestly and reasonably believed in the existence of a
state of things.

Mr. Shamwana has invited the court to consider this case on the basis that the appellant did in fact
reasonably believe that the deceased was an armed robber and, consequently that it was reasonable to
shoot at him. In default of more definite evidence from the appellant this court is unable to say what
was in his mind at the time and, in fairness to the appellant, we will approach this case on the basis that
the appellant honestly believed that the deceased was an brined robber who had an intent to use a
weapon against the appellant. The question to be decided s whether the appellant's mistake was
reasonable.

In the cases of McKay (5) and Mulenga (7) where chicken thieves were shot whilst they were obviously
trying to escape, the courts had no hesitation in deciding that the shooting amounted to excessive force
to the extent that men slaughter verdicts were appropriate, and, in the case of Scully (8), art incitement
by one trespasser to another to fire at the accused was held to justify the action of the accused in
shooting at the trespassers. Further, in the unreported case of Phiri (6), to which we have referred, the
presence of an unknown number of potential intruders outside a private house, and the breaking of a
window by one of them justified the dangerous action by the accused of firing a warning shot through
another window. In order for the appellant to succeed in justifying his shooting of the deceased it is
necessary for his mistaken belief and his action to be reasonable. The learned trial judge accepted
evidence and took judicial notice of the fact that armed robbers are prevalent and we respectfully agree
with this finding. Mr Shamwana further urged the court to consider that, in view of the fact that most
people in an army camp are likely to be armed, it is probable that any intruder in the camp would also
be armed for his own protection in case of discovery. We can not accept that this argument must apply
to all intruders in such a camp, and such a presumption must always depend on the particular
circumstances of the intrusion. Having regard to the prevalence of armed robbers, we are of the opinion
that in most cases it would be proper to take the view of the court in the Phiri case (6), that an actual
assault upon a dwelling-house by the breaking of a window or other such manifestation of force would
give rise to a reasonable fear on the part of the occupants that the intruders were likely to be armed
robbers against whom the use of storms in self-defence would be justified. In the case at present before
us there is evidence that there was in disturbance in the chicken run at the end of the garden belonging
to the appellant, and the deceased, a servant from next-door, went unarmed into the chicken run to
find out the cause of the disturbance. In so doing he presumably216 frightened away a former intruder
who was the fully dressed man seen running away behind the servants' quarters by the appellant.
Having seen one man run away, the appellant went back to his house and obtained a pistol which he
fired into the air as a warning. When he received no reply to his challenge "Who is there?", he walked
about forty-five metres towards the chicken run until he saw a dark figure, inside the run, at whom he
fired. In considering whether the appellant was reasonable in assuming that he was in danger to such an
extent that it was necessary to shoot at the figure this court is bound to take into account the difference
between a man who is attacked and has to decide how to defend himself in the anguish of the moment,
and a man who has heard a disturbance in an out-building sixty-five metres away from his house, who
has seen one man run away and who has had the presence of mind to go into his house, obtain a pistol
and fire a warning shot in the air to accompany his challenge to the intruder. The court also has to
consider the difference between these circumstances and those in which the accupants of a dwelling-
house hear a physical assault on an entrance to their house. As we have said, in the latter circumstances
the occupants of the house might well be reasonable in fearing that they were to be subjected to an
attack by armed robbers. In the circumstances in which the appellant found himself we are bound to say
that he was not faced with a moment of unexpected anguish such as that which would be experienced
by a man subjected to direct assault, and we find that it was unreasonable for the appellant to believe
that the intruders in the chicken run were armed robbers likely to attack him as against the
consideration that chicken thieves are not, as such, likely to be armed, and armed robbers intent on
robbing a dwelling-house are not likely to enter a chicken run where the noise of their intrusion amongst
the chickens would undoubtedly be heard in the dwelling-house. We find that in the circumstances of
this case the appellant's belief that the intruder was armed was quite unreasonable, and his shooting of
the deceased therefore amounted to an excessive use of force which warranted conviction.

Despite the misdirection by the learned trial judge even have no hesitation in applying the proviso to s.
15 (1) of the Supreme Court Act. The appeal is dismissed.

With regard to sentence, the appellant was sentenced to three years' imprisonment with hard labour.
The appellant has in effect been found guilty of gross negligence resulting in the death of a man, but,
although the tragedy of this case is that the deceased was an innocent servant from next-door, the basis
upon which the appellant has been tried is that the deceased was an unauthorised intruder in a chicken
run. We have already indicated by our finding that the killing of the deceased in the circumstances was
certainly not justified, and cannot be condoned. However, it must be borne in mind that the appellant is
a man of good character who did not deliberately commit the type of offence for which dishonest
persons are sent to prison - certainly not for long sentences. For these reasons, and having regard to all
the mitigatory factors in this particular case, the sentence of three years' imprisonment with hard,
labour comes to us with a sense of shock, and we propose to allow the217 appeal against sentence. We
set the sentence aside end substitute therefore a fine of K500; in default, nine months' simple
imprisonment.

In view of the fact that the appellant has already served over eleven months in prison the default order
is satisfied and the fine will not be payable.

Appeal against conviction dismissed but sentence substituted.

THE PEOPLE v MUDEWA (1973) Z.R. 147 (H.C.)

HIGH COURT

CULLIGAN, AG.J.
12TH MAY, 1973.

(CRIMINAL TRIAL NO. HL/2/1973)

Flynote

Criminal law - Self - defence - Retreat before right of self - defence Is exercised - Failure to retreat -
Effect of - Reasonableness of force used in self-defence.

Headnote

The accused was charged with murder. The deceased was visiting a woman in a one-roomed house
which had a heavy lean-to door made up of pieces of wood. The woman asked the deceased to leave
because she was expecting the accused to arrive. The deceased refused to leave. Later the accused
arrived, tried to get in and it appeared from the evidence of the woman that the deceased was prepared
to fight the accused. The lean-to door collapsed outwards on top of the accused. The Court accepted as
a story which could reasonably be true the accused's evidence that he was struck a heavy blow by the
deceased, that he fell down and that the door fell outwards on top of him, and that the deceased was
on top of the door hitting him and stepping on him. He was in no position to strike back and defend
himself. He was a business man and frequently carried large sums of money and he customarily carried
a pistol for self-protection. He managed to get this pistol out of his pocket and he fired once to the side
in an attempt to frighten the deceased; the latter came at him again and in desperation he fired again.
The accused did not know whether he had hit the deceased but, the Court found as a fact that the
deceased died as a result of a bullet wound inflicted by the accused.

It was contended on behalf of the prosecution that the accused had not retreated as far as he could
before firing his pistol and that in any event to fire a pistol was in the circumstances using excessive
force.

Held:

(i) The test to be applied is an objective one of reasonable reaction on the part of the accused.
(ii) No reasonable man could be expected to retreat from the door of the house in the
circumstances of this case, and when the door fell on the accused any question of retreat was gone.

(iii) The Court could not say that a reasonable man, finding himself in a "moment of unexpected
anguish" in the position in which the accused found himself, might not have reacted as the accused did
and that therefore it could not be said beyond a reasonable doubt that the force used was excessive.

Cases cited:

(1) Maseba v The People 1972 Z.R. 9;

(2) Sumani v R. 1959 (2) R. & N. 403;

(3) R. v McInnes (1971) 3 All E.R. 195;

(4) Lembelani Mwale v R. 1958 N.R.L.R. 527;

(5) Palmer v R. (1971) 1 All E.R. 1077;

(6) Tembo v The People 1972 Z.R. 220.

Legislation referred to:

Penal Code, Cap. 146, s. 17.

For the People: J. M. Ibegbu, State Advocate.

For the defendant: E.Dumbutshena, with him M. Mwisiya Chongwe and Co.

Judgment
CULLINAN, AG.J.: The accused stands charged with manslaughter contrary to section 199 of the Penal
Code. The particulars of offence allege that on the 13th of November, 1972 , at Kaoma, he unlawfully
killed Enock Sikalumbwe.

The incident out of which the killing arose took place near the Kanongobele Bottle Store. Sofia
Mutakula, who sold beer at the store, stopped work at 1800 hours on the evening in question. The
deceased had been in the store that evening. She cooked some food and retired to her one-roomed
house nearby. The house was constructed of mud and had a heavy lean-to door made up of odd pieces
of wood. On entry she discovered the deceased in her house. He had been her boyfriend, apparently for
a very short period since the beginning of the month. She told him to leave, stating that she was not
sure when the accused would arrive. The accused, a businessman residing in Mongu, was in the habit of
spending about two nights each week with her when passing by on his various journeys throughout the
country. Both the accused and she regarded each other as man and wife, though the accused had not
been to see, nor had he paid any dowry, to her parents. Suffice it to say, however, that Sofia was
worried lest the accused arrive and find the deceased in her house. When Sofia requested him a second
time to leave he refused. The deceased slept on her bed She did not sleep but sat on the bed.

That evening the accused had left Mongu for Ndola. He arrived during the night at the bottle store and
parked his truck as usual near the store. He walked towards Sofia's house. He was greeted by the night
watchman Musumali Mubanga, who was sitting at a fire. He asked the latter where was Sofia. He replied
that she was at her house. The watchman noted that the accused carried a torch in his right hand; his
left hand was in his pocket. The accused continued towards Sofia's house.

Meanwhile Sofia had recognised the sound of the accused's truck and woke up the deceased urging him
to go; he refused. He stated that he was a man and was apparently prepared to fight anyone that night.
The accused knocked at the door. The deceased instructed her not to reply and called out to the
accused that "Sofia and my sister have gone to Kafue". The accused replied that the watchman had
informed him that Sofia was in the house. The deceased called out to wait for him to dress himself. Sofia
was in the middle of the room when the deceased opened the door. He suddenly closed it and Sofia
retreated behind the curtains in case the accused might see her. She was then unable to see what
occurred at the door.

Thereafter she heard the sounds of a struggle at the door. Apparently one wanted to open and the other
to shut the door. The struggle took quite a while. She heard the deceased say "I am a man; we shall see
each other". Then the door collapsed outwards and the deceased went outside the house. Sofia did not
see what happened outside. She then heard the sound of a revolver shot. She ran out of the house. She
observed the deceased and the accused both running in the direction of the night watchman, the
deceased in front, the accused behind. Sofia ran and hid herself behind firewood at the rear of her
house.

The night watchman had heard the accused talking to someone on arrival at Sofia's house. He heard
someone in reply. He then heard the door collapsing. A few minutes later he heard the report of a
revolver and shortly afterwards he witnessed the deceased running towards him. Before he reached the
night watchman the deceased fell down. The night watchman ran to Mrs Kanongobele at the bottle
store and woke her up. They both went to where the deceased lay. The accused was walking away from
the deceased who, at that stage, was dead. Mrs Kanongobele asked the accused to take the body to
hospital but he replied that he was going to report to the police at Mumbwa. This is confirmed by Sofia
who overheard this conversation while hiding behind the firewood. The night watchman stated that the
accused was holding a torch in the right hand and a revolver in the left. Mrs Kanongobele said the
accused had nothing in his hands. The night watchman also stated that the accused had lit his torch on
the deceased saying "You said you were going to beat me but I have beaten you", further the night
watchman made accusatory remarks to the accused. None of this was borne out by Mrs Kanongobele
or, indeed, by Sofia who could presumably have overheard such conversation. The accused left in his
truck. Sofia emerged from hiding. The police were contacted and the body was removed to Kaoma
hospital.

In the early hours of the following morning the accused in a depressed state, arrived at the home of a
friend, Mr Zondi, outside Lusaka. The latter beatified that the accused informed him he had killed a man
and related the full incident to him. The accused handed over his pistol. After some sleep Mr Zondi
drove the accused to his lawyer's office in Lusaka, from whence, accompanied by the lawyer and Mr
Zondi, the accused went to the police station and reported the matter, surrendering the pistol to the
police.

A post mortem was conducted on the body by a Dr Haider at Kaoma hospital. The body was identified to
lain by Police Sergeant Vincent Micelo who knew the deceased well. External examination revealed a
wound at the left side of the chest 1/4 inch in diameter about 1 inch lateral to the middle line of the
sternum and 1/2 inch above the nipple. No evidence was given as to whether the wound was jagged or
clear in outline. Internal examination revealed a penetrating wound in the left ventricle and also the left
auricle of the heart and again in the left lower lobe of the left lung. The cause of death was given as
internal haemorrhage due to wounds in the heart and left lung. There was no exit wound externally but
the doctor was unable to find any bullet in the body. He gave as his opinion that a bullet had entered the
body at right angles to the line of an upright body, had penetrated the left ventricle of the heart and had
then somewhat unusually deflected downwards through the heart piercing the left auricle and the left
lower lobe of the left lung. The Doctor further deposed that a firearm must have been fired at a range of
ten feet as otherwise the bullet would have completely penetrated the body. In his opinion a pistol
could not have been fired at close range and furthermore, considering the trajectory displayed by the
wounds, a pistol must have been fired by a person standing, at the deceased while standing. The doctor
admitted however, that this was the first post-mortem examination he had conducted involving the use
of a firearm.

The State called additional evidence from Dr Sayed Badi-uz - Zaman, Consultant Pathologist, Public
Health Authority, Lusaka, to which the defence had no objection. The body of the deceased had been
sent to him by Dr Haider, as the latter was unable to trace a bullet in the body. The body was duly
identified to him by Sergeant Micelo. A bullet was found in the body lying behind the 10th left rib in the
muscles of the back only 2 cm from the surface. The bullet had passed through the thoracic viscera and
between the 9th and 10th ribs. The doctor deposed that as he had not conducted the post-mortem the
evidence available had since been destroyed and he was unable to give an opinion on whether the
firearm had been fired at a distance or not. He said that if a firearm is fired at a close distance the
wound inflicted externally is usually jagged and powder stains are apparent; if a firearm is fired at a
distance the external wound is clearer in outline. He stated that powder stains could, of course, be
removed with removal of clothing, or where the victim held his hand over the wound, or where others
removed the stains accidentally. The doctor could not determine the trajectory of the bullet from the
evidence available to him. He did say, however, that it was not possible for a bullet even of light calibre
to deflect in the soft body of the heart, and judging from the post-mortem report, the firearm must have
been fired at an angle to the body. While the doctor did say that he could make no estimation of the
range at which the firearm was fired, he also said that it was possible for a light calibre bullet, such as
the one found in the body, to be fired at close range without fully penetrating the well built and well
nourished body of the deceased, even where the bullet had passed between the bones of the body.

There is obvious variance between the evidence of the two medical witnesses. For my part, there can be
no doubting the professional expertise of Dr Sayed Badi-uz - Zaman and I have decided to rely heavily on
his opinion.

The bullet recovered from the body and the pistol surrendered to the police for examination were
examined by ballistic experts. Expert evidence was adduced that a test bullet fired from the pistol (a .22
Biretta) was compared with the bullet found in the body. The striations on both bullets were identical.
The only conclusion I can come to on this point is that the bullet found in the body was fired from the
pistol surrendered by the accused to the police. The pistol had some bloodstains on the barrel. Evidence
was given that it is doubtful whether blood would splash from a victim firing at close range.
The possibility is, however, greater at close range. The accused, in his sworn evidence, testified that on
reaching the door of Sofia's house he called out to her. In his evidence in chief he said he knocked on the
door but then in cross-examination retracted and said he meant by that he had given a "verbal"
knocking by calling out to her. The learned State Advocate, Mr Ibegbu, pursued this point maintaining
that the knocking heard by the watchman at a distance must have been very loud, indicating, of course,
that the accused was in an angry mood at that stage. The case record in fact discloses that the
watchman heard the accused talking (not knocking) at the door. Had I checked the record on this point
during the trial I could have saved counsel a good deal of inconvenience, which I sincerely regret.

With regard to the accused's initial mood, let me hasten to add that I am satisfied that there was
nothing sinister in his possession of a pistol. He gave evidence that he always carries the pistol on long
journeys in cases of robbery. On this occasion he was en route to Ndola and had as much as K4,000 in
his possession, K2,000 in each pocket of his trousers. He intended carrying K7,802 en route from Ndola.
He carried the pistol in his right hip pocket. I question the wisdom of such manner of conducting his
business. I question the wisdom of carrying the revolver on his person, not alone loaded (albeit with two
rounds) but even cocked, the safety mechanism engaged. No doubt the accused has had ample time to
reflect on such foolhardiness. This court is not concerned with such an ill method of securing the
conduct of his business however. It is only concerned with the accused's criminal liability in respect of
the charge which he faces.

The accused states he was in a happy mood when he reached the door. That mood changed, of course,
when he heard the man's voice from within and subsequently heard Sofia's subdued voice. The accused
would have the court think otherwise, but I doubt if the man exists who would not be angry in such
circumstances.

The accused's version is that the deceased opened the door quarter ways. When he was about to enter
he was struck a heavy blow by the deceased. He fell down. At the same time the door fell outwards on
top of him. He then found himself lying on his back with the heavy door covering him from his chest to
his feet, with the deceased on top of the door hitting him and indeed stepping on him.

The door was clear of his arms, he was in no position to strike back and defend himself. He managed to
get the pistol out of his hip pocket and pulled back the hammer with his thumb. He fired once aside,
endeavouring to scare off the deceased. The latter came at him again, crouched over him on the door. In
desperation he fired again. The deceased stood up and ran away. At that stage the accused was not sure
whether or not he had hit him. He saw the deceased fall, became frightened and drove off to Lusaka.
There are some inconsistencies surrounding the accused's story. First of all there is the matter of his
alleged marriage to Sofia. Mr Ibegbu vigorously pursued this point because, of course, there are certain
ramifications. The first is the question of provocation. If man finds another man at night, in a state of
undress, in a one-roomed house with the first man's wife, almost flagrante delicto then there is no
doubt that the provocation is great. Let me hasten to assure the defence that in the particular
circumstances of this case, whether or not Sofia is the accused's wife or lover, I am only too willing to
recognise that provocation arose, both in the deceased's conduct and his aggressive manner. The
accused is charged with manslaughter, however. As I see it, provocation can only affect mitigation and
not liability.

Secondly there is, of course, the question of whether Sofia, as the wife of the accused, is then a
competent witness. I wish to point out that the defence has at no time made any objection to her giving
evidence. Far from it indeed Mr Ibegbu at one stage made application to have her treated as a hostile
witness and was refused. Her evidence is of no great consequence to the prosecution case. She saw
nothing of the attack. On the other hand her evidence has been of great assistance to the defence in
establishing in particular that the deceased was in an aggressive mood and that the door fell outwards.

As I see it, the question of whether the accused is married to Sofia is something peculiarly within the
knowledge of the accused. The evidence adduced by both him and Sofia is far from satisfactory on the
point. "Customary marriage" is defined in section 151 (2) (b) of the Criminal Procedure Code as including
a union which is regarded as marriage by the community in which the parties live. There was no expert
evidence of any custom adduced by the defence. There certainly can be no presumption of marriage. I
cannot see that evidence of twice weekly visits to Sofia's house, the matrimonial home, en route to
various parts of the country, after Sofia's working hours, while maintaining a wife and children and
permanent home many miles away in Mongu, is proof of cohabitation. Again, no evidence has been
adduced of a general reputation of being husband and wife. When Mrs Kanongobele, Sofia's nearest
neighbour, was questioned as to the extent of the relationship between the accused and Sofia, she
replied that "the accused used to visit Sofia and spend nights with her". When the night watchman was
asked the same question he very succinctly replied "there were others".

There are other inconsistencies surrounding the accused's evidence. Mr Zondi related that the accused
had informed him that he had drawn the pistol from his briefcase during the struggle. There is no
evidence that the accused was carrying a briefcase. I am inclined to think therefore that Mr Zondi was
mistaken on this point. The accused stated he merely saw the deceased run away when he fired at him.
It was only at a very late stage that he admitted that he saw the deceased fall. He stated he then got
into his car and drove to Mr Zondi's house near Lusaka. He made no mention of inspecting the body of
the deceased or of speaking to Mrs Kanongobele and refusing to take the body to the hospital. All this is
borne out by Sofia, Mrs Kanongobele and the watchman. He contradicted himself when he said he did
not knock on the door; Sofia's evidence was that he did. He insisted he was in a happy mood up to the
opening of the door. It is plain that no reasonable man would be happy under those circumstances. Sofia
said a struggle took place at the door and this to me seems perfectly natural to expect. I frankly do not
believe many points in the accused's story. In particular I do not accept that there was no struggle at the
doorway.

In this respect I am indebted to the learned Defence Counsel, Mr Dumbutshena, for his reference to
Maseka [1] and, indeed, other cases which I shall cite presently. The following passage appears in the
judgment of Baron, JP, at page 13 at line 35:

"An explanation which might reasonably be true entitles an accused to an acquittal even if the
court does not believe it; an accused is not required to satisfy the court as to his innocence, but simply
to raise a reasonable doubt as to his guilt. A fortiori, such a doubt is present if there exists an
explanation which might reasonably be true; for the court to be in doubt does not imply a belief in the
honesty generally of the accused nor in the truth of the particular explanation in question. An accused
who is shown to have told untruths in material respects is in no different position from any other
witness; the weight to be attached to the remainder of his evidence is reduced, but it is not rendered
worthless. As Beadle, J, as he then was, said in Sumani v R [2] at page 410:

' It is not sufficient to say that the explanation, so far as it purports to establish the
accused's complete innocence, is manifestly false, and that therefore his entire explanation must be
rejected and the case treated as if no explanation at all had been given. The main parts of an
explanation might be manifestly false, but there may nevertheless be other parts which might
reasonably be true, even after making due allowance for the falsity of the rest of the explanation. In
such a case those parts of the explanation which might reasonably be true are entitled to due
consideration and should not be rejected along with the rest.' "

Both the defence and prosecution have been at pains to establish just who took the fight to whom in
this case. I do not think that that question is altogether relevant, that is, once a fight has progressed
beyond the initial stages and continues unabated. I do not, as I have said, accept the accused's version
as to how the struggle started and I do not have to consider whether his version might reasonably be
true. Instead, I find that the situation outside the doorway might reasonably be true. It is reasonable to
suppose that the door might have fallen outwards on top of the accused while the deceased took full
advantage of the situation. It seems reasonable to suppose that the firing of the pistol at the deceased
crouched over the accused might have caused the bullet to describe the trajectory described by Dr
Sayed Badi-uz - Zaman. Again, it appears the bullet need not necessarily have penetrated the body of
the deceased if the pistol was fired at close range. I feel that to have extracted a pistol from a hip pocket
under the circumstances described must have required a good deal of effort. Nonetheless, it might
reasonably be true that the accused did so. The accused said he fired two shots, however. The
watchman heard only one, but then, compared with Mrs Kanongobele's account, his evidence is so
contradictory as to be unreliable. Sofia heard only one shot. She admitted to being very frightened and
confused and could easily have been mistaken.

Taking the situation outside the doorway as described by the accused I find it might reasonably be true.
Thereafter I must consider the accused's reactions to that situation.

There is first the aspect of retreat, not alone before the door fell but after it did so, provided retreat was
possible. Section 17 of the Penal Code enacts that:

"17. Subject to any express provisions in this Code or any other law in operation in Zambia,
criminal responsibility for the use of force in the defence of person or property shall be determined
according to the principles of English Law."

Those principles have recently undergone some change in England. The following passage appears in the
case of R. v Mclnnes [3] at pp. 300/301:

"The first criticism of the learned judge's treatment of self defence is that he misdirected the
jury in relation to the question of whether an attacked person must do all he reasonably can to retreat
before he turns on his attacker. The direction given was in these terms:

' In our law if two men fight and one of them after a while endeavours to avoid any
further struggle and retreats as far as he can, and then when he can go no further turns and kills his
assailant to avoid being killed himself, that homicide is excusable, but notice that to show that homicide
arising from a fight was committed in self-defence it must be shown that the party killing had retreated
as far as he could or as far as the fierceness of the assault would permit him.'

One does not have to seek far for the source of this direction. It was clearly quoted from
Archbold's Criminal Pleading, Evidence and Practice, 1969, 37th Edition, para. 2495, which is in turn
based on a passage in Hale's Pleas of the Crown, (1800) Vol. 1,pp. 481, 483. In our judgment, the
direction was expressed in too inflexible terms and might, in certain circumstances, be regarded as
significantly misleading. We prefer the view expressed by the High Court of Australia, in R. v Howe
(1958) 100 C.L.R. 448 at 462, 464, 469, that a failure to retreat is only an element in the considerations
on which the reasonableness of an accused's conduct is to be judged (see Palmer v Reginam (1971), 1
All E.R. 1077 at 1085 (1971) 2 W.L.R. 831 at 840) or, as it is put in Smith and Hogan's Criminal Law, 1969,
2nd Edition, p. 231:

' . . . simply a factor to be taken into account in deciding whether it was necessary to use force,
and whether the force used was reasonable.'

The modern law on the topic was, in our respectful view, accurately set out in R. v Julien at p.
858, by Widgery, L.J. in the following terms:

' It is not, as we understand it, the law that a person threatened must take to his heels
and run in the dramatic way suggested by counsel for the appellant; but what is necessary is that he
should demonstrate by his actions that he does not want to fight. He must demonstrate that he is
prepared to temporise and disengage and perhaps to make some physical withdrawal; and to the extent
that that is necessary as a feature of the justification of self-defence, it is true, in our opinion, whether
the charge is a homicide charge or something less serious.' "

That passage seems to echo a passage in the judgment of Tredgold, C.J. in Lembelani Mwale v Regina [4]
at p 530:

"We consider that, in this application of the law to the facts of the case, the learned Judge did
not make sufficient allowance for the extremity of the situation in which the appellant found himself.
When a man is the object of a murderous assault it is too much to expect a nice discrimination in the
methods he chooses to defend himself. In calm retrospect other alternatives may appear, but it must
always be remembered that, in such circumstances, a man acts under the stress of the moment. He has
to act swiftly and decisively and the reasonableness of the course he adopts must be judged accordingly.
The obligation on a man so assailed to retreat rather than to strike down his assailant is not absolute. If
by retreating he enhances rather than avoids the danger to himself, and it is easy to envisage
circumstances in which this would be the case, it would not be reasonable to expect him to retreat. For
example, a man threatened in open country with a firearm is not obliged to run away. To do so would be
merely foolish and, if the threat is determined and he can shoot first, he would be fully entitled to do so.
The situation should not be judged by rule but on the particular facts of each case and there is no better
approach than that the trier of the issue should imagine himself in the position of the accused and ask
how he himself would have acted."

There is then the question of excessive retaliation. The following passage appears in the House of Lords'
case Palmer v R. [5] at p. 1088, which was quoted in McInnes:

"In their Lordships' view the defence of self-defence is one which can be and will be readily
understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It
requires no set words by way of explanation. No formula need be employed in reference to it. Only
common sense is needed for its understanding. It is both good law and good sense that a man who is
attacked may defend himself. It is both good law and good sense that he may do, but may only do, what
is reasonably necessary. But everything will depend on the particular facts and circumstances. Of these a
jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding
action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor
attack it would not be common sense to permit some action of retaliation which was wholly out of
proportion to the necessities of the situation. If an attack is serious so that it puts someone in
immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for
someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is
all over and no sort of peril remains then the employment of force may be by way of revenge or
punishment or by way of paying off an old score or may be pure aggression. There may no longer be any
link with a necessity of defence. Of all these matters the good sense of a jury will be the arbiter. There
are no prescribed words which must be employed in or adopted in a summing-up. All that is needed is a
clear exposition, in relation to the particular facts of the case, of the conception of necessary self-
defence. If there has been attack so that defence is reasonably necessary it will be recognised that a
person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.
If a jury thought that in a moment of unexpected anguish a person attacked had only done what he
honestly and instinctively thought was necessary that would be most potent evidence that only
reasonable defensive action had been taken. A jury will be told that the defence of self-defence, where
the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the
accused did was not by way of self defence. But their Lordships consider in agreement with the
approach in De Freitas v R. (1960 2 W.L.R. 523) that if the prosecution have shown that what was done
was not done in self-defence then that issue is eliminated from the case. If the jury consider that an
accused acted in self-defence or if the jury are in doubt as to this then they will acquit. The defence of
self-defence either succeeds so as to result in an acquittal or it is disproved in which case as a defence it
is rejected."

Based on those authorities I have, at these Sessions, held that the test to be applied is an objective one
of reasonable reaction on the part of the accused. Applying that test to the present case I find that no
reasonable man could be expected to retreat from the door of a house under the circumstances which I
have detailed. When the door fell on the accused all hope of retreat was lost.

Thereafter I must consider what a reasonable man, rightly or wrongly carrying a pistol in his pocket,
would have done under the circumstances. The Court of Appeal held in Bicton Tembo v The people [6],
that "the courts in Common Law countries have always been very slow to apply overfine tests to actions
taken and weapons used in the heat of the moment". For the accused this was no doubt a "moment of
unexpected anguish" to use the phrase in Palmer. He fired once aside to frighten his assailant and then
when the attack renewed he fired again.

I cannot say that a reasonable man might not so react under the circumstances, I am in some real doubt
in the matter. That being the case the prosecution have not negatived the defence of self-defence and
accordingly I acquit the accused.

Accused acquitted