Mateo B. Mwaba v Kasolo (Appeal 27 of 2003) [2003] ZMSC 167 (24 September 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO, 27/2003 HOLDEN IN LUSAKA (CIVIL JURISDICTION) IN THE MATTER OF And AN ELECTION PETITION IN THE MATTER OF an application under Article 72(1) of the Constitution of Zambia And IN THE MATTER OF the Mpika Central Parliamentary Elections held in Zambia on the 27th December, 2001 BETWEEN: Mateo B. Mwaba And Anthony Kunda Kasolo - • Appellant Respondent Coram: Sakala, CJ, Lewanika, DCJ, Chirwa, Mambilima and Silomba, JJS. On the 25th of June, 2003 and 24th September, 2003. For the Appellant Mr. C. Hakasenke of Hakasenke and Company. For the Respondent Dr. J. Mulwila of Ituna Partners. JUDGMENT Mambilima JS, delivered the Judgment of the Court. Authorities referred to: (1) (2) RDS Investments Ltd vs Joseph Ouseph Moonjelly, SCZ No 52 of 1998. Attorney-General vs Marcus K. Achiume, (1983) ZR1 This is an appeal against the Judgment of the High Court, sitting at Lusaka, in which the election of the Appellant to the National Assembly, in the tripartite elections conducted on 27th December, 2001 was declared null and void, after the Court found that the Respondent had committed an illegal practice and was therefore not duly elected or returned. Both the Appellant and the Respondent were Parliamentary candidates in the said elections for Mpika Central Constituency. The Appellant stood on the ticket of the Movement for Multi-Party Democracy, (MMD) while the Respondent was sponsored by the Patriotic Front (PF). The Respondent had petitioned the result of the election in the Court below alleging in the main that the District Administrator (DA) for Mpika District, who was also the MMD District Chairman for Mpika, Mr. Mulenga Supuni, had used government vehicles to campaign for MMD candidates in the elections; that the said Mr. Mulenga Supuni, together with Mr. David Kapangalwendo and the Appellant, in the company of other MMD officials, had gone round Mpika Central Constituency misinforming people that the Patriotic Front, which had sponsored the Respondent, had been dissolved and its members, including the Respondent had gone back to MMD; and that Mr. Mulenga Supuni had given out money to voters to induce them to vote for MMD candidates. The Respondent prayed that the Court should determine that the Appellant was not duly elected or returned and that the election was void; and that a scrutiny be carried out by the High Court in such a manner as the Court may determine. It is on record that the Court ordered a scrutiny of the results of Kambili, Mukonteka and Mufubushi polling stations and the overall results indicated that PF emerged fourth out of eight political parties in the three polling districts. With regard to the allegation that the MMD, which sponsored the Appellant used state facilities to campaign for him, the Respondent testified that Mr. Supuni who was the DA for Mpika, and Mr. David Kapangalwendo, who was then a Minister, were seen using a government motor vehicle, registration number GRZ 292 BP and a motor vehicle, registration number AAX 1438, belonging to the office of the District Administrator for Kafue. There was also evidence that MMD vehicles with an uncovered symbol were seen parked at Mukonteko and Mafushi Polling Stations within a radius of 200 meters. On the allegation concerning the misinformation which was carried out in the Constituency, the Respondent testified in the Court below that he received reports at Chumabati polling station from a Returning Officer by the name of Luke Mukelabai, inquiring if he was aware that PF had been dissolved and that its Presidential candidate together with the Respondent had withdrawn from the Party. He told the Court that he received a similar report at Chilonga Polling Station from one, Chamatete and the PF candidate in the Ward elections, Mr. Moses Lungu, that an MMD campaigner by the name of Peter Mwila Katolika was disseminating false information that the Patriotic Front had been dissolved and that its Presidential candidate, together with the Respondent, had withdrawn from the Party. Pw1, George Katati, told the Court below that he had met the said Peter Mwila Katolika on 27th December 2001, as he was going to Chilonga Polling Station. Katolika was stopping voters and telling them that Mr. Sata had abandoned his party and gone back to MMD so that those wishing to vote for him should mark an “x” on the clock. Katolika further announced that the Patriotic Front Parliamentary candidate who was the Respondent had changed his symbol and people wishing to vote for him should mark on the leaf. Another witness, Gerald Kunda, who was called as PW4, also testified that he attended a meeting at Multi-purpose Centre on 26th December 2001 at about 2100 hours, at which the Appellant addressed MMD cadres that Mr. Sata had dissolved his Party to rejoin MMD and that former President Chiluba had sent Mr. Kapangalwendo to convey this message. The Appellant allegedly told the people not to vote on the boat, but on the clock for Mr. Sata. According to PW4, the Appellant was in an MMD vehicle and using a megaphone when he made the announcement. With regard to the allegation that the District Administrator for Mpika, Mr. Supuni, gave out money to induce voters to vote for MMD, the Respondent called Mr. Charles Mpundu Alias Kashulwe (PW7) and this witness told the Court that Mr. Supuni gave him K15,000.00 on the election day as an inducement to cast his vote on the clock. There was also the evidence of Newton Nguni, PW6, who was the Parliamentary candidate for FDD in Mpika Central Constituency. Mr. Nguni testified that he had a bitter quarrel with Mr. Supuni on polling day because of the abuse of resources. This witness told the Court that the District Administrator used a GRZ vehicle registration number 292 BP to conduct campaigns and that at times, he would be within 100 meters of the Polling stations, contrary to the Regulations, telling voters “hurry up, time is not with us, we have to go by the clock”. According to Mr. Nguni, the clock was the election symbol of the MMD. The Respondent also adduced evidence to the effect that K19.5 million was sent to Mr. Supuni’s personal account at ZANACO, Mpika branch, which Mr. Supuni withdrew to assist with the election campaign. In Response to the evidence adduced by the Respondent, the Appellant denied that Mr. Supuni, Mr. Kapangalwendo and the District Administrator for Kafue campaigned for him. He told the lower Court that he was adopted late and he never campaigned with Mr. Supuni using a megaphone, because on the dates that he was alleged to have attended or addressed meetings, he was sick and in bed. He only rose from his bed to go and vote and upon his return he went back to bed. He went on to sate that the Patriotic Front did extremely well at Chilonga, Kalambo and Chitulika where Mr. Kapangalwendo is alleged to have given false information at a meeting. The Appellant also denied that he used government motor vehicles during the campaign stating that he had five to six motor vehicles at his disposal. He also told the lower Court that he had nothing to do with the confusion created by Katolika. He denied that he attended a meeting at Multi-purpose on 26th December 2001 as alleged by PW4 stating that at the material time, he was sick in bed. The Appellant further denied having attended a meeting with Mr. Supuni and Mr. Kapangalwendo on 26th December, 2001 at Chitulika village. The Appellant called Michael Bwalya, the District Administrator for Kafue, Mr. David Kapangalwendo and Mr. Mulenga Supuni as his witnesses. Mr. Michael Bwalya denied ever I having campaigned for the Respondent using his government motor vehicle. Mr. Kapangalwendo in his testimony told the lower Court that on the 26th December, 2001 he addressed two meetings, the first of which was at Tazara from 10-13 hours. According to Mr. Kapangalwendo, all the three MMD candidates were in attendance at this meeting. The second meeting was at Chitulika Mission School from 13-17 hours and only the Appellant was in attendance. He denied having told people at this meeting that Mr. Sata had dissolved his party to rejoin MMD. He also told the Court that he was not aware that the Appellant was sick in bed on 27th December, 2001. Mr. Supuni denied that he ever used his government vehicle during the campaign. He denied having seen Mr. Kapangalwendo and told the Court that he never knew the Respondent.. Although he admitted that he was involved in organizing campaigns for MMD, he denied having addressed a meeting at Chitulika Mission School but that he did so at Kanchibiya and Msuwe. He, however, admitted that he did quarrel with Mr. Nguni at Matashe Polling Station in Mpika Central Constituency where Mr. Nguni was in a queue and that the said Mr. Nguni got annoyed after he kicked him. He also admitted that he withdrew K19.5 million which he distributed equally to the three MMD Parliamentary candidates but he denied having given anybody K15,000.00. After evaluating the evidence on record, the learned trial Judge found as a fact that: (a) on the morning of the elections, on 27th December, 2001, one, Peter Mwila Katolika, an MMD cadre was heard along the road, about 200 meters away from Kalonga Polling Station, falsely announcing to the people that Mr. Sata had abandoned his PF Party and had rejoined MMD and that those wishing to vote for him should mark an “x” on the symbol of a clock; and that his Parliamentary candidate, the Respondent, had changed his symbol so that people intending to vote for him should mark on the symbol of a leaf; (b) at about 1500 hours on 26th December, 2001, Mr. Kapangalwendo and Mr. Supuni held a meeting at Chitulika Secondary school which was also attended by Mr. Moses Katebe at which they told the audience false information by urging them not to vote for the Patriotic Front because Mr. Sata had dissolved his party to rejoin MMD and had been given the post of Vice President; (c) That the Appellant addressed a meeting on 26th December, 2001 at about 2100 hours at Multi-purpose Centre where he told his audience that Mr. Kapangalwendo had been sent by the former President, Dr. Chiluba, to inform the people that Mr. Sata had dissolved his party to rejoin MMD. At the same time, he advised people not to vote on the symbol of a boat but on the symbol of a wall clock; (d) That after the meeting at Multi-purpose Centre, the Appellant’s party cadres drove away in an MMD vehicle announcing the message through a megaphone. The learned trial Judge also found overwhelming evidence on record to the effect that Mr. Kapangalwendo and Mr. Supuni, actively participated in the election campaign for the MMD. He also found that the Appellant’s alibi that he never attended any meeting on 26th December, 2001 on account of illness was disapproved by the evidence of Mr. Kapangalwendo to the effect that the Appellant was in his company when he addressed meetings at Tazara and Chitulika Secondary School. The learned trial Judge also pointed to the evidence of Gerald Chanda, one of the people who attended the meeting at Multi-purpose Centre, who said that he saw the Appellant at that meeting. Upon considering the specific allegations made by the Respondent against the petitioner, the learned trial Judge found that there was scanty evidence of misuse of government vehicles other than the use of GRZ 292 BP by the DA for Mpika, Mr. Supuni. With regard to the allegations of parking MMD motor vehicles within a radius of 200 meters from the Polling Station, the learned trial Judge stated that the evidence adduced in connection with this allegation had not been strongly rebutted. He however believed the testimony of Mr. Nguni that he had picked up a quarrel with Mr. Supuni when he found him to have parked his official car within 400 meters of Malashi Polling Station while campaigning. He stated that Mr. Supuni had admitted that he kicked Mr. Nguni, whom he equally accused of interfering in the electoral process. In terms of offences deemed to have been committed pursuant to Regulation 62(1) (e) of the Electoral (General) Regulations, the learned trial Judge was however not satisfied that cogent evidence had been adduced to prove that someone was canvassing for votes or solicited for votes from any person or induced any person not to vote for a particular candidate. On the allegation of bribery against Mr. Supuni, that he gave K15,000.00 to Charles Mpundu to induce him to vote on the clock , the trial Judge found that the allegation had not been proved. He stated that Mr. Supuni denied the allegation and testified that the K19.5 million which he received was distributed equally to all the MMD Parliamentary candidates. The Judge was not satisfied that the money had changed hands. As to whether in terms of Section 18(2) (a) and (c) of the Electoral Act, there were sufficient grounds to declare the election of the Appellant void, the learned trial Judge, after considering the evidence on record, found that the Respondent’s witnesses did not believe the allegation, that Mr. Sata had dissolved his Party, to be true. Those who heard the allegation told the Court that they were not swayed to vote otherwise. The trial Judge found no proof to suggest that the majority of the voters in the Constituency were in anyway prevented from electing a candidate of their own choice. He went on to state that in the affected Polling Stations of Chitulika, Chilonga and Chinungwe where Mr. Kapangalwendo and Mr. Supuni alleged that PF had been dissolved, MMD lost in both the Presidential and the Parliamentary Polls. As to whether any illegal practice was committed in connection with the election by , or with the knowledge and consent or approval of the Respondent or his Election Polling Agent, the learned trial Judge found over-whelming evidence that, apart from being in attendance at meetings addressed by Mr. Supuni and Mr. Kapangalwendo where false statements were made, with the full knowledge of the Appellant, that Mr. Sata had dissolved his Patriotic Front party to rejoin MMD and that he had been given the post of Vice President, the Appellant personally published the same false statement when he addressed a meeting at Multi-purpose on the eve of the election day at about 2100 hours. This meeting at Multi-purpose was also attended by PW4 Gerald Chanda who told the Court, that he heard the Respondent tell the people who had gathered not to vote on the boat but on the clock for Mr. Sata and that this announcement was made by use of a megaphone while using the MMD vehicle. The learned trial Judge found as a fact that the Appellant made this statement and that his alibi that he was sick and in bed at the material time, had been proved to be false. Regarding Regulation 56(1) of the Electoral (General) Regulations which provides that: “56(1) Any person who, before or during an election, publishes a false statement of the illness, death or withdrawal from election of a candidate at that election for the purpose of promoting or procuring the election of another candidate, knowing that statement to be false or not believing it to be true, shall be guilty of an illegal practice", the learned trial Judge found that the conduct of the Appellant fell within this provision. He stated that the Appellant knew that this statement, which he made and repeated was utterly false. Consequently, he found that the Appellant had committed an illegal practice on the basis of which I r I I he found that the Appellant was not duly elected or returned and declared his election null and void. In his Appeal to this Court, the Appellant filed an amended memorandum of appeal on 17th June, 2003 in which are listed 5 grounds of appeal. The first 3 grounds were filed in an earlier memorandum of appeal and were argued together. These are that: 1. That the learned trial Judge erred in Law and in fact and misdirected himself in dismissing the Appellant’s application for further and better particulars; 2. That the learned trial Judge erred in Law and in fact and misdirected himself when he required the Appellant to proceed with the hearing of the petition in person without legal representation when his Lawyers were preparing and filing an appeal against the order refusing further and better particulars; and 3. that the learned trial Judge erred in Law and in fact and misdirected himself in not giving the Appellant adequate chance and opportunity to prepare for and cross examine the Respondent." Submitting in support of these three grounds of appeal, Mr. Hakasenke gave a background which gave rise to the Appellant's complaint. According to this background, the petition in the lower Court was set for hearing on 25th March, 2002 at a pre-trial briefing before the learned trial Judge on 18th March, 2002. The Appellant was to engage a lawyer before the hearing date. On 25th March, 2002, a Mr. Musaluke appeared for the Appellant and informed the lower Court that he had been engaged a few days earlier but he could not proceed because he had discovered a conflict of interest. The matter was adjourned to 9th April, 2002 in order to enable the Appellant to engage I another lawyer and file an Answer to the petition. By 9th April, 2003, the Appellant had not engaged a lawyer, resulting in the matter being adjourned yet again to 7th May, 2002. The Appellant was ordered to file an Answer into Court and serve the same on the Respondent by 25th April, 2002. The Court indicated that it would proceed with the hearing on 7th May 2002 without the Respondent's evidence or without his lawyer. The date of hearing was later changed to 9th -10th May, 2002 after an application by the Respondent's Lawyer. The record of the lower Court shows that on 9th May, 2002, Mr. Hopeday Kabwe appeared for the Appellant and informed the Court that he had just been engaged and that he was applying for further and better particulars. His application was adjourned to the afternoon of the same day when it was heard and dismissed. The trial Judge ordered that the hearing of the petition would commence the following day on 10th May, 2002. He directed the Appellant to file the “Answer” to the petition by or before 0900 hours the following day. Mr. Kabwe sought leave of the Court to appeal against the dismissal of his application for further and better particulars to the Supreme Court and leave was granted. The Court ordered, notwithstanding the interlocutory appeal to the Supreme Court, that the hearing would proceed the following day. On 10th May, 2002, the Appellant appeared in person and informed the Court that his lawyer was working on the appeal in the Supreme Court, but the trial Judge ordered the trial to proceed and advised the Appellant to listen to the evidence to enable him cross examine the witness. Six witnesses gave evidence before the matter was adjourned to 13th May, 2002. Mr. Hakasenke submitted that the Appellant tried to ask for an adjournment after the petitioner had given his evidence in chief as PW5, in order to enable him to study the evidence before attempting to cross-examine him, but the trial Judge refused and only gave the Appellant 15 minutes to prepare. Mr. Hakasenke argued that the background to the hearing of the case shows that this matter was not heard on merit. He points out that even after being told that the Appellant’s lawyer 1 was preparing some documents in the Supreme Court, the trial Judge proceeded without the Appellant’s legal representative. He submitted that the Court below was hasty in seeking for and delivering Judgment before affording the Appellant a fair opportunity to be heard. He referred us to our decision in RDS Investments Ltd vs Joseph Ouseph Moonjelly 0) in which we stated; ‘We have said in a number of cases and we wish to reiterate here that any Judgment not on merit is liable to be set aside and “on merit” means both sides being heard. For this reason we would urge Lawyers and Courts below not to be hasty in seeking for and delivering Judgments before both sides are heard unless of course there are some compelling reasons for doing so.” Mr. Hakasenke submitted that the Court should have been cautious because the Appellant was appearing in person and did not heed a caution given by this Court on several occasions with the result that the Appellant was constrained to take notes and cross examine all the witnesses including the Respondent. He went on to state that on the facts of this case, there were no compelling reasons for opting for a hasty Judgment at the expense of a fair opportunity to be heard. He, therefore, prays that the Judgment herein should be set aside and that the petition should be sent back for re-trial before another Judge. In response to the Appellant’s arguments on the first three grounds of appeal, Dr. Mulwila has submitted that the Appellant had not shown in what respect the learned trial Judge erred in law and in fact in dismissing the application for further and better particulars. He pointed out that both parties were given an opportunity to be heard and both parties filed affidavits which were before the Court. On the argument that the matter was not heard on merit because the Court was in a hurry to dispose of it and that the Appellant was not given a fair opportunity to be heard or to be represented by a lawyer, Dr. Mulwila submitted that the record plainly shows that the Appellant was 1 given more than ample time to prepare for his case and to be heard. He went on to state that the case of RDS Investments Ltd vs Joseph Ouseph Moonjelly does not help the Appellant because all the parties were heard before Judgment was delivered. According to Dr. Mulwila, the issue of the case not being decided on merit therefore, does not arise. The Appellant argued the last two grounds of appeal in the alternative. In ground four, the Appellant argued that the learned trial Judge erred in law and in fact in holding that the Appellant committed an illegal practice and nullifying his election on that ground and in ground five, the Appellant argued in the further alternative, that the learned trial Judge erred in law and in fact in attributing the alleged illegal practice to the Appellant without determining whether the people to whom the statements were attributed, were the Appellant's election or Polling agents, or whether the alleged statement was allegedly made with the Appellant's knowledge and consent or approval, or that of his election agents or Polling agents. In support of the fourth ground, Mr. Hakasenke submitted that there is absolutely no evidence on record to prove the allegations that the Appellant together with Mr. Supuni and Mr. Kapangalwendo addressed a meeting in the Constituency at which they told the people that Mr. Sata, the President of Patriotic Front and his Parliamentary candidate had returned to MMD. According to Mr. Hakasenke, all the witnesses who were called talked about Mr. Sata and not the Respondent. He went on to state that in this respect, there was nothing on record on which the learned trial Judge could hold that the Appellant had committed an illegal practice in the Parliamentary elections. For this statement, Mr. Hakasenke referred us to the case of the Attorney-General vs Marcus Achiume W in which we held that this Court can only interfere with the trial Court’s findings of fact if the Supreme Court is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of facts or that they were findings which, on a proper view of the evidence, no trial Court, acting correctly can reasonably make. In support of ground five, Mr. Hakasenke referred us to the provisions of Section 18 (2) (c) of the Electoral Act and submitted that for an election to be declared void, there must be a corrupt or illegal practice committed in connection with the election, which practice should be committed by the candidate or with the knowledge and consent or approval of the candidate or his agent. According to Mr. Hakasenke, there was no evidence to support any holding that the Appellant committed any such illegal practice in these Parliamentary elections. He further referred us to Regulation 56(1) of the Electoral (general) Regulations and submitted that there is no evidence of any statement made that the Respondent was ill, had died or had withdrawn from the election. The only statement which was announced by the witnesses concerned the withdrawal of the Presidential candidate Mr. Sata. Mr. Hakasenke further submitted that there was no evidence before the lower Court which connected the Appellant to the knowledge or consent or approval of the statements attributed to Peter Mwila Katolika, David Kapangalwendo and Mr. Mulenga Supuni. He further stated that the learned trial Judge should have gone further to consider whether the statements about Mr. Sata rejoining MMD also related to the Parliamentary candidate to constitute an illegal practice in the election. He submitted further, that the learned trial Judge should also have considered whether Peter Mwila Katolika, David Kapangalwendo and Mulenga Supuni were the Appellant’s election agents or polling agents. He pointed out that an election by a candidate can only be nullified if an illegal practice is committed by his election agents or polling agents and not by any third party. For this statement, he referred us to the learned authors of Halsbury Laws of England, third edition Volume 14 at paragraph 300 which states: “... Liability of candidate: A candidate’s liability to have his election avoided under the doctrines of election agency is distinct from, and wider than his liability under the criminal Law or Civil Law of agency. Once the agency is established a candidate is liable to have his election avoided for corrupt or illegal practices committed by his agents even through the act was not authorized by the candidate or was expressly forbidden....” Mr. Hakasenke contended that there was no evidence upon which the Court below could hold that there was an illegal practice committed in these Parliamentary elections and that the people to whom the statements were attributed were not the Appellant’s election agents, or polling agents to make the Appellant liable to have is election declared void. He further submitted that Regulation 56(1) relied upon by the Court below, does not relate to these proceedings because the statement affecting the Respondent was on change of symbol and not illness, death or withdrawal. In reply to the submissions by Mr. Hakasenke on the fourth and fifth grounds of appeal, Dr. Mulwila stated that the Appellant had argued this head on findings of fact by the learned trial Judge instead of attacking the issues of law as required under Article 72 (2) of the Constitution of Zambia. Dr. Mulwila further submitted that the learned trial Judge is vindicated by the evidence. The Judge referred to the statements made by Mr. Kapangalwendo and Mr. Supuni which were false. The Statements were made with the full knowledge of the Appellant and without his disapproval. Dr. Mulwila further submitted that the Appellant also personally made false statements at Multi-purpose to the effect that the Patriotic Front had been dissolved. According to Dr. Mulwila, the input of these false statements was that the Respondent was no longer in contention as a Parliamentary candidate on the Patriotic Front ticket. On the fifth ground of appeal, Dr. Mulwila repeated his argument in respect of the fourth ground and reiterated that the Appellant committed and was rightly found guilty of illegal practices. On Regulation 56(1), Dr. Mulwila submitted that the Appellant’s argument, to the effect that there was no evidence to show that the Respondent was ill, had died, or had withdrawn, was faulty. He stated that the Respondent was sponsored as a candidate by the Patriotic Front and that if the Patriotic Front party was dissolved and everybody had left as alleged, then the Respondent had withdrawn from the Parliamentary race. He urged the Court to dismiss this appeal with costs. We have considered the Judgment of the Court below, the submissions by Counsel and the issues raised. We note that the Appellant had originally filed three grounds of appeal which have been argued together in this appeal. On the advice of this Court, these three grounds were augmented by another two grounds which have been argued in the alternative. The record of appeal shows that the Court below adjourned the hearing of this petition from time to time after 25th March, 2002, mainly because the Appellant was not ready. He had not filed an Answer to the Petition and had no legal representation. On 9th April, 2002, the Appellant was ordered to file his Answer by 25th April, 2002 and serve a copy on the Respondent. He defaulted and on the date of hearing, Mr. Hobday Kabwe appeared on his behalf and applied for further and better particulars which application was dismissed. The Court had made it clear at its last sitting that it was going to proceed with the petition. The Appellant has argued before us that he appeared without Consel because Mr. Kabwe was processing his appeal against the dismissal of his application for further and better particulars before this Court. Filing an appeal in the Supreme Court Registry does not take the whole day. We are, therefore, surprised that such a lame excuse can be vigorously advanced to justify what appears to us to have been a calculated move to abort the hearing of the Petition. In terms of Section 27 of the Electoral Act, the hearing of election petitions should be concluded within 180 days from the date of filing. Time, is therefore, of essence. The petition in the Court below was filed on 25th January, 2002. It therefore had to be concluded by July, 2002. The Appellant, who was availed every opportunity since 25th March, 2002, to file an Answer and engage Counsel of his choice, seems to have been completely oblivious to the constraints of time. Through his own intransigence, he cannot be expected to derail proceedings when he was aware of his obligations and the learned trial Judge had made it clear well in advance that adjournments would not be granted on the date of hearing. We therefore, cannot fault the learned trial Judge, for having proceeded with the hearing, after allowing the Appellant wide latitude to put his case in order. We agree with Dr. Mulwila that the case of RDS Investments Ltd vs Joseph Moonjelly (1) does not assist the Appellant. The Appellant was allowed to cross examine the Respondent's witnesses and to conduct his case. The question of his having not been heard does not, therefore, arise. What is evident to us is that the Court below was alert and did not allow the Appellant to get away with his time wasting tactics. The Appellant’s prayer that the Judgment of the Court below should be set aside and the Petition sent back for trial before another Judge, is therefore, refused. On the fourth and fifth grounds of appeal which were argued in the alternative, we note that these grounds of appeal attack the learned trial Judge’s findings of fact in the Court below. The learned trial Judge made various findings of fact from the evidence which included a finding that the Appellant had himself addressed a meeting at the Multipurpose Centre on 26th December at 2100 hours at which he told his audience that the former President had sent Mr. Kapangalwendo to inform the people that Mr. Sata had ditched his party to join MMD. The trial Judge also made a finding of fact that the Appellant was present at an earlier meeting, on the same day, when Mr. Kapangalwendo and Mr. Supuni told the said meeting that Mr. Sata had abandoned his party. They urged the people to vote for the clock and that those wishing to vote for the Respondent should vote for the symbol of a leaf. The message that the Patriotic Front had been abandoned was clearly false. Mr. Hakasenke argued before us that the false statement only related to the Presidential Candidate and not the Respondent. It goes without saying that if a party which sponsors a candidate is dissolved, then a Parliamentary Candidate has effectively no base. He will be considered to have withdrawn from the race. This argument is clearly untenable. Further, Article 72 (2) of the Constitution provides: * “The determination by the High Court on any question under this Article shall not be subject of appeal: Provided that an appeal shall lie to the Supreme Court from any determination of the High Court on any question of law including the interpretation of this Constitution." , In our view, the Appellant has not raised any issues of law before us. He is contending with findings of fact made by the trial Judge. Clearly, this appeal is not competent under the law. It is dismissed. We uphold the decision of the Court below and find that on account of having committed an illegal practice, the Appellant was not duly elected or returned. His election is therefore declared null and void. The Respondent shall have his costs in this Court and in the Court below, to be taxed in default of agreement. D. M. Lewanika DEPUTY CHIEF JUSTICE D. K. Chirwa JUDGE SUPREME COURT I. M. C. Mambilima JUDGE SUPREME COURT S. S. Silomba JUDGE SUPREME COURT 17