exchange with the 2nd appellant the former was given very short time to prepare and
present his defence yet the necessary facts should have been given to him at the time
of the filing of the petition and the affidavit of the respondent which accompanied the
petition.
No list of the documents the respondent intended to rely on was ever given in the
affidavit accompanying the petition. The kind of peacemeal pleading exhibited in
this petition is exactly the kind of thing the Supreme court in Halling Manzoor and
Serwan Singh Baram, Civil Appeal No. 9 of 2001 condemned when Mulenga JSC
as he then was, held:“With respect to counsel, this submission is strange
and un acceptable. A party seeking relief from the
court must present his case fully, not piecemeal or
in installment.”
Iam aware of the need to expeditiously dispose of electoral petitions and the time
frame stipulated by law but this must be balanced against the constitutional right of
the appellants to a fair hearing and fair trial.
Unlike in Presidential elections
Petitions where the time benchmarks are rigidly fixed by the constitution, for
parliamentary election petitions the provisions of the law are somewhat flexible in
that the court has discretion to extend the time of disposal of an election petition in a
deserving case. On the above grounds and on the authority of De Souza’s case
(supra), the whole of this appeal should fail and I so hold.
There is one other matter which concerns the additional affidavit of the respondent,
those of the other witness in support of the petition and the annextures thereto. These,
particularly the tally sheet and the Declaration of Results Forms were so heavily
relied upon by the respondent to prove the alleged illegal practices and offences
allegedly committed by the officials of the 1st appellant and with their connivance
with the agents of the 2nd appellant with his knowledge, consent or approval or by the
2nd respondent himself.
All of these annextures or exhibits are, without a single exception, from sources other
than the Electoral Commission. The said commission is the official body authorized
to keep custody of those documents.
The documents themselves are official