Sibongile Mwamba v Kelvin Sampa and Anor (APPEAL NO. 2/2017) [2017] ZMCC 87 (17 November 2017)

J1 (1975) IN THE CONSTITUTIONAL COURT OF ZAMBIA APPEAL NO. 2/2017 AT THE CONSTITUTIONAL COURT REGISTRY 2016/CC/A033 HOLDEN AT LUSAKA SELECTED JUDGMENT NO 57 OF 2017 (CONSTITUTIONAL JURISDICTION) IN THE MATTER OF: THE PARLIAMENTARY PETITION RELATING TO THE PARLIAMENTARY ELECTION HELD ON 11TH AUGUST, AND IN THE MATTER OF: AND IN THE MATTER OF: THE CONSTITUTION OF ZAMBIA, THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA SECTIONS 96, 97, 98, 99, 100, 106, 107 AND 108 OF THE ELECTORAL PROCESS ACT (ELECTORAL CODE OF CONDUCT) NO. 35 OF 2016 OF THE LAWS OF ZAMBIA ELECTORAL COMMISSION OF ZAMBIA 2ND RESPONDENT CORUM: Sitali, Mulenga, Mulembe, Mulonda, Munalula, JJC on 26th June, 2017 and on 17th November, 2017 For the Appellant : Mr. V. Michelo of VMN and Partners For the 1 stRespondent Mr. K. F. Bwalya of KBF and Partners For the 2 nd Respondent: Mrs M. N. Mulenga, In House Counsel Mr. C. Sianondo of Malambo and Company JUDGMENT -··· -------·- -- -- - - - Mulenga, JC delivered the Judgment of the Court J 2 (1976) C ases referred to: 1. Brelsford James Gondwe v C a t herine Namugala SCZ Judgment n o. 2 of 2013 2. Michael Mabenga v Sikota Wina and Others S C Z Judgment no.15 of 3. 4. 5. Justin C hansa v Lusaka City Council (2007) Z. R. 256 Phillip Mhango v Dorothy Ngulube and others (1983) Z. R. 61 Anderson Kambela Mazoka and Others v Patrick Levy Mwanawasa and Others (2005) Z. R. 138 6. Mike Kaira v Catherine Namugala and Electoral Commission of (\. 7. 8. Zambia SCZ Appeal no. 131/2002 Leonard Banda v Dora Siliya SCZ Appeal No. 95 of 2012 Examinations Council of Zambia v Reliance Technology Limited SCZ J udgment No. 46 of 2014 9. A t torney General v Kakoma (1975) Z. R. 212 (SC) Webster Chipili v David Nyirenda SCZ Appeal No.35 of 2003 10. Webster Chipili v David Nyirenda SCZ Appeal No.35 of 2003 11. Gastove Kapata v The People (1984) Z. R. 47 12. Reynolds v Llanelly Associated Tin - Plate Company Limited [1948] 1 All E. R.140 13. H ubert Sankombe v The People (1977) Z. R. 127 14. GDC Hauliers (Z) Limited v Trans-Carriers Limited SCZ Judgment No. 7 of 2001 15. Morgan and Others v Simpson and Another [1974] 3 All E. R. 722 Legislation Referred to: 1. 2. The Constitution of Zambia Chapter 1 of the Laws of Zambia The Electoral Process Act number 35 of 2016 Works Referred to: 1. Halsbury's Laws of England, Fourth Edition, Volume 15, paragraphs 652, 653 and 658 This is an appeal against the d ecision of the High Court in an election petition commenced by the Appellant after h er loss in the J3 (1977) August 2011 General Elections. The Appellant vied for the Kasama Central Parliamentary seat under the United Party for National Development (UPND) and the 1 st Respondent was sponsored . by the Patriotic Front (PF). The 1 st Respondent emerged as winner after polling 25, 427 votes against the Appellant's 9, 359 votes. Being dissatisfied with the election results, the Appellant filed a petition seeking a declaration that the 1 st Respondent was not validly elected, an order for recount, verification and scrutiny of the votes cast in the parliamentary elections for Kasama Central Constituency and consequently, a declaration that the Appellant was the candidate validly elected. In h e r petition, the Appellant alleged that there was violence, intimidation, assault and injury of innocent UPND officials and supporters by the PF supporters and the Zambia Police, who also imposed an illegal curfew. The other allegation was that the Appellant's family home was raided several times by the Police. The Appellant also alleged corrupt and illegal practices on the part of the 1 st Respondent relating to distribution of alcohol at a polling station and during the campaign period and donating of shoes during the campaign period. It was furth er alleged that PF party officials were spreading defamatory messages against the UPND presidential J4 (1978) candidate and other UPND candidates at rallies, on radio, and using flyers and that they destroyed her campaign posters. In relation to the 2nd Respondent, the Appellant alleged that the 2 nd Respondent recruited PF cadres as polling staff who blocked UPND accredited representatives from entering polling stations and did not provide GEN 12 forms nor signed forms and that the results on form ECZ 19 did not tally. During the trial, the Appellant testified as PW 1 and called seven (7) other witnesses to attest to the illegal practices alleged. In rebuttal, the 1st Respondent testified as lRWl and called six (6) witnesses while the 2 nd Respondents called nine (9) witnesses. We must at this point state tha t th e numbering of the witne sses for the 1 s t and 2nd ~ Respondents was n ot properly done . What the lower Court ought to have done was to number the witnesses sequentially without putting the number 1 or 2 in front. However, for the purposes of this Judgment, we shall refer to the witnesses as they were numbered by the lower Court. After considering the evidence and submissions made by the respective parties, the lower Court narrowed down the issues for JS (1979) determination to three interrogative statements stated as follows: 1. Whether or not the 1 st Respondent engaged in corrupt and illegal practices or other misconduct during the campaign period and election day; 2. whether such conduct prevented the majority of voters in Kasama Central Constituency from electing a candidate whom they preferred; and 2. Whether there was non-compliance in the conduct of the elections that affected the result to warrant voiding the election. Addressing the a llegations under the 1 st and 2 nd heads, the lower Court observed that it was apparent from case law that satisfactory proof of any one corrupt practice or illegal practice or misconduct in 'f. an election is sufficient to nullify an election. She relied on the case of Brelsford James Gondwe v Catherine Namugala 1 and re-affirmed the principle laid down in Michael Mabenga v Sikota Wina and Others2 that- "Satisfactory proof of any one corrupt or illegal practice or misconduct in an election is sufficient to nullify an election." The lower Court proceeded to consider the allegation of the violence perpetrated against twenty eight (28) of the Appellant's J6 (1980) supporters, and found that there was no dispute that there was a police raid at the Appellant's home which was carried out during the campaign period. However, the Court stated that there was no evidence on record to show that the Police were acting on instructions from the 1 s t Respondent or the President of the Republic of Zambia or that the act was meant to stifle the Appellant's campaign. That there · was evidence that the 28 persons were charged with the criminal offence of conduct likely to cause a breach of peace and they appeared in the Subordina te Court, although a nolle prosequi was later enter ed on 3 0 th September , 2 016. The lower Court stated that the m er e fact th at th e Appell a nt was d eprive d of 28 members of her campaign t eam djd n ot m.ean that the Police were using their office to oppress the Appella nt, the UPND and its supporters so as to affect the outcome of the election. Further, tha t there was no evidence showing that the m ajority of the voters wer e so affected by the police raid such that they were or m ay h a ve b een prevente d from voting for their preferred candida te. The lower Court thus found that the Appella nt had failed to show with con vincing cla rity th a t the police raid was orchestrated by the 1 st Resp ondent or his agents and tha t as a result of the raid, the J7 (1981) majority of voters were prevented from electing the candidate whom they pref erred. On allegations of unfair, defamatory and character assassination statements, the lower Court considered the evidence regarding the . , . ... . banner against the UPND presidential aspiran.t displayed at the Kasama Airport, the flyers alleged to have been distributed and the radio broadcasts of hate speech. The lower Court found that it was not in dispu te that ther e was a banner at the Kasama Airport displaying th e m essage tha t the UPND Presidential candidate, Hakainde Hichilem a, wa s a satanist and that the said banner was displayed by PF s upporters. The Court stated that such statements coupled with th e dis tribution of flyers could have affected the 1£ ., ·, Appellant's campaign a nd were capable of affecting the majority of voters by preventing them from voting for a candidate of their own choosing. However, the lower Court found that there was no evidence that the banner , flyers and h ate speech were orchestrated by the 1 st Respondent or his a gents a nd furth er that there was no evidence of any p erson h aving been affected by the banner at the Airport, the flyers or the r a dio broa dcasts to the point that they could not vote for a candida t e of their choice . J8 (1982) Based on the findings, the lower Court declined to hold the 1 st Respondent answerable in the absence of cogent evidence that the banner, the flyers or hate speeches were orchestrated by the 1 st Respondent or his agents and that, as a result, anyone was prevented from choosing a candidate of their choice. The lower Court went on to state that the allegations, even though capable of affecting the majority of voters, were not proved by the Appellant to a fairly high degree of convincing clarity. On the alleged corrupt and illegal practices of donating shoes to Kalundumya children , the lower Court found that there was no dispute that the shoes h ad formally been donated at Kalundumya and then distributed at Misengo. The only issue in contention was the date and period of the donation. The Appellant's evidence through PW8 was that the dona tion was 1na9_~ in the month of July during the campaign period while the 1s t Respondent's evidence through lRWl and 1RW4 was that the donation was made sometime in April before the campaign period. Faced with conflicting evidence, the lower Court accepted the 1 st Respondent's position that the donation was made in April, 2 016 on the ground that PW8's statement that he had heard about 'fasila Lungu's April visit to the area corroborated the evidence of the Respondent and 1RW4. The lower Court also took judicial J9 (1983) notice that when a high profile individual visits a rural community, they usually go with donations and that most of the rural roads were in a bad state during and immediately after the rainy season. The lower Court thus found that the allegation that the 1 st Respondent donated shoes to Kalundumya during the campaign period to induce voters to vote for him was not proved. On the illegal practices of vote buying and distributing alcohol during the campaign period, the lower Court found that the Appellant h a d failed to prove the allegations to the requisite standard. The lower Court fu rth er h eld that the import of section 97 of the Elector al Process Act No. 35 of 2 016 (the Act) was that an illegal or corrupt practice or misconduct has to be established under subsection (2 ) and 111 t h e event tha t it does not affect the majority of voters, then subsecb on (3) comes into play . Where the Court finds that there wa s an illegal or corrupt a ct but the candidate and his a gents took steps to prevent it and the election was in all other respects free from corrupt or illegal practice, the election should not b e d eclared void. However , that this did not imply that the illegal practice would go unpunished a s section 108 (6), (7) and (8) of the Act 1na nda tes the Court to prepare a r eport sta ting the eviden ce of the ill egal practice or corrupt practice with the names of the p ersons who J10 (1984) I committed the offence for purposes of submission to the Electoral Commission of Zambia and ultimately to the Director of Public Prosecutions for prosecution. In respect of the 3rct head alleging serious omissions by officers or agents of the Electoral Commission of Zambia, the lower Court considered the evidence of 2RW9 and the GEN12 forms produced in the Bundle of Documents. It found that five (5) GEN 12 forms were irregular in that they lacked the names of the polling stations, presiding officers and their signatures despite being signed by the polling agents at the back. That due to insufficient evidence on whether the GEN 12 forms were in r espect of a polling stream or an entire polling station, it was difficult to ascertain the extent of the impact of the irregularity. The lower Court went on to state that even if the forms wer e in r esp ect of a polling station, the percentage impact did not affect the results to warrant the voiding of the election. The lower Court further found that the Appellant had neither proved that the absence of her polling agents at the time of opening of the polling stations affected her nor that the rej ected ballots were a dded to the 1 st Respondent's votes. The lower Court equally found that the Appellant failed to adduce evidence over the allegations of the 2 nd Responde nt recruiting PF m ernbe rs as election officers and that J11 (1985) i the presiding officers or a11.y other officer had acte d outside the provisions of the Act. The lower Court went on to hold that taking into account the facts, the law, the authorities cited and the evidence presented, the Appellant failed to establish to a fairly high degree of convincing clarity that both the 1 st and 2 nd Respondents and their agents were involved in corrupt practices, illegal practices or other misconduct such that the majority of the electorate were prevented from choosing a candidate of their choice. Further, that she was satisfied that the elections wer e conducted as to be substantially in accordance with the provisions of the Electoral Process Act. The trial Judge therefore dismissed the Pe tition and d ecla red that the 1 st Respondent, Kelvin Mutale Sampa, was duly elected as Member of Pai·liament for the Kasama Central Cons tituen cy. The Appellant being dissatisfied with the decision of the lower Court a dvanced the following grounds of a ppeal: 1. The learne d trial Judge misdirected herself when she dismissed all of the allegations put forward in the Petition on the strength of various findings of fact made by her without having proper regard to the law and to the totality of the evidence before her. 2. The learned trial Judge fell into grave error in arriving at her decision to dismiss the allegations of unfair, discriminatory and political assassination statements when, having earlier misdirected herself as to t he import of section 97 of the Ele ctoral Process Act no. 35 of 2016 ("the Act") and the evidence before her she conside red that in order to nullify the election the aileged violations had to have been orchestrated by the 1 s t Respondent. J12 (1986) 3. The learned trial Judge misdirected herself when she held that the provisions of section 97 (3) of the Act only come into play after any one of the grounds set out in subsection 2 of section 97 has been established. 4. The Court below erred when it failed to consider the established principles of law relating to how a lower Court must determine matters in dispute before it when faced with conflicting evidence. 5. The Court below fell into grave error when it took Judicial Notice in the manner that it did and despite having cogent evidence before it upon which it could have resolved the issue as to when and by whom the donation of shoes to the residents of Kalundumya village was done. 6. The trial Judge misdirected herself when she failed to consider that a matter in dispute can be proved on the evidence of a single witness and conse que ntly when she opined that the evidence of PW8 on the allegation of donation of shoes at Kalundumya village required corroboration. 7. The learned trial Judge misdirected herself when, despite being on terra fi r ma as to the import of section 97 (3) of the Act, she nonethele ss went on to opine that the Appellant's submissions regarding the same were flawed. 8. The Court be low e rred in law and in fact when it absolved the 2 nd Re spondent of all wrongdoing contrary to the law and the facts before it. 9. The Court below e rre d in law and fact when it held that the election was conducte d so as to be substantially in accordance with the provisions of the Act and when it consequently declared the 1 s t Respondent as duly elected member of Parliament for Kasama Central Constituency. The Appellant filed heads of argumen t on 6 th January, 2017. It was argued th at in reference to grounds on e a nd two, the lower Court mis directe d itself by taking an exceptiona lly narrow vievv of the import of section 97 that for an election to b e n ullifie d, a n y non-compliance with th e Act h a d to b e a ttribu ted to th e 1 s t Respon dent and tha t it had to have p revented the majority of voter s in the constituen cy from ch oosing a candidate of th eir ch oice. J13 (1987) It was further argued that section 97(2) (b) of the Act is open ended and does not specify that the non - corn pliance in issue had to have been committed by the 1 st Respondent. That the trial Judge failed to consider that an act of corruption or illegal practice or indeed an act of misconduct itself amounts to an act of non- compliance with the Act relating to the conduct of an election and which is capable of affecting the result of the election within the meaning of section 97(2) (b). That the wording of section 97(2) (b) is such that it refers only to the result of the election being affected without any qualification and indeed without requiring t h at the m ajority of voters should be involved or that there should b e a multiplicity of incidents. It was added that, unlike in other jurisdictions that have similar provisions ff in their laws, the Act 1nakes no mention of the extent to which the r esult s hould be affected, the only r equirement being that it should b e affected, whether substantially or otherwise . It was contended that under section 97(2) (b) of the Act even one incidence of non-compliance with the Act is sufficient to trio-a-er ob nullification if it relates to the conduct of an election and if it affects the r esult of that election. And that this was the only test prescribed under the otherwise clear provisions of section 97 (2 ) (b) of the Act. J14 (1988) Failure to highlight this fact in the trial Judge's reasoning and limiting herself to the provisions of section 97(2) (a) of the Act was a clear misdirection on her part which rendered the Judgment erroneous. As a consequence of that error, the learned trial Judge completely ignored the evidence before her which showed that, in point of fact , there were clear violations of the Act and its attendant code of conduct in the form of unfair, defamatory and character · assassinating statem ents complained of which violated, inter alia, the spirit and letter of the Act and Regulations 2 and 15 (c), (m) and (n) of the Cod e of Conduct. The Appellant's furth er contention was that section 97(2) (b) of the Act when close ly examined reveals its simplicity and clarity and ought to b e con stru ed in its pure and natural form using the literal rule of interpretation. It is to be construed in its own terms and not conjunctively with 9 7 (2) (a ). That subsection (4) only applies where the non-compliance in issue is alleged to h ave b een committed by an election officer in breach of that officer's official duty. It was advanced that the provision does not require non co1npliance to b e attribute d to any particular persons or class of p er sons. Had the converse been the intention, Parliament would have specifically stated, for instance, that s u ch non-compliance should be J14 (1988) Failure to highlight this fact in the trial Judge's reasoning and limiting herself to the provisions of section 97(2) (a) of the Act was a clear misdirection on h er part which rendered the Judgment erroneous. As a consequence of that error, the learned trial Judge completely ignored the evidence b efore her which showed that, in point of fact, there were clear violations of the Act and its attendant code of conduct in the form of unfair, defamatory and character a s sassinating statem ents complain ed of which violated, inter alia, the s pirit and letter of the Act and Regulations 2 and 15 (c), (m) and (n) of th e Cod e of Con duct. The App ellant's further contention wa s that s ection 97(2) (b) of the Act when closely examined reveals its simplicity and clarity and ou ght to b e construed in its pure a nd n a tural form using the literal rule of interpret ation . It is to be construed in its ov.rn t erms and not conjunctively with 9 7 (2) (a ). Tha t subsection (4) only a pplies where th e non-complia n ce in issue is a lleged to h a ve been committed by an election officer in breach of tha t officer's official duty. It was a dva n ced tha t the provision does not require non con1pliance to b e a ttribute d to an y particular persons or class of persons. Ha d the con verse been the intention, Parliament would have specifically stated, for in stance, tha t s u ch non-complia n ce should be J16 (1990) proceedings, the lower Court ought to have reached the conclusion that the offending flyers were, as a matter of fact, distributed throughout the constituency as alleged by the Appellant. On the allegations of the hate speech broadcast on Radio Mano, this Court was invited to review the testimony of RW5. It was submitted that RWS's testimony corroborated the Appellant's ((~ allegation that the hate speech was broadcast and the lower Court ought to have accepted the Appellant's evidence on the point in the absence of any question as to the Appellant's credibility as a witness. And more so when due regard was had to the fact that the absence of the recording of the programme was cogently explained by the Appellant. Based on this position, it was advanced that the allegations relating to distribution of flyers and the hate speech by I(, Chishimba Kambwili were on the totality of the evidence proved to the requisite standard of cogency and to a high d egree of convincing clarity. With regard to the banner displayed at Kasama Airport which declared that the UPND President was a satanist, the Appellant argued that the lower Court erred by finding that there was no evidence of the broadcast of the banner by Zambia National Broadcasting Corporation (ZNBC) especially in the light of the 1 st J17 (1991) Respondent's testimony. That the unchallenged evidence of the Appellant that she lost members on account of being perceived as coming from a blood party was conclusive as to the effect of the statements on her campaign and as such on the conduct of the election within the ambit required under section 97(2) (b) of the Act. That given the effect of section 97(2)(b) of the Act, it is immaterial that the violations in issue were not directly attributable to the 1 st Respondent, the key consideration being that the elections were conducted in an atmosphere where voters were made to believe that the Appellant was associated with satanism, which atmosphere created an undue advantage in favour of the 1 st Respondent. The Appellant thus prayed that this appeal should succeed on these two grounds and that this Court should find that the conduct of the election was not in accordance with the principles laid down in the Act, in keeping with section 97(2 )(b) of the Act, in view of the unfair, defamatory and character assassination statements made against the Appellant's party president. The Appellant also contends that by failing to take into consideration the provisions of section 97(3) of the Act when she disn1issed a ll of the subject allegations, the trial Judge fell into grave error. J18 (1992) On the aspect of distribution of alcohol in Kalundumya village during the campaign period, the Appellant contends that the finding of the lower Court was flawed in that it disregarded the testimony of PW3 that the Republican President was in Kasama Central on 21 st July, 2016 which went unchallenged. That the said date was of central importance b ecause the defence put forward by the 1 st Respondent that the Republican President was in Kasama on 7 th or 8 th August, was bound to collapse. That the trial Court's acceptance of RW3's testimony over that of PW8 on the b asis of corroboration was applying double standards as RW3 's testimony was equally uncorroborated. Relying on Justin Chansa v Lusaka City Counci13 , it was submitted that this Court ought to set aside the lower Court's holding to the effect that RW3 could not have distributed alcohol in the constituency on the dates stated by PW8 and instead hold tha t alcohol was distributed in Kalundumya village with the 1 st Respondent's knowledge contrary to section 81 (c) of the Act. That based on this misconduct, the election was rendered a nullity. It was also submitted, m reference to the alleged om1ss1ons by officers of the 2 nd Respondent, that irregularities of the nature J19 (1993) observed were indicative of an endemic problem with the system of tallying results which rendered the whole system unreliable. The irregularities therefore affected the result in the manner envisaged under the Act thereby warranting the nullification of the election. In arguing grounds three and seven, the Appellant submitted that by reason of the use of the word "despite" at the commencement (~\..._ of section 97 (3) of the Act, it is intended that the provisions of subsection (2) be excluded when applying subsection (3). That by repeatedly using the singular, "a corrupt practice or illegal practice" the subsection recognises the possibility of the High Court finding that a singular such act had been committed by the Respondent. It was a dded that in a case where a candidate has committed electoral malpractice and cannot avail himself of the defences set out in paragraphs (a) to (c) of section 97 (3 ), the Court is left with no discretion but to nulljfy the election de spite what subsection (2) may state even where the majority of the voters have not been prevented from electing a candidate of their choice or where the incident is a single one . Tha t the drafters of subsection (3 ) could not h ave intend ed otherwise because any other interpre tation would entail that there \Vould h ave been no n eed to include the provision as s ection 97 deals compreh ensively with all other aspects of what the Court can or J20 (1994) cannot do when faced with such a violation. Section 97 (3) thus preserves the power of the Court to punish the candidate by declaring the election void in appropriate circumstances where a candidate is found to have committed wrong doing which is personally attributable to that candidate. If section 97 (3) is not construed in the manner suggested, then a lacuna will exist which would allow a candidate to engage in any single or multiple acts of corrupt or illegal practices without sanction provided that such acts do not affect the majority of voters. Hence, it was submitted that the lower Court fell into grave error when it failed to apply section 97 (3) of the Act to the extent required. The Appellant thus prayed that this Court adopts her interpretation and accordingly find that the learned trial Judge yvas not on firm ground when she failed to give the full effect of the subject provision of the law. On grounds four, five and s ix, the Appellant sub1nitted that due to the inconsistencies in the te stimonies of the 1 st Respondent and RW3, the lower Court erred by accepting their evide nce over that of PW8 thereby d efying the principle set in Phillip Mhango v Dorothy Ngulube and others4 . It was further submitted that by taking judicial notice of matte rs \vhich were in dispute, the lower Court stepped into J21 (1995) the arena and therefore caused great injustice. That the proper course which the trial Judge should have taken was to accept PW8's testimony as there was no basis upon which she rejected it. It was thus contended that the allegation that the 1 st Respondent donated shoes at Kalundumya village was proved and as such, the election ought to h ave b een nullified in terms of section 97 (3) of the Act. Under grounds eight and nine, the Appellant submitted that the 1 st Res pondent was not duly elected because the election was not conducted in substantial conformity with the Act thus rendering the Judgment jn the Court below amenable to reversal. It was the Appellant's prayer that the appeal was meritorious and ought t o be upheld in its entirety. At the hearing, counsel for the Appellant, Mr. Michela, augm ente d the Appellant's heads of argument with respect to grounds two and eight. Concerning ground two, Mr Mich ela submitted that the banner displayed at the airport which read "Northern Province rejects HH the Satanist" was capable of affecting the Appellant as confirmed by the 1 st Re spondent. The case of Leonard Banda v Dora Siliya 7 was c ited as holding that in a general election , bad publicity of one candidate in J22 (1996) a tripartite election transcends one to affect everyone . H e a dded that the banner was televised and this affected the whole of Kasama. It was counsel's further submission that it was also shown that Radio Mano and Lutanda had wide coverage of the whole Kasama and therefore the character assassination swayed the voters to a large extent against the Appellant. On ground eight in r elation to s ection 97(2) (b) , counsel submitted that officers from the Electoral Commission of Zambia (ECZ) did not properly conduct the elections as provided for under the law. He argued that Davies Sikazwe, the Returning Officer, admitted that the GEN 12 forms for 6 out of the 60 polling stations had no n ames of the polling stations, as well as name s of the returning office r s and a lso confirmed that this was a serious anomaly. Counsel then argued that it was wrong for the lower Court to state that the anomaly affected both parties because 6 polling stations out of 60 was a big number and therefore the true results for Kasama Central Constituency will never be known thereby requiring the voiding of the election. Further, that the issue of substantiality does not come into p lay because of the omission. The 1 st Respondent did not file any h eads of argument. The 2nd Respondent a ddressed grounds eight and nine in the h eads of J23 (1997) argument filed in response to the Appellant's arguments. It contended that there was no evidence on record to show that the election results were not accurate or that voters did not choose their preferred candidate. That in fact, the Appellant during her testimony before the lower Court did not dispute the results. Relying on Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and (\.. Others 5 and Mike Kaira v Catherine Namugala and Electoral Commission of Zambia6 , it was contended that the irregularities did not affect the election result. Further, that the Appellant had not furnished any evidence against the 2 nd Resp ondent to prove that it did not conform to the laws regarding the conduct of elections. It was argued that the 2nd Respondent complied with all electoral procedures relating to the conduct of elections in Kasama Central Constituency and the results that were announced were a reflection of the free choice and will of the people of Kasama Central Constituency. It was thus submitted that the grounds against the 2nd Respondent be dismissed with costs. At the hearing, the 2 nd Respondent's counsel, Mrs Mulenga, r esponded to the oral submissions by counsel for the Appellant. She submitted that a p erusal of the record of appeal indicates that there J24 (1998) was no dispute in relation to the actual results that the candidates obtained in the subject election. Further, that page 354 of the record of appeal shows that the Appellant's agents in fact signed for the overall results. That in the premise, the argument that the results could not or will never be known was not tenable as the results were clearly indicated. ~ Mrs Mulenga further submitted that the trial Judge's interpretation of section 97 (2) (b) and (4) of the Act were the true reflection of how the law should be interpreted. She concluded that the appeal should be dismissed. In reply, Mr Michela stated that the 2 nd Respondent's arguments were based on form ECZ 19 which is generated from form GEN 12. He maintained that the six (6} GEN 12 forms were null and void and 1v thus the results may n ever b e known. We have carefully considered the grounds of appeal, the Judgment of the Court below, the evidence on record and the submissions made by the respective parties. It appears to us that the appeal is anchored on the findings of fact and the interpretation of section 97 of the Act as well as its application to the facts by the lower Court. We will address the specific gro unds of appeal as they were argued by the parties. J25 (1999) Under grounds one and two, the Appellant impugns various findings of fact of the lower Court and further argues that the lower Court erred by not considering that the acts of corruption, illegality and misconduct could also fall under section 97 (2) (b) of the Act. Therefore, the two central issues for consideration are; firstly, whether the lower Court misdirected itself as regards the findings of fact on the allegations of unfair, discriminatory and character assassination statements and corrupt and illegal practices; and secondly whether, after finding that the allegations of corrupt and illegal practices had not been proved unde r section 97 (2) (a) of the Act, the lower Court should have gon e further to nullify the election under subsection (b) based on the fact that the corrupt or illegal practices affected the result of the election. In considering the· firs t issue of whether the trial Court misdirected itself in arriving at the findings of fact on the specified allegations, we wish to state tha t the case of Examinations Council of Zambia v. Reliance Technology Limited8 is instructive that a n appella t e Court will not lightly interfere with findings of fact of the trial Judge that h a d the b en efit of seeing arid evaluating the witnesses unless it is s hovvi1 that the findings of fact were either perverse or J26 (2001) made 1n the absence of any relevant evidence or on a misapprehension of the facts. The allegations of corrupt and illegal practices in the lower Court were the distribution of alcoholic beverages during the campaign period and at a polling station, and unfair, discriminatory and character assassination statements. We shall address each of these l allegations in line with the dictates of section 97 (2) (a) of the Act. We shall first consider the alleged distribution of alcoholic beverages during the campaign period. The evidence on this aspect was tendered by the Appellant's witnesses, namely PW2, PW7 and PW8 who testified that the alcohol was distributed at Kalundumya village during the campa ign period and that the 1 s t Respondent distributed the alcohol a t Mubanga Chipoya polling station on the day of the elections. As to th e distribution of alcohol in Kalundumya village , the lower Court stated that the evidence of PW8 was not corroborated as to when the alcohol was distributed, which he alleged was 7 th or 8 th August, and that PW7's evidence was scanty as he only said that he saw alcohol being decanted from a canter into drums in PF branded vehicles on 3 rd August and did not know where it was ta ke n. The lower Court b elieved the evidence in rebuttal by the 1 st Resp ondent a nd 1RW3 who testified that alcoholic beverages were J27 (2002) purchased after the elections in celebration of the victory and produced receipts to that effect. The lower Court further found that at the time alleged by PW8, the Republican President was in the province in line with 1RW3's evidence. The Appellant's Counsel argued that the lower Court disregarded the unchallenged testimony of PW3 that the Republican President was in Kasama on 21 st July, 2016 and that this date was central in countering the dates given by the 1 s t Respondent of 7 th or 8 th August, 2016. The Appellant's argument that PW3 stated that the President was in Kasama on 21 st July, 2016 is based on her statement on page 566 of the record of appeal that "according to my presumption, I took it that. since President Lungu was in Kasama, they (police) were just here to m.aintain peace." We have examined the record of appeal which shows that PW3 n1entioned 21 st July, as the date on which the police raid took place and the inference from her statement was that the Republican President was in Kasama on the date of the raid. This date was at variance with the Appellant's testimony on when the raid occurred. The Appellant stated that it was shortly before the elections in August. It follows that the trial Judge was on firm ground when she evaluated the evidence from all the witnesses and found , based on the testimony of the 1 st J28 (2003) Respondent and 1RW3 that the Republican President was in Kasama during the period of 7th or 8th August, 2016 and not July which was alluded to in passing by PW3. We wish to emphasise that in election petitions, the party alleging must prove the allegations to a higher standard of convincing clarity and not the balance of probabilities. The trial Judge thus rightly found that the allegation of distribution of alcohol at Kalundumya village on 7th or 8 th August was not proved to the required standard and further that PW8 's evidence was not corroborated. In resolving the conflicting evidence regarding the alcohol distribution at the polling station, the lower Court relied on the testimony of 2RW2, the presiding officer at Mubanga Chipoya polling station who testified that h e neither saw any distribution of alcohol at the polling station on the day of elections nor was there a report to him over the said issue . This evidence of 2RW2 was supported by that of 1RW5. We are alive to and endorse the principle enunciated in Attorney General v Kakoma9 , that: "A Court is entitled to make findings of fact where the parties advance directly conflicting stories and the Court must make those findings on the evidence before it having seen and heard the witnesses giving that evidence" In the present case, the Appellant did little to establish the fact that the 1 st Respondent distributed alcohol during the campaign J29 (2004) period and on the day of elections or that it was distributed with his knowledge and approval or that of his election agent. We thus cannot fault the finding of the trial Judge that the Appellant failed to prove this allegation as there is nothing on the record to suggest otherwise. The second allegation is the distribution of flyers and the display of a banner containing disparaging remarks about the UPND presidential a spirant. The Appellant seeks to have the lower Court's findings tha t th e allegations were not proved reversed. The display of the banner was not disp u ted by the 1 s t Respondent save that upon seeing it h e immedia tely ordered its removal and that it was not sanction ed by him . As regard s th e distribution of flyers , the 1 st Resp onde n t stated th at he did not sanction their production nor was h e a ware of wh o was resp onsible for their production. Further, tha t n either himself n or his agen t cam e across the flyers . The lower Court found that the Appella nt did n ot tender eviden ce as to who dropped or distributed the flyer s or of anyone else who s a w the flyers . As r egards the ba nne r , the lower Court stated tha t ther e wa s no eviden ce from the Ap p ellant t h a t t h e b anner was broa d cast b y Zambia National Broad castin g Corpora tion (ZNBC). The Appellant has argu ed th a t the 1 s t Respondent under cross cxainination at pages 76 1 and 767 of the r ecord of a ppeal asserted J30 (2005) that ZNBC broadcast the banner in issue and therefore, it was seen by the majority of voters in the constituency. We have perused the record of appeal including pages 761 and 767 where the 1 st Respondent's responses in cross examination were only to the effect that the ZNBC crew was present at the airport but was not broadcasting live. Therefore, the testimony by the 1 st Respondent does not assert or acknowledge that ZNBC broadcast the banner on television. The trial Judge also rightly noted that not even the Appellant herself stated that she saw the banner broadcast on television. It is therefore clear that the arguments by the Appellant lack merit in that they are at variance with the evidence on record. Thus, we cannot fault the lower Court's finding that the Appellant equally failed to prove this allegation. The third complaint concerned the alleged broadcast of the hate speech propagated by Chishimba Kambwili on Radio Mano. On this allegation, we were invited by the Appellant to examine the evidence of 1RW5 a. J.'1:d we have done so. The testimony of 1RW5, a volunteer worker with Radio Mano, was that some PF rallies were aired live on Radio Mano but that she did not listen to Chishimba Kambwili's rally broadcast as she was in the fi eld at the time. J31 (2006) It was not in dispute that the said rally was broadcast. However, the Appellant did not specify what comprised the alleged hate speech apart from merely stating that there was hate speech. The 1 st Respondent denied that there was any hate speech. The trial Judge found that the Appellant had not proved the allegation as she failed to specify the contents or what comprised the hate speech. This finding by the trial Judge cannot be faulted. The onus of proof was on the Appellant to prove her allegation to the required standard, which she failed to do. The Appellant has further argued that the lower Court should have found in her favour as regards the distribution of flyers and the radio broadcast of hate speech based on the testimony of a single witness. We wish to state that the testimony of a single witness can ordinarily prove an allegation provided that the trial Judge finds such a witness credible. In this case it is apparent that the lower Court was justified to treat the Appellant's evidence with caution given her interest in the matter and therefore, the lower Court was on firm ground to require corroboration on this aspect especially on the contents of the alleged hate speech. The said corroboration could easily have been a recording of the broadcast from the Radio station. The explanation given by the Appellant for the absence of the J32 (2007) recording that she was not given a copy by Radio Mano was rightly not accepted by the trial Judge as she could have applied to Court for the recording to be availed by way of subpoena duces tecum. The failure by the Appellant to avail this recording to the Court or to call another witness to attest to the actual words of the alleged hate speech left a gap_ in her evidence on this issue and underscores the trial ,Judge's finding that the Appellant had failed to prove this allegation to the r equired standard. Having determined that the lower Court was on firm ground in its findings of fact tha t the Appellant had failed to prove the allegations raised to the required standard, we now turn to the second issue. The second issue is whether after holding that the a llegations on corrupt or illegal practices h a d not been proved under section 97 (2) (a) of the Act, the lower Court should have proceeded to nullify the election under section 97 (2) (b) on the b asis that the corrupt or illegal practices had affected the result. Section 97 (2) ( a) and (b), of the Act provides as follows: (2) Th~ ele~tion of a candida_te as a Member of Parliament, mayor, council chairperson or councillor 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: J33 (2008) {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 k n ow ledge and consent or approval of a candidate or of that candidate's election agent or polling agent; and the majority of voters in a constitue ncy, dist rict or ward were or may have been prevented from electing the candidate in that constituency, district or ward whom they preferred; (b) subje c t to the provisions of subsection (4), there has been non compliance with the provisions of this Act relating to the conduct of elections, and it appears to the High Court or tribunal that t h e ele ction was not conducted in accordance with the principles laid down in such provision and that such non compliance affected the result of the election; Section 97 (2 ) stipula tes th e grounds under which an election can be rendered void . Pa r agraph (a ) r ela t es to corrupt practice, illegal p r actice or other misconduct on th e p art of the candidate or with the candida te 's knowledge and consent or a pproval or with the knowledge and con sent or approva l of the candida te 's election or polling agent. The said corrup t p ractice, illega l p r actice or misconduc t must h a ve prevented or h a ve been capable of preventing t h e m aj or ity of voters from electing a candidate of th eir ch oice. Ther efore, for a n allegation to su cceed under t his p a ragr a ph, both asp ects must be p r oved to th e required s ta ndard , tha t is , a fairly high d egree of convincing clarity. Section 97 (2) (b) a d dresses acts of non-compliance with the provisions of the Ac t in the conduct of election s w hich h as an effect J34 (2009) on the results of the election. It is worth noting that this provision specifically relates to the conduct of elections. Article 229 (2) (b) of the Constitution as amended by Act number 2 of 2016 vests the power to conduct elections in the Electoral Commission of Zambia, the 2 nd Respondent. That being the case it follows that section 97 (2) (b) relates to the discharge of the 2 nd Respondent's functions during an ~ election. This position is made clear by the fact that section 97 (2) (b) is subject to subsection (4) which provides that an election will not be declared void due to an act or omission by an election officer in breach of his official duties in relation to the conduct of the election. This provision is not novel but is a re-enactment of section 93 (2) (b) and 4 of the repealed Electoral Act No. 12 of 2006 which provision was construed by the Supreme Court in the case of Webster Chipili v (- David Nyirenda 10 as follows: "The subjection of paragraph (b) means that once evidence of non compliance with the Electoral Act by election officers in the conduct of an election is established to the satisfaction of the High Court, which evidence is capable of affecting the result of an election, the lower Court is obliged to invoke sub-section (4) of section 93 as a matter of course. This is done to enable the lower Court review the acts or o missions of the election officers in the conduct of the election in order to determine whether the election was so conducted as to be substantially in accordance with the provisions of the Act and whether such acts or omissions did affect the result of the election." In this cas e, the Appellant concedes that her allegations were not proved to the required standard under section 97 (2) (a) but J35 (2010) argues that the lower Court should have nevertheless nullified the election under section 97 (2) (b) based on the same unproven allegations. Section 97 (2) (b) of the Act as outlined above relates to non compliance with the provisions of the Act in the conduct of elections and our considered opinion is that the Appellant's argument that the failed allegations of corrupt or illegal practices or misconduct under section 97 (2 ) (a ) of th e Act should have been the basis for nullifying an election under section 97 (2) (b), is not tenable and 1s misconceived. Ther e is a specific ground which covers allegations of corrupt practices, illegal practices and misconduct being section 97 (2} (a ) and for allegations to be proved thereunder, all the ingredients of the gr ound have to be satisfied. To acced e to the Appellant's argum en t would result into a muddled state of affairs where the distinction between the grounds for nullification under section 97 of the Act would be eroded and the Act would lose an essential elem ent of predictability. In a ny event, the Appellant did not show how any of the unproved allegations affected the result of the election . Grounds one and tv.ro both lack merit and accordingly fail. In respect of the third and seventh grounds of appeal, the Appellant argued that section 97 (3 ) of the Act is a separate ground J36 (2011) upon which the lower Court ought to have nullified the election on proof of a single corrupt practice or illegal practice. And that subsection (3) does not require proof of the majority of the electorate being prevented from electing a candidate of their choice. It was the Appellant's further argument that the use of the word "despite" in (.:. subsection (3) is intended to exclude the provisions of subsection (2). The main issue for consideration is whether based on the word "despite", section 9 7 (3) constitutes another ground upon which an election can be nullified exclusive of subsection (2). Section 97 (3) provides as follov1s : (3) Despite the provisions of subsection 2, where upon the trial of an election petition...,_lh~ _!Ugh C9urt or a tr_ibunal finds that a corrupt practice or illcg~J_ practice h_~~ been committed by, or with the knowledge and consc_nt __ or aPP!oval of-1 any agent of the candidate whose election is the subject of such election petition, and the High Court or a tribunal further finds that such candidate has proved that - (a} a corrupt practice or illegal practice was not committed by the candidate personally or by that candidate's selection agent, or with the knowledge and consent or approval of such candidate or that candidate's election agent; (b) such candidate and that candidate's election agent took all reasonable means to prevent the commission of a corrupt practice or illegal practice at the election; and (c) in all other respects the election was free from any corrupt practice or illegal practice on the part of the candidate or that candidate's election agent; the High Court or a tribunal shall not ' by reason only of such corrupt practice or illegal practice, declare that election of the candidate void. (emphasis ours) J37 (2012) This provision has been imported into the current Act from the repealed Electoral Act of 2006 with the exception of the word "notwithstanding" which has been replaced with the word "despite". The section, in its previous form was interpreted in Brelsford James Gondwe v Catherine Namugala 1 as follows: "It is our understanding that subsection 3 will only come into question after any one of the grounds set out in subsection 2 has been established. It is not mandatory that in every election petition the High Court must call upon the person whose election is being challenged to establish that no corrupt practice or illegal practice was committed by him or her personally or by that person's election agent, or with the knowledge and consent or approval of such person or that person's election agent; or that such person and that person's election agent took all reasonable means to prevent the commission of a corrupt practice or illegal practice at the election. It is our considered view that the High Court will only be duty bound to do so in the event that the Petitioner establishes any one of the grounds aforementioned to the requisite standard in election petitions." We endorse that interpretation. We also hasten to point out that (,, section 97 (3) does not constitute yet another ground upon which an election can b e nullified as suggested by the Appellant. Rather, it permits a situation where at the trial of an election petition brought under section 97 (2), and in particular paragraph (a), where the trial Judge finds that a petitioner has established or proved to the required standard that a corrupt practice or illegal practice was committed by the candidate or any agent of the candidate or with his knowledge a nd approval or consent or that of his agent, the Court can nullify the J38 (2013) election if the candidate does not prove any of the defences provided in subsection (3). Thus the provision of section 97 (3 ) only comes in when there has been proof to the required standard of a corrupt or illegal practice under subsection (2) (a). To hold otherwise would be absurd a11.d would be in direct conflict with the clear provisions of subsection (2) of section 97 of the Act as regards the grounds upon which an election may be nullified. The lower Court was therefore on firm ground when it r efused to accept that subsection (3) was a separate ground upon which an election can be nullified. We thus agree with the trial Judge that the Appellant's arguments were flawed on this asp ect. The third and seventh grounds accordingly fail. Grounds four , five and s ix e ssentially challenge the principles used by th e lower Court 111 eva luating or assessing the conflicting evidence adduced by the p arties a nd in particula r , as regards the allegation of donation of shoes a t Kalundumya village. The conflicting evidence on this issue r elated to the timing of the donation. The evidence of PW8 was that the donation wa s n1ade sometime in July during the campaign p eriod, by the 1 s t Respondent while the 1 st . Respondent's evidence and tha t of 1RW3 and 1RW4 was that the dona tion was m ad e before the campaign period commenced and that the 1 s t Resp ondent just accompa nied Tasila Lungu on a programme J39 (2014) under her charitable organisation, known as Ubulayo. The 1 st Respondent and 1RW4 stated the date as 26 th April. In resolving the conflicting evidence adduced by the con tending parties, the lower Court addressed the credibility of the witnesses and further took judicial notice of the fact that it was a trend in this country that when a high profile individual visited a rural community, they usually went with donations and that most of the rural roads were in a bad state during and immediately after the rainy season. The lower Court evaluated the evidence and highlighted that PW8 stated that the 1 st Respondent donated the shoes sometime in July but in cross examination, he stated that the pictures with Tasila Lungu depict a season between January and April, going by the vegetation. PW8 also acknowledged hearing about. Tasila Lungu's visit in April. The date of 26th April was mentioned by both the 1 st Respondent and 1RW4 who worked as a volunteer under Ubulayo. 1RW3 stated that the shoes were donated on 26 th May. Based on the above and having analysed the credibility of the witnesses, the trial Judge found that the 1 st Respondent's version of the donation having been made outside the campaign period was corroborated by 1RW4 and PW8 as r egards the date of Tasila Lungu's visit. The learn ed trial Judge thus found that the Appellant had failed J40 (2015) to discharge the burden of proof as regards the period of the donation. The Appellant has argued that the election should have been nullified based on the inconsistency in the testimony of the 1 st Respondent and 1RW3 on the date of the donation, on whether the vehicle that carried the shoes was a truck or a van and the reason for the vehicle not reaching Kalundumya village with one attributing it to the bad road and the other to the driver getting lost. We note that apart from the iss u e of the date , which was properly resolved by the lower Court, the learn ed trial Judge considered the issue of the reason for the ve hicle n ot reaching Kalundumya at pages 101 and I 02 of the record of a ppeal as follows: "Thus there is conflicting evidence and the Court has to determine based on the credibility of the witnesses. It was evident that PW8 and 1RW3 came with a confrontation stance to defend their positions. Additionally, 1RW3 was inconsistent in relation to the reason the vehicle carrying the shoes did not reach Kalundumya in that she said it was due to the driver getting lost and then stating that one of the persons in the vehicle knew the place and they did not reach due to the bad state of the road. The 1 st Respondent stated that it was because of the state of the road and that the vehicle could not reach but there was no explanation from PW8 as to why the shoes were left at Misengo instead of Kalundumya when the 1 st Respondent went there to donate them" It is apparent that the trial Judge resolved the issue of inconsistent testimony ba s ed on the credibility of witnesses whereby J41 (2016) she discr edited PW8 and 1 RW3 on some aspects and believed t he 1 s t Respondent and 1 RW 4. PW8 also said he was the one who drove the canter truck that went to collect the shoes from the other vehicle at Misengo but did not m ention the type of vehicle it was or why it could not reach Kalundumya. The inconsisten cy was minor and did not go to the root of the evidence of this allegation. The trial Judge was therefore on firm ground when she found that the allegation was not proved to the required standard that the 1st Respondent donated shoes during th e campaign period. We wish to a ddres s the issue of judicial notice taken by the lower Court which h as been challenged by the Appellant. In Gustove Kapata v The People 11 , the Supreme Court examined the principle of judicial notice and s ta ted that: "It is trite law that judicial notice is the cognisance taken by the Court itself of certain matters which are so notorious, or clearly so established, that the need to adduce evidence of their existence is deemed unnecessary. This is simply a common sense device by which the Court's time and the litigant's expenses are saved. It is important, however, that, in taking judicial notice of (notorious) facts, Courts should proceed with caution. Thus, if there is room for doubt as to whether a fact is truly notorious, judicial notice should not be taken of it. Insofar as the utilisation of personal knowledge is concerned, the general rule is that a judge may, in arriving at his decision in a particular case, act on his personal knowledge of facts of a general nature, that is, notorious facts relevant to the case." J42 (2017) In so holding, the Supreme Court adopted the holding 1n the English case of Reynolds v Llanelly Associated Tin - Plate . Company Limited 12 where the Court of Appeal in England held that although the County Court Judge was entitled, within limits, to take into account his own knowledge of general conditions in the neighbourhood, he had gone too far in making use of his personal knowledge of the prospects of a workman of a particular age and skill. We equally call in aid the case of Hubert Sankombe v The People 13 where the Supreme Court held that: "The exte nt to which a judge may use his personal knowledge of general matters has not been clearly defined. As Cross on Evidence, 4th edition, puts it at page 141 - within reasonable and proper limits a judge may make use of his personal knowledge of general matters . . . no formula has yet been evolved for describing those limits." We note that the trial \Judge was entitled to apply her personal ( ,,, knowledge on certain facts. However, the question we ask ourselves is whether the trial Judge ren1aincd within reasonable and proper limits in using her personal knowledge of the state of the roads in rural areas as well as in noting that public figures donate items on their rural area visitations. We are of the view that the lower Court exceed ed the r easonable limits when she ventured into stating tha t public figures make donations when visiting rural areas and that rnost rural roads \Vere in a bad state during and immediately after the J42 (2017) In so holding, the Supreme Court adopted the holding 1n the English case of Reynolds v Llanelly Associated Tin - Plate . Company Limited 12 where the Court of Appeal in England held that although the County Court Judge was entitled, within limits, to take into account his own knowledge of general conditions in the neighbourhood, he had gone too far in making use of his personal (_ knowledge of the prospects of a workman of a particular age and skill. We equally call in aid the case of Hubert Sankombe v The People 13 where the Supreme Court held that: "The e xte nt to which a judge may use his personal knowledge of general matters has not been clearly defined. As Cross on Evidence, 4th edition, puts it at page 141 - within reasonable and proper limits a judge may make use of his personal knowledge of general matters . . . no formula has yet been evolved for describing those limits. 11 We note that the tria l ,Judge was entitled to apply her personal ( .,, knowledge on certain facts. However, the question we ask ourselves is whether the trial Judge remained within reasonable and proper limits in using h er personal knowledge of the state of the roads in rural areas as w ell as in noting that public figures donate items on their rural area visita tions. We are of the view that the lower Court exceeded the reasonable limits when she ventured into stating that public figures make donations when visiting rural areas and that most rural roads wer e in a bad state during and immediately after the J44 (2019) Going by the evidence on record, it is not in dispute that the shoes were taken and donated to Kalundumya school Children, and Tasila Lungu was in the area sometime in April, the question is when was the donation made and by whom? .... In addition, lRWl and 1RW4 stated that Tasila Lungu's visit was in April, 2 016 which in my view is corrobora ted by PW8 when he stated that he has heard about Tasila Lungu's visit in April, 2016, though he did not attend the meeting .... Taking into account the above facts and in the absence of proof of the actual period of the donation, which burden was on the petitioner, I am inclined to believe that the shoes were donated during Tasila Lungu's visit which was before the campaign period started." (_ Therefore, the trial Judge clearly resolved the credibility issue in favour of the 1 st Respondent as stated. We, as an appellate Court, cannot fa ult this finding of credibility of witnesses as we did not see or hear the witnesses first h a nd as stated in the case of GDC Hauliers (Z) Limited v. Trans-Carriers Limited 1 . Indeed, the record of a ppeal also sh ows that the lowe r Court was on firm ground in holding that ~ ,, the Appellant did not adduce eviden ce to the required standard to prove h er allegatio n that the 1 s t Respondent distributed shoes in July 2 01 6. Grounds four, five and six fail. In t erms of grounds eight and nine, the iss u e for d etermination is whether the 2 nd Respondent conducted the election in substantial conformity with the Act. The Appellant's contention that there was non-cornplia nce centres a round six (6 ) GEN 12 forms that were not J45 (2020) signed by presiding officers who also did not indicate their names and those of polling stations. Upon the lower Court's finding that five (5} GEN 12 forms were irregular in that they lacked the names of the polling stations, presiding officers and signatures despite being signed by polling agents at the back, it went on to hold that the said irregularities (_ which affected all the candidates, did not affect the results to warrant the voiding of the election. We have p erused the r ecord of appeal which reveals that it was not five but six (6) GEN 12 forms at pages 214, 226, 246, 288, 296 a nd 302 that were signed by both the Presiding Officers and the polling agent s but did not indicate the names of the presiding officers and of the p olling stations. Of these, the GEN 12 form at 288 also had the name of the polling station . The polling agents of the Appellant and 1 s t Respondent also signed form ECZ 19 which was the consolidation of the results a s w ell as form GEN 14 being the d eclara tion of the results form. It is clear from section 97 (2} (b) and (4} that for these two grounds of a ppeal to succeed, the Appella nt w a s required to prove to the r equired standard that the election was not conducted or not J45 (2020) signed by presiding officers who also did not indicate their names and those of polling stations. Upon the lower Court's finding that five (5) GEN 12 forms were irregular in that they lacked the n ames of the polling stations, presiding officers and signatures despite being signed by polling agents at the back, it went on to hold that the said irregularities (_ which affected all the candidates, did not affect the results to warrant the voiding of the election. We h ave p erused the record of appeal which reveals that it was not five but six (6 ) GEN 12 forms at pages 214, 226, 246 , 288, 296 and 3 0 2 that were s ign ed by both the Presiding Officers and the polling agents but did not indicate the names of the presiding officers and of the polling stations. Of these, the GEN 12 form at 288 also had the name of the polling station . The polling agents of the Appellant and 1 st Respondent also signed fonn ECZ 19 ,vhich was the consolidation of the r esults as w ell as form GEN 14 being the d eclaration of the r esults form. It is clear from section 97 (2 ) (b) a nd (4) that for these two grounds of a ppeal to succeed, the Appella n t was r equired to prove to the required standard that the election w as not conducted or not J47 (2022) Further, Halsbury's Laws of England at paragraph 658 states that failure to comply with provisions regarding the forwarding of documents after the close of the poll is not sufficient to avoid the election. Paragraphs 652 and 653 of Halsbury's Laws of England highlight examples of such failures to include the failure to date the forms or ballot paper accounts and the failure to indicate names of the constituency or electoral area, as the case may be. In the instant case, the irregula rity concerns 6 out of 60 GEN 12 forms. The Appellant's argument is that the 6 forms established that there was substantial non-compliance with the law or that the irregularity in the conduct of the election was deep rooted. We do not agr ee. Six (6) out of 60 polling s ta tions does not prove that the irregularity was deep rooted or that there was substantial non compliance with the la w. The Appellant's other argument tha t the six (6) GEN 12 forms that had irregula rities affected th e r esult is not tena ble in the absence of actual proof tha t the results wer e affect ed. For the defect to be said to h a ve affected the result, the Appellant ought to have shown that it actually changed the results. This was not so in this case and hence the consolida tion of results form ECZ 19 and the d eclaration of results form GEN 14 were s igned by the Appellants' polling agent. J48 (2023) I , The burden was on the Appellant to show to the required standard that the election results were actually affected by the irregularity. It is not sufficient to merely state in broad terms and it is not for the trial Court to speculate, that the results were affected. As the trial Judge rightly observed, the irregular forms also affected all the other candidates but their effect on the result was not shown. Further, the s1gn1ng of the six (6) forms by the polling agents of the concerned parties showed that there was no dispute as regards the results reflected thereon and this was acknowledged by the Appellant in her evidence. In the instant case, the lower Court therefore rightly considered this issue and found that there was no proof that the results \Vere affected or that the results which were recorded in the six (6) GEN 12 forms in issue were wrong. We accede to the principle set out in Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Electoral Commission of Zambia5 that the effect of the irregularities have to result in the election being so flawed that the defects actually and significantly affected the result which could no longer reasonably b e said to represent the true free choice and will of the n1ajority of voters. J49 (2024) The evidence of the irregularities alleged on the part of the 2 nd Respondent fell short of satisfying section 97 (2) (b) of the Act as they did not affect the election result and there was no proof that the election was not substantially conducted in compliance with the Act. Grounds eight and nine also fail. All the grounds of appeal having failed, we find no merit in this (< appeal and accordingly dismiss it. Each p arty sh a ll bear their own costs . . l I '-. _ ....... :;:..,-~·-- , --:,.... J71- C ~:_..:./ .... ... .. .... -~ . ~ ......................... . \.__.,. ~ ,_ --- . r ~;-~. ,., I ' \. ---/ ,, A . M. SITALI CONST ITUTIONAL COURT JUDGE ······················································· M. S. MULENGA .4') ____.. . ...:. ..... ,rl--,..,..._ r,, \ t:. --•iv • ---~- ) ' ························································· E. MULEMBE CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE ~ r1" •j:1I ) I ,: I ! ;' '1• H11~ ································~······················ P. MUlONDA CONSTITUTIONAL COURT JUDGE M. M. MUNALULA CONSTHTUTIONAL COURT JUDGE