Batuke Imenda v Luhila (Appeal 5 of 2003) [2003] ZMSC 165 (25 June 2003)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL NO. 5 OF 2003 IN THE MATTER OF: ELECTION FOR: AND THE ELECTORAL ACT CAP 13 OF THE LAWS OF ZAMBIA LUKULU EAST CONSTITUENCY IN WESTERN PROVINCE HELD ON THE 27th DECEMBER, 2001 IN THE MATTER OF: AN ELECTION PETITION BY: BATUKE IMENDA APPELLANT AND ALEX CADMAN LUHILA RESPONDENT CORAM: SAKALA, CJ, LEWANIKA, DCJ, CHIRWA, MAMBILIMA, CHITENGI, JJS On 11th February and .. ~r.........22^2003 cr'K.-r For the Appellant: For the Respondent: L. ZULU of Central Chambers with J. MWIMBU of Mwimbu & Co. E. M WANS A of E. Mwansa & Partners. JUDGMENT LEWANIKA DCJ, delivered the judgment of the court. Authorities referred to: 1. Nkata & Four Others Vs The Attorney-General 1966, Z. R. 124 2. Attorney-General Vs Peter Mvaka Ndhlovu, 1986 Z. R. 12 3. Attorney-General Vs Marcus K. Achiume, 1983, Z. R. 1 This is an appeal against the decision of a Judge of the High court in a Parliamentary Election Petition nullifying the result of the Parliamentary elections for the Lukulu East Constituency held on 27th December, 2001. The learned trial Judge had found that the Appellant committed the illegal practice of publishing false statements contrary to Regulation (56)(2) in that the Appellant had told voters at three public meetings which he addressed that the Respondent had stolen KI billion and fertilizer. The learned trial judge also found as a fact that the Appellant committed the corrupt practice of undue influence contrary to Regulation 54(l)©(ii) in that the Appellant had told voters that they would lose their land and fish ponds if they did not vote for him. The learned trial Judge found as a fact that the Appellant had committed the offence of treating contrary to Regulation 53 in that the Appellant and his agent gave beer and salt to voters on the day of elections, a few meters from a polling station. Counsel for the Appellant has filed three grounds of appeal in the amended memorandum of appeal namely:- 1. 2. That the learned Judge erred at law in finding and holding that the Appellant committed the illegal practice of publishing false statements contrary to Regulation 56(2), as such finding was not supported by the evidence on record. That the learned trial Judge erred at law in finding and holding that the Appellant committed corrupt practices of undue influence contrary to Regulation 54(1 )©(ii) notwithstanding the evidence adduced by the Appellant to the contrary. 3. That the learned trial Judge erred at law in finding and holding that the Appellant and RW 2 committed the offence of treating contrary to Regulation 53 notwithstanding abundant evidence contradicting such finding. In arguing this appeal, counsel for the Appellant said that all three grounds of appeal raise a single point of law, namely, the trial court's error in arriving at findings of fact on the contravention of Regulations 56(2), 54(l)©(ii) and 53. He said that he was mindful of the law that a trial court's finding on a matter of fact will not ordinarily be reversed on appeal, but only if the Appellant can show any of the following:- "that: (a) (b) (c) (d) by reason of some non-direction or misdirection or otherwise the judge erred in accepting the evidence which he did accept; or in assessing and evaluating the evidence the Judge has taken into account, or failed to take into account some matter which he ought to have taken into account; or it unmistakably appears from the evidence itself or from the unsatisfactory reasons given by the Judge for accepting it, that he could not have taken proper advantage of his having seen or heard the witnesses; or in so far as the Judge has relied on manner and demeanor, there are other circumstances which indicate that the evidence of the witnesses which he accepted is not credible, as for instance, where these witnesses have on some collateral matter deliberately given an untrue answer. " Counsel was quoting from our decision in NKATA AND FOUR OTHERS VS THE ATTORNEY-GENERAL (1). In arguing the first ground of appeal counsel said, in holding that the Appellant was guilty of publishing false statements, the learned trial Judge said that he relied on the demeanor of the Appellant and RW 2 and disregarded their evidence, but accepted the evidence of PW 2, PW 3, PW 7 and PW 9 as independent and credible. But he said that the learned trial Judge failed to warn himself that PW 2, PW 3, PW 7 and PW 9 were witnesses with a bias since they were summoned, transported to, and accommodated in Lusaka at the Respondent's expense and that PW 3 was the FDD candidate for Ward Councilor. He said that the court did not make any finding on the demeanor of PW 2, 3, 7 and 9. He said that the record would show that these witnesses were evasive for instance at pages 206 -207 PW 7 was evasive and told lies as to who gave him his land. He submitted that the evidence of the Respondent's witnesses that the trial court relied on was not credible because they deliberately lied on material evidence. Further, that the trial court failed to take into account the explanation of the Appellant at page 239 regarding the allegation that he accused the Respondent of having stolen KI billion. He said that the trial court fell into further error when it observed that the Appellant had made no attempt to show that he had reasonable grounds for believing the statements to be true. He submitted that the burden of showing such grounds for believing an allegation would only be cast on the Appellant by Regulation 56(2) if he admitted uttering any statement against his opponent. He concluded by saying that it unmistakably appears from the evidence and from the unsatisfactory reasons given by the trial court that the court could not have taken proper advantage of having seen and heard the witnesses. Turning to the second ground of appeal, counsel said that the trial court erred in believing the evidence of PW 7 and PW 9 whereas he dismisses the evidence of RW 2. That the Appellant's contention is that the learned trial judge cannot have taken proper advantage of having seen and heard the witnesses since he does not give any satisfactory reason for believing PW 7 and PW 9 but not RW 2. He further submitted that the trial Judge fell into error by relying on the evidence of PW 9 merely because his evidence had not been seriously challenged. He invited us to refer to the testimony of PW 9 at pages 227 and 228 where he admits that he missed the part of the meeting where the Appellant is alleged to have made statements that unduly influenced the electorate or when salt was allegedly distributed. He said that PW 9 was not seriously challenged because of his own admission. He further submitted that the trial Judge fell into serious error by dismissing the Appellant's evidence. He said that the Appellant gave a reasonable explanation why it was not true and even conceivable for him to threaten the villagers as alleged, since he was junior to most of them in age and status and most of them were his relatives. He said that at page 241 of the record, the Appellant explains the procedure that a subject can call upon to challenge an attempted illegal repossession of land. He said that in evaluating the evidence, the learned trial Judge drew conclusions that were not supported by evidence. That in his judgment at page 29, the trial Judge states that the Appellant told the court that "he was an heir to the throne." Whereas in his testimony at page 263 of the record, the Appellant explained that there were four families in his area that qualified to be chief and of these families he was last bom. As to the third ground of appeal, Counsel said that the learned trial Judge fell into serious error as there was abundant evidence, if taken together, showing that the court could not safely draw an inference that the Appellant had treated the electorate. He said that the trial judge decided to believe the evidence of PWs 4, 5 and 6 over that of RW 1 and RW 2. He pointed out that PW 4 and PW 6 gave different accounts of the person who was allegedly giving out salt to voters. That at page 176 of the record, PW 4 said that he found the Appellant giving out salt so that people could go and vote for his party. Whereas PW 5 at page 186 and PW 6 at page 189 stated that it was RW 2 who was allegedly giving out salt. Further, that the learned trial Judge did not make any findings of bias on the part of PW 4 and PW 6 on the basis of their friendship and membership of the same party as the Respondent. That at page 197 PW 6 confirmed his friendship with PW 4 and that they belonged to the same political party. He said that these were biased witnesses whose evidence should not have been believed. He concluded by saying that on the totality of the evidence, it is clear that the learned trial Judge arrived at the wrong conclusions and his findings on matters of fact ought to be reversed. In reply, Counsel for the Respondent said that the learned trial judge's finding that the Appellant committed the illegal practice of publishing false statements contrary to Regulation 56(2) is fully supported by the evidence on record. He said that at pages 18 to 24 of the record, the learned trial Judge went to great detail in analysing the evidence of the various witnesses in relation to the illegal practice of publishing false statements. Further that the Appellant's response to the evidence of the Respondent and his witnesses is that they fabricated the story of KI billion as well as the story of the fertiliser, this despite the fact that witnesses from different parts of the Constituency testified to these utterances by the Appellant. Inspite of the denials, and as the court observed in its judgment, the Appellant was able to tell the court that the Respondent was fighting against his own poor record. And that as the court correctly pointed out in its judgment, the Respondent's record that the Appellant was referring to was a personal one other than that of the party he represented as a Member of Parliament or candidate. He said that the further holding of the court that there was no evidence of collusion between PW 2, PW 3, PW 7 and PW 9 buttresses the fact that this evidence was credible. And that there being no evidence showing that the Appellant had "reasonable grounds for believing, and believe that his statements against the petitioner were true," the Respondent has proved conclusively that the Appellant had committed the illegal practice of publishing false statements of fact in relation to the personal character of the Respondent. In relation to the second ground of appeal, Counsel submitted that the learned trial judge properly guided himself when he found that the Appellant had committed the corrupt practice of undue influence contrary to Regulation 54(l)@(ii). He said that the learned trial Judge came to the conclusion that the Appellant had committed the corrupt practice of undue influence after considering the evidence of PW 1, PW 7, PW 9, DW1 and DW 2. That the court found as a fact that the Appellant did tell the audience at Winama and Kazauli meetings that if they voted for the Respondent, they risked losing their land and fish ponds. This, the court, found was outside "the bounds of legitimate influence." As to the third ground of appeal, Counsel said that the learned trial Judge's finding that the Appellant and RW 2 had committed the corrupt offence of treating contrary to Regulation 53 was properly founded in law. He said that the learned trial Judge considered the evidence of PW 4, PW 5, PW 6, RW 1 and RW 2 before he came to that conclusion. That the learned trial Judge found as a fact that on 27th December, 2001 the Appellant and RW 2 went to a stand where PW 5 Samba Njongolo works for David MULILA, the brother of RW 2. Both RW 2 and David MULILA are uncles to PW 5. That the learned trial Judge in his judgment analysed the evidence of various witnesses before coming to the conclusion that the Appellant and RW 2 " jointly and whilst acting together did give and produce beer and salt to people on 27th December, 2001 at David MULILA's stand." That the court went on further to state that, "the evidence shows clearly that salt and beer were given on the day of elections and at a place close to Kasheke Polling station. The purpose of this feasting was to corruptly influence the people to give their votes to the Respondent." He concluded by submitting that the evidence on record that the learned trial Judge relied on, conclusively and respectively prove the illegal practices of publishing false statements, the corrupt practice of treating. He urged us to dismiss the appeal. We are indebted to the counsel for the Appellant and for the Respondent for their submissions which have been of great assistance to us in arriving at our decision. Questions for the determination of membership of the National Assembly are governed by Article 72 of the Constitution of Zambia and Article 72(2) provides as follows:- 72 (2) "An appeal from the determination of the High Court under this Article shall lie to the Supreme Court. Provided that an appeal shall lie to the Supreme Court from any determination of the High Court on any question of law including the interpretation of this constitution. " Thus an appeal to this court on an election petition as is the case here, can only lie on a point of law. An examination of the grounds of appeal filed herein, show that the only point of law raised, if we may call it that, is that that ^learned trial judge erred in arriving at findings of fact on the allegations against the Appellant, that he contravened Regulations 56(2), 54(l)©(ii) and 53 of the Electoral Regulations. In the case of THE ATTORNEY-GENERAL VS MARCUS K. ACHIUME (3) we held that an appeal court will not reverse findings of fact made by a trial Judge unless it is satisfied that the findings in question were either perverse or made in the io absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly can reasonably make. Counsel for the Appellant has made a valiant effort to convince us that the findings made by the learned trial Judge were not supported by the evidence on record. We have perused the evidence on record and are satisfied that the learned trial Judge in his judgment analysed the evidence of the witnesses who testified before him in extensio and that his findings of fact are amply supported by the evidence on record. Issues of the credibility of the witnesses were settled by the learned trial Judge who had the advantage of seeing and listening to the witnesses and observing their demeanor. In truth, we find no merit in this appeal which we dismiss with costs, the costs are to' be taxed in default of agreement. E. L. Sakala CHIEF JUSTICE D. M. Lewanika DEPUTY CHIEF JUSTICE D. K. Chirwa SUPREME COURT JUDGE ?— I. M. C. Mambilima SUPREME COURT JUDGE 12