Mushili v Zambezi and Anor (SCZ Judgment 46 of 2008) [2008] ZMSC 142 (10 August 2008)

, ^^[JPREME COURT OF ZAMBIA ^ENATLUSAKA ^-^SMENT NO, 46 OF 2008 APPEAL NO, 97 OF 2008 I9b2) civil Jurisdiction) jCfWEEN: mark CLETUS MUSH I LI AND APPELLANT MARY MILDRED ZAMBEZI 1st RESPONDENT ELECTORAL COMMISSION OF ZAMBIA 2nd RESPONDENT CORAM: SAKALA, CJ, MUMBA, CHITENGI, SILOMBA AND MUSHABATI, JJS On the 25th June and 19th August, 2008 Forthe Appellant: Mr. B. Mutale, SC, of Ellis and Company, Assisted by Mr. Mwila Chitabo of Chitabo Chiinga Associates Forthe 1st Respondent: Mr. S. C. Malama, SC, of Jacques and Partners Assisted by Mrs. Kunda Forthe Respondent: Mr. M. Mukwasa, State Advocate JUDGMENT SILOMBA, JS, delivcred.the Judgment of the Court. •ErT ^ES-REFERRED TC > -------------- ------—------------ ;---------- - ---- - —________ ' Mlewa-Vs-Wightman (1995/77) ZR, 171. Banda -Vs- Chief Immigration Officer (1993/94) ZR, 80. Mkhata and 4 Others -Vs- The Attorney-General (1966) ZR, 124 2. 3. legislate REFERRED TO:- Electoral Act, No. 12 of 2006. (953) This is an appeal against the judgment of the High 2007 in which the learned trial Judge determined that the appellant was not duly elected as a Member of Parliament for Ndola Central Constituency and that the election was void. From now onwards, we shall refer to the appellant (Mark Cletus Mushili) as the 1 respondent and the 1st respondent (Mary Mildred Zambezi) as the petitioner, while the 2nd respondent will continue as such, as this is what they were in the Court below. In her petition before the High Court, the petitioner disclosed that she was, together with the 1st respondent and others, a parliamentary candidate during the Presidential, Parliamentary and Local Government elections that were held in September, 2006. While she stood on the ticket of the Movement for Multiparty respondent was a candidate duly sponsored.by the ilPtiC-iFrbnt ondent A. f her amended petition, challenged the The petitioner, in paragraph Action of the 1st respondent, alleging that his election was marred by corrupt (954) behre and after the election process. The allegation are well outlined In .(.judgment of the trial court, suffice to say that there were fifteen allegations «** 1“ respondent and four aHcgattons aEainst the making jtatotal of nineteen allegations. After trial, the learned trial Judge found that the petitioner had succeeded in proving nine out of fifteen allegations against the 1st respondent; the four allegations against the 2nd respondent were dismissed. As against the 1st respondent, the learned trial Judge upheld the petition and determined that the f respondent was not duly elected as Member of Parliament for Ndola Central Constituency and accordingly declared that his election was void. Dissatisfied with the order of the Court below, the 1 respondent has filed Wounds in support of the appeal. These are:- 1. The learned trial Judge^nisdirected himself when he nullified the:^ ; • —— - —.——------ ---- -------- * ~ ^ntedfn™^ iretei 2. wSHunS Seaion 93(2) (a) and (c| of the Electoral Act »„ „ J"5' Section 93(2) (c) had not been specIfica|ly The learned trial Judge misdirected hlmse,, wta „e „e|d cards were collected from people and moMy ,q there was no such evidence; 4. The learned trial Judge misdirected himself when he held that the petitioner was called a prostitute and a liar; 5. The Court below misdirected itself in law and fact when it held that there was removal of the petitioner's campaign material and the defacing of her posters and that that had a probable effect on the election in Ndola Central Constituency; and 6. The learned trial Judge had erred in fact and in law in holding that RW10 Clare Mazuba, had removed the petitioner's campaign materials when her evidence was that the material removed was that of Councillor Newa, (see pages 781 - 783 of the record of appeal). Both counsel, representing the 1st respondent, relied on his heads of Went in their entirety and made no oral submissions to augment the heads of argument and neither did they submit in reply to the petitioner's submissions. Station to ground-one, it was argued in the heads of argument that for SjBrae nuljifigdSB ^7;. : , ^tegmiscond uct co m m itted in re la • ’7' corruption practices or other misconduct Vot’n5for the candidate whom they preferred. prove____ ____ _______________ the voters were prevented from „ « further er8ued that since „ „as or iliegal practices or other misEonduct the P-) rM!“ ■ing for a candidate whom they preferred the „ , that there was no evidence that the of the Prevented from 'he eieai™ ™Eht not to have been parted from voting for a candidate whom they preferred. The argument of the 1st respondent's mimtd „ punaent s counsel, on ground two, was that the I*"" did not plead for the relief provided for under Section 93(2) (c) of the istoral Act in her election petition. That being the case, it was contended in the heads of argument that that was a serious misdirection for the learned trial Judge loprovide for a relief, which had not been prayed for. On ground three, counsel submitted that the trial Court misdirected itself when it held that the 1st respondent gave out money because the evidence relied on of Kaputula Mukabila (PW9), Dominia Kaulu (PW12) and Diane Mwale (PW20) was not actually reliable; that if it were true that the three witnesses received bribes, then they were guilty of a criminal offence or an electoral misconduct and that as such they lacked credibility. Coming to ground four, counsel submitted from the heads of argument that ft two witnesses who testified in favour of the allegation that the petitioner was ~ called a prostitute were^oombs Ma la Malambo (PW11) and PhilimomKaungaI(PW18). .. ' ----- -—7—, ''' J that-this was the witness who conceded that On (PWlSL counsel submitted that this ' — bjtter that the MMD had collapsed in his partv had lost and that he f.. ^'Pulukusu. The witness, inclu g deluding Felix Mwango (PW13), had an interest to ^**'.77 -7"~ h all her evidence aboutthe, U- like In all other alleSattas n0 report was U«* irresistible inference that the petitioner was neve, insultcd Counsel submitted that the 1st resoondent da„; • denied insulting the petitioner jndWas supported by Laban Chibuye (RW2) and Josephat Changwe (RW11) who , . testified, according to counsel, that they could not insult the petitioner because they regarded her as their own mother. On ground five, counsel submitted from the heads of argument that following the learned trial Judge's observation (see page 53, lines 5 to 13, of the record) that it was true that neither the 1st respondent nor his agents were involved in or seen tearing the petitioner's posters, the 1st respondent could not i be penalized for acts or omissions of unknown people, especially that there were alot of parties contesting in the election. On ground six, which was a late entry and for which no leave of the court was obtained to have it included and argued, we think that the argument that na Clare Mazuba (RW10) was not an agent ot the i respun r , l , removed was not that of the petitioner but tor a pruj ___________ hut for a prospective Councilor can be nf the 1st respondent and that the poster adequately covered under : In^ns^to the submfssfons of counsel . nd one, that the'petitioner led evidence on all aspects o agents as provided in Section 79 Emitted by the 1st respondent o Electoral Act. The State Counael submitted that no obJection was raisad (958) inJ He court, without error, correctly made its fi„dinf,s on gvidence. The State Counsel further submitted that since the 1" respondent was „nd to have committed bribery personally himself, the learned trial Judge was on firm ground to annul his election under Section 93(2) (c) under which ...."the prevention of the majority of the voters from electing the candidate in the constituency whom they preferred" ... was irrelevant. The "prevention" factor was, according to the State Counsel, relevant where any corruption (e.g. bribery and illegal practice) was committed by anybody else other than by the candidate himself and/or his agents. As far as he was concerned, once the candidate was held to have committed an act of bribery, as was the case in this appeal, the trial court had to grant relief under the aforesaid Act. The case of Mlewa -Vs- ifehtman was cited in aid. Under ground two, the State Counsel submitted in the heads of argument M the petitioner pleaded the commission, by the 1st respondent of the acts of bribery in paragraph 4 (i) (b) of the petition in which she made reference to Section 79 of the Electoral Act; that the evidence the petitioner produced was ■ tT’-T" — _ .----------------------------------- ---------- ----------- ------------ regard to ground three, ft was observed from the ground was attacking the trial Court's finding: (959) of argument s on the credibility of the v/itnesses, implying that there was no material upon which the lower court could „ke findings in favour of the petitioner's witnesses and against those of the 1” respondent. In the view of the State Counsel, the judgment of the lower court ws arrived at after careful analysis of the evidence given on either side of the case, in particular that of the petitioner and the credibility of her witnesses. We were urged to accept that the decision of the trial court rested on the credibility of the witnesses and findings of fact and that as such there was no principle of law upon which such lucid findings could be upset on appeal. As far as the State Counsel was concerned, the lower court was on firm ground and never fell into any error as it applied the right principles, directed itself very carefully and properly evaluated the evidence before it. The cases of Banda ;Vs- Chief Immigration Officer and Nkhata and 4 Others -Vs-The Attorney General ''Vere relied on. In conclusion, the State Counsel submitted that the foregoing arguments on M three were to apply to the remaining grounds four, five and six with equal ( force. We were, therefore^asked torejeettne p ........ IL ■,^d dismiss. thOppMUfH*?;^ । ^^rpieetthe 1st respondent's grounds of appeal _ pntiretv. With-costs. In his ora] submission, counsel. . isof-argu^ jnee of the ndere nf argument and the submissions of counsel, Fore the lower court, nedtrialJudge that is the subject of:the Bellas, the judgment of th dealing with the grounds of appea|. (960) ,«•»' 0„e and ground two separate!, white grounds thrce. folIr „„ fjve Udteg ground six) will be taken care of together because the, related to MV «f fact and the credibllit, of witnesses. We shall begin with ground two and then move to grounds three, four and five. Ground one will be the last to deal with. Ground two challenges the finding of the learned trial Judge that the petitioner had proved her case in terms of Section 93(2) (a) and (c) of the Electoral Act when Section 93(2) (c) of the same Act was not specifically pleaded. The 1st respondent has asserted that it was a serious misdirection for the trial court to provide for a relief that had not been prayed for. The petitioner has counter-asserted that the relief was pleaded in paragraph 4 (i) (b) of her amended petition. |/e have visited paragraph 4 (1) (b) of the amended election petition, under sub-heading, "Corrupt Practices," and therein we find that the petitioner pleaded allegations that the 1st respondent had distributed gifts in form of cash, , , foodstuffs like mealie meal and other vaiuaoie . j valuable materials to would-be voters at various places ... QasSery in contravention oLSertjg^^^ectoral Act, which * * 1 ------ ___________ — • —i.wesi t ■ . - .------------ —4— - - - - the conclusion of. theP^ etitioner p.rayed_.the_ ... ■ •t.: • ‘»n ■■ ___________ ft/min Wetake note tha a|s0 take note that Section 93(2) (c), dealing 93(2) (a) of the Electors * the power of the «h Court declare an election void if allegations of > ""S’1 proved to have bMn |n ^ePtton with the election by or with the k„o„|edge or co„sept pr appfpva| pf Ilf candidate or of that candidate's election agent or polling agent, was not specifically pleaded. We have said before that a person wishing to commence an action in court must specify the provision of the law under which she or he wishes found her or Ills action. This is so in order to avoid frivolous and vexatious litigants. However, the fact that the law under which an action is commenced is indicated does not amount to a pleading. In this case, the petitioner indicated the law under which the petition was commenced. With regard to the form and content of pleading, we do not think that it is a requirement to specifically plead the law under which an issue raised in the proceedings must be disposed of. This is so because, as lawyers, Judges are trained how and where to find the law. In Halsbury's Laws of England, 3 Edition, Vol. 30, it is stated at page 7, paragraph 12, that the requisites of good pleading are that it must contain, among others, a statement of facts and not the law. — ■ ~~ We now turn to deal with grounds (962) Freund three challenges the decision of the teamed trial Judge for hold,„E (Ote,s' cards were collected from people and money given to them when jere was no such evidence. This ground of appeal is quite precise and focused jentrarv to the attention given to it by the 1" respondent in his heads of argument. It relates to the allegation that voters' cards were collected from potential voters on payment of money. The evidence for and against the collection of voters' cards and the payment for them came mainly from PW9 (Kaputula Mukabila) and PW14 (Mupeta Chibamba) for the petitioner and the 1st respondent himself and RW2 (Laban Chibuye). PW9 testified that he was a PF member and campaign manager for RW2 who stood as Councilor on PF ticket. He confirmed that RW2 was, at the same time, campaign manager for the 1st respondent, thereby making PW9 a member of the 1st respondent's campaign team. He testified that the 1st respondent gave him KI,000,000 for the purpose of buying and inducing voters despite their party affiliation and as a result he formed a team, which undertook patrol campaigns. s , u. that the 1st respondent bought 70 exercise books for the cards and_NRCsd.of...those whoL_._ —me® —* bv PW14 who also confirmed that RW2 was T e n d e ere ... ' Science of payment was con th campaign manager for r^rthe 1st respondent. day PW9 fell out of favour with hit bosses and RW2 fabricated an (963) »»"« case and reported him to the police where he was detained. He produced apolice bond as part of his evidence. The 1st respondent, in rebuttal, testified that he did not know PW9; that pW9 never came to his home and that he never gave him money. He was supported by RW7 (Rosemary Sabora) who denied ever receiving K400,000 from the 1 respondent. She also denied buying 70 exercise books. Further, RW2 denied that PW9 was in the campaign team of the 1st respondent but in his campaign team; that he threw him out when he discovered that he was demanding too much. The learned trial Judge went through the evidence and took into account the demeanour, the probabilities and other considerations to asses the credibility of witnesses. One distinct feature he found was that the 1st respondent's witnesses made mere denials because they did not want to. appear to have Participated in bribing voters, a fact admitted by the petitioner's witnesses. The learned trial Judge found PW9 to be a candid and frank witness who impressed Ten days prior to the elections, PW11 testified that the 1« respondent's (964) * landscruiser, No. ACE 1394, with a public address system (PAS), came to the restaurant four times a day and parked in front of the restaurant. On all those occasions, the cadres chanted PF slogans, saying that the petitioner was a prostitute who was not married and, therefore, not fit to rule the people. Besides, they labeled the petitioner as an insane person. PW13 testified that a week or two before the elections he was at the petitioners residence at Kansenshi Shopping Centre when he heard a PF announcer s voice through the PAS calling the petitioner a prostitute, a liar and a thief. He later recognized the announcer as RW11 (Josephat Changwe) whom he had known before. He remonstrated with him about the vulgar remarks and he just drove off. The evidence of PW13 was supported by the petitioner. PW18 testified that Laban Chibuye, RW2, took him to the residence of the 1st respondent where he heard the 1st respondent telling those in his campaign team to go out there and tell the people not to vote for the petitioner because she was a prostitute and a liar who had nothing else to do for the people. The message was later repeated’by the 1st respondent at Dag Hammerskjoeld and L.:, nUns ovimmce mnn, eniedthafhf- is ever parkedlit the restaurapt The (earned trial J^dge considered the evidence relating to^ ‘hat the l" respondent and his campaign team called the petitioner a prostitute and a liar He found PW18 to be a credible witness and accepted his testimony . the 1st respondent called the petitioner a prostitute and liar at three meetings- The learned trial Judge warned himself to treat the evidence of PW11, employee Pe^itioner, with caution because he was a witness with an (965) interest to serve. The foregoing notwithstanding, the trial court found no bias in his testimony and accepted his evidence that the 1st respondent's landcruiser used to parkatthe petitioner's restaurant where derogatory remarks about the petitioner were made by those inside the vehicle. The learned trial Judge also accepted the evidence of PW13 that Josephat Change, RW11, called the petitioner a liar and a prostitute in his presence white using the landcruiser. The learned trial Judge concluded that this was the strategy of the 1st respondent to undermine the petitioner in her campaigns. On ground five, which Includes ground six us well, the 1” respondent Is hying that the learned trial Judge was wrong in hoidlng that there was removal of the petitioner's campaign materials and defacing . । Hpfacine of her portraits, which acts had ’probable effect on the election in Ndola Cent y • Mdnla Central Constituency. The evidence in ^ort of the tearing down « > , nntgters came from the petitioner herself. On the g August, 2006: thuj^ Sose^^^^^S hpr story befoShe:trial (ed h e r L ? y - ... :----- ist respondent, in rebuttal, came from RW15. She of the 1 ed posters belonging to Newa, an MMD aspiring The evidence testified that she remo ^.te, «ul °f fru®at,on. She confirmed that she did so on the (966) 0 and that she was a PP supporter. Wn >med that she was detained at Kansenshi Police Station and that she later p3id an admission of guilty fine. The learned trial Judge considered the evidence from both sides. He accepted the police report tendered in evidence by the petitioner and rejected the evidence of RW15 that the posters she tore were for Newa. He accordingly found that the posters that were torn were for the petitioner for which RW15 was arrested. The learned trial Judge found RW15 to be very proud of what she did and was not, in any way, ashamed or remorseful for her conduct. He upheld the allegation. Although counsel for the 1st respondent talked of Clare Mazuba as RW10 under ground six, the truth is that the heads of argument actually refer to the evidence of RW15, Clara Kafula. RW10, according to the record of appeal, was Wilfred Yambani Njovu. Having clarified the position and bearing in mind the findings of the tria I court our views is that ground six was superfluous. from the analysis of the =«M="c= ""dings of the learned trial fudge W grounds three, four aWvfcltJscleM to us fhejtr.uods^peL £ the indihgssbasedfopT r®le of a trial court. The I nd had therefore, the best opportunity to assess and Witnesses in a live trial a know which witnesses were up to no good and those who were telling the truth. On the findings of fact, the law in!^ I967’ iX and Se“eral “* iS We have said before and w w (hat no appellate court wlll rewrse of = *“ it is satisfied that the findings In question were either perverse or made in * absence of any relevant evidence or upon a misapprehension of facts or were ladings which on a proper view of the evidence no reasonable trial court, acting correctly, could reasonably make. In the heads of argument, no attempt was made to highlight evidence in support of grounds three, four and five to show that the findings of the trial court were either perverse or made in the absence of any relevant evidence or upon a misapprehension of facts. If the findings of fact by the lower court had been shown to be at variance with the evidence on record the (findings of fact) would have become findings of law or findings of mixed law and fact warranting the intervention of this court. Grounds three, four and five are dismissed. Having dealt with grounds three, four and five, the partial background to to legal argument posed in ground one is established for the disposition of the ground of appeal. The legal Issue in this ground of appeal stems front the fact Wthe learned trial Judge nullified the eiection of the 1" respondgwithout jjw jentrofthe r—' ’ resident is anchored is Section 93(2) (a) ( a,>®d (c). Sub-section (2) (a) and (c) °f Section 93 reads: . The election of a candidate as a member of the National Assembly (968) sball be void on an, of the following grounds which |s ptom| (o satisfaction of the High Court upon the trial of an election petition, that is to say- (a) that by reason of any corrupt practice or illegal practice committed in connection with the election or by reason of other misconduct, the majority of voters in a constituency were or may have been prevented from electing the candidate in that constituency whom they preferred; (b) (c) .................................................................................................................... . that any corrupt practice or illegal practice was committed in connection with the election by or with the knowledge and consent or approval of the candidate or of that candidate's election agent or polling agent. We have perused the judgment of the learned trial Judge and we are satisfied that there is nowhere in the judgment where he states that by reason of corrupt practices or illegal practices committed by the 1st respondent in Cnn_D connection with the election or PV redJ^L . 4.;„nnrhv reason of other misconduct the majority of the: ----- Under grounds three, four and five w« h „ (969) •,,H h-K u ' * Eluded to the f^ rned trial Judge, which show that the 1st rp.nn n u. . . resPondent, with his knowledge or ,ough his agents, participated in the corrupt and ilh . , . . . . b’ 'ndUC'nE 'h™ ‘° P nd llle6al Practice of bribing cards for a payment. We J * e'Kt°ral “>«ted by the !« raspondent or his election agents of maligning the petitioner bv nnhiirh,, n- u er by publicly calling her a prostitute, liar and a person not fit to lead and ren^m th , represent the people of Ndola Central , Constituency in the National Assembly We are particularly concerned that the message, couched in obscene language, was relayed on the public address system mounted on the 1st respondent's landcruiser and had the potential of reaching out to a very wide audience. The evidence further shows that the 1st respondent, on his own account, repeated the insults of calling the petitioner a prostitute and liar at three different meetings. This was very debasing of a woman in the position of the petitioner seeking political office. There was evidence of removing and defacing the campaign posters of the petitioner, which, though not wide spread, was accePtedby the learned trial Judge. —- . The other evidence.ad.duced by the petitioner and.accepted by the learned . :®^Bas that on the 9th of September, 200^he^s a meeting at the. 1st bhdents etin Co|lecting NRCs and voter's cards, including those of PW1B (Mambwe - ^chungwa), which have never been returned. This (970) evidence was accepted by [he learned triaUudge as evidence of treating. Generally, there was evidence of wjde induce voters to vote for the 1« respondent, spread distribution of money to The money came from the 1st ^pendent. In the view we take, there was enough evidence of corrupt and illegal practices connected with the election, including other misconduct, before the learned trial Judge leading to the only conclusion that the majority of the voters in the constituency were prevented from electing the candidate whom they preferred. Ground two is unsuccessful as well. On the totality of the evidence, the appeal is dismissed. Costs shall follow the event, to be taxed in default of agreement. E. L Sakala, CHIEF JUSTICE ^JLN. M. Mumbar^ Weme courtjudge SUPREME^COURTJUDGF . OPREMECQU-BTOF ZAMBIA SCZ JUDGMENT NO, 46 OF 2008 APPEAL NO. 97 OF 2008 MARK CLETUS MUSH1LI and MARY MILDRED ZAMBEZI ELECTORAL COMMISSION OF ZAMBIA APPELLANT 1st RESPONDENT 2nd RESPONDENT CORAM: SAKALA, CJ, MUMBA, CHITENGI, SILOMBA AND MUSHABAT1, JJS On the 25th June and 19th August, 2008 forthe Appellant: Mr. B, Mutale, SC, of Ellis and Company, Assisted by Mr. Mwila Chitabo of Chitabo Chiinga Associates Forthe 1st Respondent: Mr. S. C. Malama, SC, of Jacques and Partners Assisted by Mrs. Kunda For the Respondent: Mr. M. Mukwasa, State Advocate JUDGMENT ^OMBA, JS, delivered theJudgment of the Court Mlewa -Vs-Wightman (1995/77) ZR, 174. Banda -Vs- Chief Immigration Officer (1993/94) ZR, 80. Nkhata and 4 Others -Vs- The Attorney-General (1966) ZR, 124. 2. 3.