Namasasu v Nsungama and 1 other (Civil Appeal Cause 8 of 2016) [2017] MWSC 18 (6 March 2017)

Malawi Judiciary IN THE MALAWI SUPREME COURT OF APPEAL SITTING AT LILONGWE CIVIL APPEAL CAUSE NO. 8 OF 2016 (Being High Court Civil Case 64 of 2014 Lilongwe District Registry) BETWEEN: BENTLEY | NA MAS AS ssssccsssssnisxcasannactiacnevaoweneseenins APPELLANT AND ULEMU MSBUNGAMA.............cscccecescsesescees FIRST RESPONDENT THE ELECTORAL COMMISSION.......... SECOND RESPONDENT CORAM : HONOURABLE JUSTICE E. B. TWEA, SC JA HONOURABLE JUSTICE L CHIKOPA, SC JA HONOURABLE JUSTICE A KAMANAGA, SC JA F. Mmbwana .............. Counsel for the Appellant ETC occa cxvencwawcasasaasess Counsel for First Respondent rs F Silungwe-Counsel for the Second Respondent rs Chimtande ........... Recording Officer rs Pindani .............00 Reporter JUDGMENT Twea SC} JA This is an appeal against the judgment of the High Court sitting at Lilongwe District Registry. The appellant was an intetested party to a petition filed by the first respondent against the second respondent; the Malawi Electoral Commission. The appellant and the first respondent were among contestamts in parliamentary elections of the year 2014, for Lilongwe City South East Constituency. The appellant came first and the first respondent was a close second. The National Election results were declared on 2nd June |2014. The appellant was duly returned as the elected Member of Parliament for the Constituency. 6th June On 2014 the first respondent filed this petition under section 100 of the Parliamentary and Presidential Elections Act (PPEA). The facts 4 is important, for clarity, that we refer to them. pf this case are very peculiar. We think that it Let us seh by pointing out that the record of appeal itself was not arranged in a chronological order. We resorte filing to Once a below ¢ th for listit ensure Appeal. We nowl|c The first to isolating documents in order of the dates of understand and appreciate what happened. gain, we appeal to the Registrar in the Court ind in this Court to check appeal records and at everything is in order before submitting them ng and passing on the records to the Justices of ome back to the matter before us. respondent brought a petition before the High Court, jade section 100 of the PPEA, complaining that the appel National Elections. the style may, the there wer the petiti valid vot wrongfully that the elected as he, in his Member o order that lant was unduly returned as a Member of the Assembly in the 20th May, 2014, Tripartite This Court will refrain from commenting on or format of the petition itself. Be this as it petition sought five declaratory orders; that e arithmetical errors in the addition of votes for pner at Chilinde School Polling Station, that PS cast in favour of the petitioner were and unfairly disqualified as null and void, Alleged winner, the appellant, was not duly a Member of the National Assembly and that stead, should be declared the duly elected f|the National Assembly. Further, he sought an there be a re-examination of the null and void votes an petition. parties v 2000 responde in| t nt 1 important stipulatec “any per H that the second respondent pays costs of the This being a petition on election matters the yere required to follow Practice Direction 2 of erms of time for pleading. The second failed to reply to the petition within the period despite extension of time. It 46 to mention that the petition stipulated that on who intends to appear on the hearing of the said petition must serve or send by post ... notice in writin of his intention to do so”. Further that “any person with sufficient interest in the matter desiring declaratioa would apy not cause likewise, n them with on 26th J respondent regularities satisfaction] recount of Consent Or details of th for procurir n may appear in person or by counsel”. to support or oppose the making of the It ear that the second respondent, since it did any appearance on the petition, did not, otify any of the parties concerned nor serve the petition. However, the record shows that ne 2014, the petitioner and the second entered into an agreement that “the alleged can only be sufficiently resolved to the of the parties and all stakeholders through a the votes in the three polling stations.” A der was drawn up to that effect, which had he polling stations concerned, the procedure ig ballot boxes, the date and venue for the recount.| The consent order also stipulated that after the recount {the High Court shall draw up and communicate the order in accordance with section 100 of the PPEA. Further, |that each party would bear its own costs. The recdrd has it that on 1st July, 2014 the second respondent wrote the appellant notifying him of the recount, Venue and date. Further, he was requested to send monitors and to be present during the exercise. Naturally| the appellant was not happy about this development. He sought a stay of the Consent Order and joined as| an interested party. Naturally, again, the course of|events thereafter was charged with emotions. It is our view that all this would have been avoided had the second respondent informed all the interested parties: the other contestants, their sponsors, according to its record, and the public generally of the petition. While we agree with our brother judges in the case of Loveness Gondwe and Malawi Electoral Commission v Catherine Gotani Nyahara MSCA 3 of 2005, that section 100 of the PPEA does not require that the front runner in elections should be consulted; it is trite that other contestants be made aware of the challenge to the election and allowed to be represented should they so wish. This|was clear from the text of the petition, it also reflects the spirit of sections 73 and 89 on the rights of representatives of candidates, their political parties and, indeed, df any voter who may have doubts or complaints about the voting process. In this case, the second respondent failed to notify the other candidates of a complaint brought by the petitioner. It was clear that the rights of the other contestants, more so the front runner, who has| been returned as duly elected, would be affected. The Court below was aware of this default and said at page S of the Judgment that; “Wher the petitioner challenged the results of the election, it was only the interested party that showed interest and no other political parties representative or independent candidates. The assumption is that the other parties were not interested in the outcome, howev¢r, this could be a costly assumption on the part of the Court. This Court leaves the matter of who will conte st in this re-run to the respondent.” It came to|pass that while the date for the re-count was awaited destroyed it} was alleged that the ballot boxes were in a fire. We have used the term “alleged” because there was no evidence proffered about the fire, or what wa IS destroyed. However, what is important at this point] is that the parties herein instead of regularising the petition, in terms of who else would have interest in the matter, never did so. Instead the parties sought an order for direction from the Court below to the exclusior] of the other interested parties. The order for directions gave a time frame for filing and serving supplementary affidavits. The Order for Directions not only excluded the other interested parties, but also widened the scope of the petition. The parties filed extra affidavits jand exhibited documents. After the Court below heard the parties it found that: The “The parties have all filed extensive affidavits with various attachments. It was submitted by the petitioner that the affidavits filed by the respondent and inlterested party go beyond the irregularities raised by the|petitioner. The Parties prayer is that the Court should consider all the documents and make determination. However, after a perusal of all the affidavits and the attachments, thereto, I am afraid that I }am of the strong view that would be a very difficult exercise for the Court for a number of reasons. ed Court below then went on to. give four demonstratjable reasons why it would be difficult to make a determination. Among others, the Court below found that: there) were more polling stations involved, the authenticity of the documents was questionable, the volume of documentation illustrated that the case should not be disposed of on mere review of the papers presented, and finally, based on the affidavit of the late Chairper determin equity ar the view son of the second respondent, that a ation based on documents would not achieve id fairness. The Judge in the Court below was of that the irregularities may have been just a tip of the i¢eberg, and that reliance on unauthenticated documen ts could result in total miscarriage of justice. Let us mention that the Judge was criticised for her views on the authenticity of the documents. However, during s mission in this Court, both the appellant and second respondent cast doubt on the authenticity of the documents exhibited to the affidavits of the first respondent; the petitioner. It is clear to us therefore, that the Judge was right on the point. In the absence of cross-examination the Court below and, indeed this Court, could not and cannot indulge in the exercise of picking and choosing which documents to rely on. In conclusion the Judge held that: “while this Court has not established the certainty of the difference in the votes between the two parties what is|clear is that the Petitioner has established that there were irregularities and that such irregularities could affect the election result. The Court would like to mlake it clear that this finding by no means seeks to declare that the Petitioner is or be declared the final winter in the said Constituency but that the irregularities are so glaring that any reasonable person would question the results thereof. In the circumstances, and a recount having been frustyated, there is only one course of action left, a re- run of the elections. And I so order.” The Court election Constitue The appel | below then went on to nullify the results of the in respect of Lilongwe City South East ney. ant appeals against that judgment. There are seven grgunds of appeal. However these can be summarised into three: that the Court below did not appreciate|that the standard of proof in election cases is to the satisfaction of the court, that although the court found that| there were irregularities, it did not find that the irregularities could have affected the results of the election and, lastly, that the judgment of the Court below was against the weight of evidence. We had e ratio deci arlier, in this judgment, analysed what the ed of the Court below was. The Court below pointed out|clearly that it did not establish the certainty of the finding |of collated judgmen the docu was of the just the tip difference in votes between the parties. iments before it. 10 The the Court below, on this point, should be to the reasons that it set out earlier in its t on why this case could not be determined on The Judge in the Court below view that what came before it may have been of the iceberg. Before wé leave this point let us briefly look at the quality of the evidence. First and foremost, we must point out that the PPEA and, indeed other election statutes, have inbuilt dispute resolution judicial oy workings These sheets for 93, and a ine section 91 polling, for provides fot expressly 4 record a for provide for 93 (i) (vii) ar rersight. mechanisms. The mechanisms are subject to The PPEA provides in section 70 for items that each polling station must have. lude authenticated voters’ registers, record recording results in accordance with section log book to record formal complaints. In it provides for the classification of votes, after the purposes of counting. In section 89 it r complaints system and recording thereof. It prohibits election officials from refusing to mal complaint: section 89 (2). In section 93 it the recording of the polling process. Section id (viii) expressly provides for the recording of complaints 11 and their resolution and of any other occurrences which the _ polling station considers important or significant. Section 113 provides that complaints can be resolved at a lower level. That is, at the level of the polling station, or returming officer or the Commission. If any party is aggrieved by the decision of the Commission, it has a right to appeal to the High Court under section 114 of the PPEA. Further section 97 provides that before determining the national result the Commission is required |to analyse the complaints and resolutions thereof and to examine the null and void votes. The decision jof the commission at this point is_ still appealable to High Court under section 114. The determination by the High Court of an election petition under section 114 of the PPEA is final: section 114 (5). When the national results have been determined the right to cdmplain is reserved to the person who had a right to be open for re or voters, exercisable elected or was a candidate. It is no longer presentatives of a candidate or political party generally, to file complaints. This right is under section 100 of the PPEA and the decision of the High Court in such a petition is appealable to the Supreme Court. 12 We have taken the trouble to go to this length because we want to make it clear that the Electoral Commission is the |highest tribunal in the dispute resolution mechanism over elections disputes before judicial oversight. The Constitution, in section 76 makes it clear that the| Electoral Commission has the mandate to determine petitions and complaints over elections. Thereforg proper documentation of complaints, their resolutiom and record keeping is essential. The Electoral Commission must embrace its Constitutional mandate, as the tribunal. It is not an administrative body in respect ofjelection complaints. The onus| to document complaints therefore is on the second respondent. The cases that have been cited in the skelejfon argument demonstrate that the second respondent has not been meticulous in documenting election camplaints, their resolution or record keeping. This is illustrated in the case of Laston Thawale v Phillipa Chinkhondo and Electoral Commission Miscellanegus Civil Cause 41 of 2009, Lilongwe District Registry, Mzikamanda J, as he then was, dismissed a petition on rounds that there was no proof of the source of the complaint and that documents exhibited were not signed. Further, in the case of Loveness Gondwe and 13 Malawi \Electoral Commission v Catherine Gotani Nyahara (Supra) this Court allowed the results to stand notwithstanding that some result sheets were not signed. It is clear] in the present case that complaints were not properly logged. The affidavits of the officials, from the second respondent illustrate this. The affidavit of the late Justi¢e Mbendera SC, as Chairperson of the second respondent, averred in paragraphs 3, 4 and 5 that the irregularities were drawn in its attention, but that, for want of time and the sheer volume of complaints to determine, proper investigations were not conducted. In paragraph|6 he acknowledged that there “appeared to be something wrong with the authenticity of the result sheet.” He therefore encouraged the parties to challenge the results. The affidavit of Mr Lellie Longwe, the Deputy Elections Officer of the second respondent, only dealt With the verification exercise after the petition was filed. lt makes no reference to complaints before the national results were determined. The affidavit of Mr Willie Kalonga, the Elections Chief Officer of the second respondent, averred that there was no complaint lodged. He opined that since the election monitors for the first respondent |signed the results sheet they should have been in agreement with results. This was pure conjecture complaint: are incling she accept individual with sectid and the sk v Electora upheld the re-run the found to keeping of for the cou were cond fair. The seconc pleaded wa Court did ; result. The appelle this Court “non comp of the PPE, address us leer volume of work. r - 14 on his part. We are of the firm view that 5 were made, but no record was kept. We thus d to accept the finding of the trial Judge when ed the evidence of the late Chairperson; that complaints were not dealt with in compliance n 97 of the PPEA because of time constraints In the case of Chikweza t Commission (1994) MLR 36. Mkandawire J determination of the Electoral Commission to election after documents and records were missing. Proper documentation and record the electoral process are therefore paramount irt to determine whether or not the elections acted in a regular manner and were free and 1 ground, cumulatively, which the appellant is that there was no irregularity or that the not find that the irregularity could affect the unt in his submission sought to impress on that “irregularity” should be read to mean liances with the Act” as defined in section 3 A. Despite of our invitation that he should jon the full import of the section 100 of PPEA; 5 that is, that a complaint could be filed “by reason of irregularity or any other cause whatsoever”, counsel declined We therefore, to do so. do not find any justification for limiting the reasons for filing a petition under section100 of the PPEA. Further, we find that the appellant did not refer to the four reasgns, among others, that the Court below found The only criticised the Court below for relying on would nat allow it to make a determination. appellant the affidavit of the former Chairperson of the second respondent; late Justice Mbendera SC, than that of Mr Lellie Long below did fwe. We therefore find that although the Court not establish the differences in votes between the parties that could vote count the decisio We would ; it found that there were glaring irregularities have affected the results. The difference in the and conclusion thereon were not material to n of the Court below. go further, that even if we take the argument of the appellant to its logical conclusion, we find that both he ar bas documents count were allege affidavits id the second respondent only relied on vote sed of the They did not, at all, refer to the votes that on re-computation available dly wrongfully declared null and void. Their bnly averred that the ballot boxes were destroyed that the establish results. failed to results. We take r an order the destru on how th We would loss of thi parties. H that the la use of seq respect of process wé a surprise had been left was al Even in th resolve th respondent for direction. 16 by fire. In their submissions both submitted pnus was on the second respondent to prove or that the irregularity complained of affected the Their case was that the second respondent establish that the irregularities affected the hote that this case proceeded after and following In that order, apart from citing uction of the ballot boxes, no decision was made e issue of the lost evidence would be dealt with. like to mention here, for the record, that the p evidence was treated very casually by all the owever, it should have been clear to all of them st evidence was material to the case. While the rondary evidence was open to the parties, in the vote count, all the issue on the voting pre subject to proof. It does not come to us as that the Court below found that the re-count frustrated and that the only course of action re-run of the election. s Court the parties had no solution on how to =} Le issue of the lost evidence. The second | in its closing submission said: 17 “2. Ibue to fire that destroyed the evidence from the warehouse, there is no way of determining whether votes were wrongfully and unlawfully declared as null and yoid... in that regard, the Supreme Court should provide direction on the issue.” The lost| evidence was in the custody of the second responden t. It had a statutory duty to preserve all the electoral |materials and deposit them with the Clerk of Parliament: section 119 of PPEA. It was therefore under a duty to ascertain, explain what happened, in so far as it could for the purposes of this case. It did not. The Court mejow therefore had no basis on which it could exercise ifs discretion in favour of the second respondent. In the circumstances, the second respondent cannot claim that irregulariti election. the first respondent failed to establish that the es could have affected the results of the This Court takes a cue from the ordinary position of the law as determined in the judgment of Cram J in the case of Nyasaland Garage v Commissioner of Taxes 1961 - 63 ALR Mal. 132 at pages 133 and 135. In that case the appellant claimed that it was deprived of its business books through no fault of it reduced by accountant. S own, and sought to have its assessment y using a statement prepared by a qualified The Court said: The In. this ¢ ballot box respondent. extension, to establis results of allege destruction of ballot boxes in a fire. “The 18 onus is upon the appellant, by satisfactory evidence, to show that the assessment ought to be redu ced or set aside. That is the appellant has to attain the standard of proof in a civil suit to prove his case. book from circu When the evidence of the appellant and his s are satisfactory, the burden of proof is shifted the appellant to the Commissioner. The consi burde Cour mstances that the facts are peculiary within the ei ledge of one party is a relevant matter in dering the sufficiency of evidence to discharge a en of proof.” t held that: “the fact that available evidence has not been led leads to a reasonable presumption that it would not be favourable to the party withholding it...” ise the first respondent never got to see the es which were in the custody of the second The second respondent and, by necessary the appellant cannot claim that he has failed n that the irregularities could have affected the the election. It was not enough for them to These are security documents which had to be kept secure for twelve months: section 119. It was incumbent on the second 1 due toa The stat ballot ba to] the 7 results. of the va therefore should upheld al finding t Member Constitue We have « the conse party sho notified b exercise } unfortun right over declared resolved w order that te and the electoral system. us right. 1S respondent to show that the destruction was not ny fault on its part. lutory requirement for the preservation of the xes and electoral materials, is to ensure fairness arties in the event of a dispute over election This is fundamental to safeguard the integrity It is our judgment , that the finding of the Court below that there a re-run of elections in this Constituency be nd confirmed. For avoidance of doubt it is our hat the appellant was not duly elected as a of Parliament for Lilongwe City South East ney. ronsidered the issue of costs. It is our view that nt order of 265 June 2014 stipulated that each uld bear its own costs. The appellant was duly ly the letter of 1st July 2014 and invited to Had it not been for the appellant e stand, to assume that he had a superior other contestants just because he had been the winner, this dispute could have been ithin the confines of the PPEA. We therefore the appellant should pay the costs. 20 Pronounced in open Court this 6 day of March, 2017 at Lilongwe. Signed... THE Signed:...|.....cccccccssssseeeee SPSCHS CCR See eee eT HHT H TETHER EEE O EHO HSE EEE EES THE |HONOURABLHE JUST, L CHIKOPA, SC JA