Kaira v Namugala and Anor (Appeal 131 of 2002) [2004] ZMSC 132 (19 August 2004)

MIKE KAIRA vs CATHERINE NAMUGALA AND ELECTORAL COMMISSION OF ZAMBIA^ SUPREME COURT Appeal No. 131/2002 Coram- Sakala, CJ, Lewanika, Da, Chirwa, Mambilima and Chltengi, JJS On 12th December, 2002 and 19th March, 2004 Flynote Parliamentary election petition-effect of misdescriptions and errors in election documents standard of proof in election petitions, election judgment to be based on matters pleaded by parties. Headnote The petitioner challenged the election of the Respondent as Member of Parliament for Isoka East Constituency on the ground that he did not campaign in some polling areas as the Electoral Commission documents showed that the areas were in another constituency. Held: L For an election to be nullified on account of non compliance with election laws it must be fished that the non compliance affected the election results and the winner ispartiallyjfauoured trough the non-compliance. ............. . -■. Sj •■■as. ^^-WdjJscritionrofJiaundari^desw^ ^^■^t^uiredin criminalxases..- -—=——------- -------- -------- beyond thTbaiancexf p7obabilities-but not be^nd-reasonable . r e Petitioner: Dr. J. M. Mulwila of Messrs Ituna Partners for the 1st Respondent. Hon. Silwamba of Messrs Eric Silwamba & Company Mr. Hakasenke of Messrs Hakasenke & Company 2nd Respondent: Mr. Jalasi Principal State Advocate Cases referred to:- 1. Waghorn Vs Wimpey & Company Limited (1969) 1WLR1761 2. Akashambatwa (unreported). Mbikusita Liwanika and Others Vs Fredrick Jacob Titus Chiluba SCZ/8/EP/3/96 S^ala Vs Electoral Cormpission of Zambia and Daudi M. Mukwasa Appeal No 18 of 2002 (Unreported) Legislation referred to:- Electoral Act Chapter 13 of the Laws of Zambia Section; 18(2)(b), 19,20,30 and 37. ; JUDGMENT JS, delivered the Judgmenfof the Court i- $Ve the reaso^ShaH ----t•: 7—?........ heardihit - 1 mis jU(j We s^aH refer to the first Appellant and the second Appellant as the first and second nt and the Respondent as the Petitioner, which is what the parties were in the court below. ^efacB; —|soka EastPad'—ticket of the United National Independent Party (hereinafter referred to a UNIP) lost the seat to the first Respondent who stood on the ticket of another political party called the Movement for Multi-Party Democracy (hereinafter referred to as mmd). As a result of his loss, the Petitioner brought this Pmih™ ElectoralAct,Capl3oftheLawsof« grounds which stimulated the petition are cntned o .legations read as follows:- “ " P3ragraphs 7 to 10 the Petition. These M Resp°ndent'The 7. Your Petitioner states that Catherine Namugala was not duly elected as the election was not fairly " conducted and was done in violation of the Electoral (General) Regulation 1991. . Your Petitioner states that the Returning Officer gave secret briefing to the MMD candidate and her agents. 91 Your Petitioner further states that his supporters were confused because the Returning Officer told ^em that although Mpungu Ward was designated under Isoka West Constituency, theregistered voters ln that Ward would be voting for the Parliamentary and Presidential candidates under Isoka East Constituency but the Councillor under Isoka West Constituency. “■Your Petitjoner states that many voters were disenfranc ise _ h‘ d becausewoting did not start until ear)y jn the mornin^ hours anddosed at 17:00 hours. A lot of peop e w o • toqshprt^;^ ^leftBen voting starte^^^ Wording to the Petitioner, the Fast-Parliamentary Constituency “"W manner. The Petitioner averre he would brief all the polling aS®" ^oration with some NGOs like FOR 1t was not duly electeSMember of Parliament-for-the =- the second Respdhdehtcdnducted the elections in an re Returning Officer had promised to call a meeting at •his was not done; instead a meeting was arranged, in the Office of the President, for the Petitioner and her petitioner and his witnesses alleged that on the voting day, voting started late in a number of polling stations. For example at Kalyanani polling station voting had not began by 12:00 hours. The petitioner then complained about what happened in Mpungu ward which has 1845 registered voters and six polling stations. He testified that according to the documents issued by the second Respondent, Mpungu ward is in Isoka West Parliamentary Constituency with six polling stations, namely Nzoche, Kanyala, Kasoba, Mwenimpangala, Chuba and Nachisitu. Despite these polling stations falling under isoka West Parliamentary Constituency, the candidates in Isoka East Parliamentary Constituency were to campaign in Mpungu ward. The Petitioner complained that this caused confusion. The Petitioner said there was also confusion as to the number of Isoka East Parliamentary Constituency and Isoka West Parliamentary Constituency. One document issued by the second Respondent refers to Isoka East Parliamentary Constituency as number 85 and Isoka West Parliamentary Constituency is numbered 86. In yet another document, issued by the second Respondent, Isoka East Parliamentary Cosntituency is numbered 85. This second document shows that four of the six polling stations in Mpungu ward are in Constituency 86. On the voting day, Kasoba, Mwenimpangala, Chuba and Nachisitu, though under Isoka West Parliamentary Constituency, were placed under Isoka East Parliamentary Constituency. Only Kanyala and Nzoche remained in Isoka West Parliamentary Constituency. The first Respondent denied the allegations levelled against her. According to the first Respondent and her witness, Royd Munkondya (PW1), who was also her Campaign Manager and MMD District Vice Airman, Campaign Camps were established in the Isoka East Parliamentary Constituency manned by Constituency officials. Officers from the Office of the President were not involved in the first Respondent's campaign. elections, the second Respondent organized a briefing for interested, parties at Muyo®^ ld<d not attend this briefing.. :JL -S'. - MUV°m ' H through written'advertisements. RW3 Sm- ^notT"18^ the briefings were to be given, were ma e statjons in Mpungu ward, RW3 testifyMMD candidate and her agents secretly. On t e p Mwenimpangala, Chuba Na for purposes of presjdential and Parliamentary . S^u P°Hing stations, belonged to Isoka East Parliame Only Nzoche and were verbally told of the 6 °nged to Isoka West Parliamentary Constituency, e arrangement relating to the polling stations in Mpungu ward Thprp u beginning late in the isoka East Parliamentary Constituency. AH Vote^X^^ \A/hen dealing with the allegations levelled a^inct +k« x „ rh them seriatim He dM|t. „ flrSt ResP°"dent, the learned trial Judge did not de3l with them seriatim. He deal with allegation number 8 first, then 10 and lastly 7 and 9 together because, according to the learned trial Judge, they were more or less inter related. The learned trial Judge found allegation number 8, to the effect that the first Respondent and her agents had a secret briefing with the Returning Officer (RW3), not proved. The learned trial Judge also found allegation number 10, to the effect that voters were disenfranchised, not proved. However, the learned trial Judge found the allegation relating to non-compliance with Electoral Regulations and confusion caused by the Returning officer proved. The learned trial Judge discounted evidence by Mr. Munkondya (RW3) that for purposes of Presidential and Parliamentary elections voters in Kasoba, Mwenimpangala, Chuba and Nachisitu, though registered in Mpungu ward which is in Isoka West Parliamentary Constituency, voted in Isoka East Parliamentary Constituency. The learned trial Judge found that voters registered in the four polling stations we have referred to above voted in a different constituency in which they were not registered. As a consequence, the learned trial Judge held that the second Respondent breached Section 6 of the Electoral Act by allowing voters registered in Isoka West Parliamentary Constituency. Section 6(1) of the Electoral Act reads:- , “Subject to the provisions of this Section and Section seven, every person who is registered in a register j voters for constituency shall be entitled to vote at a direct election in that Constituency." i i k^theEle^^^^ ’or the purpose of determirj^this "-E'EE- ; S^'oji 7 of the Electpraractr^-^^ ; • • : • J ------- ~__-uiortnral Act by a I lowing'voters registered in 6cause the secpnd^espondenbE^^ West Parliamentary Constituency to vote in Isoka a 'J^ge held that the election of the first Responden , Par|jamentary Constituency, the learned was not at fau|t herse|f, could be nu||ify the first Respondent's election 'ledunder Section 18(2)(b) of the Electoral Act an । erof Parliament for the Isoka that the first Respondent was not duly elected as Mem arnentary Constituency. The Respondents now appeal to this court against the Judgment of the court below. W7f ™| weAPPeal With SWen er°Unds °f a^al but * (4) H 71 "7 faCt Er°Unds °f 3ppea' ara grounds (1)(2) and . Grounds (3)(5)(6) and (7) are basically elaborations of grounds (1)(2) and (4). Ground (1) of Appeal reads:- The learned trial Judge erred in Law and in fact misdirected himself in finding that he was convinced that the provisions of Section 18 of the Electoral Act Cap 13 under which this petition is based is Section 18(2){b), and that the Petitioner s (Respondent's) case was in summary alleging that there was non- compliance in this case with the provisions of the said Section 18(2)(b) of the Act for non-compliance with the Law by the Electoral Commission of Zambia, when Section 18(2) was never pleaded by the Petitioner (Respondent) who brought his petition under Section 18(c), 19 and 20 of the Act. Ground (2) of Appeal reads:- fhe learned trial Judge erred in Law and in fact and misdirected himself when he held that the Provisions of Section 18(2)(b) of the Act had been proved in that there was a breach in the conduct of elections by the Electoral Commission of Zambia in that Section 6 of the Act was not complied with bE*ause voters registered under Isoka West Parliamentary Constituency were allowed to vote in Isaka ^Parliamentary Constituency, without regard to the provisions of Section 18(4) of the Act to consider Aether this breach in the conduct of the election affected the results of that election. .^^J^of Appeal reads:- ------ L ftp.' ^Wdall the votes from Mpungtnirard, lsoka the election;^ --------------- —-;====. _ - .. . ---- -------- ,unds of appeal are these: Ihet*er0 The learned Trial Judge erred in law when he held that the non-compliance of the law by the Sectoral Comm'ssion °f Zambia by allowing four of Mpungu Ward polling stations under Isoka East rSndered the election null and void despite provisions of Section 18(4) of the Electoral Act Cap 13 and of | 0o»37Capi3- The learned Trial Judge erred in law when he held it was incumbent upon the Petitioner to prove his case on a balance of probabilities. When we heard this appeal we asked the Petitioner's counsel to speak first in opposing the appeal. Dr. Mulwila, learned counsel for the Petitioner, filed heads of argument which he augmented with oral submissions. The sum and substance of Dr. Mulwila's submissions on ground of appeal learned trial Judge was on firm ground when Paragraphs 7 to 10 of petition all point to non complia second Respondent. Dr. 18(2)(b) not Mulwila pointed out that the contention by the first espon pleaded. Dr. Mulwila then and not that Section submitted that failure to specifically plead Section 18(2)(b) He case of Waghorn Vs Wimpy & Co Limited(l) which it was e a . ““ »• variation of the pleadings but was something"new. distinct and nptjnereltf^^ 1. U Th^’netition were introduced during trial. He argued that the . .kore w^noradicaideparture from the pleadings and first r6s gatlons from those contained in ep tinns made by the petitioners and she cannot in her „s„„ .dressed e» the “tXr Or. Wwll. further ar8ued ^Ik is,1 h3d n° nOt'Ce °f Ca£S She ^aohical error for Section 1S(2) had been pleaded, is that SeCt'°n 18(c)' which WaS 3 tYP°g P lent in the preparation of her Answer. 8<here tP technicality which did not affect the first Respondent gr0und of appeal number (2), Dr. Mulwi|a $u P Ll Art is not in dispute and the learned trial Judge cannn. breach of Section 6 of the £lethat there was a breach in the conduct of the election, it h °re' be critici«d for making a P'cdtrial Judge was not required to have regard to the or • •W3S MUlW''a,S submission that the ’ „te . finding «« there „as „„„ eompI „ Submitted that, in any case, the learned tria udZ J SeCti°n 18(2)(b)' Further<Or- orresu,t of the election in the whole of Isoka East Parliamentary Constituency. the be. „„ that = When arguing ground of appeal number (4), Dr. Mulwila relied on his submissions in grounds of appeal number (2) and (3). It was Dr. Mulwila s submission that the fact that voters registered to vote in four polling stations in Mpungu ward in Isoka West Parliamentary Constituency had their votes counted for Isoka East Parliamentary Constituency was sufficient justification to find that the elections were irregular and not conducted in compliance with the law. It was Dr. Mulwila's submission that the election was not carried out in substantial conformity with the law. Dr. Mulwila ended by pointing out that what happened in this case is not new and urged that these irregularities must be stopped. Hon. Silwamba and Mr. Hakasenke, learned counsel for the first Respondent, files said of argument with seven grounds of appeal. As we have already said the main grounds of appeal are grounds numbers NP) and (4) as the import of the other grounds of appeal is the same as that of grounds numbers (1)(2) and (4). Milwamba, who argued the appeal on behalf of the first Re^ tavily relying on the heads of argument. He supplemented ^•submissions. ■ — ........... q \ J^d of appeal number (1), the heads of argu^ c°n tt is w nece5S^§® . ^^^ajfi detailed submis^bns, wh^^ -’“"'any decidedi^<e<gff@ J^ns^ ' it t0 say thatwe hav^carefully-^ > *bmiSsi^ >1 is brief, and that is that, Section 18(2)(b) which the the learned trial Judge relied upon to nullify ^‘^Respondent's election was never pleaded. W the second Respondent by altowing four polling stations in Mpungu ward to t • parliamentary Constituency, it was Mr. Jalasi's submission th,. • e ln the lsoka East judge fell into grave error because the finding was against Section^8'eamed Wal , IVlr. jalasi observed that the evidence on record was that th»r °f thC Elcctoral A«- Further, parliamentary Constituency and there was no evidence of irr • P "8 Stations in the lsoka East in any of these 54 polling stations and yet the learned trHi ar?eS °f n°n comP|iance with the law four polling stations in the Isoka East Parliamentary Constitue T e'eCti°n °n the basis of the learned trial Judge taken into consideration Section Wal nullified the election. On this ground of appeal Mr Jalasi endL k 6 eCt°ra' he W°U'd nOt have Mr'JalaSi S submission that had in reWM o, section 37 .( the Ei. "”“n‘ electoral Act and the status of Mpungu ward. <2) Mr JalaS!' C‘ting the LeWanika case ha- already referred to, submitted that the learned trial Judge misdirected himself when he stated that the Petitioner had to prove his case on a balance of probability contrary to the standard of proof set in the Lewanika case. The other arguments in this ground of appeal are a repeat of the arguments and submissions on behalf of the first Respondent. Mr. Jalasi's reaction to this was that the costs should abide the event. The second Respondent cannot pay the costs because the second Respondent was not heard on costs in the court below in terms of Section 30 of the Electoral Act. However, Mr. Jalasi conceded that the mess in this election was caused by the ineptitude of the second Respondent. We have anxiously considered the evidence that was before the learned trial Judge, the Judgment of the learned trial Judge and the submissions of counsel. As we see it, the determination, of thisappeal turns on the .question whether the PetitionerjpleadsLnon compliance with the Electoral f^he learned trial judged nW^un^ Beaton 18(2)(b) of the EI^Wl ACCTHe Petition EIWal Act ‘V Wording to the learned trial Judged by the Re" entary constituency, the second Respondent . officer allowing voters registered in four of the six Polling stations in Mpungu ward in ls°ka - vi°lated Section 6(1) of the Electoral Act w I C|S:. •6(1) Subject to the provisions of this Section and of Section Seven, every person who is reo' ^tprofvoters for a Conctii-.. u n u - . . Y Person who is registered in a UenCV shall be entitled to have at a direct election held in that ituency " Constirueri^y- I" these four polling stations were counted together with votes castVkokaTS P°"ing ^tiOns in Mpungu ward in Constituency. The most that the Respondent did was to justify what happened by referring to the past arrangement and practice. The learned trial Judge would have none of this. According to the submissions on behalf of the first Respondents the learned trial Judge had no basis upon which he could invoke the provisions of Section 18(2)(b) of the Electoral Act because Section 18(2)(b) was not pleaded by the Petitioner. This is the kernel of the first ground of appeal. Hon. Silwamba, learned counsel for the first Respondent, submitted that the Petitioner having not pleaded Section 18(2)(b), the learned trial Judge could not rely upon it to nullify the first Respondent's o election and by relying on Section 18(2)(b) of the Electoral Act the learned trial Judge misdirected himself. Dr. Mulwila, learned counsel for the Petitioner, argued and submitted that the learned trial Judge was on firm ground to invoke Section 18(2)(b) of the Electoral Act because paragraphs 7 to 10 of the Petition point to non compliance of the Electoral law by the second Respondent. According to Dr. Mulwila, the contention by the first Respondent was that Section 18(2)(b) was not specifically pleaded Section 18(2)(b) was not fatal. Dr. Mulwila then referred us to a passage in the case of Waghorn dealing with Pleadings and submitted that in this case there was no radical departure from the pleading and that no -new matter was introduced during the trial. It was Dr. Mulwila's submission that the first Respondent in her Answer addressed all the allegations made by thePetitto and the firstRespond^canpotnow . >e that she h^r^i^t h<^ ------------------- •• ■ •- —7 •. ; — - ~ Z. ~.. ________ : . r\'„ Z I U__________________ — ~ ' ________’ _______________________________ i r - My Dr. Mulwila submitted^that ec i (d-^t affect the first Respondent in preparation 1R(H was atypographical error for SectiOTW); ^ characterized this error as a mere technical y her answer. accept that the passage from th n^dth^ «*enCe n the Part °f th* ^Plover. The PeZX ” the of action was aileged neg"8,enCe CaUS°d the ^«ident while he wa c o Ca"ed evid-ce to ^w that the dangerously shppery; but it was found that the s °ver the bank and that the slope was where near the bank. Quite properly, the court found tn by side °f the «ravan and no pleaded case as to disentitle the Pla in tiff to succeed 3 radiCal departure from the In this case, non compliance with the Electoral Laws was not pleaded at all. As we have already indicated above, the Petition was anchored on Section 18(c), 19 and 20 of the electoral Act. Section 18(c) does not exist in the Electoral Act and we are not idle to accept that there was a typographical error which could not be corrected. Section 19 deals with who may present an election Petition. Section 20 deals with reliefs which may be claimed in an election petition. We have, therefore, no basis upon which we can consider whether in this case, there has been a radical departure from the pleadings or what the Petitioner said at the trial was within the pleadings. As we said in the case of Harry Sinkala Vs Electoral Commission of Zambia and Daudi M. Miikwasa(3) (unreported) Section 18(2) having not been pleaded by he Petitioner and there being no amendment to the Petition, it would be drastic departure from the practice governing pleading to consider it now. We must, therefore, reject Dr. Mulwila's submissions on this ground of appeal, though forceful and ingenious. We accept Hon. Silwamba's submissions that the learned trial Judge fell into error when he invoked the provisions of Section 18(2)(b) when it was not pleaded. This ground of appeal succeeds. ^opght^ determined c°nsiderediwh ethefrjf Sectio n 18f2j^ ground:ak^g,.we.fiaye, nevertheless__ — could feMified^ prdvisicOf^ ^^.section'as.the learned trial Judge did;-? ^‘S i$ the issue we have to deal with in the second ground of appeal. behalf of the first Respondent, Hon. Silwamba submitted that the learned trial Judge having found at the first Respondent was not in anyway at fault duringthe conduct of the elections and that the ^compliance with the Electoral Laws was committed h J* {ell into error by not considering the provisions Qf * *e s«ond Respond mamba's submission that the finding by the learn 5 Ctlon 18(4) Ofthe E| ' ed trial (he conclusion that inclusion or otherwise of the Spondent Would still have w 8 9 V°tes frorn »«K Horn Sl^mPs submitted th,, it Wj did „„ lM » I#„find that ths Mure by the Patitio„„ elections in the whole of iSoka E.„ “i8".itectod th "" ° submitted th. findings th.t f,i|ure th. outcome or result ,h. eteio„ „d un assumptions. Hon. Sbwamb, „gUed thii standard we set in the Lewanika Case. campaign in Mp„„g„ w rd Constituency was 1 that the Petition was proved below the MrJalasi's arguments and submissions on ground one can be properly considered under this ground Mr. Jalasi argued ground one as if Section 18(2) of the Electoral Act had been pleaded. It was, therefore, difficult to fit these arguments and submissions in ground one. Be that as it may, it was Mr. Jalasi's submission that on the evidence on record there was no non-compliance in any of the 54 polling stations in Isoka East Parliamentary Constituency. It was Mr. Jalasi's submission that the learned trial Judge nullified the election under the provisions of Section 18(2)(b) of the Electoral Act on the ground of non compliance with the Electoral law by the second Respondent by allowing four of polling stations in Mpungu ward in the Isoka West Parliamentary Constituency to vote in Isoka East Parliamentary Constituency but without considering the provisions of Section 18(4) of the Electoral Act. It was Mr. Jalasi's submission that had the learned trial Judge taken into consideration the provisions of Section 18(4) of the Electoral Act, he would not have nulled the election. n . - cl ihmitted that there was breach of Section 6 of the. — ^yisioi^^ jn any cas^ireileSn^XHTOui^colrsrdgle^^ ectbraWctmiiTO prWoTB-ptSecttcnrt?(4) of the Electora c a^edthe outcome or res.it of the election in anP fou'nd-t|®aiieMfi3^ the Isoka East Parliamentary Constituency. W* have considered these submissions. Since the arguments and submissions centre a operation of the Sub Section (2) (b) and (4) of Section 18 of the Electoral Act it is ' C°mb'ned produce these sections in full. Act'14 ,s necessarV Starting with Sub Section (1), the relevant provisions read as follows:- j8(D No election of a candidate as a member of the election petition presented under this part. National Assembly shall be questioned except by an |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:- (a).................................................................................... (b) subject to the provisions of subsection (4), that there has been a non-compliance with the provision 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 affected the result of the election; (4> No election shall be declared void by reaso t0 the High Court that the election was so son of any act or omission by an election officer in breach of ^official duty in connection with an c°nducted as to the substantiallyin e|ection. wjth the provisions of this Act, and that such actor Mission did not affect the result o P(Operly read, it ,s clear to us that the operation of the orovkinne (c L ,eCtion (4)-Sub Section (4) reveals to us that the Legislator ofSub Section (2)(b) is subject to Sub -lection should be taken ligRtly, as the learned trial Judge d 'ntended that the nullificat'on of an Holl. Silwamba and Mr. Jalasi, it is not enough for a Petite ' \ * W'S right'V argued and submitted bV Jiththe Electoral Laws. It must also be shown that the elect WSS ' non‘compliance substantially in accordance with the provisions of the Elertoral^anTt^^ ^plained of affected the result. ‘and that the act or om,ssion The act complained of was the allowing of voters in four of six polling stations in Mpungu ward in Isoka ^Parliamentary Constituency to vote for Parliamentary candidates in Isoka East Parliamentary Constituency. On the evidence that was before the learned trial Judge, and as Mr. Jalasi rightly submitted, there was no irregularities reported and proved, from all the polling stations in Isoka East Parliamentary Constituency. As Hon. Silwamba rightly submitted, there was, therefore, no basis upon which the learned trial Judge could find that the mess that took place in Mpungu ward affected the outcome or result of the election in the whole Isoka East Parliamentary Constituency. We, therefore, accept the submission that this finding was based on assumptions. Even assuming that there was evidence to support the learned trial Judge's finding that there was non compliance of the Election Laws in the whole of Isoka East Parliamentary Constituency, the learned trial Judge could not end there. He was obliged to Sub Section 4 to consider whether in this particular petition there was no substantial compliance with the Electoral laws and whether that non compliance affected the results in the whole of Isoka East Parliamentary Constituency. Failure by the learned trial Judge to consider the provisions of Sub Section (4) was, as counsel for the Respondents rightly submitted, a misdirection -Wedo not, thdrefor^ccept Dr. Mulwlla’s submissions that the learned trial Judge was not obliged to ' y“nsiderSubSection M) when making a fin^^ H^iedfndd Onudgewas alive to th^rovM®£&F^ (4) but found that the non comp rance--.«r . Electoral Law affected the ou^^ the simple ^^idence dh-recbrd. This ground ofappeahalsp'succeeds. ----- --- — ' . •« Is for us to consider rhe second Respondents second kludge misdirected himself when he said that the Plaintiff must prove hrs case on a ba anceot into arguments, we agree that the learned trial Judge m.sd.rected .^If3510 the standard of Proot We set the standard of Dr ^nika case. We repeat what we said in that case. P^^mentary election in the , parliamentary petitions have generally long been r • >**’*“’.......... «-«hed=neXX^ gree Of convincing clarity." ((thisCaSe, even assuming that Section 18 of the Electoral A t (hatthe petitioner proved his petition to the standard required^ P'eaded' U C3nnot be said About costs. There can be no doubt, and it is admitted by Mr Jalasi for n, the confusion in Mpungu ward was caused by the second Ro<r "e SeC°nd ResP°ndent< that all Respondent bates the costs of this petition in th is court andT th '* °nl*fa'rthat*hii «se the ‘'S1" „ he Attorney General was not ^on an oppohZ X h Td'“ “ bEteC“ “• Th“ ”” b' “ '"^XXZ^La! „.s represented throughoct by Mr. talasi. Principle State Ad.oc.t., and .. beard Mr.hhsi.n eos s ,d. is „ considered ,i« that the second Respondent should hat, „„ 0„his the court below and in this court. io The result of our judgment is that this appeal has succeeded and we declare that the first Respondent Catherine Namugala was duly elected Member of Parliament for the Isoka East Parliamentary Constituency. kbSAKALA CHIEFJUSTICE LEWANIKA DEPUTY CHIEF JUSTICE p. K. CHIRWA SUPREME COURT JUDGE I. C. MAMBILIMA SUPREME COURT JUDGE PETER CHITENGI SUPREME COURT JUDGE