would be other affidavits in support of the petition to be filled later. This was an
effort, in my view, by the respondent to incorporate those other or additional
affidavits into the petition by reference.
We are of the view however, that
incorporation of a document into election pleadings by referring to the document in
those petition can only be proper and effective if the document sought to be so
incorporated is in existence at the time of incorporation. That is how a document
would help the parties to know the clear and precise facts or particulars called for by
our system of pleadings to avoid surprise.
The learned trial judge, therefore, in our view, fell into error when she accepted the
respondent’s additional affidavit in support of the petition and those other affidavits in
support of the petition deponed by the petitioner’s other witnesses five months after
the petition had been filed into court as part and parcel of the petition by virtue of
incorporation of those documents by reference.
That being the case, for a period of five or so months, the appellants particularly the
2nd appellant were denied knowledge of the facts or particulars of the case they were
to face and be required to answer. They were unfairly kept in the dark. This
violated their right to know the facts of that case contravening the concept of fair
hearing and fair trial, the general law on pleadings, rule 4.8 of S.I 141-2 and above all
a fundamental principle of natural justice. The respondent, was in possession of these
particulars for many months before she offered to furnish them to the appellants. The
respondent did not even indicate in a list what documents she intended to rely on as
required by rule 4.8, SI 141-2.
Learned counsel for the respondent put up a spirited argument that the 2nd appellant
had had adequate time to respond to the allegations against him, that he did not raise
any objection to the question of non availability of the necessary particulars of these
allegations, that he admitted to all the affidavits on record and that he should not now
raise any objection.
Counsel for the 2nd appellant submitted that in fact an objection was raised. He
submitted, further, that the time in which the 2nd respondent had to respond to the
allegations and evidence raised in the appellant’s pleadings was too short and that
when the particulars of the allegations against him were purported to be furnished to