Mussa v Kainga and Another (Election Petition 14 of 2014) [2014] MWHC 514 (17 October 2014)

JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY ELECTION PETITION NO. 14 OF 2014 IN THE MATTER OF THE 2014 TRIPARTITIE ELECTIONS AND IN THE MATTER OF SECTION 100 OF THE PARLIAMENTARY AND PRESIDENTIAL ELECTIONS ACT AND IN THE MATTER OF THE PETITION BY YUNUS MUSSA ALLEGING AND UNDUE RETURN OF CANDIDATE FOR THE PARLIAMENTARY ELECTIONS FOR ZOMBA CENTRAL CONSTITUENCY BETWEEN: YUNUS MUSSA ...... 0... cece cece cece ec ec ene ecee ences ecceseeseesesseeseaeeesseeseaeseeaeees PETITIONER AND NANGOZO PATRICIA KAINGA ............csecsecessceeceescenseescessencenseees 1ST RESPONDENT and ELECTORAL COMMISSION ..............ssssssseseesessesssessseesseesseesssesoseeseneees 2ND RESPONDENT CORAM: THE HONOURABLE MR JUSTICE CHIRWA Mr N. Mhura, of Counsel for the petitioner Mr. R. J. Mhone, of Counsel, for the 1st Respondent Mr C. Mkwamba, of Counsel, for the 2.4 Respondent Mr Cossam, Official Court Interpreter JUDGEMENT By his Petition taken out in this action on the 5 day of June, 2014 YUNUS MUSSA_ asserts that there was undue return of the 1s Respondent, NANGOZO PATRICIA KAINGA, by the 2"¢ Respondent, the ELECTRORAL COMMISSION, as the winner of the Parliamentary Elections for Zomba Central Constituency and prays that this Court should order a recount of the Parliamentary votes for the whole constituency or at least in the discrepant polling stations under the powers vested in it under Section 114(4) of the Parliamentary and Presidential Elections Act for the following reasons: (1) The results for Atuweni, Satema, Matiya, Thundu, Chanco, Chinamwali San and Sacred Heart are discrepant and the discrepancies are of such a magnitude as to go beyond the difference in votes between the Petitioner and the 1s Respondent so that it is necessary to verify the results by way of recount (so) that the truth about who won the Parliamentary Poll be unearthed; and (2) The Petitioner's monitors were refused permission to witness the vote count and were not given results sheets nor allowed to sign for the results sheets in at least 10 stations so that it is necessary to conduct a recount of the votes to verify the results. The Petition is supported by the Affidavits of Yunus Mussa, the Petitioner himself; Patricia Chimwala and Christopher Zozo, the Petitioner's alleged monitors at Chalomwe Polling Station; Agatha Mwale and Chikumbutso Mphira, the Petitioner's alleged monitors at the Zomba DC'S Office; Grace Msema and Elizabeth Kanthunzi, the Petitioner’s alleged monitors at Sacred Heart;_Moffat Chisale and Grace Chinomba, the Petitioner's alleged monitors at Chinamwalli San centre; Lenard Mkala and Harry Imani, the Petitioner’s alleged 2 monitors at Bwaila F. P. School; Ali Kachoka, the alleged Petitioner's monitor at Satema Primary School and Mable Kandula, the Petitioner's alleged monitor at Chalomwe Primary School. There are also filed in support of the Petition, very brief Skeleton arguments. The Petition is opposed by both the 1st and the 24 Respondents. The 2n¢ Respondent on its part has filed Affidavits sworn by the following: Willie Kalonga, the 2"¢ Respondent's Chief Elections Officer; and Affidavits by Newton Mophiha, the Presiding Officer at Chalowe Polling Station in Zomba Central Constituency; Blessings Chikoko, the Presiding Officer at Chinamwali San Centre Polling Station in the said Constituency; Diana Banda Chisambo, the Assistant Presiding Officer at Mponda Polling Station in the said Constituency; Me Connell Chagoma, the Presiding Officer at Chikamveka Polling Station in the said Constituency; Cecilia Chakanza, the Presiding Officer at Zomba DC'S Office Polling Station in the said Constituency; Joan Namagowa, the Constituency Returning Officer for the said Constituency; Violet Liyaya, the Presiding Officer at Atuweni Orphan Care School Polling Station in the said Constituency and Isaac Palero, the Presiding Officer at Mpotola Polling Station in the said Constituency. There are also filed in support of the said opposition Skeleton Arguments. And the 1st Respondent on her part has also filed an Affidavit in opposition sworn by Nangozo Patricia Kainga, the within Respondent. There are also filed in support of the said opposition Skeleton Arguments. In response to the Affidavit of Willie Kalonga filed on behalf of the 2"¢ Respondent, the Petitioner has again filed another affidavit sworn by Yunus Mussa, the within Petitioner. At the hearing of the within Petition all the three parties hereto adopted their respective Affidavits and Skeleton Arguments and went on to make some oral submissions to battress their cases. This being a civil case involving the rights of the parties, the burden of proof is, no doubt, on the party who asserts the affirmative to prove his/her assertion. This seems to be the view also espoused by Kumange Jj in the case of Iqbal Omar v Samuel Gama & The Electoral Commission Misc Application No. 28 of 1999 (Unreported) when he said: “ But mere statement in the petition without deponed statements by those who saw and witnessed such irregularities, does not constitute proof of any matters alleged in the petition. The same observation is true of matters alleged in reply to petition by the respondent. All parties, be it, the petitioner, the resoondent etc must present evidence by which the court will be guided”. And as regards the standard of proof, it has been held that due to the importance of an election case, the standard of proof ought to be slightly higher than the mere balance of probabilities - see: the Ugandan Court of Appeal case of Winnie Matsiko v Bahihuga Winnie, L. E. M., Election Petition Appeal Case No. 9 of 2002 where Kikonyogo, DCJ said: “If is now settled law that the present formulation of 62(3) ( now 61(3) Parliamentary Elections Act requires that the Court trying an election petition under the Act will be satisfied if the allegations/grounds in the petition are proved on a balance of probabilities, although slightly higher than in ordinary cases. This is because an election is of greater importance both fo the individual concerned and the nation at large. beeees A petitioner has a duty to adduce credible or cogent evidence to prove his allegation at the required standard of proof.” This Court adopted the above stated standard of proof in the case of Mary Thom Navicha v Electroral Commission & Lifred Nawena Misc. Civil Cause No. 84 of 2009 (unreported) and will in the determination of this case bear in mind both the burden and standard of proof, as aforesaid. Allthe parties to this case seem to be agreed on the relevant statutory provisions for the determination of this case which are Sections 93, 100 and 114 of the Parliamentary and Presidential Elections Act (Cap.2:01). And the within Petition having been made to this Court by way of appeal this Court finds it pertinent to reproduce Section 114, aforesaid, as follows: “(1) An appeai shall lie to the High Court against a decision of the Commission confirming or rejecting the existence of an irregularity and such appeal shall be made by way of a petition, supported by affidavits of evidence, which shall clearly specify the declaration the High Court is being requested to make by order. (2) On hearing a petition under subsection (1), the High Court - (a) shall subject to subsection 3, make such order or orders as it thinks fit: (6) in its absolute discretion may or may not condemn any party to pay costs in accordance with its own assessment of the merits of the complaint. (3) An order of the High Court shall under subsection (2) not declare an election or the election of any candidate void except on the following grounds which are proved to the satisfaction of the Court- (a) that voters were corruptly influenced in their voting contrary to any provision of this Act; or had their ballot papers improperly rejected, or voted more than once; (6) that persons not entitled to them were improperly granted ballot papers; or (c) that persons entitled to them were improperly refused ballot papers: Provided that the court shall not declare an election void, after proof of any ground in paragraphs (a), (b) or (c), if it is satisfied that the number of votes involved could not have affected the result of the election; (d) non-compliance with this Act in the conduct of the election: Provided that, if the court is satisfied that any failure to comply with this Act did not affect the result of the election, it shall not declare the election void; (e) that the candidate was at the time of his election a person not qualified for election or that he was not properly nominated, or that a duly qualified candidate had his nomination improperly rejected by the returning Officer. (4) (5) It should be apparent from the wording of Section 114(4), as aforesaid, that this Court can thus only proceed to order a recount of the votes of the Parliamentary elections for the Zomba Central Constituency if the Petitioner can satisfy it with the necessary evidence that such a recount is desirable in the circumstances obtaining in this matter. The court shall have power to direct scrutunity and recount of votes if it is satisfied, during proceedings on an election petition that such scrutiny and recount are desirable. At the conclusion of the trial of an election petition the court shall determine whether the member whose nomination or election is complained of, or any other and what person was duly nominated or elected, or whether the election was void, and shall report such determination to the commission. Upon such report being given such determination shall be final. PSCC CCH TEETH TED C OHO SE HEED EHO oO OH EOE ROSE OE HOSE ED OO SEO ODO OE OOS COSCO H HEE HHT OTH HEHEHE EEO EOS OEE EHO H OOH ESO OH OEE HOE EERE OOO EOL ES Determination- In the determination of the within Petition it is intended to consider first, the results of the elections in the polling stations where it is alleged there were discrepancies and then the allegation that the Petitioner’s monitors were refused permission to witness the vote count and to be given the results sheets in at least 10 stations. (a) The Allegation that there were Discrepancies in certain Polling Stations- (1) Sacred Heart School Polling Station- It is here the assertion of the Petitioner that he was short changed by 349 votes. By its reply the 274d Respondent asserts that the 349 votes were clearly cancelled and that if the same were to be added to the Petitioner's votes then there would be more cumulative votes from the candidates than the actual valid votes cast. This Court has had occasion to examine the Results sheet for the above-stated polling station which is attached to the Petitioner’s Affidavit, though not marked as an exhibit, and has established that the total number of the valid votes cast recorded as for the station is 2936. And after adding up the figures of the votes cast for the candidates the total is 2938. There is thus an overage of 2 votes. It would thus seem to follow, in this Court's view and as rightly contended by the 24 Respondent in the Affidavit of Willie Kalonga, that if the 349 votes claimed by the Petitioner were added to him there would be more cumulative votes from the candidates than the actual valid votes cast at the station. The claim by the Petitioner to have been short changed by 349 votes can thus not be substained. In passing, it is the considered view of this Court, that the 349 votes Under stream 7 for the Petitioner having been cancelled and the Results sheet having been signed not only by the Presiding Officer at the Station but also the Petitioner's own representatives as a true reflection of the results, the Petitioner would, in the premises, be estopped and precluded from asserting that he was short changed of the 349 votes. This however, does not regularise the irregularity which is as a result of an overage of 2 votes between the total number of the valid votes cast at the station and the total number of the actual votes cast for the candidates. This Court may thus order a recount of the votes at this station depending upon the outcome of the findings to be made in respect of the other polling stations. (2) Chinamwali San Polling Station- It is here the Petitioner’s contention (a) that he had been deprived of 50 votes cast in his favour at this station and (b) that while his total should have been 727 votes yet the results sheet only shows 677 votes. On the other hand, it is the contention of the 2-4 Respondent (a) that the results of the votes cast for the Petitioner was 677, (b) that if we were to add the 50 votes as claimed by the Petitioner then we would have more cumulative votes from the candidates than the actual 2216 votes cast for the station and (c) that the votes cast for the Petitioner for stream 5 at the above - stated station is 23 and not 73 as claimed by the Petitioner. This Court has again had occasion to peruse the Results sheet for the above-stated station which is attached to the Petitioner’s Affidavit in support of the Petition, though not marked as an exhibit, and has established that indeed the total number of valid votes cast at the station is 2216. This court has also taken the trouble of adding up the figures of the actual votes cast for all the candidates and found the total of the same to be also 2216 votes. Thus, if the 50 votes claimed by the Petitioner were indeed to be added to him the total number of the actual votes cast for the candidates at the station would indeed be well in excess of the total valid votes cast at the station. This Would itself be an irregularity because the total number of the actual votes cast for the candidates ought not to exceed the total number 9 of the valid votes stated to have been cast at the station. It is thus the finding of this Court that the contention of the 2"¢ Respondent is here made out. In the circumstances this Court finds no basis for ordering a recount of the votes at the Chinamwali_San Polling Station. (3) Chancellor College Polling Station It is here Petitioner’s assertion (a) that the total number of the votes cast at this station is 2407 and yet the total number of votes cast per candidate comes up to 2370 votes, giving a difference of 37 votes, and (b) that the total number of the ballots cast should have been 244] and not 2370 which means that there are 71 ballots missing. It is, in the premises, the view of the Petitioner that without recount of the votes it would be difficult to say whose votes the 71 missing votes would have been cast for. The 24 Respondent in response asserts (a) that the Results sheet for the station shows that the total cast votes are 2411 votes with 2407 valid votes, (b) that the total votes as per the candidates total 2370 giving a shortfall of 37 votes only, (c) that the unused ballots are ballots which never made it to the ballot box, that is to say, they were not cast and (d) that the important ballots are those that were cast and not those that were never cast at alland a recounting can not resolve issues relating to ballots which never went into the ballot box. From the Results Sheet attached to the Affidavit of the Petitioner, again though unmarked as an exhibit, which this Court has had occasion to examine, it is apparent, that the total number of valid votes cast is indeed 2407. This Court has also taken the trouble of adding the figures of the actual votes cast for all the candidates and the total therefor is only 2370, that is to say, there is indeed a shortfall 10 of 37 votes. It is however, the considered view of this Court, that a recount can be made only of the ballots which went into the ballot box. As a matter of fact where would we find the ballots which were not cast into the ballot box? Further, none of the candidates can have a right of claim to any of the votes which did not get into the ballot box. Thus if the Petitioner believes the same were probably cast for him then let him adduce evidence to that effect. It is not sufficient for a party to speculate and so expect the court to proceed into speculation with him or her. A party must prove his/her assertion. For the reasons given above this Court is thus not inclined to order a recount of the votes cast at the Chancellor College Polling Station as prayed for by the Petitioner. (4) Thundu School Polling Station It is here again the case of the Petitioner that (a) 2100 ballots were received at the station with 173 having not been used and 4 spoilt, (b) the Results Sheet attached to his Affidavit and marked as Exhibit “YMS5" shows that 1414 valid votes were cast out of the 1908 ballots cast leaving 494 ballots unaccounted for, and (c) the total votes shown as cast comes up to 490 and that there is no data of ballots cast for each candidate per stream. In response the 2"¢ Respondent agrees that (a) the total number of the votes received at the station is 2100 and (b) the total number of votes cast is 1414 votes. According to the 274 Respondent however, the number of unused ballots is 673 and null and void is 13 and that alll the ballots were accounted for. It is thus the assertion of the 2nd Respondent that if there were unaccounted for votes then the same can not be added to the Petitioner or indeed any other candidate. 11 lt is notable that while the Results sheet for the above-stated station attached to the Petitioner's Affidavit and marked as exhibit “YM5” indeed does not have the figures for each candidate for each stream, the Results Sheet attached to the Affidavit of Willie Kalonga for the 2"¢ Respondent and marked as exhibit “WK2” does have the figures for each stream and for each candidate. As a matter of fact the total results for each candidate entered on Exhibit “YM5”", the Petitioner’s Results Sheet, are very different from the results entered on Exhibit “WK2,” the 2"4 Respondent's Results Sheet. It is also notable from Exhibit “WK2” that all the cast ballots are accounted for. Both the Exhibits do appear to have been signed by the Presiding Officer for the polling station. But since the two documents are materially different in their content both can thus not be genuine records of the Results of the polling at the station. The one must be a genuine results sheet and the other not a genuine results sheet. It is however, the considered view of this Court that Exhibit “WK2” ought to be the authentic record of the results of the polling at the station because it is very unlikely that any reasonable Presiding officer could have proceeded fo sign a Results Sheet which does not contain the details of the results for each stream which add up to the results entered for each candidate as is the case with Exhibit “YM5". Thus, much as the Petitioner has urged this Court not to rely on Exhibit “WK2” merely because it does not have the signatures of the candidates’ representatives at the back, this Court would find it even harder to rely on a document which does not have a full record of the results of the polling at the polling station. The fact that the Petitioner has not cited any authority to this Court to show that a Results Sheet ought to be treated as invalid merely because it does not have the signatures of the candidates’ representatives seems to be the more reason why this Court should not be persuaded by the Petitioner's argument. And given that the 2.4 Respondent is an entity mandated by law to conduct the 12 elections, the Petitioner should have advanced valid grounds to satisfy this Court that the 2"4 Respondent had doctored Exhibit “WkK2”. But since the Petitioner has not advanced any reasons whatsoever, this Court is thus inclined to regard Exhibit “WK2” to be the genuine results for the station. In the end result this Court finds that the Petitioner has failed to make out his case requiring this Court to order a recount of the votes at the Thundu School Polling Station. (5) Matiya Polling Station- It is Under the above-stated polling station the assertion of the Petitioner that the valid ballots cast at this station according to Exhibit “YM6", the Results Sheet attached to his Affidavit, is 1969 while the tally shows that the candidates got 1869 ballots leaving 100 ballots cast but unaccounted for. In its response, the 2°¢ Respondent asserts that the 100 votes unaccounted for is a result of a mathematical error which the Petitioner has not shown why if these were indeed cast, they were cast in his favour. This Court has again had the occasion of examining Exhibit “YMé6” and found that the total number of valid votes stated as cast is 1969. It had also taken the trouble of adding up the figures recorded for the candidates and found the total therefor to be 1869 votes. The difference is thus indeed 100 votes. The scenario here seems to be similar to that obtaining under Chancellor College Polling Station, to wit, none of the candidates would have a right of claim to the unaccounted for votes. And as has already been held by this Court earlier in this judgment, a recount of the votes at the station would not in any way assist the Petitioner or 13 any other candidate. In the premises, this Court thus finds no justification for ordering a recount of the votes at Matiya Polling Station. (6) Satema Polling Station It is under the above-stated Polling Station the case of the Petitioner that albeit the ballots received at the station totalled 1000 as per the Results Sheet attached to his Affidavit, again though not marked as an exhibit, there is no data on how these were accounted for. Further, that if each polling station received 400 ballots then there are 200 ballots that are unaccounted for and the Results Sheet does not mention their whereabouts. It is, in the premises, the view of the Petitioner that this uncertainty necessitates a verification of the result through a recount at the centre. In response the 2"¢ Respondent asserts that the Official Results Sheet, exhibit “WK3”, has all the ballots accounted for and that as such any suggested recount would be of no consequence as the ballot boxes only contain cast votes. It is the assertion of the 2"¢ Respondent further, that the Petitioner’s Result Sheet is incomplete for the polling station and that the complete Official Results Sheet has all the ballots fully accounted for. This Court has had occasion to examine both Exhibit “YM7” and “WK3” and again fails to appreciate how if Exhibit “YM7” were a genuine Results Sheet a reasonable Presiding Officer at the station could have gone ahead to sign the same with the blanks in it as is the case. This Court having been presented with Exhibit “WK3” as an official record of the results of the elections made by a body mandated to conduct the elections by law and no valid reasons having been given to show why the same should not be relied upon, this Court finds Exhibit “WK3” to be indeed a genuine record of the poll results at the above-stated 14 station. Exhibit “WK3” is complete with all the required information available. It is thus the finding of this Court that the Petitioner has here failed to make out a case necessitating a recounting of the votes at the Satema School Polling Station. (7) Atuweni Polling Station. lt is here again the case of the Petitioner that as per Exhibit “YM8” there is no data on ballots received etc making the result very difficult to verify. It is, in the premises, the Petitioner's view that a post polling verification of the result is thus required. In its response, it is the assertion of the 2.4 Respondent that the Official Results Sheet Exhibit “WK4” has all the information correctly captured and that all the ballots are accounted for. It is, in the premises, the view of the 2.4 Respondent that there is therefore, no need for any result verification. A careful examination of Exhibit “WK4" to the Affidavit of Willie Kalonga and being relied upon by the 2"4 Respondent herein will show that the same is a Results Sheet for the Presidential Elections and not the Parliamentary Elections. Itis, in the premises, of no relevance in the present case. The exhibition by the 2"4 Respondent of a wrong exhibit herein does not, in this Court’s view, necessarily mean that there are no complete records for the Polling Station as asserted by the Petitioner. It is quite possible that the Petitioner’s monitors at the Polling Station had themselves failed to capture the relevant data, otherwise how could the polling at the station have been allowed to proceed? It is also the considered view of this Court that the mere fact the Petitioner may not have the complete data for the Polling Station can not perse be 15 a ground for ordering a recount of the votes at the station. And as already held earlier in this judgment, for the purposes of a recount it is only the ballots which went into the ballots which are material. This being the case would a recount of the votes which went into the ballot box at this station thus give the Petitioner any different result? This Court doubts it very much. It is, in the premises, the finding of this Court that a case for a recount of the votes at Atuweni Polling Station has not been made out by the Petitioner. (8) Rural Low Cost Housing It is here the case of the Petitioner that according to the Exhibit “YM9”, the Results Sheet for the station, there is an overage of 2 ballots cast, that is to say, that 1425 ballots were cast against a total of 1423. In its response, the 2°4 Respondent has asserted that a close scrutiny of the Results Sheet will show that the votes per candidate amount to 1423 votes and not 1425 as alleged by the Petitioner. It is, in the premises, the contention of the 2"4 Respondent that there is therefore, no overage of votes here. This Court, like in most other Results Sheet, has had the occasion to examine carefully the entries and even verified the addition of the results of each candidate and is in agreement with the assertion of the 24 Respondent, that the total votes for the candidates is 1423 and not 1425 as alleged by the Petitioner. In the premises, it is the finding of this Court that the Petitioner has failed to make out a case for a recount of the votes at the Rural Low Cost Housing Polling Station. 16 (B) The Allegation that the Petitioner's monitors were _ refused permission to witness the vote count and to be given the results sheets in at least 10 stations. It is here the case of the Petitioner that his monitors were barred from witnessing the counting and were not allowed to sign the results sheets in 10 centres as follows: Bwaila, Chikamveka, Mponda, DC’s office, Chikowi, Chinamwali_Municipal, Mpotola, Chinamwali_ San Centre, Atuweni and Chanco. The Petitioner is here relying on the Affidavits of his monitors referred to earlier in this judgment. It is, in the premises, the belief of the Petitioner that if the errors and irregularities had not occurred, the result of the election would have been different as the affected number of votes is more than the difference between the votes allegedly cast for him and those for the Ist Respondent. The 2.4 Respondent in its response and relying on the Affidavits of its presiding officers for the stations, also referred to earlier in_ this judgment contends (a) that there is over-whelming evidence that all monitors who were duly accredited to monitor the results were accorded a chance to participate in the vote counting and signing off of the Results sheets, (b) that in the present scenario all the Petitioner's monitors were not barred to vote counting and were afforded a chance to sign off the result sheets and that it is for this reason that the Petitioner's monitors at the district tally center were able to verify the results with all his polling station monitors when the results were being tallied at the district level and (c) that had the Petitioner's monitors been barred, they would not have had the figures and they would have raised objection to the final constituency level results at the district tally center. li is the further contention of the 2:4 Respondent (a) that from the analysis made in its Skeleton Arguments it is clear that the only irregularities apparent relate to the unused ballots which have not been accounted for, and (b) that even if the Petitioner had proved that his monitors were barred that alone would not change the result. 17 It is, in the premises, the position of the 2"¢ Respondent that the Petitioner is not entitled to any of the declarations he is seeking before this Court and prays that the Petition herein be dismissed with costs. There is, no doubt, in this Courts mind, that there are a number of Results Sheet exhibited by the Petitioner which show that the same were signed by the Petitioner’s monitors which in itself evidence that the 2"¢ Respondent had accepted the same to witness the polling. The pertinent question however, is: was the 2.4 Respondent bound to allow each and every monitor of the Petitioner to witness the polling? The answer seems to lie in the provisions of Section 72 of the Parliamentary and Presidential Elections Act, aforesaid, which provides as follows:- "72-(1) Every political party shall have the right to monitor the voting process at polling stations and shall do so through its designated representatives who shall be notified to the Commission in writing specifying their names and the polling stations to which they are fo be assigned and in the absence of such notification by any political party it shall be presumed that the political party does not desire to monitor the voting process at that polling station. (2) The Commission shall issue to every person designated as a representative of a political party under subsection (1) a document of identity in the prescribed form.” It seems to follow from the foregoing provisions that it is only a representative who has been duly issued with a document of identity in the prescribed form, that is to say, who has been duly accredited, who can monitor the voting process at the polling station. The 2nd Respondent having contented that all monitors who were duly accredited to monitor the results were accorded a chance to participate in the vote counting and signing off of the Results, it was thus incumbent upon the Petitioner to satisfy this Court, with the 18 necessary evidence, that the monitors in question had been duly accredited by the 274d Respondent. Indeed on what basis would this Court fault the 2".¢ Respondent and thus find that there was any irregularity as contended by the Petitioner in the absence of such evidence? It is observable that all the Affidavits of the Petitioner's monitors above-referred to do not have any such evidence. It is thus possible that if indeed the Petitioners’ monitors were barred, as alleged, they were barred on grounds which are justified in law. But even if the allegation had been proved, which apparently is not the case, the Petitioner would have to satisfy this Court further that had it not been for the barring of his monitors, as alleged, the result of the election would have been different. From this Court's findings above it is doubtful that the Petitioner would have made out his case. This Court is thus not inclined to sustain the Petitioner’s claims or allegations for irregulations. Conclusion - In conclusion it is thus the finding of this Court (a) that albeit this Court has found that there was some irregularity at Sacred Heart School Polling Station, this Court is however, not inclined to order a recount at that Polling Station because the same would be of no consequence whatsoever considering (i) that the overage is only by 2 votes which even if subtracted from the Ist Respondent would not change her position; and (ii) the Petitioner has not made out any case necessitating a recount of the votes at any of the other centers in the Zomba Central Constituency, (6) that the Petitioner has also not proved that his monitors were barrad from witnessing the vote count or that there were irregularities in the conduct of the polling at any of the stated polling stations in the said Constituency; and 19 (c) that even if there had been any irregulaties, which apparently has not been substantiated wifh any evidence, the Petitioner has not proved how such irregularities would have affected the results of the elections in the said Constituency. In the premises this Court is inclined to dismiss the within Petition in its entirety as being without merit. It is so dismissed. Costs: This Court has borne in mind the provisions of Section 114(2) (bb) of the Parliamentary and Presidential Elections Act and having found the Petition to be without merit is inclined to condemn the Petitioner in the costs of this Petition. The Petitioner will thus bear the costs of both the 1st and the 2-4 Respondents to be taxed, if not agreed upon by the parties hereto. Dated this 17th day of October, 2014. CHIRWA J JUDGE 20