mode in which the case was to be proved; to enable
the other side to know what evidence they ought to
be prepared for trial and to prevent the other side
from being taken by surprise.”
Though a high court case, I find it appropriate to quote Bisuti (supra) with approval.
In a nutshell, therefore, pleadings and the particulars thereof which should be given,
should be precise not general, clear and timely, to afford the other party a fair and
adequate opportunity to prepare his/her appropriate evidence and defence to the claim
against him/her for a fair trial and to avoid any element of surprise to the opposite
party.
Any pleadings that fall short of this, would in my view, fail to meet the constitutional
requirements of Article 28(I) and the law on pleadings. It would also go contrary to
fundamental principles of natural justice entrenched in our Constitution and other law.
A meaningful application of the law as stipulated above to the matter now before us
must, in my view, address the trial of the petition holistically as a process and not as
an event. Such application should start right from the time the respondent can be
understood to have contemplated seeking redress from court over that election.
By her own pleadings, the respondent indicates she was anxious about the election
right from campaign time. Further, in her letter to the Returning Officer dated the
23rd Feb 2006, she indicated she would hold him responsible for the consequences of
his inaction.
From this evidence, I infer the respondent started preparing for court
action earlier than the election day but certainly, at the latest, on the election day
itself. Necessarily, therefore, the respondent started gathering evidence to be used in
the petition at that time.
When it came to filing the petition in court, the respondent did so referring to
allegations against the appellants in very general terms as exemplified by paragraphs
6 and 7(a) of the petition. Then in paragraph 9 the respondent incorporates into the
petition nonexistent documents referred to as ‘other affidavits’ to be filed in court.
Five months later, when the hearing of the petition by the trial court is about to
commence, the respondent confronts the appellants with numerous affidavits in
support of the petition filed into court five months earlier. It is in these affidavits that