Chibulu v Zulu and Anor (Appeal 175 of 2007) [2008] ZMSC 141 (19 August 2008)

IN THE SUPREME COURT OR ZAMBIA a™ „ ®----- -------- GAMBIA SCZ JUDGMENT NO. 49 OF 2008 ("2) HQLDEN AT LUSAKA/NDOLA APPEAI »n i~, g£PEAL NO, 175/2007 (Civil Jurisdiction) IN THE MATTER OF: SECTION 93, 94, 95, 96 OF THE ELECORAL ACT NO. 12 OF 2006 AND IN THE MATTER OF: PARLIAMENTARY ELECTIONS FOR THE BWANA MKUBWA CONSTITUENCY IN NDOLA IN THE COPPERBELT PROVINCE OF THE REPUBLIC OF ZAMBIA HELD ON THE 28™ SEPTEMBER, 2006 BETWEEN: BARBARA BWALYA CHIBULU Appellant AND JOSEPH ZULU THE ELECTORAL COMMISSION OF ZAMBIA 1st Respondent 2nd Respondent Coram: Chirwa, Mumba, Chitengi, Silomba and Mushabati, JJS On 25* June, 2008 and 19* August, 2008 ~ dr-the -Appel lant -Mr K. Msoni of Messrs j. B. Sakala & Cq. ^bOFMessF . - • JUDGMENT Z Chitengi, JS, dehverea Tuvered the Judgment of the Court. Case referred to. I. The Attorney-General V Marco, v '”31 ^^^haAehtu^ : J2 : is an appeal by the Appellant agamst (he of "»h Court which dismissed her petition against the electjon of d,e first Respondent as Member of Parliament for the Bwana Mkubwa Constituency. The Appellant stood on the ticket of a political party called the Movement for Multi - Party Democracy (MMD) while the first Respondent was the candidate for another political party called Patriotic Front (PF). In addition, to the Appellant and the first Respondent, there were three other contenders for the Bwana Mkubwa Constituency seat, two belonging to two other political parties and one an independent candidate. Two weeks before the elections were held, the Appellant and the other candidates attended a meeting at Twikatanc Basic School organized by the Catholic Committee for Justice and Peace (CCJP). At this meeting the candidates had to present them ' STUS ro s the wido '^fcthat she business 7 vVonian. There were many people present at the feting. According to Appellant, as she spoke a crowd of pF fist syinboi shouting and asking Pe°ple stood up she was a widow. Thereafter, the crowd he Appellant whe called “Mufcazn/iviZwa Bwelela”. The touted and sung a s : J3 : (994) organizers tried to calm down the crowd but in vain. The crowd insulted the Appellant calling her a bitch who had killed her children by bitch,ng. Thc Appcllant {o Respondent to tell the crowd to stop what they were doing but (he first Respondent did nothing and the crowd became uncontrollable. But after pleas by CCJP officials the crowd stopped shouting. After the crowd had calmed down, the first Respondent spoke and when the crowd heard that the first Respondent was a widower the crowd remained calm. From the day of the meeting organized by CCJP, the Appellant’s campaign, to use her own words, became rough. The song, Mukamfwilwa, which was composed and song by one John Mwansa, in 1979, when the Appellant was expecting her last child, was sung every day. The message in thc song is that the woman who had caused the death of her husband never went for cleansing but went bitching. The song is a plea to the woman to go for cleansing. Patriot. ---- _.p.uA. . Dotri otic Front cadres were- singing this song ——- r , ^otThSk after her cm ~ Children how would she look after the electorates. Wording to the ApPellant’ the playin£ of the song badly affected her campaign and the result of the election. Two weeks before ^e election day, the Appellant was brought a letter (document at : J4 : page 72 of the record of appeal pp brother, Vincent Nelson Chibulu (PW1) (995) barkings) by her young the contents of which Appellant said affected the result h. results because people reading the document could not vote for her THa a n + 1 ner. ihe Appellant also complained of campaigning by Patriotic Front cadres 18:00 hours on 27«> September, 2006 and campaigning within 100 meters of the polling stations on the polling day contrary to the directives given by the Electoral Commission. The Patriotic Front cadres were showing people the boat which is the symbol for the Patriotic Front. The Appellant made a complaint to the Police officers manning the polling stations. Patriotic Front cadres also bought votes; the cadres were in control of the polling stations and they were showing voters the Patriotic Front symbol in the polling stations. At one of the polling stations at the Mushili Training Centre, voters were using Munali Constituency ballot Papers between 06:00 hours and 12:30 hours and this affected Ihe result. rami' iThere-was^no ereabeingfusedv The appellant also said that sne faults were compiled Officer who showed her Respondent polled Verification. she was not happy with the mariner the and she complained to the returning the results. She polled 8,295 while the 11 095- Later, she waS called to attend : J5 : (996) f rT Ca"Pai6n MmaS" °f Appetat, MriW,ed tadmg the document the Appellant talked about and said he found similar documents at Twashuka and Mushili Markets which he burned. PW2 also confirmed campaigning by Patriotic Front cadres within the prohibited area on the polling (jay. At Mushili Council offices polling station people were drinking and dancing to the Mukamfwila song at a house some 120 metres from the polling station. At the polling station people were campaigning for the Patriotic Front. At the Training Centre Polling Station one, Mrs Mulembe, an agent was caught showing voters where to mark a cross. This incident was reported to the PoEce. During the campaign the Patriotic Front cadres had four motor vehicles with loud speakers playing the Mukamfwilwa song. A motor vehicle registration number ACH 2848 driven by the first Respondent would stop at the house of Charles Jacob Chilandu (PW2) who was leading the MMD campaign and where there was displayed a big portrait of the Appellant, and play the MukamlwlwSssong. Later Uje_cadrcs wouldgedge the loud . " savinfeijdoSipt vote for. Cleansed: her because she is a P ecaused; Ives have' vote for a : Person who has no name, vote • vnte for Zulu because he has a wife. . ^his incident took plaC 1 nn five occasions. On 9th September, 2006 ’^paign meetings in Bwana the first Respondent addressed Mkubwa constituency. At a meeting held at a certain building the r . r, : J6 : (997) heard by Chnspme Mfula (PW3) call h ,rW3) call the Appellant a prostitute , . . t>’ first Respondent was who would do nothing for the , , . „ h PeoPie and that the first Respondent would solve the nenni^ peoples problems. The first Respondent said that if the nennk „ , • people gave him their voters and registration cards he was going to work. The first Respondent then gave the people K5,000.00 each and the people were happy. At a meeting held at Kantolomba the first Respondent was heard by Matthews Chileshe (PW4) repeat the words he said about the Appellant at the earlier meeting and said the people should write their voters and registration numbers. After that the first Respondent gave the people K5,000.00 each. There were other meetings where the first Respondent and his supporters said bad things about the Appellant. On a date she could not recall in September, 2006, Fridah Chipembele (PW5) attended a meeting at Twikatane School where the first Respondent-called _the Appellant a prostitute before-the Appellant WgEgSflhe Appeltot CWWtSS » had lost a The shouting «s so ^h that one could not heat ■ caving. PW5 protested to the first at the Appellant wa chased her. (This meeting Sondent and the first Resp^ nPears to be the same j ident in September, 2006. ■anza (PW6) also witnessed an : J7 ; On her way to Twikatane School she saw b . saloon and a van m which there wac k , Saw two motor vehicles a (998) as a boat. People were shouting on the microphone that «« i hat pe°Ple ^ould not vote for the tenant because she was a woman; that she was a widow who v had caused the death of many pMpk gathered were shouting that they had nominated a prostitute. Thereupon, PW6 went to the van to ask whether the campaign was one of insults. She peeped in the saloon car and she saw the first Respondent. As PW6 crossed the road and continued with her journey she heard the Mukamfwilwa song being sung. PW6 told the Appellant of the insults. On 6th September, 2006 the first Respondent went to Mushili Ward where he was seen by 'loackim Bwalya (PW7). The first Respondent who was on campaign told the people who gathered that the Constituency was too big for the Appellant who was unmarried and that Uninarried people do not perform well. ifcthe polling day.- 28th September 2006, Pola Kunda (PW8), was an ai Ppllin; ess Sfit tod « ballot papers were ibr Munali ^tituency. PW3 brought this to the attention of the Pres.ding . Returning Officer. Later, the correct , Offi Wer who telephoned the Returning k i ba^ot papers were brought and voting starte On -y ^’30 hours. The lighting m the polling j started and went on up to p , . the rolling station was poor. They ere using only two candles as there was no electricity. Electoral Commission of Zambia Officers were standing Qi .u : J8 : (999) , , n , ending along the table «* the ballot papers were on the table. During oountmg the *S were not being shown to lhe Party dozing. Morgan Mupinga (PW9) who also voted at Mushili Training Centre saw a female polling assistant who followed a young man in the polling booth and told him to vote on the boat i because they had suffered a lot. On seeing this PW9 went outside and rang the Appellant who advised him to report to the Presiding Officer. After reporting to the Presiding Officer, the Presiding Officer made efforts to contact the Returning Officer but in vain. However, the polling assistant was called but did not give any explanation for what she did. At Lubwa polling station, Nelly Mbewe (PW10), saw polling assistants get illiterate voters from the queue and take them in the polling booths to vote. Party agents complained and reported the matter to the Police Who promised to act. Inspector Vincent Chembo (PW11) who was manning Mushili Main Polling Station on the polling day ^rested^auSpersons who were shouting filAutysloganJ _ Amaka- -Ainaka^ met one . informed him that there were people who $Walya Chikwarno who in J to cOilect voters’ cards and national had an assignmen polling day he met the same Bwalya registration cards. Nicholas Catholic church, which was about Chikwamo at the St. .. station. Bwalya Chikwarno 1Q0 metres from Ndeke P : J9 : (1000) a bundle of voters and nallonaI ** he gave to the owners with some money. told the voters concerned to go to Mandaliso shop jter voting to get some more money. Mandaliso shop belongs to W Patriotic Front Local Government sand,date. At Mashilih Wter House polling station, Joseph Chanka (PWI4) saw people in the voting queue lifting their fists and saying vote on the boat and not for the woman because she is a prostitute. PW14 reported this incident to the Police Officer at the polling station but the officer did nothing saying he was alone and the people were many. The evidence of the first Respondent and his witnesses was to deny all the allegations against the first Respondent. The first Respondent formed a campaign management committee which had two sub committees, one for accounts and the other for operations. As a candidate, tne nrs p the first Respondent was not allowed to carry money in his -pocket . ____ ____ — ---------. . . • r.- wnrlrets For his campaign the first Respondent used twOGixiQ^.. — —- vehicles one of which was mounted^ Sg|rg|5 ° Respondent was told 110I. to do-were.r to — ~ Tin T")^[1 ®lve out morley during c tended a meeting- ^h c*j**kv*<' talk t0 anyone who had Respondent was also told that should talk about issues, 'whenever he addressed a ‘he first Respond • ^tolomba as alleged by j did nuL & not eive K5,000.00 to anyone at In fact, the first Respondent lost : J10 : (1001) badly in Kantolomba. At the meeting organised by the CCJP at ^katane Basic School, the first Respondent was the last speaker. Before the candidates started to speak the organizers of meeting warned the candidates not to speak about individuals but only about issues. What caused confusion at the meeting was that as the Appellant was about to speak one woman dressed in MMD attire shouted at the Appellant saying the Appellant should pay them before she spoke. However, the master of ceremonies sorted out this problem. In her speech the Appellant said, inter alia, that her children’s father was the late Mbaso and that her children were in the United States of America. That was when people, including those clad in MMD attire who were supporting one Paul Katema, started chanting Mukamfwilwa. The situation was bad. When the crowd calmed down, the Appellant continued with her address until she finished. The Appellant ended her speech by promising to pay for Afi those whose electricity had been disconnected. was queshQ^toe. . WhenJ^^Appellant started^chanting amtwilwa ___ . _ fespohdenU^ the flrst Respondent dxd not react A*sUie"was not the^cM react. The first Respondent also n car registration ACH 2848. He said enied ever using ffic revealed that the motor vehicle was check at the Roa .onaries staying in Luanshya and registered in Nd°la by Produced a report t . that effect. : JU : (1002) wording to the first Respondent the only music being played during his campaign was Mwemakufi song by Nathan Nyirenda. He denied publishing any defamatory statement about the Appellant. Contrary to the evidence of PW7 the first Respondent ffas never driven in a motor vehicle that was mounted with loudspeakers and playing the Mukamfwilwa song. But according to RW2, during the campaign, they wanted to finish the Appellant. In addition to the song Mwemakufi, they also sang the song Mukamfwilwa. The first Respondent told RW2 that the appellant was a widow and that RW2 should be playing the song. The first Respondent told RW2 that while playing the Mukamfwilwa song he should interpose the insulting words “Barbara Bwalya Chibulu was sleeping with dogs". Because of this evidence which was in favour of the Appellant, W2 was declared a hostile witness. Document No. 1 in the Appellant’s bundle of documents was not st Respondent’fcdocument and.was not, distributed Wbis ■ .rr—■ - E. _ . • —.---- ---... w :- elect^-maten^^^ yaww—Contrary to; g cadres did^ot-colT^t^ T1“ ■■ ... Lu;, > jsT?* ■ — -• during Ori campaign period he met the Appellant at church where they greeted each other and chatted. IC there was any complaint Against the conduct Of the campaign by the Patriotic Front, the him when he telephoned her on 24* Appellant would have o September, 2006. The first Re P renort about the flret Respondent got a report about the Munali ballot papers in Bwana Mukubwa but : J12 : (1003) these ballot papers iVere for Local Government electio ns and not Parliamentary ballot The tat Respondent bst ln two .arts. After the electton there was verification on 13» October 2006. Contrary to what PW3, said there wac ™ - mere was no campaigning at Chonto piling station at Mushili Council offices. According to Museng. Collins Bwalya, (RW3), who was the first Respondent’s polling agent, the elections at this polling station went on well and there was no campaigning in the polling station and there was no shouting that people should not vote for the Appellant because she was a prostitute. At Porter’ House polling station the election also went on well and Lawrence Malama Chola (RW4) the first Respondent’s polling agent did not observe anything that went wrong during the voting. At Mushili Training Centre polling station, there was no incident as described by PW9 because Joseph Chitundi (RW5) who was poling agent for the first fepoSit did not observe it. Lawrence Chanda (RW6) who L _ ...... ...... .....rr. -i -J -t -f _u.. L^meetin; u ' -- - people who attended the meet g RW6 also refuted the P Science that the first He p ce that e Appellant because Respondent told the people not to vote for a woman and a prostitute. nQ instruCtions from the flrst # Mher, PW6 said the. Respondent to recor P : J13 : miration card numbers. And Kephas *« „as the first Respondents polling agent M station refuted the evidence of PW12 that there voters’cards and distribution of money. (1004) Saili (RW7) Polling was collection of Alter considering all the evidence, the learned trial Judge found none of the fifteen grounds on which the Appellant's petition was based proved. Accordingly, the learned trial Judge dismissed the Appellant s petition. The learned trial Judge found the evidence on behalf of the first Respondent more credible than that given by the Appellant and her witnesses. In short, the learned trial Judge basically decided this petition on credibility. The Appellant now appeals to this court against the judgment of the learned trial Judge dismissing her petition. The Appellant advanced six grounds of appeal. Counsel for the Appellant and the Respondents filed detailed Witten heads of argument on which they relief. WfEpropose to deal T-JnTh^rbbhds three and four first and J‘>4 4^ ree rea< first Respondent did not refer, to 016 Petitioner as a pros * ostitute who should not be voted into Respondent was not Momentary office and Phjfag the JcW'af". - d further that nothing offensive was said about the Petitioner while the song was being : J14 : (1005) played- ground four reads that the learned trial Judge misdirected himself in law and fact when he dismissed the evidence of the petitioner regarding the first Respondent’s publication of false statements of fact in relation to the Petitioner’s personal character. The arguments by counsel for Appellant and the first Respondent are to support and challenge the findings of fact made by the learned trial Judge on the issues in these grounds of appeal. Counsel recited the evidence of witnesses bearing on these grounds. Counsel for the second Respondent, quite properly, did not submit on these grounds of appeal, saying these grounds of appeal do not concern the second Respondent. As an appellate court we cannot interfere with findings of fact made by a trial Judge unless it is established before us that: - 3. The findings were which on a proper view of fhe~evidence, ~~ —___ no trial Court acting correctly can reasonably make: See The Attorney-General V Marcus Kampumba AchiurneW. : J15 : (1006) TW Appellant has not shown to us that My of («WS upon which an appellate court may reverse fadings of fact made by a trial Judge exist in this case. What the arguments on behalf of the Appellant amount to is that the learned trial Judge should have accepted the evidence given on behalf of the Appellant. But the learned trial Judge who heard and observed the witnesses when they gave evidence found the first Respondent and his witnesses more credible than the Appellant and her witnesses. As an appellate court we have no basis in this case upon which we can reverse the findings of fact made by the learned trial Judge. In the event, ground three and four fail and we dismiss them. We now deal with the first, second fifth and sixth grounds of appeal. The first ground of appeal is that the learned trial Judge misdirected himself in law and fact when he held that the Appellant did noW_e.cif^^ --7-- _ ___ ||||||||^ -thersr-^^ then all the candidates were bC1°W Amalies in the coun ,sdirection when the learned Judge held effected. It was also a votes on the second Respondent’s the difference faster sheet and wha declared was not in issue. : J16 : (1007) sfth ground of appeal is that ^elf o„ point of fact when he found that the evidence of the ** Respondent from Road Traffic Commission regarding vehicle ACH 2848 was not disputed. The sixth ground of appeal is that the learned Judge's attack on Appellant's petition and regarding an affidavit verifying the contents of the petition is not supported by law. Before we deal with the first, second and fifth grounds of appeal we can dispose of sixth ground without even considering the arguments from counsel on this ground. We are at a loss to understand why the learned trial Judge’s comment, which in our view was apt, on the manner the petition was pleaded, should be made a subject of appeal. The learned trial Judge’s judgment properly read leaves it beyond all reasonable doubt that the learned trial Judge did not dismiss the Appellants petition on ground of bad pleading. This ground of appeal is totally ^meritorious and it is dismissed -------- kiSiin. Msoni, learnedYebunsel . ---Hiiscontt-^^ - regard, Mr. Msoni referred to the "chces ^idencp tn that effect. Ira Paying of the Mukamfwdwa song a p ce to tn d SUperimposition of the Yog of the campaigning at polling stations and PPellant’s name, were being distributed by ^Pleasant campa*on rna 016 first Respondent. : J17 : (1008) IK thrust of Mr. Msoni’s submissions on the second ground of is that the learned trial Judge dtd not address his mind , the discrepancy between the votes cast and those officially jounced by the second Respondent. Mr Msoni pointed out that the second Respondent announced that the first Respondent polled 6615 votes against the Appellant’s 5139. This meant that the margin was 1476. But Mr. Msoni, surprisingly, put the word “only” after the figure "1476”. 1476 is a wide margin and cannot be characterised as negligible. Further, Mr. Msoni pointed out that during the trial the evidence was that the total votes cast were 19390 and not 14429. Mr. Msoni then, referred to the evidence of PW1 and PW2 explaining the discrepancy in the number of votes. It was Mr. Msoni’s submission that more people than the total number of votes announced voted in Bwana Mkubwa Constituency. According to Mr. Msoni, the 5000 votes which the first Respondent admitted in his Answer, was the margin with which he beat the Appellant but was not explained _ by the second Respondent and by_all means-could have-been in- A C^V -------- ........ . ■ .............................................................................. M* raises thi Ssue of using motor vehicle ACH 2848. As we , Understand the Appellants case a p . uont’q case as pleaded on this issue, the c°mplaint was not the u complaint was the use of the „ the motor vehicle to broadcast .. v . „ use of the motor vehicle per se. The invectives about the Appellant in oru a mi=>nt in order to discredit her during the : J18 : (1009) election. The learned trial Judge in his judgment found that ^ere was no vilification of the Appellant by the first Respondent and her supporters. We have already dealt with this issue in the third and fourth grounds of appeal and it is not necessary for us to repeat what we have already said. There is no merit in this ground and we dismiss it. Mr. Chitabo, learned counsel for the first Respondent, submitted on the first ground that non specification of the illegal practices and misconduct suggests that no such practices actually occurred because if they did happen a report would have been made to the Police. Mr. Chitabo pointed out that the evidence of singing Mukamfwilwa and corruption was rejected by the learned trial Judge. As regards the unpleasant material, Mr. Chitabo submitted that the document complained of had no party symbol or logo and was not signed and that any member of public could have written it. thc learned State Advocate, submitted that the Ippellantwas nbt;specific in henpleading i oh illegal averuumts. Mr. Lungu IBBOISo report made to the Police ; WKseTTSWS circumstances' Mr. Lungu submitted that He alleged illegal Prices "“1 takt! P^"- further Mr Lungu submitted that the Appellant and her Witness, gave unreliable evidence of corruption and illegal Practices As regards the playing of the song Mukamfwilwa, Mr. Lungu submitted that the learned trial Judge found the evidence : J19 : (1010) „„ this issue contradictory and unreliable. On the unpleasant material allegedly circulated by the first Respondent, Mr. Lungu repeated Mr. Chitabo s submissions. have considered the evidence and the submissions of counsel on this ground of appeal. The learned trial Judge’s finding that the alleged corrupt and illegal practices were not specified cannot be faulted. As the learned trial Judge properly observed in his judgment and as Mr. Chitabo and Mr. Lungu rightly submitted, the alleged corrupt practices, illegal practices and misconduct were not specified. The relevant paragraph in the petition is paragraph 5 and it reads: - “5. Your Petitioner is not satisfied with the final result of the elections because there were corrupt and illegal practices and other misconduct committed in connection with the election.” This pleading does not specify the acts of corruption, illegal Practices and other misconduct, where they were committed, by * - - *—- •“ taomwa: Respondents were Particulars. pleaded? In fact, this us a Pctitioxi-wherc entitled to ask for further and better ^r. Msoni subnii Misdirected himself because further that the learned trial Judge the Appellant adduced evidence of and other misconduct. This Eruption and : J20 : (1011) fission lacks force because the learned trial judge in his judg®ent in fact said that the Appellant called evidence of the ^eged corruption, illegal practices and other misconduct. However, after considering the evidence of the Appellant and her witnesses on these issues the learned trial Judge disbelieved it. This was a finding of fact. We cannot interfere with the learned trial Judge s finding of fact, for the reasons we have already given. On our part we find the evidence about the first Respondent distributing K5,000.00 to each person at the meeting at Kantolomba, which was attended by many people, not only unbelievable but also too fantastic. This ground of appeal has no merit and we dismiss it. Mr. Chitabo’s submissions on ground two are that the learned trial Judge was on firm ground when he held that the anomalies on counting the votes affected all the candidates. Mr. Chitabo then recounted that initially the first Respondent polled 6,615 .votes while the Appellant got 5,139 votes;_after verification the pt jlegondent got 11,095 votes while the Appellant got 8,295 votes; amerence gnce betWeen the initial votes of the first Appellant, but th ,fied result. Mr. Chitabo pointed out that Respondent and his v F _ - q ago recorded was not in dispute, . . the total number o ’ : J21 : (1012) * wngu for the second Respondent submitted that this ground . M appeal against a hypothetical finding as the learned trial judge in fact found that there wore no anomalies in the counting. Lungu then referred to other issues which had somehow been already taken care of by Mr. Chitabo’s submissions. have considered the evidence and submissions of counsel on this ground. We find no merit in this ground. It is clear to us that the learned trial Judge carefully considered the oral and documentary evidence on this issue and found that the first Respondent got more votes than the Appellant. The learned trial Judge could not conceivably be expected, for no strong reasons, to prefer the results collected by a Party polling agent to the official results from the Electoral Commission of Zambia. Mr. Msoni talked about 5000 votes which he said by all means could have been in favour of the Appellant. The evidence is clear. As Mr. Chitabo indicated in his submissions there were no unexplained 5000 votes lying about. There is a complaint that when the learned trial Judge said that ifthere were anomalies in lilt sentenc^ornp-^ trial JnHap was as Mr- Lung H : v ge ’ anomalies in the counting submitted, saying that there were tine of votes. There is no merit in this ^bUnd of appeal and we dism the grounds of apP nt of the learned trial Judge and eal having failed the whole appeal fail. We accordingly affirm the ju : J22 : (1013) this appeal. We declare that Joseph zulu was duIy U Member of Parliament for the Bwana Mkubwa .dtueney- Respondents will have their costs in this court and in the below to be agreed upon and in default to be taxed. D. K. CHIRWA SUPREME COURT JUDGE F. N. M. MUMBA SUPREME COURT JUDGE CHITENGI SUPREME COURT JUDGE ' S. S. SILOMBA SUPREME COURT JUDGE ■ c. s. MUSH AB ATI SUPREME COURT JUDGE