MWIYA MUTAPWE V SHOMENO DOMINIC (APPEAL NO. 19 OF 2017 2016/CC/A008) [2019] ZMCC 24 (11 December 2019)

..,- IN THE CONSTITUTIONAL COURT OF ZAMBIA HOLDEN AT LUSAKA (Constitutional Jurisdiction) APPEAL NO. 19 OF 2017 2016/CC/A008 IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AND THE PETITION RELATING TO THE SHANG'OMBO DISTRICT COUNCIL CHAIRPERSON ELECTION HELD ON 11TH AUGUST, 2016 ARTICLE 159 OF THE CONSTITUTION OF ZAMBIA, CHAPTER 1 VOLUME 1 OF THE LAWS OF ZAMBIA SECTIONS 81, 82, 83, 84, 85, 86, 87, 89, 92, 94, 97, 98, 99, 100 AND 110 OF THE ELECTORAL PROCESS ACT NO. 35 OF 2016 IN THE MATTER OF: THE ELECTORAL CODE OF CONDUCT BETWEEN: MWIYA MUTAPWE ~ ~ ~~~, REPUB I CONSTrTunoN)!f OF ~MPtA • >9!' r--.., ... _._ - - . ~ . cou" T u1- Zl,\.iB11; '· l ... ~ t ; er- f L ,J ,.,,l_, '(]!•' 1 01:C .. ~ - ·-- 1 ~~ ...• __J AND p ~ SHOMENO DOMINIC 0 B O R;:c,c;·rpv ., - . . · .r M j 67 LUSAr:.'4. ----J APPELLANT RESPONDENT CORAM: Sitali, Mulenga, Mulembe, Mulonda and Munalula, JJC on 22nd March, 2018 and on 11 th December, 2018 For the Appellant: Miss M. Mushipe of Mushipe and Associates J l JI For the Respondent: Mr. L. Eyaa of KBF and Partners JUDGMENT Sitali JC delivered the judgment of the Court. Cases cited: 1. Michael Mabenga v Sikota Wina and Others (2003) Z. R. 110 2 . Kamanga v Attorney-General and Another (2008) 2 Z. R. 7 3 . Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Others (2005) Z. R. 138 4. Subramanian v The Public Prosecutor (1956) lWLR 965 5 . Kufuka Kufuka v Mundia Ndalamei SCZ Appeal No. 80 of 2012 6. Mubika Mubika v Poniso Njeulu SCZ Appeal No. 114 of 2007 7. Green Nikutisha and Another v The People (1979) Z. R. 261 8. Lewanika and Others v Chiluba (1998) Z. R. 79 9. Mubita Mwangala v Inonge Mutukwa Wina Appeal No. 80 of 2007 10. Josephat Mlewa v Eric Wightman (1995/ 1997) Z. R. 171 11. Inonge Mubika v Mukelabai Pelekelo Selected Judgment No. 32 of 12. Saul Zulu v Victoria Kalima SCZ Judgment No. 2 of 2014 13. Zambia Electricity Supply Corporation v Redlines Haulage Limited SCZ Judgment No. 10 of 1992 14. Machipisha Kombe v The People SCZ Judgment No. 27 of 2009 15. Buchman v Attorney-General (1993/94) Z. R. 131 16. Chimbini v The People (1973) Z. R . 191 17. Evaristo Bwalya v The People (1975) Z. R. 227 18. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 172 19. Matilda Mutale v Emmanuel Munaile SCZ Judgment No. 14 of 2007 20. NFC Africa Mining Plc v Techpro Zambia Limited SCZ Judgment No.22 of 2009 21. Brelsford James Gondwe v Catherine Namugala SCZ Appeal No. 129 of 2012 22. British Airways Pension Trus tees Ltd v Sir Robert McAlpine & Sons Ltd (1994) 45 Con. L. R. 1 23. Khalid Mohamed v Attorney-General ( 1982) Z. R. 49 24. Wilson Masauso Zulu v Avondale Housing Project Limited (1982 ) Z. R. 172 2 5. Margaret Mwanakatwe v Charlotte Scott a nd Attorney-General Selected Judgment No. 50 of 2018 26. Nkandu Luo a nd Another v Doreen Sefuke Mwamba and Attorney General S elected Judgment No. 5 1 of 2 0 18 J 2 ' - 27. Steven Masumba v Elliot Kamondo Selected Judgment No. 53 of Legislation cited: 1. The Electoral Process Act No. 35 of 2016 section 97 (2) (a) 2. The Local Government Election Tribunals Rules, Statutory Instrument No. 60 of 2016, rule 23 (1) The Appellant Mwiya Mutapwe who was the Respondent before the Loca l Governmen t Election Tribuna l for the Shang'ombo District appeals against the judgment of the Tribunal which nullified his election as Shang'ombo District Council Chairperson. The Appellant and the Respondent were candidates for t h e Shang'ombo District Council Chairperson election held on 11 th August, 2016 . The Appellant was the United Party for National Development (UPND) candidate while the Respondent was the Patriotic Front Party (PF) candidate. The Appellant emerged victorious with ten thousand, on e hundred and seventy-two (10 , 172) votes and was declared as the duly elected Council Chairperson for Shang'ombo District Council. The Respondent got five thousand four hundred and four (5,404) of the votes cast. J 3 The Respondent filed a petition seeking a declaration that the election be nullified on the ground that the election was invalid due to non-compliance with the provisions of the Constitution as amended and the Electoral Process Act No. 35 of 2016 (which we shall refer to as the Act). In his petition, the Respondent (as petitioner) alleged that during the campaign period the Appellant and his agents engaged in acts of violence against PF supporters citing an incident where a PF cadre on 24 th July, 2 01 6 was stabbed with a knife, the assault of a PF cadre at Beshe polling station on 26 th July, 2016, th e assault of anoth er PF cadre by named UPND m embers on 4 th August, 2016 and an attack on PF officials in Mutanda area on 9 th August, 2016 . He further alleged that during the campaign period, the Appellant and his agents brewed eight (8) drums of local beer for voters in Shang'ombo Constituency to drink. That on two separate occasions, the Appellant and his agents broke into the Food Reserve Agency (FRA) shed and stole 104 bags of maize which they distributed to voters. That during the camp a ign period the Appellant and his agents called the Respondent a drunkard and a thief and extended the aspersion s to his Party President. J4 He a lso alleged that the Appellant's agents distributed pens to voters on queues at all polling stations promising K50 cash payment upon return of the pen after voting for the UPND candidates; that UPND candidates ferried voters to polling stations in a coach and a 4 x 4 truck belonging to a UPND businessman; that the Appellant and his agents constantly pulled down and destroyed PF campaign posters during the campaign period a nd that on polling day, UPND supporters beat up and threatened violence against PF supporters and prevented them from voting. The Tribunal analysed the Respondent's eviden ce and held that h e had proved his case beyond a balance of probabilities. The Tribunal nullified th e election of the Appellant as Council Chairperson for Shang'ombo District Council and further held that the Appellant was not eligible to stand for re-election as Coun cil Chairperson or as a Councilor within Shang'ombo District for a period of five years in accordance with Article 157 (2) and (3) of the Constitution as amended. Aggrieved by the decision of the Tribunal, th e Appellant appealed to this Court advancing the following grounds which we have quoted verbatim: J S \ - 1. 2. 3 . 4. 5. 6. 7 . 8. That the Learned Members of the Tribunals erred in both law and fact when it nullified the election of the Respondent on the grounds of corruption and bribery when it held that the illegal Respondent had committed corrupt practices or practices or misconduct when the same was not supported by evidence to the required standard. The Learned Members of the Tribunal erred in fact and in law when they attached due weight to the testimony of the Petitioner without any evidence in corroboration. The Learned Members of the Tribunal erred in fact and in law when it attached due weight to the testimony of PWl who was the District Commissioner of Shang'ombo when his evidence was hearsay and utter speculation which was not supported by any evidence in corroboration. The Learned Members of the Tribunal erred in fact and in law when they attached due weight to the testimony of PW2 who was a witness with an interest to serve and when analysing his testimony did not consider the provisions of section 100 (2) of the Electoral Process Act No. 35 of 2016. The Learned Members of the Tribunal erred in fact and in law when they attached due weight to the testimony of PW3 of identifying the Respondent as the one who stole the maize in the dark in the absence of conducting an identification parade, let alone an arrest from the police being made. The Learned Members of the Tribunal erred in fact and in law when they attached due weight and reliance on the testimony of PW4 when he is a Patriotic Front (PF) member therefore a witness with an interest to serve. The Learned Members of the Tribunal erred in fact and in law when they attached due weight to the testimony of PWS who was a Patriotic Front (PF) member therefore a witness with an interest to serve. The Learned Members of the Tribunal erred in fact and in law when they did not consider the provisions of section 100 (2) of the Electoral Process Act No. 35 of 2016 in passing their judgment and in analysing the evidence given by the Petitioner and his witnesses. J 6 9 . The Learned Me mbe rs of the Tribunal e rre d in fac t and in law when they did not allow t h e Res pondent to p resent his case . 10. The Le arne d Members of the Tribunal e rre d in fact and in law when they held that the evide nce of witnesses with an interest to serve was enough to reach the standard of proof require d in e lection Petitions in order to nullify an election in the absence of corrobora tive evide nce. The Appellant filed written heads of argument upon which Ms. Mushipe, counsel for the Appellant relied at the hearing of the appeal. The Appellant submitted that it is settled law regarding the burden of proof in election petitions th at th e party who alleges must prove the a llegations m a d e to a standard higher than a balance of probabilities in ordinary civil cases but not b eyond reasonable doubt a s re quired in criminal matters. The Appellant cited the case of Michael Mabenga v Sikota Wina and Others111 , Kamanga v Attorney-General a nd Anotherl2 l and Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Others131 in s upport. It was submitted that section 97 (2) of the Act clearly states th at an election will not be d eclared void on mere a llegation of electoral m alpractice unless t h e allegation is proved with cogent evidence to the r equired standard that the candidate committed the electora l malpractice complained of or th at it was committed with his knowledge a nd con sent or a pproval or that of his election agen t. J 7 The Appellant further subrnitted that it must be demonstrated that the majority of the voters in the district were prevented from voting for a candidate whom they preferred. It was submitted th at notwithstanding that the Appellant did not file an Answer and therefore did not call witnesses to defend the petition, the Tribunal could only nullify the election of the Appellant as Council Chairperson on evidence establishing to a fairly high degree of convincing clarity that he actually committed the electoral malpractices complained of and that as a result of the proven malpractices, the majority of voters were prevented from voting for their preferred candidate. The Appellant stated that it was on the premise of the foregoing that the judgment of the Tribunal was challenged. Grounds one and two of the appeal were argued together. The Appellant submitted that the Respondent failed to conclusively prove the a llegation of corruption and bribery, in terms of section 8 1 (1) (a), (b) , (c) and (f) of t h e Act, as there was no clear and unequivocal eviden ce that he committed the alleged corrupt practices. The Appellant quoted the learned authors of Halsbury's Laws of England, 4 th edition, volume 15 at page 780 who state that JS clear and unequivocal proof is required before a case of bribery will be held to have been established. That suspicion is not sufficient and the confession of the person alleged to have been bribed is not conclusive . The Appellant submitted that in this case, the Respondent's evidence (as Petitioner) did not clearly and unequivocally establish that the Appellant brewed local beer at Sebumbu polling station and gave it to the voters as an inducemen t for them to vote for him. And t h at no eye witness was called to confirm the a llegation that the Appellant gave beer to voters as an inducement at a r a lly. Th e Appellant further submitted that there was similarly no clear and unequivocal evidence that the Appellant gave money and pens to voters or that the people who allegedly distributed pens and money to voters were the Appellant's appointed agents . The Appellant challenged the evidence of PW4 and PW5 who sought to substantiate the allegation of corruption and bribery by the Appellant on the ground that their evidence required corroboration. That PW4 a lleged that he r eceived m eat, b eer a nd chitenge from the Appellant and his agents and therefore voted for UPND candidates. That PW5 said h e was bribed by Kalomo Kalomo and Kalomo J 9 Ndumba whom h e a lleged wer e UPND agents and therefore confessed to taking a brib e from the alleged UPND agents. The Appellant further impugned the evidence of PW5 that people voted for the Appellant and other UPND candidates because of the bribes they allegedly gave to the electorate and argued that t h ere was no indep endent evidence to that effect. Regard ing the a llegation of violence, the Appellant submitted tha t the Respondent's evidence that a t a meeting h eld in Liyuwayuwa village, John Kakomwisa was stabbed with a knife by Pumulo Munyumbwe, an a gent of the Appellant; that a nother PF cadre was assaulted at Villa polling station in Bushe ward by a person who was standing as a Councilor on the UPND ticket; and that a PF member was badly assaulted by Nawa Mubika, In on ge Mubik a and Sililo Mwakamui at Ngandwe polling station with t h e Appellant's knowled ge, was inadmissible h earsay evidence. He cited the case of Subramanian v Public Prosecutor!4 J in support of that submission. The Appellant con tended that the re was no evidence before the Tribuna l that Pumulo Munyumbwe or the other p eople who were allegedly involved in violence were a ppoin ted agen ts of the J lO Appellant, that they acted on the Appellant's instructions or that he had any knowledge of the alleged attacks and assau lts . The Appellant submitted that the evidence of PW2 that John Kakomwisa was stabbed with a knife by a person wearing UPND regalia did not mean the person was the Appellant's agent or that he acted on his (Appellant's) instructions. In support of his submission, the Appellant cited the case of Kufuka Kufuka v Mundia Ndalamei15l wherein the Supreme Court stated that just because the attackers came from the d ir ection where the Respondent was having a meeting could not lead to an inference that h e was r esponsible for the attack. Regarding the alleged disparaging statements, the Appellant submitted that there was no evidence that h e called the Respondent a thief and a drunkard at his meetings . That no independent witness testified that he attended a meeting at which the Appellant made the disparaging remarks. He argued that PW4 in his testimony did not say in which a reas the Appellant a llegedly discouraged the people from supporting the Respondent because h e suffered from diarrhea. J ll Regarding the effect of the alleged acts of bribery, violence and disparaging statements on the electorate, the Appellant submitted that the Respondent's evidence did not show how the alleged acts and statements affected the majority of voters so as to prevent them from voting for their prefe rred candidate. The Appellant furt her submitted that the Respondent's assertion, that people were afraid to vote due to threats of violence, was not supported by evidence of the number of people who did not vote due to the threats. The Appellant again cited the learn ed authors of Halsbury's Laws of England, 4 th edition, volume 15, paragra ph 784 at page 4 29 who state that in order to constitute undue influence , a threat must be serious and intended to influence the voter but a lso that the threat should b e judged by its effect on the person threatened a nd not by the intention of the p erson using the threat. It was s ubmitted that in this case, there was no evidence of h ow many p eople attended the rallies, and heard the disparaging remarks, or the number of p eople who p articipated in the b eer drinking or who b enefitted from the bribery by the Appellant to induce them to vote for him. The Appellant contended that there was no evidence of widespread vilification of the Respondent, which J12 evidence was re quired to b e proved as h eld in th e case of Mubika Mubika v Poniso Njeulu. 161 That in Kufuka Kufuka v Mundia Ndalamei, 151 it was stated that it was not e n ough for the p etitioner to say "people were saying" and t h at wh at was required was for him to provide proof of his allegations and th e extent of influence the allegations had on th e electorate. That in this case, the Re spondent's evidence was inconclusive and speculative. Grounds three , four, five, six, seven, eigh t and ten wer e argued together. In arguing t h ese grounds , the Appellant conte nded that the Tribunal should n ot have nullified the election of the Appellant on th e evidence of the Respondent a nd his five witnesses, PWl to PW5 , without con sidering the fact that they were witnesses with interest to serve and that their evidence was speculative and therefore needed to be corroborated. The Appellant submitted that th ere was a d isparity in the evidence of PWl and PW3. That on one PWl had said the m a ize was removed from the FRA shed by t h e Appellant and his agents on 10th August , 2 016 and given to the voters with instructions to vote fo r th e UPND. That PW3, on the other h and , said the Appellant and J1 3 two other men broke into the FRA shed on 9 th August, 2016 around 20.00 hours and stole six b ags of maize. It was contended that a police report regarding the incident should have been produced to conclusively show the date wh en the alleged break-in h a ppen ed and to authenticate PW3's assertions. It was submitted that PW3's evidence identifying the Appellant as one of the p eople who broke into the FRA shed was doubtful as no iden tification parade was h eld for the ide ntifica tion of the Appellant. The Appellant cited the learned author Edward J. Imkwinkelried, Evid entiary Foundations, 4 th edition, 1998 a t page 41 wherein they state that the common law generally r equires tha t the proponent of eviden ce prove the a uthenticity of the evidence as a condition to the admission of the eviden ce. That to a uthenticate an item of evidence, the proponent must present proof th at the a r ticle is what the proponent claims that it is. It was contended further that s ince the Appellant was n ot arrested and n o police report was produced regar ding the alleged theft of the m a ize by the Appellant, d oubt was raised as to the a uthenticity of the evidence of PW3 , which doubt could h ave been cleared by corroborative evidence. The App ellant cited the case of J 14 Green Nikutisha and Another v The People!7 l wherein it was held that the n eed for calling of other witnesses arises when doubt is cast upon the evidence of a witness to the extent that further evidence is required to corroborate that witness and thus remove the doubt. Regarding the evidence of PW4 and PWS who sought to substantiate the Respondent's allegations of corruption and bribery, the Appellant contended that their evidence without corroboration cannot be considered as conclusive because they both confessed to accepting a bribe. The Appellant reiterated the observation of the learned a uthors of Halsbury's Laws of England, 4 th edition, volume 15 at page 780 who state that clear and unequivocal evide n ce of a case of bribery is required before it will be h eld to h ave been established. Further , that the confession of the person a lleged to h ave been bribed is not conclusive. The Appellant further submitted tha t the provisions of the Act clearly show that a candidate for a n election is only r esponsible for corrupt or illegal acts or misconduct which are done by t h e candidate or with his knowledge and consent or a pproval or that of his appointed agent. That t h e evidence of the Respondent, as J15 petitioner, and that of PW2 , PW4 and PWS did not show that the people whom they a lleged were UPND or to have committed acts of violence or made disparaging remarks were the Appellant's appointed agents or that they acted on the Appella nt's instructions. The case of Lewanika and Others v Chilubal8l was cited in support. The Appellant contended that the Tribunal erre d by nullifying the election of th e Appellant on the evidence of PWl , PW2 , PW4 and PW5 without corroboration. The Appellant went on to submit that in terms of section 97 (2 ) of the Act, an election is void only if on the tria l of the election petition, it is proved to t h e satisfaction of the Court or Tribunal that th e electoral offence committed in connection with the election prevented the majority of voters from electing their preferred candidate. In this regard, the Appellant relied on the cases of Mubika Mubika v Poniso Njeulul6 l, Mubita Mwangala v Inonge Mutukwa Winal 9 l a nd Josephat Mlewa v Eric Wightmanl10l, a ll of which emphasise that an election will only b e void where it is demonstrated that the prohibited activity complained of was widespread and thus p r evented the majority of voters from electin g their prefe rred candidate . J 16 It was contended that in the present case, the evidence adduced fell far below the required standard of a fairly high degree of convincing clarity. That th e Tribuna l, therefore, mis directed itself when it n u llified the election of t h e Appella nt on in con clusive evidence. Underground nine which was argued a lone, the Appellant argued that th e pillars of the Const itution and system of a djudication are that a person has the right to b e h eard and that m atters should b e h eard on the merits. That in this case, the Tribunal d en ied the Appellant the right to b e h eard when it refused to grant his application to file his answer out of time on the ground that election p etitions are time bound. That the Tribuna l misdirected itself in r efusing the Appella nt's application becau se the Constitution d oes not give a time frame for the dis posal of appeals relating to local government elections as h eld in lnonge Mubika v Mukelabai Pelekelo111l wh er ein this Court h eld that ther e is no time frame given in the Con stitution, the Act or the Rules for the disposal of a ppeals relating to local government election petitions. It was s ubmitted t h a t the Tribuna l should h ave taken into account the provisions of Article 118 (2 ) (e) of the Constitution which enjoins J17 courts to administer justice without undue regard to procedural technicalities. That based on a procedural technicality, the Tribunal denied the Appellant his constitutional right to be h eard when it refused him to file his answer. It was submitted that the Tribunal therefore contravened the provisions of Article 18 (2) (e) of the Constitution. In conclusion, the Appellant submitted that the Respondent failed to prove the allegations of electoral malpractice to a fairly h igh degree of convincing clarity as the evidence h e adduced was not clear and unequivocal and did not satisfy the requirements of section 97 (2) of the Act. It was contended that the Tribunal misdirected itself in law a nd fact to have declared the election of the Appellant void on the Respondent's evidence. The Appellant submitted that the d ecision of the Tribunal be set aside and that his election as Council Chairperson for Shang'ombo District Council be upheld with costs. The Respondent filed written h eads of argument in opposition to the appeal on which Mr. Eyaa, counsel for the Respondent relied. Ground one of the appeal was argued alone. Grounds two and three were argued together, grounds four and eight were argued J18 together, ground five was argued on its own, grounds six, seven and ten were argued together while ground nine was a rgued last a nd on its own. In opposing ground one, the Respondent submitted that the Tribunal was right to nullify the election of the Appellant as Council Chairperson as there was overwhelming evidence to s upport the allegations in the petition. The Respondent contended that the Appellant had no d efence having failed to file an answer to the petition and relied on the holding in the cases of Michael Mabenga v Sikota Wina and Others! 1l, Saul Zulu v Victoria Kalima!12l and Anderson Kambela Mazoka and others v Patrick Levy Mwanawasa and others!3 l and Zambia Electricity Supply Corporation v Redlines Ha ulage Limited!13 l to the effect that an election petition depends on the pleadings, that is , the petition and the answer and that the parties are bound by t hem. That the burden of proof is on the challenger to prove the a llegations to a higher standard than a balance of probabilities. The Respondent submitted that in paragraph s (v) to (xiii) of his petition, he alleged a number of electoral malpractices involving corruption by the Appellant and that at trial he testified to the effect J 19 that on 10th August, 2016, the Appellant and his agents stole 104 bags of maize from the FRA s hed which he distributed to the electorate so that they should vote for him. That the matter was reported to the police but no action was taken. It was submitted that the Respondent's further testimony was that on 11 Lh August, 2016 the Appellant's agents gave pens and money to voters on queues and told t h em to vote for UPND candidates while PF supporters were chased away. The Respondent contended that the Appellant did not dispute the alleged acts in cross examination and did not file an answer to dispute the a lleged corruption and bribery a llegations. That the corruption and bribery a llegations were corroborated by two independent witnesses, PWl, the District Commissioner for Shang'ombo district and PW3, a security guard at the FRA who testified to seeing the Appella nt a nd other people at the FRA shed on 9 th August, 2 016 around 2 0.00 hours where they stole the maize which the Appellant distributed to the people on 10th August, 20 16, a day b efore the elections. It was further submitted that th e evid en ce of PW5 demons trated tha t the bribery and corruption which characterized J 20 the election of the Appellant as Council Chairperson was unchallenged. It was contended that the Tribunal was therefore on firm ground in nullifying the election as th e corruption and bribery allegations were proved to the re quired standard based on the authority of the Mabenga11l case wherein it was h eld that satisfactory proof of any one corrupt or illegal act or misconduct in a n election p etition is sufficient to nullify a n election. In opposing grounds two and three, the Respondent contended that the Respondent's evidence in support of the allegations in the petition was sufficiently corroborated by the five witnesses who testified on his beha lf. That the allegation regarding the distribution of m a ize to the electorate was corroborated by PW3 who witnessed the Appellant break into the FRA s h ed and steal the maize. That the evidence was not s haken in cross examination and stood unchallen ged. It was contended that the eviden ce of PWl was not hearsay because PW3 who informed him of the break in at the FRA was p resent wh en the Appellant a llegedly distributed the maize to the elector ate. That in a n y case, the Appellant did not object to the eviden ce on the basis that it was hearsay when PW 1 testified in chief. It was submitted that based on the princip le laid down in the J21 Subramaniam(4 l case, the testimony of PWl was not hearsay because the maker of the statement PW3 was before the Tribunal and confirmed that he personally witnessed the incident which PW 1 testified about. It was further submitted that the allegation that the Appellant vilified the Respondent's character by calling him a drunkard was corrobor ated by PW4 who said t h e Appellant in Sebumbu area of Sh ang'ombo told the electorate not to support the Respondent because h e suffered from diarrhea. That PW4 further said the Appellant bribed the elector ate with chitenge materia l, meat and beer whilst lobbying them to vote for him and other UPND candida tes and that he (PW4) voted for the UPND. The Res pondent submitted that his evide n ce was sufficiently cor robor ated in terms of the case of Machipisha Kombe v the People1141 wh erein it was h eld tha t corroboration must not be equ a ted with independent proof and th at it is not evidence which n eeds to b e conclusive 1n itself. That corrobora tion is independen t eviden ce which tends to confirm that the witness is telling the truth wh en h e or she says t h e offen ce was committed a nd that it was the accused who committed it. J 22 The Respondent subn1itted that grounds two and three therefore lack merit and should fail. In opposing grounds four and eight which were also argued together, it was submitted that a lthough in ground four the Appellant contended that the Tribunal was wrong when it attached due weight to the testimony of PW2 who was a witness with an interest to serve and in so doing did not consider the provisions of section 100 (2) of the Act; and in ground eight that the Tribunal erred when it ignored the provisions of section 100 (2) in analyzing the evidence of the Respondent and his witnesses, there was no connection between the provisions of sec tion 100 (2) and the testimony of PW2 and the other four witnesses who testified on behalf of the Responde nt. That in a ny case, there was nothing on record to show that PW2 was a witness with an inter est to serve . That section 100 (2 ) only provides for the lodging of an election petition and with whom it s hould be lodged. The Respondent submitted that the Appellant did not raise any issue with section 100 (2 ) of the Act before the Tribunal and cannot raise any issue on appeal. The Respondent cited the case of Buchman v Attorney-General115 l w h erein the Supreme Court laid J 23 down the princip le that a matter which is not raised at trial cannot be raised before an appellate court as a ground of appeal. It was contended that grounds fou r and eight must fail. In opposing ground five , the Respondent submitted that a lthough the Appellant contended that the Tribunal was wrong to have relied on the evid en ce of PW3 identifying the Appellant as the person who stole the maize in the dark when an identification parade was not held and the Appellant was not arrested by the police, PW3 testified that he knew the people who had raided the FRA shed because th ey lived in Shang'ombo Boma and he had known them for a long time. It was submitted that although the standard of proof in an election petition is higher than the balance of probabilities, an election petition is still a civil case while issues of identification parades are matters which relate to criminal trials. He cited the cases of Chimbini v The People' 16 l and Evaristo Mulenga v The People(17 l both of which are a uthorities in criminal cases to press the point that an identification by a single witness is acceptable as long as the possibility of an honest mista ke is ruled out. He stated that in the present case the possibility of an h onest mista k e was ruled out because PW3 knew the Appellant before the J 24 incident and he saw the Appellant again when he went back to the FRA shed and started distributing the maize to the elector ate. The Respondent submitted that there was a connecting link between the Appellant a nd the offence in question which rendered a mistaken identification too much of a coincid ence. In opposing grounds six, seven and ten, the Respondent submitted that the Appellant's assertion that PW4 and PWS were witnesses with an interest to serve due to the fact that they were PF members was unfounded and not supported by the evidence on record. That PW4 testified that he was a peasant farmer who had heard the Appellant defame the Respondent and the PF leadership at a rally, and who said he voted for the Appellant due to the bribe he received from him. That in cross examin ation, he said he was a headman who did not belong to any political party. That PWS was merely a beneficiary of the Appellant's bribery and corrupt practices a nd was not a PF member. It was submitted that the Tribunal found the Respondent and his witnesses credib le having observed their demeanor and further, that t he Tribunal made findings of fact which we, as an appellate Court, cannot interfere with. In support, h e cited the case of Wilson Masauso Zulu v Avondale Housing J 25 Project Limited( 15 l wherein the Supreme Court said an appellate court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were either p erverse or made in the a bsence of relevant evidence or upon a misapprehension of the facts. The Responden t urged us to dismiss the three grounds for lack of merit. Finally, in opposing ground nine , the Respondent submitted that although the Appellant argued that the Tribunal was wrong in not allowing him to present his case, the Appellant was not deprived of the opportunity to present his case as t h e record of appeal shows at p age 75 tha t h e was served with the petition on 1st September, 2016 and according to rule 11 of the Local Government Elections Tribunals Rules, Statutory Instrume nt No . 60 of 2 01 6, he should have filed his answer within seven days of receiving the election petition. He a rgued that the section is clear and unambiguous and t h a t the Tribunal was bound to give effect to it in according with th e principle stated in Matilda Mutale v Emmanuel Munaile(19 l to the effect that an Act of Parliament must be con stru ed according to the words expressed in the Act itself and that if the words are clear and unambiguous, t h en no more is J 26 necessary than to expound those words in the ordinary and natural sense. The Respondent further submitted that the Appellant who was ably represented by counsel made no effort to seek leave of the Tribunal to file the answer out of t ime even when the Respondent raised a preliminary issue regarding whether or not the Appellant could open his defence when he h a d not filed an answer. The Respondent argued that even in opposing the preliminary issue, the Appellant did not apply for leave to file the answer out of time. The Respondent adopted the reasoning of the Tribunal in its ruling at pages 126 to 134 of the record of appeal and cited the case of NFC Africa Mining Pie v Techpro Zambia Limited1201 wherein it was held that rules of the court are intended to assist in the proper and orderly administration of justice and as such they must be strictly followed. The Responde nt submitted in conclusion that ground nine h as no merit and should be dismissed. He contended that the en tire app eal has failed and s h ould be dismissed . The Appellant filed h eads of argument in reply m which he more or less r eiterated his hea ds of argument 1n s upport of the J 27 appeal. We will not restate them here save to state that we have given du e consideration to them. We h ave considered the grounds of app eal, the respective parties' heads of argument and the judgment of the Tribunal. The grounds on which an election can be nullified are set out in section 97 (2 ) (a) of the Electoral Process Act No. 35 of 2 016 (the Act) which provides as follows: "(2) The election of a candidate as a Member of Parliament, mayor, council chairperson or councilor shall be void if, on the trial of an election petition, it is proved to the satisfaction of the High Court or a tribunal, as the case may be, that- (a) a corrupt practice, illegal practice or other misconduct has been committed in connection with the election - (i) by a candidate; or (ii) with the knowledge and consent or approval of a candidate or of that candidate's election agent or polling agent; and the majority of voters in a constituency, district or ward were or may have been prevented from electing the candidate in that constituency, district or ward whom they preferred. " A consideration of section 97 (2) (a) of t h e Act, which is relevant to this case, reveals that the election of a candidate will only be nullified if the p etitioner proves to the satisfaction of the High Court or a tribuna l, as the case may be, that the candidate committed a corrupt or illegal practice or other misconduct in J28 relation to the election or that the corrupt or illegal practice or m isconduct was committed by the candidate's election or polling agent or by another person with th e candida te's knowledge, consent or approval or that of the candida te's election or polling agent. In addition to this, the p etitioner must further prove that as a r esu lt of the corrupt or illegal practice or miscondu ct complained of, the m ajority of t h e voter s in the con stituen cy, district or ward were or m ay h ave b een preven ted from electin g their preferred candidate. This position of the law h as been reiter ated in a p lethora of cases. In the p ersuasive case of Mubita Mwangala v Inonge Mutukwa Wina l9 l which we have cited in a number of our recent judgments, the Supreme Court said : "In order to declare an election void by reason of a corrupt practice or illegal practice or any other misconduct, it must be shown that the majority of voters in a constituency were or may have been prevented from electing the candidate in tha t cons tituency whom they preferred . .. " In th e earlier case of Josephat Mlewa v Eric Wightman , l23 J which is equally p ersuasive, th e Supreme Court h eld that: "The Court must be satisfied about the scale or type of wrong doing. By scale, it is m e ant widespread as to influe nce the m ajority of voters for the ir preferre d candida te ." in the constitue ncy not to vote J 29 The cases cited above aptly demonstrate the import of the majority provision under section 97 (2) (a) of the Act. In this case, the Respondent's election petition was premised on section 97 (2) (a) of the Act. Thus , the Respondent (as Petitioner) was r equired to prove the commission of the a lleged corrupt or illegal practices or m isconduct by the Appellant or his election or polling agents or by another person with the candidate's knowledge and consent or a pproval or that of his election or polling agent, and further, that the majority of voters in the district were or may have been prevented from electing their preferred candidate by the electoral offence complained of. The petitioner in an election petition, just as in any other civil matter, bears the burden to prove the electoral offence complained of. However , the standard of proof in an election petition is higher than that required in an ordinary civil action. The evidence adduced in support of allegations made in an election petition must prove the issues raised to a fairly high d egree of convincing clarity. In the persuasive authority of Lewa nika a n d Others v Chiluba(81 the Supreme Court said this regarding the standard of proof: J 30 " ... Parliamentary election petitions have generally long required to be proved to a standard higher than on a mere balance of probability .... It follows also that the issues raised are required to be established to a fairly high degree of convincing clarity." Further, in Brelsford James Gondwe v Catherine Namugala1211 th e Supreme Court said: "The burden of establishing the grounds lies on the person making the allegation and in election petitions, it is the petitioner in keeping with the well settled principle of law in civil matters that he who alleges must prove . The grounds must be established to the required standard in election petitions, namely, fairly high degree of convincing clarity." In the present case, th e evidence a dduce d by the Respondent, as Petitioner , b efore the Tribunal n eede d to h ave proved the a llegations raised in the p etition to a fa irly high d egree of convincing clarity a nd to h ave de monstrate d that th e proven elector a l offences committed by the Appellant or his election or polling agen ts were so widespread that t h e m ajority of voters in the district were or 1nay have been prevented from electing the candidate whom they preferred. We have borne in m ind these principles a nd the prov1s10ns of the Act in determining this appeal. In determining this appeal we s h all first consider ground 9 of the appeal as it raises a procedura l issue . Thereafter, we shall consider grounds 1 and 2 t ogeth er, ground 3 on its own, and J 31 grounds 4, 5, 6, 7, 8 and 10 together as th e issues they raise are inter-related. In ground nine, the Appellant challenges th e Tribunal's refusal to allow him to adduce evidence in his defence at the trial of the petition becau se he d id n ot file an answer to the petition. In determining t his ground, we h ave examined t h e law that regulates the filing of a local government election petition and of an answer to su ch petition. Article 159 (3) of the Constitution as amen ded by Act No. 2 of 2016 provides that: "(3) A person may file an election petition with a local government elections tribunal to challenge the election of a councillor." Further , Ar ticle 159 (4) p rovides tha t: "(4) An election petition shall be heard within thirty days of the filing of the petition." Article 164 (e) of the Constitution provides for legislation on local authorities as follows: "164 The following shall b e pre scribed: (e ) election of councillors. Pursuant to Article 164 (e), the Electoral Process Act provides in section 102 ( 1) that the Electoral Commission shall have conduct of local government elections. Section 102 (1) of the Act provides that: J32 "(l) Subject to the other provisions of this Act, the Chief Justice may make rules regulating generally the practice and procedure of the High Court and tribunals with respect to the presentation and trial of election petitions, including rules as to the time within which any requirement of the rules is to be complied with and as to the costs of and incidental to the presentation and trial of the election petitions and as to the fees to be charged in respect of proceedings therein, and generally as regard to any other matter relating thereto as the Chief Justice may consider necessary or desirable." (E mphasis added). The Local Governm ent Election s Tribunals Rules, Statut ory Instrumen t No. 60 of 20 16 which were made pursu ant to section 102 of th e Act provides in rule 8 (2) that: "(2) A person may file an electi on petition within seven days of the date on which the result of an election is declared." Rule 11 of th e said Rules p rovides for t h e filing of an a n swer to the petition filed under rule 8 (2) in th e following term s: "11 The Respondent shall file an answer within seven days of receipt of an election petition." Fu rth er, rule 17 (2) provides that: "(2) The Respondent shall be afforded an opportunity to be heard in answer to the election etition." (Emphasis added) . Th e provisions of rule 8 (2) of the Rules are couched 1n mandat ory terms and require a respondent wh o is served with a local government e lection petition to file an answer within seven days of receipt of the petition. It is on th e basis of th e answer filed J 33 under rule 8 (2) that a respondent will be given an opportunity to be heard by the tribunal in answer to the petition under rule 1 7 (2). It follows that a respondent who fails to file an answer to a petition as requ ired by rule 11 of the Rules forfeits h is right to be heard in answer. The rationale for t h e requirement of the law that a respondent who wishes to be heard in answer to a petition must file an answer to the petition prior to the hearing of the petition is clear. It is in or der for the petitioner to know the case that he will be expected to meet at the trial so that he can prepare for it adequately. It would be u nju st to permit a respondent who has not filed an answer to a petition to mount a defence to a petition at the trial as this would be tantamount to ambushing the petitioner. It would a lso mean that the respondent would be at large to raise any issue without the limitation that filing an answer to the petition places upon such a respondent. The function of pleadings was well articulated in Mazoka and others v Mwanawasa and others 13l, wherein the Supreme Court guided as fallows: "The function of pleadings is very well known, it is to give fair notice of the case which has to be m e t and to define the iss ues on which the court will have to adjudicate in orde r to determine the m atte r in dispute between the parties. Once the pleadings h av e be en J 34 closed, the parties thereto are bound by the pleadings and the court has to take them as such. " It is in the interest of justice that the p e titioner should b e given fair notice of the ca se which h e will b e requir ed to m eet. Pleadings d efine t h e is sues which the Court will h ave to adjudicate upon. They are intended to give each party a fair h earing as was held in British Airways Pension Trustees Limited v Sir Robert McAlpine and Sons Limited1221 , an English case of persu a sive value . We endorse the sound principle of law es poused therein as well as in the Mazoka v Mwanawasa131 case . In the present case, the Appella nt did not file a n a n swer to the Responde n t's p etit ion althou gh the record of appeal r eveals that he was served with the p etition in time . He a ls o did n ot a pply for leave to file his a nswer out of time and a ttempted to open his defence without h a ving an a n swer. The Appella nt's argument tha t h e was d enied the opportunity to b e h eard b ased on a technicality contrary to Article 11 8 (2 ) (e) of the Con s titution is unten a ble and d oes not aid h is case. His failure to file an answer in time or at a ll was fatal to his case. J 35 The Tribun a l was on firm ground when it refused to a llow the Appellant to mount a defence in t h e absence of an answer. Ground n ine therefore lacks merit and we dismiss it. Before we proceed t o consider the remaining grounds, we wish to clearly state that although the Appellant did not file an answer to th e petition and, therefore, d id not adduce any evid ence in h is defence before the Tribunal, the Respond ent, nonetheless, still bore th e burden to prove his allegations against the Appellant to the required high standard of convincing clarity, if jud gment was to b e en tered in his favour. This is because a petitioner cannot obtain a default j udgment in relation to an election petition as there is no procedure in th e rules to that effect. Further, as we stated earlier 1n this judgment, it is a well settled legal principle of law that t h e burden of proof in civil matters, including election p etitions, lie s on the party who asserts t h e affirmative of the issues. The learned a uthor s of Phipson on Evidence, 17 th edition, in paragraph 6-06, at page 15 1 state the following regardin g the burden of proof in civil cases : "So far as the persuasive burde n is conce rne d , the burden of proof lie s upon the pa rty who substantially asserts the a ffirmative of the If, when all the e vide nce is adduced by all the partie s , the issues. J 36 party who has this burden has not discharge d it, the decision must be against him. " In the celebrated case of Khalid Mohamed v Attorney General,!231 the Supreme Court refused to accept an unqualified proposition that a plaintiff should succeed automatically whenever a defence failed. The Supreme Court h eld that a plaintiff must prove his case and if he fails to do so, the mere failure of the opponent's defence does not entitle him to judgment. Further, in Wilson Masauso Zulu v Avondale Housing Project Limited !2 41 the Supreme Court reiterated that: "(a) plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case." We endorse the holding in t hese two cases. We turn to the remaining ground s. In grounds one and two, the Appellant contends that the Tribunal erred when it nullified the election based on a llegations of corruption a nd bribery in the absence of evidence that the Appellant committed th e alleged corrupt acts. Further, that undue weight was attached to the uncorroborated evidence of the Respondent before the Tribunal. The issue we have to determine under these two grounds is essentially wh ether the Tribunal rightly nullified the Appellant's J 37 election as Council Ch airperson in light of the evidence a dduced by the Respondent in support of the allegations in the p etition. In other words, the question is , did the Respondent as p etitioner adduce cogent evidence to prove the allegations of bribery, violence, character assassination a nd inducement which he made against the Appellant to the requisite high standard of con vincing clarity in terms of section 97 (2) (a ) of the Act? To answer this question, we have examined the evidence adduced by the Respondent and his witnesses, in turn. The Respondent testified that during the campaign period the Appellant was brewing beer and freely distributing it to the electorate in Shang'ombo district, p articularly a t Sebumbu polling station in order to induce the voters to vote for him. He also alleged that the Appellant stole maize from the Food Reserve Agency shed and dist ributed it to the voters as an inducem ent for them to vote for him; tha t the matter was reported to the police but no action was taken . The Responde nt cited var10us in cid ents of violen ce, includ ing a t Liyuwayuwa village wh ere he said J ohn Kakomwisa a PF s uppor ter was s tabbed by the Appellant's agent Pumulo J 38 Munyumbwe for attending the Respondent's rally. The Respondent said he reported the incident to the police as a result of which Pumulo Munyumbwe was arrested and prosecuted for the crime. He testified that at Beshe Ward, a councillor who stood on the UPND ticket assaulted Paulusi Namate for attending a meeting which he (the Respondent) held. That at Ngandwe polling station a PF supporter was assaulted by Nawa Mubika, Inonge Mubika and Sililo Mwakamui. He stated that the effect of the assaults was that p eople were afraid to vote for the PF party candidates for fear that if they did so, they would be assaulted or killed. He further testified that the Appellant engaged 1n character assassination and called him a thief and a drunkard. That the Appellant's agents were canvassing for votes by giving out pens a nd money to voters at polling stations; that the Appellant's agents stood on the roa ds to the polling stations and chased away voters wh om they thought belonged to the PF so that they should not vote for him. He alleged that h e lost the election as a result of a ll these malpractices by the Appellant and his agents. J 39 In cross examination, the Respondent conceded that he did not witness the incidents of violence and that the Appellant was not present when the named PF supporters were assaulted. PW 1 testified that he was the District Commissioner for Shang'ombo District and the chairperson for the DMMU District Committee for Shang'ombo District. He told the Tribunal that Abel Muyendekela, a member of a non-governmental organisation (NGO) called Shang'ombo Food Production, which NGO was tasked by the DMMU Committee to distribute relief maize, informed him that on 9 th August, 2016 in the night, the Appellant and three other people had broken into a FRA shed and had stolen 6 x 50 kg bags of maize. Further, that the following day on 10t h August, 20 16, the Appellant and others in the company of Mubika Mubika returned to the FRA shed. They were followed by a large crowd of men and women whom they instructed to collect the bags of maize which were stacked outside the shed. As the crowd collected th e maize, they were told by the Appellant and the others to vote for the UPND presidential candidate and a ll other UPND candidates. J40 PWl told the Tribuna l that h e ins tructed the NGO official to go and report the m a tter to the police . PWl said h e gave a s tatem ent to the police and reported the matter to the Provincial Coordina tor for the DMMU who is b a sed in Mongu. PW 1 also testified that h e was the chairman of the District Security Committee in Shang'ombo and that in tha t capacity, h e r eceived reports of violence involving mainly PF members a nd that compla ints were made to the Police a gainst the p erpe tra tors of the violen ce. The Police, however , took no action. He s tated tha t the violence in Shang'ombo District was widespread a nd may have contributed to some voter s not voting a t all or voting for t h e UPND candida tes . PW2 Munalula Mulonda testified tha t on 25t h July, 2 01 6 h e a nd John Kakomwisa went to Liyuwayuwa village wher e they found a rally h eld by the UPND. They were a pproached by a p er son in UPND regalia who ask ed them where they wer e going. They told him, they were going to the market wh er eupon the pers on s tarted fighting with them. Other UPND cadres j oined in the fight, during which figh t Pumulo Munyumbwe a UPND cadre s ta bbed J ohn Kakom wisa with a knife on t h e left s h ould er. PW2 said t h e J 41 Appellant was not present when h e and John Kakomwisa were attacked by UPND cadres. The next day the Appellant took John to the Police and reported the m a tter. In cross examination , PW2 conceded that the Appellant was not present when John Kakomwisa was stabbed. PW3 a security guard at the FRA shed in Shang'ombo testified that on 9 th August, 2016, the Appellant a nd three other men got 6 x 50 kg bags of maize from the FRA shed. On 10th August, 2016 the Appellant 1n the company of Sondo Mutapwe, Kennedy Munyumbwe , Mubika Mubika and Petulu went back to the FRA shed with about 200 party cadres and took away bags of m a ize which were stocked within the FRA premises. PW3 alleged that the UPND leaders intended to bribe the voters with the maize which they collected. PW4 Mukapitule Muneta of Sebumbu village testified that the Appellant and his agents went to Sebumbu village with Mubika Mubika and Mr. Nangana in July, 2016 and re moved PF poster s which they replaced with UPND posters. They returned every week to remove the posters and replace them. He further alleged t h at the Appellant and his agents also urged the electorate not to vote for J42 the Respondent and other PF candidates because they suffered from diarrhea . He a lso said the Appella n t and his agents gave the electorate b eer, m eat and chitenge m aterials and that h e voted for the UPND candidates because of the mea t h e r eceived from them. PW4 said the e ffect of what the Appellant and his agents did was that all UPND candidates were elected at presidential, parliamentary and local government level. PW5 testified regarding the ferrying of voters to th e polling stations on 11th August, 2016. H e said he p ersonally ferried 32 people to polling stations upon being paid K300 by Kalamo Kalamo and Kalamo Ndumba who were UPND agents . On th eir way to the polling station, they found unnamed people who gave him K300 and gave others 32 p ens so that they could vote for the UPND with a promise to give them K50 each upon returning th e pens. After voting h e was paid K500 for ferrying 32 p eople and th e 32 people were given K50 each for voting for UPND candidates. The Tribunal considered the evid en ce on record and stated at page J 34 of its judgment set ou t on page 59 of t h e r ecord of appeal that they had taken into account the demeanour of the Respondent and h is witnesses and observed that they testified in a forthright J 43 manner and wer e unperturbed in cross-ex amination. The Tribunal therefore accepted their version of wh a t transpired during the campaigns and on the polling day . The Tribunal found as a fact that the Appellant and some UPND m embers took part in a cts of violence and that the Appellant did not disassociate himself from the incident in which a PF cadre John Kakomwisa wa s sta bbed by a UPND cadre . The Tribuna l als o found a s a fact tha t the Appellant distributed bee r to the voter s with a mess a ge tha t they should vote for him and not the Respondent. The Tribuna l sta ted tha t the Appellant failed to discredit this evidence in cross-examina tion. According to the Tribuna l, the Appellant in his submissions a dmitted to committing some of a cts testified to by the Res pondent and his witnesses. The Tribunal further found a s a fac t tha t the Appellant and his agents de-campaign ed the Respondent by assassina ting his cha racter and tha t of th e other PF candida tes b y calling the m drunkards and thieves and alleging th a t they s uffer ed from diarrhea. The Tr ibuna l observed tha t this evide n ce wa s n ot J44 controverted by the Appellant in cross examina tion or in his submissions. At page J39 of its judgment, the Tribunal held that: "It was proved that disparaging remarks were use d during the campaigns by the Responde nt and his agents against the Petitione r In most c a s e s , and other candidates contes ting on the PF ticket. these remarks w e re uttered during public m eetings." The Tribunal sta ted that the disparaging remarks about the Respondent and othe r PF candidates being thieves and drunkards were against the h olding of free and fair elections enshrined in Article 45 of the Constitution as amended. Further, that the making of such remarks is proscribed by regulation 15 of the Electoral Code of Conduct of 2 016 . We have consid ered the eviden ce on record adduced by the respondent and his witnesses in respect of each of the allegations. Regarding th e bribery a llegation r elating to the distribution of maize, we have considered the evidence of PWl and PW3. PWl d id not witness the alleged looting of the maize. His evidence was based on what he was a llegedly told by an NGO official who was not called as a witness. His evidence was therefore h earsay and it did not assist the respondent's case as it required corroboration. The Tribunal ought not to have relied upon it heavily as it did. J 45 As for PW3 's evidence, although he said he was present on both occasions when the Appellant a llegedly stole the maize from the FRA shed and that he reported the matter to the Police, no police report was produced before the Tribunal to support the allegation. Further, the FRA is a statutory Agency with the important responsibility of ensuring food security in Zambia. If indeed 110 50kg bags of maize were looted from its shed as alleged by PW3 , a witness from the FRA should have been called to support the a llegation that 110 bags of maize were lost through looting. The Respondent did not call such a witness. In addition to that, evidence was required to sufficiently prove the allegation and to s how that the looting of maize from the FRA shed was at the instigation of the Appellant. Further, no evidence was led by the Respondent to prove the effect of the alleged distribution of maize on the majority of the electorate on the eve of the election. If indeed a crowd of voters participated in the looting and distribution of the maize as alleged by PW3, evidence should have been led to show how that impacted the outcome of the election by preventing the majority of the electorate from voting for their preferred candidate. J46 A careful scrutiny of the evid ence on this aspect reveals that the Respondent's eviden ce did not sufficiently establish or connect the Appellant or his agents to the a lleged looting of the maize or its effect on the majority of the electorate, which are requirements unde r section 97 (2 ) (a) of t h e Act. Regarding the evid ence on violence, th e Responden t a nd PW2 testified regarding three incidents of viole nce . In a ll these incidences, the evidence was that th e Appellant was n ot present and none of his agen ts was connected to the violence. Thus the commission of violence by the Appellant and his agents was not proven in terms of section 97 (2) (a) of the Act. Regarding the character assassination, the Respondent and PW4 testified that the Appellant called the Resp ond ent a thief and a drunkard at all the campaign meetings h e held and alleged that h e suffered from diarrhoea. A careful consideration of th e evidence on record reveals th at the Respondent and PW4 did not specify 1n which p laces the a lleged ch aracter assassination was done and how many people were at the meetings in order to establish widespread vilification of the Respondent by the Appellant which is a r equirement of the law. J 47 Regarding the allegation that the Appellant and his agents gave pens and money to voters on polling day and that they ferried voters to the polling stations, we note that PWS clearly said at page 96 of the record of appeal that the two men who allegedly approached him on 8 th August, 2016 with a promise to pay him KS00. 00 for ferrying voters to polling stations on polling day were UPND agents . The two men were therefore not shown to have been the Appellant's election or polling agents or to have done so with the knowledge and consent or approval of the Appellant. It is settled law that not everyone 1n a candidate's political party is his election agent as an election agent has to be specifically appointed in terms of the law. Section 2 of the Act d efines a n election agent as: "a person appointed as an agent of a candidate for the purpose of an election and who is specified in the candidate's nomination paper." A candidate is responsible only for illegal or corrupt acts or other misconduct which the candidate commits or which are committed with the candidate's knowledge a nd consent or approval J48 or that of h is election agent. In Lewanika a nd Others v Chiluba,'81 t h e Supreme Court observed thus : "We are mindful of the provisions of the Electoral Act that a c andidate is only answerable to those things which he has done or which are done by his election agent or with his consent. In this regard, we note that not ev e ryone in one's political party is one's politica l agent since unde r regulation 67, an election agent h as to be specifically so appointe d." We agree with th ese observations. The Tribunal found a s a fact at p age 61 of th e r ecord of appeal that the Appellant and his agents gave KS0.00 notes to the voters who collected pens from th em and r eturned the p en s after voting. The tribunal further observed that the people who gave out pens to the voters were standing on the way to the polling s tations and that there was no way of telling the exact number of voters they reached. According to the Tribuna l, this evidence was uncontroverted in cross-examination. The Tribuna l's finding that it was the Appella nt and his agen ts wh o h anded ou t pens to voters on polling d ay and gave them KS0.00 upon r etur n ing the pens to them is glaringly at variance with the evidence of PWS who was t h e only witn ess wh o testified with regard to this allegation. It is a finding which is J49 clearly p erverse as it says the opposite of what PWS said on oath. It therefore cannot stand a nd we r everse it . A careful review of the evidence a dduced by the Respondent and his witnesses in support of the a llegations of corruption and bribery contrary to section 8 1 of the Act reveals that none of the said a llegations was proved to the requisite standard of proof of a fairly high degree of convincing clarity. The findin gs of the Tribun al th at each of the Respondent's bribery allegations aga inst the App ellant wer e proven in terms of section 97 (2 ) (a) of the Act were made against the weigh t of evidence addu ced by the Respondent. They therefore cannot stand for reasons we h ave already given. Based on the eviden ce on record, our firm view is that the Respondent did not adduce cogent evidence to prove to a fairly high degree of convincing clarity that the Appellant committed th e alleged electoral offen ces of bribery, corruption and ch aracter assassina tion of th e Respondent. We furth er have not found any eviden ce on record that the a lleged offences were widespread and that they affected or J SO may have affected the m ajority of the voters in the district by preventing them from e lecting their preferred candidate. These two elements were both required to be sufficiently proved for the provisions of section 97 (2) (a ) of the Act to be satisfied. This shows that even if it had been proved that the Appellant or his agents committed these offences or that they were committed with his knowledge and consent or that of his election or polling agents, without the additional proof that the m ajority of the electorate were affected, the allegation cannot be h eld to have been proved. We are alive to the well-settled principle of law which we recently applied in the cases of Margaret Mwanakatwe v Charlotte Scott and Attorney-General1241 and Nkandu Luo and Another v Doreen Sefuke Mwamba and Attorne y-Ge neral1251 that an a ppellate Court will not lightly interfere with the findings of fact of a trial Court unless it is satisfied that the findings in question were either perve r se or were made in the absence of any relevant evidence or upon a misapprehension of facts or were findings which a trial Court acting correctly could not have made , on a proper view of the evidence before it. JSl Given the high standard of proof required for a petitioner to prove a llegations in an election petition, we find that the evidence adduced by the Respondent in support of his a llegations in the petition fell far short of that standard. We are of the firm view that if the Tribunal had properly evaluated the evidence before it, it would not have come to the conclusion that the allegations in the petition had been proved to the required standard. In view of this, we do not agree with the Tribunal's findings on each of the a llegations for the reasons we have given. The findings were not supported by the evidence on record and were perverse. We according reverse each one of the findings as they were made against the weight of the evidence. Grounds 1 and 2 have merit and we uphold them. In grounds 3, 4 , 5 , 6, 7, 8 and 10 the Appellant essentially challenges the Tribunal's reliance on the evidence of the Respondent's witnesses whom he stated were either partisan or had an interest to serve without any evidence 1n corroboration. As we have found that the Respondent's eviden ce before the Tribunal did not satisfy the requirements of section J 52 97 (2 ) (a) of the Act, it is not necessary for us to a ddress these grounds in great detail as they are otiose . As we h ave found merit in grounds 1 and 2 which in our view were t h e backbone of the appeal, we set aside the d ecision of the Tribunal to nullify the election of the Appellant. We declare that the Appellant Mwiya Mutapwe was duly elected as Council Chairman for Sh angombo District. Each party will bear their own costs of this appeal. /<2 ( .~ · ...... L9.!.~ ............. .. . A. M. Sitali CONSTITUTIONAL COURT JUDGE ............... 0. ................... . M. S. Mulenga .. . ..... . .. . ··· ·~ ····· ·· ...... . E. Mulembe CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE ...... ........... ....... . ·· V- ····· ····· ··· · P. Mulonda " ·········· · ······~ ···· ·· ················ M. M. Muna lula CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE J 53