Harry Sinkala and Anor v Mukwasa (Appeal 180 of 2002) [2003] ZMSC 114 (17 September 2003)

IN THE SUPREME COURT FOR ZAMBIA Appeal No. 180 of 2002 HOLDEN AT LUSAKA ,, ,n,nIA,^Tlnx 11^ 4 4V>i > ) iMTT-rr MATTER OF: THE ELECTORAL ACT CAP 13 OF THE LAWS OF ZAMBIA AND IN THE MATTER OF: AN ELECTION PETITION FOR ISOKA WEST PARLIAMENTARY CONSTITUENCY BETWEEN: HARRY SINKALA 1st Appellant ELECTORAL COMMISSION OF ZAMBIA 2nd Appellant AND DAU I) I M. MUKWASA Respondent CORAM: Sakala, C. J., Lewanika, D. C. J., Chirwa, Mambilima and Chitengi, JJs. 26lh March and 17th September 2003 For the First Appellant - Mr. E. Silwamba of Erick Silwamba and Co. For the Second Appellant - Mr. J. Jalasi, Principal State Advocate with Mr. M. Haimbe Senior State Advocate For the Respondent - Dr. J. M. Mulwila of Ituna Chambers JUDGMENT Sakala, C. J., delivered the Judgment of the Court. Cases referred to: - 1. MLEWA v. WHIGHTMAN (1995 -1997) ZR 171 2. AKASHAMBATWA MBIKUSITA LEWANIKA AM) OTHERS v. CHILl'BA SCZ/8/EP/3/96 I tI’a W of Mimn .,-bo...........o I.,-..-I -If- -- ----------II--------------------------- I .1 .............. - ....................... .................’ ............................................. CO. > > V out ujiu< uiv juu^iUCiil Ui lilU illicit k-Uuii diiU UCLUllliii 1CU cillU declared that die appellant, Mr. Harry Sinkala, was the duly elected Member ui raiiiaiHciu iui me ibOKa west constituency, un costs, we pointed out mat on the facts of the case, the second appellant ought to pay the costs in this Court and in the Court below and we so ordered. We indicated then that we shall give our reasons for the decision in a written Judgment. We now give our reasons. This is an appeal from a Judgment of the High Court in an election petition in which the trial Court held that the appellant was not dully elected Member of Parliament for Isoka West Constituency because the election was not free and fair. The Court ordered that costs be paid by the appellant. For convenience, we will refer to the first appellant as the first respondent and second appellant as the second respondent and the respondent in this appeal as the petitioner, which designations the parties were in the Court below. The facts of the petition and the answer as pleaded-and testified to are short and not in dispute. Both the petitioner, the 1st respondent together with others were Parliamentary Candidates in the tripartite elections held on 27th December 2001 for Isoka West Constituency. The Petitioner stood on the ticket of the United National Independence Party (UNIP), while the first respondent stood on the ticket of the Movement for Multi Party Democracy (MMD). It was common cause that the voting took several days in a number of the Polling Stations of the Constituency. The winner, the 1st respondent, was declared winner by 232 votes on the 1 7Ih of January 2002, over three weeks after the 27,h of December 2001. It was also common cause that sometime before the 27,h December 2001, the petitioner approached the Returning Officer for Isoka West Constituency to inquire whether he could rninnnion »n f'Prtntn I'hdrirtc fhnt fr»ll >> »-> <-4 •• Inobo * - .................. ......... . .... v. . -hi, . 1 MV uv i.cxo uiai lie onuuju uca campaign m uiU5C LJi^UiCld. It was not m dispute that voting did not take place in seven Districts of the Isoka w Cii <-oiiiiiiuciic v iui leasunsui logistical prooiems. The learned trial Judge considered the pleadings and the viva voce evidence. He also considered the submissions by both learned counsel. Thereafter, the learned Judge set out the provisions of Section 18(4) of the Electoral Act which state “No election shall be declared void by reason of any act or omission by an election officer in breach of his duty in connection with an election if it appears to the High Court that the election was so conducted as to be substantially in accordance with the Provisions of the Act and that such an act or omission did not affect the result of that election ” The learned Judge then posed the following question: “Applying that to the instant situation where Mr. Mukwasa, the petitioner genuinely sought advice from the Returning Officer and suffered disadvantage in the process, could it he said that the petitioner would he caught in the provision of Section 18(4) referred to?" The court found that the case for the petitioner was not caught up by provisions of Section 18(4). According to the trial Judge, the position would nave neen (inierem had thp Officer briefed cd! d<<_ uundidaic^ and ::*.fy ‘d.. , Z.t___ h^d i nt cuuh iuuiiu uiat since it was only me petitioner who sought guidance from the Returning Officer, he was d^ uuv ouiTcied a disadvantage at me eno ot n all. The trial Judge concluded tiiat on me balance of probabilities, he was satisfied on the evidence that it would not be said that the election was free and fair. He allowed the petition with costs. At this juncture, we must observe that apart from the brevity of the judgment, the court did not make the appropriate order prayed for in the petition namely; determining whether Harry Sinkala was not duly elected or returned and that the election was void. In our view, it is not enough simply to say, “I allow the petition with costs”. The court must have gone further to make the appropriate order or orders prayed for in the petition. The Court held that the first respondent was not duly elected Member of Parliament for Isoka West Constituency because the election was not free and fair. The respondents appealed against that holding. The memorandum of appeal contained three grounds of appeal. At the hearing of the appeal, only two grounds were argued, the first ground having been withdrawn. The two grounds argued are that the Court erred in law by nullifying the elections on the ground that the Returning Officer misled the petitioner without the Court establishing that the Returning Officer had a duty to the petitioner under the Electoral . Act and that the Returning Officer acted contrary to that duty and that the failure to act substantially affected the election results; and that the Court below misdirected itself in fact and in law by nullifying the election on the grounds noi qnnnnripd hv pvidpnr*-* rApnj-d n^t r’.’.p port cd by the emetine, _ . .. . .... ...... U1 Uvuuu.1 IO LliC UiL>.lUial 1 wl, cap 1J oi me Laws ol Zambia. i5oin ivir. Miwamoa and Mr. Jalasi tiled written heads of arguments in addition to oral submissions made in Court. The gist of the arguments by both learned Counsel on the first ground argued was that the appeal should be allowed because the defence evidence established that the misnomer and or inaccurate description of the Polling Districts in the Isoka West Parliamentary Constituency affected all the candidates; that the viva voce evidence of the Petitioner clearly showed that the Petitioner was cognizant of the fact that Nzoche and Kanyala Districts in Mpungu Ward were in Isoka West Constituency; that the boundaries of Isoka West Constituency as commonly understood were appreciated by all the candidates; that the trial Judge misdirected himself when he held that the Petitioner was disadvantaged by the Returning Officer and declared the election void without satisfying himself that the alleged conduct substantially affected the results and was not in substantial accordance with the provisions of the Act; and that the trial Judge did not go further to determine how, if at ail, the alleged disadvantage affected the election results. Both Counsel contended that on the basis of the guidelines laid down by this Court in MLEWA v. WHIGHTM AN(I’ the type of wrong doing or non-compliance that renders an election null and void is the wrong doing or non-compliance of a scale which has adversely affected the results. It was submitted that the court below did not show how the results were affected or how the Petitioner was disadvantaged. It was further argued that no evidence was led lo simoon ihp ailpnutinn thqt vntnrc k.- ' " ........ C> ' • > ... - • - ” '-♦>-> n, viUJj-ivAuuillUUllUll Ui 1 lUUl seven ruiiiug Stations feii in Nakonue Constituency and therefore had no c<j mv iCdUlld ill ISUKcl VV ebl V,O1 Ibtl LUCllC V. Both learned Counsel drew the attention of the court to the provisions of Section 37 of the Electoral Act, Cap 13 in relation to validation of certain documents. It was submitted that the Petitioner having failed to establish non-compliance with the Electoral Act or substantial non-compliance, the appeal should be allowed. The gist of the arguments and submissions on the second ground argued before us by both learned Counsel was that Section 18 (2) (b) of the Electoral Act was never pleaded as the petition was presented in terms of the provisions of Section 18(C), 19 and 20 and the inclusion of Section 18 (2) (b) in the submissions was a radical departure from the case that was advanced by the Petitioner. It was, thus, submitted that the learned trial Judge annulled the elections on a non-existent ground of free and fair elections. Additionally, it was submitted that the trial Judge misdirected himself in law on the applicable standard of proof in deciding Parliamentary Election Petition as set out in AKASHAMBATWA MBIKUSITA LEWANIKA AND OTHERS v. CHILUBA(2) namely; “a standard higher than as a balance of probability" which the trial Judge applied. Dr. Mulwila, on behalf of the Petitioner, also Piled written heads of argument. Dr. Mulwila conceded on the first ground argued that the inncpiinripc nnd mic-rlp?rnr*tmn > r< .... • » * • "• - | •• w.fc_ , i »->4 ,r>c n ~ a * *- W V w M * A VI a X- Sr V*4 A Vi A Va va IV- «3 a -->11 J: 4 anu Ulul 11'- U. K. UU LUV. JuuuujJlUUJ UddUU Ull U iUdC glUUiiUd- lie pointed out however that his concern was that the inaccuracies and misnomers wuic going tu nave a uuaimg on me costs, tie conceueu mat a misnomer under Section 3 / oi me Electoral Act, cannot affect the results of an election. Dr. Mulwila argued that on the evidence on record, the Petitioner was told to go and campaign in Nakonde Constituency comprising of ten Polling Districts; while ballot papers from three Polling Stations out of the ten were nullified. He again conceded that the wrong documents affected all the candidates but that the misdirection by the Returning Officer only affected the Petitioner. On the second ground of appeal argued before us, Dr. Mulwila also conceded that Section 18 (C) pleaded in the petition does not exist in the Electoral Act but that although the pleading was wrong, it should read Section 18(2) of the Electoral Act on which the grounds in the petition were based. According to Dr. Mulwila, Section 12 of the Electoral Act, relating to the Election Commission imposes a duty on the Returning Offer in supervising the Elections. On standard of proof. Dr. Mulwila urged the court not to fault the Judgment on the basis of a technicality because the lower Court meant proof higher than the balance of probability. We lake note that the written heads of argument in response to the first ground of appeal argued before us were based on Section 18 (2) (b) ol the Electoral Act which Dr. Mulwila fairly conceded was not pleaded. We therefore find it unnecessary to go into the written arguments based on that .section, We also nnre i hat even »n re^p^nding th? second ground of appeal , i _ _ <•->, x . m « ' • • ' .... Xilju ux»»uka^ki LU ownvHi io ) V u A CO 11LC11U11 ig dial by citing Section 18 (4) of the Electoral Act, the trial Judge left no doubt biuunu uiidvi which hu Huimicu me eiecuon was section 16 (2) (0). We have examined the arguments and submissions by all the learned Counsel. We have also considered the judgment, the pleadings and the evidence on record. The election according to the judgment, was nullified because the Court was satisfied on the balance of probabilities that the election was not free and fair. Both learned Counsel have criticized this holding on two grounds. First, that the Court applied the wrong standard of proof. Dr. Mulwila agrees with this contention but contends that the judgment must not be faulted on merely a technicality. We cannot accept this simplistic approach. Standard of proof cannot be said to be a technicality, particularly in an election petition where serious allegations are made against a respondent. The second criticism against the reasoning of the trial Judge is that the “rhetoric” that the elections were not fiee and fair upon which the Court nullified the results of the election is not a ground supported by existing elections law to nullify an election. We agree with this argument. This is vindicated by the trial court’s failure to cite any law. The criticism was very well founded. As we see it, this case was poorly pleaded resulting in a simplistic judgment which cited no specific provisions of the Electoral Act as the basis for nullifying the result of the election. The petition was purportedly brought, as per heading, under Sections 18 (C), 19 and 20 of the Electoral Act. Cap 13. Section 18 (C) does not exist under the Electoral Act. Dr. Mulwila agreed and he was right. Section 19 talks of who may present election petition; while '?() cpw mu rpiipi'c which m/iy be claimed m an clcctio;: pvuuun. y'h s. *v, A. • - *. to ut) mill Hum! jlliU U1 Cl CC Li Oil I CbU i lb. Avuiduiivc u/cicciiuiib ib pioviueu ior m becuon i d (2) oi me Electoral Act. Mr. Miwamoa ano Mr. Jalasi have vehemently submitted that this Section was not pleaded. They contended that to consider it now, when the petition has not been amended would be a drastic departure from the practice governing pleadings. We agree. Dr. Mulwila too agreed that Section 18 (2) was not pleaded; but contended that the grounds as stated in the petition were based on Section 18 (2) (b) of the Electoral Act. He argued that by referring to Section 18 (4), the Court was alive to the fact that the Petition was based on Section 18 (2) (b). ?M1 we can say is that this is a novel way of amending pleadings by inference. Section 18 (2) (b) of the Electoral Act, Cap 13 reads: (2) The election of a candidate as a member of the National Assembly ' shall be void on any of the following grounds which is proved to the satisfaction of the High Court upon the trial of an election petition, that is to say - (b) “subject to the provisions of subsection (4), that there has been a non-compliance with the provisions of this Act relating to the conduct of elections, and it appears to the High Court that the election was not conducted in accordance with the principles laid down in such provisions and that such non- compliance aff ected the result of the election; ” Il must be staled that the whole petition as pleaded does not raise the issues of corrupt or illegal practices. It only alludes to non-compliance with the nmvicmnc nt thn Act *n th? C2. SC, th? Court fb'Jl'.d the advice uj «...- omuci, vwucn was acuepicu a^ not Deing correct, disadvantaged lite Petitioner. ine contention on behalf of the respondents was that the trial Judge misdirected himself when he held that the Petitioner was disadvantaged by the Returning Officer and declared the election void without satisfying himself that the alleged conduct on the part of the Returning Officer substantially affected the results and was not in substantial accordance with the provisions of the Act. We agree with this contention. We also accept the argument that the trial Judge never determined or made a finding of how; if at all, the alleged disadvantage affected the election results. In our view, the provisions of Section 18 (4 ) which state that: (4) “No election shall be declared void by reason of any act or omission by an election officer in breach of his official duty in connection with an election if it appears to the High Court that the election was so conducted as to he substantially in accordance with the provisions of this Act, and that such act or omission did not affect the result of the election. ” were in favour of the respondents. For the foregoing reasons, we allowed the appeal, set aside the judgment of the High Court and determined and declared the 1M Respondent, Mr. I larry Sinkala as the duly elected Member of Parliament for the Isoka West Constituency. We ordered costs against the 2nd Respondent despite the result of the appeal because part of the confusion in the Constituency was canned by the 2"“ Respondent hy providing documents which showed constituency. They also failed to deliver ballot papers to some of the Polling ui dumc ui uic i uHHig uisuicis in me 1VLO. D. M. Lewanika DEPUTY CHIEF JUSTICE . lu... D. K. Chirwa SUPREME COURT JUDGE I. C. Mambilima SUPREME COURT JUDGE P. Chitengi SUPREME COURT JUDGE I I 1