Boyd Khondowe v Banda and Anor (Petition 10 of 2021) [2021] ZMLGEL 21 (16 September 2021)
The law permits the admission of data message evidence if it is the best evidence reasonably obtainable and the substance is the same, regardless of original format. The witness is testifying to the existence of the contents, not their truth, and cross-examination is available. Therefore, the objection to...
Source-derived case information.
- Citation
- [2021] ZMLGEL 21
- Parties
- Petitioner: Boyd Khondowe; 1st Respondent: Adrian Banda; 2nd Respondent: Electoral Commission of Zambia
- Court
- Local Government Election Tribunal Lusaka
- Jurisdiction
- Zambia
- Case Number
- Petition 10 of 2021
- Procedural Posture
- Election Petition / Interlocutory Ruling on Admissibility of Evidence
- Outcome
- objection overruled
- Legal Topics
- Admissibility of Electronic Evidence, Hearsay, Local Government Elections
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boyd Khondowe
Petitioner
Adrian Banda
1st Respondent
Electoral Commission of Zambia
2nd Respondent
Procedural Posture
Election Petition / Interlocutory Ruling on Admissibility of Evidence
Legal Issues
- 1 Whether video evidence without date or time stamp is admissible
- 2 Whether the videos constitute hearsay and are inadmissible
Ratio Decidendi
The law permits the admission of data message evidence if it is the best evidence reasonably obtainable and the substance is the same, regardless of original format. The witness is testifying to the existence of the contents, not their truth, and cross-examination is available. Therefore, the objection to admissibility is overruled.
Court Disposition
objection overruled
Orders
- Exhibits BK3 and BK4 are admitted into evidence
Full Case Text
Judgment text and source record
1 paragraphs
~R1 ~ 2021/P/LGEP/010 IN THE LOCAL GOVERNMENT ELECTION PETITION TRIBUNAL HOLDEN AT LUSAKA (Constitutional Jurisdiction) IN THE MATTER OF: THE LOCAL GOVERNMENT PETITION RELATING TO NGWERERE WARD 22 ELECTIONS HELD ON 12™ AUGUST, 2021 AND IN THE MATTER OF: ARTICLE 159 OF THE CONSTITUTION OF ZAMBIA THE CONSTITUTION OF ZAMBIA ACT. AND IN THE MATTER OF; SECTION 81,82,83,84,86,87,89,91,92,94,96,97,98,99,100 AND 110 OF THE ELCETORAL ACT NO: 35 OF 2016. AND IN THE MATTER OF: THE ELECTORAL PROCESS ACT NO: 35 OF 2016. BETWEEN: BOYD KHONDOWE AND ADRIAN BANDA ELECTORAL COMMISSION OF ZAMBIA RULING - PETITIONER 1ST RESPONDENT 2No RESPONDENT Delivered by LT. Wishimanga We have heard the objection by counsel for the 1st respondent and the response from counsel for the petitioner. The issue at hand is that the said videos are hearsay as it does not state whether the 1st respondent or which ever person was recording them as they do not have the date or time stamp. He further said the understanding of hearsay is that the statement is only admissible for purposes of proving that the words of the document exist and not proof that the statement or contents are true. This statement is agreeable to what counsel Numbwa has stated. Moreover in the electronic communication and transactions Act # 4 of 2021 section 9 states that in any legal proceedings the rules of evidence shall not be applied as to deny the admissibility of a data message in evidence. (b) If it is the best evidence that the person adducing it could reasonably be expected to obtain on the grounds that it is not in its original format provided the substance is the same. The law is clear on production of data message evidence, the court has to attach weight to it. The witness on the stand is merely testifying to the contents that they existed and not to the proof that the contents are actually true and counsel will have chance to cross examine the witness, therefore the objection is overruled exhibits BK3 and BK4 are admitted into evidence. ~ 3 - LT. Wishimanga Chairperson K. N. Mundia Member S. Miti Member