MWIYA MUTAPWE V SHOMENO DOMINIC (APPEAL NO. 19 OF 2017 2016/CC/A008) (11 December 2019) – ZambiaLII

..,- IN THE CONSTITUTIONAL COURT APPEAL NO. 19 OF 2017 OF ZAMBIA HOLDEN AT LUSAKA 2016/CC/A008 (Constitutional Jurisdiction) IN THE MATTER OF: THE PETITION RELATING TO THE SHANG'OMBO DISTRICT COUNCIL CHAIRPERSON ELECTION HELD ON 11TH AUGUST, 2016 AND IN THE MATTER OF: ARTICLE 159 OF THE CONSTITUTION OF ZAMBIA, CHAPTER 1 VOLUME 1 OF THE LAWS OF ZAMBIA AND IN THE MATTER OF: 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 AND IN THE MATTER OF: THE ELECTORAL CODE OF CONDUCT I REPUB - -. BETWEEN: CONSTrTunoN)!f OF ~MPtA ~ . cou" T u1-Zl,\.iB11; '· r--..,. .. _._ l • >9!' ~~~, ...~ er- t MWIYA MUTAPWE ~ ~ 1 01:C L'(]!,•J' ; , .,,l_,f APPELLANT 1 ~~ .. ~ - ·-- ...• __J AND p R;:c,c;·rpv ., M 0 BO - .. · .r 3 ~ 6 - 7 L-US-Ar:.-'4. Jj SHOMENO DOMINIC RESPONDENT CORAM: Sitali, Mulenga, Mulembe, Mulonda and Munalula, JJC on 22nd March, 2018 and on 11th 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 Trustees 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 25. Margaret Mwanakatwe v Charlotte Scott and Attorney-General Selected Judgment No. 50 of 2018 26. Nkandu Luo and Another v Doreen Sefuke Mwamba and Attorney General Selected Judgment No. 51 of 2018 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 Local Government Election Tribunal 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 the Shang'ombo District Council Chairperson election held on 11th 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, one 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 24th July, 2016 was stabbed with a knife, the assault of a PF cadre at Beshe polling station on 26th July, 2016, the assault of another PF cadre by named UPND members on 4th August, 2016 and an attack on PF officials in Mutanda area on 9th 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 campaign period the Appellant and his agents called the Respondent a drunkard and a thief and extended the aspersions to his Party President. J4 He also 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 and 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 evidence and held that he had proved his case beyond a balance of probabilities. The Tribunal nullified the 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 Council 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, the Appellant appealed to this Court advancing the following grounds which we have quoted verbatim: JS - \ 1. 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 Respondent had committed corrupt practices or illegal practices or misconduct when the same was not supported by evidence to the required standard. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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 Members of the Tribunal erred in fact and in law when they did not allow the Respondent to present his case. 10. The Learned Members of the Tribunal erred in fact and in law when they held that the evidence of witnesses with an interest to serve was enough to reach the standard of proof required in election Petitions in order to nullify an election in the absence of corroborative evidence. 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 that the party who alleges must prove the allegations made to a standard higher than a balance of probabilities in ordinary civil cases but not beyond reasonable doubt as required in criminal matters. The Appellant cited the case of Michael Mabenga v Sikota Wina and Others111 , Kamanga v Attorney-General and Anotherl2 l and Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Others131 in support. It was submitted that section 97 (2) of the Act clearly states that an election will not be declared void on mere allegation of electoral malpractice unless the allegation is proved with cogent evidence to the required standard that the candidate committed the electoral malpractice complained of or that it was committed with his knowledge and consent or approval or that of his election agent. J7 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 that 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 allegation of corruption and bribery, in terms of section 8 1 (1) (a), (b), (c) and (f) of the Act, as there was no clear and unequivocal evidence that he committed the alleged corrupt practices. The Appellant quoted the learned authors of Halsbury's Laws of England, 4th 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 inducement for them to vote for him. And that no eye witness was called to confirm the allegation that the Appellant gave beer to voters as an inducement at a rally. The 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 alleged that he received meat, beer and chitenge from the Appellant and his agents and therefore voted for UPND candidates. That PW5 said he was bribed by Kalomo Kalomo and Kalomo J9 Ndumba whom he alleged were UPND agents and therefore confessed to taking a bribe 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 there was no independent evidence to that effect. Regarding the allegation of violence, the Appellant submitted that the Respondent's evidence that at a meeting held in Liyuwayuwa village, John Kakomwisa was stabbed with a knife by Pumulo Munyumbwe, an agent of the Appellant; that another 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, Inonge Mubika and Sililo Mwakamui at Ngandwe polling station with the Appellant's knowledge, was inadmissible hearsay evidence. He cited the case of Subramanian v Public Prosecutor!4 in support of J that submission. The Appellant contended that there was no evidence before the Tribunal that Pumulo Munyumbwe or the other people who were allegedly involved in violence were appointed agents of the J lO Appellant, that they acted on the Appellant's instructions or that he had any knowledge of the alleged attacks and assaults. 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 Ndalamei15 wherein the Supreme Court stated that just l because the attackers came from the direction where the Respondent was having a meeting could not lead to an inference that he was responsible for the attack. Regarding the alleged disparaging statements, the Appellant submitted that there was no evidence that he 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 areas the Appellant allegedly discouraged the people from supporting the Respondent because he 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 preferred candidate. The Appellant further 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 learned authors of Halsbury's Laws of England, 4th edition, volume 15, paragraph 784 at page 429 who state that in order to constitute undue influence, a threat must be serious and intended to influence the voter but also that the threat should be judged by its effect on the person threatened and not by the intention of the person using the threat. It was submitted that in this case, there was no evidence of how many people attended the rallies, and heard the disparaging remarks, or the number of people who participated in the beer drinking or who benefitted 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 required to be proved as held in the case of Mubika Mubika v Poniso Njeulu. 161 That in Kufuka Kufuka v Mundia Ndalamei, 151 it was stated that it was not enough for the petitioner to say "people were saying" and that what was required was for him to provide proof of his allegations and the extent of influence the allegations had on the electorate. That in this case, the Respondent's evidence was inconclusive and speculative. Grounds three, four, five, six, seven, eight and ten were argued together. In arguing these grounds, the Appellant contended that the Tribunal should not have nullified the election of the Appellant on the evidence of the Respondent and his five witnesses, PWl to PW5, without considering 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 there was a disparity in the evidence of PWl and PW3. That on one PWl had said the maize was removed from the FRA shed by the Appellant and his agents on 10th August, 2016 and given to the voters with instructions to vote for the UPND. That PW3, on the other hand, said the Appellant and J13 two other men broke into the FRA shed on 9th August, 2016 around 20.00 hours and stole six bags of maize. It was contended that a police report regarding the incident should have been produced to conclusively show the date when the alleged break-in happened and to authenticate PW3's assertions. It was submitted that PW3's evidence identifying the Appellant as one of the people who broke into the FRA shed was doubtful as no identification parade was held for the identification of the Appellant. The Appellant cited the learned author Edward J. Imkwinkelried, Evidentiary Foundations, 4th edition, 1998 at page 41 wherein they state that the common law generally requires that the proponent of evidence prove the authenticity of the evidence as a condition to the admission of the evidence. That to authenticate an item of evidence, the proponent must present proof that the article is what the proponent claims that it is. It was contended further that since the Appellant was not arrested and no police report was produced regarding the alleged theft of the maize by the Appellant, doubt was raised as to the authenticity of the evidence of PW3, which doubt could have been cleared by corroborative evidence. The Appellant cited the case of J 14 Green Nikutisha and Another v The People!7 l wherein it was held that the need 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 authors of Halsbury's Laws of England, 4th edition, volume 15 at page 780 who state that clear and unequivocal evidence of a case of bribery is required before it will be held to have been established. Further, that the confession of the person alleged to have been bribed is not conclusive. The Appellant further submitted that the provisions of the Act clearly show that a candidate for an election is only responsible for corrupt or illegal acts or misconduct which are done by the candidate or with his knowledge and consent or approval or that of his appointed agent. That the evidence of the Respondent, as J15 petitioner, and that of PW2, PW4 and PWS did not show that the people whom they alleged 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 Appellant's instructions. The case of Lewanika and Others v Chilubal8 l was cited in support. The Appellant contended that the Tribunal erred by nullifying the election of the 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 trial of the election petition, it is proved to the satisfaction of the Court or Tribunal that the 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 Winal9 l and Josephat Mlewa v Eric Wightmanl10 l, all of which emphasise that an election will only be void where it is demonstrated that the prohibited activity complained of was widespread and thus prevented the majority of voters from electing their preferred 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 the Tribunal, therefore, misdirected itself when it nullified the election of the Appellant on inconclusive evidence. Underground nine which was argued alone, the Appellant argued that the pillars of the Constitution and system of adjudication are that a person has the right to be heard and that matters should be heard on the merits. That in this case, the Tribunal denied the Appellant the right to be heard when it refused to grant his application to file his answer out of time on the ground that election petitions are time bound. That the Tribunal misdirected itself in refusing the Appellant's application because the Constitution does not give a time frame for the disposal of appeals relating to local government elections as held in lnonge Mubika v Mukelabai Pelekelo111 l wherein this Court held that there is no time frame given in the Constitution, the Act or the Rules for the disposal of appeals relating to local government election petitions. It was submitted that the Tribunal should have 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 heard 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 high degree of convincing clarity as the evidence he 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 and fact to have declared the election of the Appellant void on the Respondent's evidence. The Appellant submitted that the decision 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 heads 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 argued last and 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 support the allegations in the petition. The Respondent contended that the Appellant had no defence 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!1 l, Saul Zulu v Victoria Kalima!12 l and Anderson Kambela Mazoka and others v Patrick Levy Mwanawasa and others!3 l and Zambia Electricity Supply Corporation v Redlines Haulage 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 them. That the burden of proof is on the challenger to prove the allegations to a higher standard than a balance of probabilities. The Respondent submitted that in paragraphs (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 shed 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 August, Lh 2016 the Appellant's agents gave pens and money to voters on queues and told them 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 alleged corruption and bribery allegations. That the corruption and bribery allegations 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 Appellant and other people at the FRA shed on 9th August, 2016 around 20.00 hours where they stole the maize which the Appellant distributed to the people on 10th August, 2016, a day before the elections. It was further submitted that the evidence of PW5 demonstrated that 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 the corruption and bribery allegations were proved to the required standard based on the authority of the Mabenga11 l case wherein it was held that satisfactory proof of any one corrupt or illegal act or misconduct in an election petition is sufficient to nullify an 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 behalf. That the allegation regarding the distribution of maize to the electorate was corroborated by PW3 who witnessed the Appellant break into the FRA shed and steal the maize. That the evidence was not shaken in cross examination and stood unchallenged. It was contended that the evidence of PWl was not hearsay because PW3 who informed him of the break in at the FRA was present when the Appellant allegedly distributed the maize to the electorate. That in any case, the Appellant did not object to the evidence on the basis that it was hearsay when PW 1 testified in chief. It was submitted that based on the principle 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 corroborated by PW4 who said the Appellant in Sebumbu area of Shang'ombo told the electorate not to support the Respondent because he suffered from diarrhea. That PW4 further said the Appellant bribed the electorate with chitenge material, meat and beer whilst lobbying them to vote for him and other UPND candidates and that he (PW4) voted for the UPND. The Respondent submitted that his evidence was sufficiently corroborated in terms of the case of Machipisha Kombe v the People1141 wherein it was held that corroboration must not be equated with independent proof and that it is not evidence which needs to be conclusive 1n itself. That corroboration is independent evidence which tends to confirm that the witness is telling the truth when he or she says the offence was committed and 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 although 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 section 100 (2) and the testimony of PW2 and the other four witnesses who testified on behalf of the Respondent. That in any case, there was nothing on record to show that PW2 was a witness with an interest to serve. That section 100 (2) only provides for the lodging of an election petition and with whom it should 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-General115l wherein the Supreme Court laid J 23 down the principle 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 although the Appellant contended that the Tribunal was wrong to have relied on the evidence 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 they 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(17l both of which are authorities in criminal cases to press the point that an identification by a single witness is acceptable as long as the possibility of an honest mistake is ruled out. He stated that in the present case the possibility of an honest mistake 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 electorate. The Respondent submitted that there was a connecting link between the Appellant and the offence in question which rendered a mistaken identification too much of a coincidence. 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 examination, 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 and was not a PF member. It was submitted that the Tribunal found the Respondent and his witnesses credible having observed their demeanor and further, that the Tribunal made findings of fact which we, as an appellate Court, cannot interfere with. In support, he cited the case of Wilson Masauso Zulu v Avondale Housing J25 Project Limited(15 wherein the Supreme Court said an appellate l court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were either perverse or made in the absence of relevant evidence or upon a misapprehension of the facts. The Respondent 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 the record of appeal shows at page 75 that he was served with the petition on 1st September, 2016 and according to rule 11 of the Local Government Elections Tribunals Rules, Statutory Instrument No. 60 of 2016, he should have filed his answer within seven days of receiving the election petition. He argued that the section is clear and unambiguous and that the Tribunal was bound to give effect to it in according with the principle stated in Matilda Mutale v Emmanuel Munaile(19 to the effect that an Act of Parliament must be l construed according to the words expressed in the Act itself and that if the words are clear and unambiguous, then 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 time even when the Respondent raised a preliminary issue regarding whether or not the Appellant could open his defence when he had 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 Respondent submitted in conclusion that ground nine has no merit and should be dismissed. He contended that the en tire appeal has failed and should be dismissed. The Appellant filed heads of argument in reply m which he more or less reiterated his heads of argument 1n support of the J 27 appeal. We will not restate them here save to state that we have given due consideration to them. We have considered the grounds of appeal, 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 2016 (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 the Act, which is relevant to this case, reveals that the election of a candidate will only be nullified if the petitioner proves to the satisfaction of the High Court or a tribunal, 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 misconduct was committed by the candidate's election or polling agent or by another person with the candidate's knowledge, consent or approval or that of the candidate's election or polling agent. In addition to this, the petitioner must further prove that as a result of the corrupt or illegal practice or misconduct complained of, the majority of the voters in the constituency, district or ward were or may have been prevented from electing their preferred candidate. This position of the law has been reiterated in a plethora of cases. In the persuasive case of Mubita Mwangala v Inonge Mutukwa Wina l 9 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 that constituency whom they preferred. .. " In the earlier case of Josephat Mlewa v Eric Wightman, l 23 J which is equally persuasive, the Supreme Court held that: "The Court must be satisfied about the scale or type of wrong doing. By scale, it is meant widespread as to influence the majority of voters in the constituency not to vote for their preferred candidate." J29 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 required to prove the commission of the alleged corrupt or illegal practices or misconduct by the Appellant or his election or polling agents or by another person with the candidate's knowledge and consent or approval 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 degree of convincing clarity. In the persuasive authority of Lewanika and 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 the 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, the evidence adduced by the Respondent, as Petitioner, before the Tribunal needed to have proved the allegations raised in the petition to a fairly high degree of convincing clarity and to have demonstrated that the proven electoral offences committed by the Appellant or his election or polling agents were so widespread that the majority of voters in the district were or 1nay have been prevented from electing the candidate whom they preferred. We have borne in mind these principles and the prov1s10ns of the Act in determining this appeal. In determining this appeal we shall first consider ground 9 of the appeal as it raises a procedural issue. Thereafter, we shall consider grounds 1 and 2 together, ground 3 on its own, and J31 grounds 4, 5, 6, 7, 8 and 10 together as the issues they raise are inter-related. In ground nine, the Appellant challenges the Tribunal's refusal to allow him to adduce evidence in his defence at the trial of the petition because he did not file an answer to the petition. In determining this ground, we have examined the law that regulates the filing of a local government election petition and of an answer to such petition. Article 159 (3) of the Constitution as amended 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, Article 159 (4) provides that: "(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 be prescribed: (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." (Emphasis added). The Local Government Elections Tribunals Rules, Statutory Instrument No. 60 of 2016 which were made pursuant to section 102 of the Act provides in rule 8 (2) that: "(2) A person may file an election petition within seven days of the date on which the result of an election is declared." Rule 11 of the said Rules provides for the filing of an answer to the petition filed under rule 8 (2) in the following terms: "11 The Respondent shall file an answer within seven days of receipt of an election petition." Further, rule 17 (2) provides that: "(2) The Respondent shall be afforded an opportunity to be heard in answer to the election etition." (Emphasis added). The provisions of rule 8 (2) of the Rules are couched 1n mandatory terms and require a respondent who is served with a local government election petition to file an answer within seven days of receipt of the petition. It is on the basis of the answer filed J33 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 required by rule 11 of the Rules forfeits his right to be heard in answer. The rationale for the 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 order 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 unjust 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 also 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 others13 l, 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 met and to define the issues on which the court will have to adjudicate in order to determine the matter in dispute between the parties. Once the pleadings have been 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 petitioner should be given fair notice of the case which he will be required to meet. Pleadings define the issues which the Court will have to adjudicate upon. They are intended to give each party a fair hearing as was held in British Airways Pension Trustees Limited v Sir Robert McAlpine and Sons Limited1221 , an English case of persuasive value. We endorse the sound principle of law espoused therein as well as in the Mazoka v Mwanawasa131 case. In the present case, the Appellant did not file an answer to the Respondent's petition although the record of appeal reveals that he was served with the petition in time. He also did not apply for leave to file his answer out of time and attempted to open his defence without having an answer. The Appellant's argument that he was denied the opportunity to be heard based on a technicality contrary to Article 118 (2) (e) of the Constitution is untenable and does not aid his case. His failure to file an answer in time or at all was fatal to his case. J 35 The Tribunal was on firm ground when it refused to allow the Appellant to mount a defence in the absence of an answer. Ground nine therefore lacks merit and we dismiss it. Before we proceed to consider the remaining grounds, we wish to clearly state that although the Appellant did not file an answer to the petition and, therefore, did not adduce any evidence in his defence before the Tribunal, the Respondent, nonetheless, still bore the burden to prove his allegations against the Appellant to the required high standard of convincing clarity, if judgment was to be entered in his favour. This is because a petitioner cannot obtain a default judgment in relation to an election petition as there is no procedure in the rules to that effect. Further, as we stated earlier 1n this judgment, it is a well settled legal principle of law that the burden of proof in civil matters, including election petitions, lies on the party who asserts the affirmative of the issues. The learned authors of Phipson on Evidence, 17th edition, in paragraph 6-06, at page 151 state the following regarding the burden of proof in civil cases: "So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issues. If, when all the evidence is adduced by all the parties, the J 36 party who has this burden has not discharged 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 held 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 ! 241 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 these two cases. We turn to the remaining grounds. In grounds one and two, the Appellant contends that the Tribunal erred when it nullified the election based on allegations of corruption and bribery in the absence of evidence that the Appellant committed the 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 whether the Tribunal rightly nullified the Appellant's J37 election as Council Chairperson in light of the evidence adduced by the Respondent in support of the allegations in the petition. In other words, the question is, did the Respondent as petitioner adduce cogent evidence to prove the allegations of bribery, violence, character assassination and inducement which he made against the Appellant to the requisite high standard of convincing 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, particularly at 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 distributed it to the voters as an inducement for them to vote for him; that the matter was reported to the police but no action was taken . The Respondent cited var10us incidents of violence, including at Liyuwayuwa village where he said J ohn Kakomwisa a PF supporter was stabbed 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 people 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 and money to voters at polling stations; that the Appellant's agents stood on the roads to the polling stations and chased away voters whom they thought belonged to the PF so that they should not vote for him. He alleged that he lost the election as a result of all 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 9th 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 10th August, 2016, 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 the maize, they were told by the Appellant and the others to vote for the UPND presidential candidate and all other UPND candidates. J40 PWl told the Tribunal that he instructed the NGO official to go and report the matter to the police. PWl said he gave a statement to the police and reported the matter to the Provincial Coordinator for the DMMU who is based in Mongu. PW 1 also testified that he was the chairman of the District Security Committee in Shang'ombo and that in that capacity, he received reports of violence involving mainly PF members and that complaints were made to the Police against the perpetrators of the violence. The Police, however, took no action. He stated that the violence in Shang'ombo District was widespread and may have contributed to some voters not voting at all or voting for the UPND candidates. PW2 Munalula Mulonda testified that on 25th July, 2016 he and John Kakomwisa went to Liyuwayuwa village where they found a rally held by the UPND. They were approached by a person in UPND regalia who asked them where they were going. They told him, they were going to the market whereupon the person started fighting with them. Other UPND cadres joined in the fight, during which fight Pumulo Munyumbwe a UPND cadre stabbed J ohn Kakomwisa with a knife on the left shoulder. PW2 said the J41 Appellant was not present when he and John Kakomwisa were attacked by UPND cadres. The next day the Appellant took John to the Police and reported the matter. 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 9th August, 2016, the Appellant and 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 maize 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 removed PF posters which they replaced with UPND posters. They returned every week to remove the posters and replace them. He further alleged that 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 also said the Appellant and his agents gave the electorate beer, meat and chitenge materials and that he voted for the UPND candidates because of the meat he received from them. PW4 said the effect 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 the polling stations on 11th August, 2016. He said he personally ferried 32 people to polling stations upon being paid K300 by Kalamo Kalamo and Kalamo Ndumba who were UPND agents. On their way to the polling station, they found unnamed people who gave him K300 and gave others 32 pens so that they could vote for the UPND with a promise to give them K50 each upon returning the pens. After voting he was paid K500 for ferrying 32 people and the 32 people were given K50 each for voting for UPND candidates. The Tribunal considered the evidence on record and stated at page J 34 of its judgment set out on page 59 of the record of appeal that they had taken into account the demeanour of the Respondent and his witnesses and observed that they testified in a forthright J43 manner and were unperturbed in cross-examination. The Tribunal therefore accepted their version of what transpired during the campaigns and on the polling day. The Tribunal found as a fact that the Appellant and some UPND members took part in acts of violence and that the Appellant did not disassociate himself from the incident in which a PF cadre John Kakomwisa was stabbed by a UPND cadre. The Tribunal also found as a fact that the Appellant distributed beer to the voters with a message that they should vote for him and not the Respondent. The Tribunal stated that the Appellant failed to discredit this evidence in cross-examination. According to the Tribunal, the Appellant in his submissions admitted to committing some of acts testified to by the Respondent and his witnesses. The Tribunal further found as a fact that the Appellant and his agents de-campaigned the Respondent by assassinating his character and that of the other PF candidates by calling them drunkards and thieves and alleging that they suffered from diarrhea. The Tribunal observed that this evidence was not J44 controverted by the Appellant in cross examination or in his submissions. At page J39 of its judgment, the Tribunal held that: "It was proved that disparaging remarks were used during the campaigns by the Respondent and his agents against the Petitioner and other candidates contesting on the PF ticket. In most cases, these remarks were uttered during public meetings." The Tribunal stated that the disparaging remarks about the Respondent and other PF candidates being thieves and drunkards were against the holding 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 2016. We have considered the evidence on record adduced by the respondent and his witnesses in respect of each of the allegations. Regarding the bribery allegation relating to the distribution of maize, we have considered the evidence of PWl and PW3. PWl did not witness the alleged looting of the maize. His evidence was based on what he was allegedly told by an NGO official who was not called as a witness. His evidence was therefore hearsay 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. J45 As for PW3's evidence, although he said he was present on both occasions when the Appellant allegedly 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 allegation 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 show 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 evidence on this aspect reveals that the Respondent's evidence did not sufficiently establish or connect the Appellant or his agents to the alleged looting of the maize or its effect on the majority of the electorate, which are requirements under section 97 (2) (a) of the Act. Regarding the evidence on violence, the Respondent and PW2 testified regarding three incidents of violence. In all these incidences, the evidence was that the Appellant was not present and none of his agents 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 Respondent a thief and a drunkard at all the campaign meetings he held and alleged that he suffered from diarrhoea. A careful consideration of the evidence on record reveals that the Respondent and PW4 did not specify 1n which places the alleged character 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 requirement of the law. J47 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 8th 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 defines an 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 and consent or approval J48 or that of his election agent. In Lewanika and Others v Chiluba,'81 the Supreme Court observed thus: "We are mindful of the provisions of the Electoral Act that a candidate 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 everyone in one's political party is one's political agent since under regulation 67, an election agent has to be specifically so appointed." We agree with these observations. The Tribunal found as a fact at page 61 of the record of appeal that the Appellant and his agents gave KS0.00 notes to the voters who collected pens from them and returned the pens after voting. The tribunal further observed that the people who gave out pens to the voters were standing on the way to the polling stations and that there was no way of telling the exact number of voters they reached. According to the Tribunal, this evidence was uncontroverted in cross-examination. The Tribunal's finding that it was the Appellant and his agents who handed out pens to voters on polling day and gave them KS0.00 upon returning the pens to them is glaringly at variance with the evidence of PWS who was the only witness who testified with regard to this allegation. It is a finding which is J49 clearly perverse as it says the opposite of what PWS said on oath. It therefore cannot stand and we reverse it. A careful review of the evidence adduced by the Respondent and his witnesses in support of the allegations of corruption and bribery contrary to section 8 1 of the Act reveals that none of the said allegations was proved to the requisite standard of proof of a fairly high degree of convincing clarity. The findings of the Tribunal that each of the Respondent's bribery allegations against the Appellant were proven in terms of section 97 (2) (a) of the Act were made against the weight of evidence adduced by the Respondent. They therefore cannot stand for reasons we have already given. Based on the evidence 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 the alleged electoral offences of bribery, corruption and character assassination of the Respondent. We further have not found any evidence on record that the alleged offences were widespread and that they affected or JSO may have affected the majority of the voters in the district by preventing them from electing 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 majority of the electorate were affected, the allegation cannot be held 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 Attorney-General1251 that an appellate 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 perverse 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 allegations in an election petition, we find that the evidence adduced by the Respondent in support of his allegations 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 allegations 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 evidence before the Tribunal did not satisfy the requirements of section J52 97 (2) (a) of the Act, it is not necessary for us to address these grounds in great detail as they are otiose. As we have found merit in grounds 1 and 2 which in our view were the backbone of the appeal, we set aside the decision of the Tribunal to nullify the election of the Appellant. We declare that the Appellant Mwiya Mutapwe was duly elected as Council Chairman for Shangombo District. Each party will bear their own costs of this appeal. /<2(.~· ......L 9.!.~ ............... . A.M. Sitali CONSTITUTIONAL COURT JUDGE ............... 0... ................. . ............ ····~ ······· ...... . M.S. Mulenga E. Mulembe CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE " ......................... ··V-·············· ·················~ ······················ P. Mulonda M.M. Munalula CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE J 53