Joy K Chijilo v Ambrose Lufumu and Anor (APPEAL NO. 152/2012) [2013] ZMSC 86 (17 May 2013)

.,, · IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Constitutional Jurisdiction) APPEAL NO. 152/2012 IN THE MATTER OF: Article 72(1)(a) of the Constitution of the Republic of Zambia AND IN THE :tvlATTER OF: Section 93(1) of the Electoral Act No. 12 of2006 AND IN THE l\1ATTER OF: Kabompo Parliamentary Constituency Elections held in Zambia on 20 th September 2011 West JOY K CHIJILO APPELLANT AND AMBROSE LUFUMU ELECTORAL COMMISSION OF ZAMBIA 1 ST RESPONDENT 2ND RESPONDENT Col'am: Mumba, Acting DCJ, Muyovwe and Musonda, JJs on 24th April, 2013 and 17th May, 2013 For the Appellant: Mr. Richard Mandona of Messrs. Chilupe & Permanent Chambers For the Respondents: Major Lisita of Messrs. Central Chambers ------------------------------------------------------------------------------------------- RULING Mumba, Acting DCJ, delivered the Ruling of the Court. Legislation referred to: 1. The Supreme Court Act Cap. 25 of the laws. Cases referred to: 1. Zambia Revenue Authority (ZRA) v Hitech Trading Company Ltd. (2001) ZRl 7 The appellant by Motion has moved this court for leave to e introduce new evidence on appeal. The Motion is brought under the provisions of Section 25(1)(b)(i) of the Supreme Court Act Cap. 25 of the laws. The affidavit evidence supporting the Motion is that a 'Notification Forn1' issued by police and dated 17th September, 2011 exhibit "JKC l", indicated that a political rally addressed by the president of the UPND, Mr. Hakainde Hichilema, was held on 17th September, 2011 at Freedom Square in Kabompo; the said rally e was not held on 16 th September, 2011 as per evidence adduced by the 1st respondent and his witnesses . It was not possible for the said rally to be held on 16 th September 2011, the date which fell before the 'Notification Form' was issued. On the basis of this exhibit, it is deposed that the evidence of the 1st respondent in the R2 court below to the effect that the rally was held on 16th September, 2011 was not truthful. The other piece of evidence sought to be produced on appeal is the document disputing the name of the village headman of Nyachawa. village in Kabompo. By this document, exhibit "JKC2", the headman is shown as David Samungumbe and not George Samungumbe as was given in evidence in the court below by the 1st respondent. "JKC2" sho~rs that Senior Chief Sikufele was the only authority who could appoint headmen and that David Samungumbe was the headman of Nyachawa village, that the evidence of RW12, Zwau Kamwanga, to the effect that George Samungumbe was the headman was not correct. Exhibit "JKC2" has a date stamp indicating 7 th May, 2012, and the name of senior Chief Sih.. Lifele, there is no signature on "JKC2". e The affidavit deposed to by the appellant does not state why the said exhibits were not available at trial; what efforts, if any, were made to seek such evidence during trial, lastly, the exhibits are not even described as credible evidence. R3 The Motion is opposed by the 1st respondent who by affidavit evidence has disputed the authenticity of both exhibit "JKC l" and ''JKC2" . The 1st respondent has further deposed that the 'Notification Form' produced at trial indicated that the said political rally was held on 16th Septe1nber, 2011 because the form was dated as such and was properly signed. The 1st respondent further deposed that exhibit "JKC2" was not genuine, it had no signature, he instead produced exhibit "ALT' issued by the same Senior Chief Sikufele of Kabon1po district. Exhibit "AL3" bears a signature as that of Senior Chief Sikufele, the date stamp shows the date of 24 th February, 2013, which also indicates Senior Chief Sikufele. In the written skeleton arguments on behalf of the 1st respondent, it has been argued that the Motion does not meet the threshold required for further evidence to be adduced on appeal. Relying on the cases cited including the case of Zambia Revenue Authority (ZRA) v Hitech Trading Company Ltd. (2001}1, it was submitted that for an application to adduce further evidence on appeal to succeed, it must be demonstrated to the satisfaction of the court that the evidence could not be obtained at trial even with due diligence; that the evidence was important and could influence R4 ,, the outcorne of the case and, lastly, that the evidence was pnma facie credible though it was not necessary to show that the evidence could not be · disputed. The appellant on the other hand did not make any submissions regarding the threshold. We have seriously examined the evidence on record, and the arguments made by the 1st respondent. We have come to the conclusion that the appellant does not seem to be serious with the require1nents of the applicable law for this type of Motion to succeed. In the affidavit evidence she did not state what efforts, if any, were rnade to obtain the evidence during trial, she did not seriously contend that the evidence could have materially affected the outcome of the petition because the appellant did not point out any features of the evidence intended to be adduced which would have influenced the trial Judge. To prove the date when a 'Notification Form' was issued, police officers could have been called at trial. On "JKC2", purportedly written by Senior Chief Sikufele, there is no signature and nothing shows any semblance to authenticity. Further, there is no reason why the same was not obtained during trial. If the chief was not available, affidavit evidence by the chief could have been produced at trial and the RS relevant rules could have been applied. For both exhibits tendered as documentary evidence, there was nothing to stop the appellant to make applications to the trial court at any stage of the trial to have the evidence adduced. We find that there is no efficacy in the evidence now being sought to be adduced on appeal. The Motion has fallen far short of the requirements of the applicable law, it is dismissed with costs, to be taxed in default of agreement. F. N. M. Mumba ACTING DEPUTY CHIEF JUSTICE ~~ -- ...................................... E. N. C. Muyovwe SUPREME COURT JUDGE P. Musonda SUPREME COURT JUDGE R6