Court name
Supreme Court of Zimbabwe
Case number
SC 143 of 2004
Civil Appeal 98 of 2002

Hove v Gumbo (98/02) (SC 143 of 2004, Civil Appeal 98 of 2002) [2005] ZWSC 143 (22 August 2005);

Law report citations
Media neutral citation
[2005] ZWSC 143













REPORTABLE
(132)



Judgment No. SC. 143/04


Civil
Appeal No. 98/02









MFANDAEDZA
HOVE v JORAM GUMBO








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE,
FEBRUARY 5, 2004 & AUGUST 23, 2005








S
Hwacha
, for the appellant





T
Hussein
, for the respondent





MALABA
JA: This appeal is against the judgment of the High Court
delivered on 6 March 2002 dismissing with costs the election
petition presented by the appellant (hereinafter referred to as “the
petitioner”) challenging the election of the respondent
as the
Member of Parliament for Mberengwa West Constituency (“the
Constituency”). The Parliamentary election (“the election”)
was held on 24 and 25 June 2000.





The
petitioner was a candidate in the election, sponsored by the Movement
for Democratic Change (“the MDC”), whilst the respondent
was a
candidate sponsored by the ruling party, Zimbabwe African National
Union – Patriotic Front (“ZANU-PF”). There were
43 949
registered voters in the Constituency, of which 24 691 cast
their votes in the election. The respondent secured
18 315
votes as against the petitioner who secured 3 889. There was a
majority of 14 426 votes. The remaining
votes were divided
between two independent candidates. On 27 June 2000 the
respondent was declared the duly elected Member
of Parliament for the
Constituency.





On
17 July 2000 the petitioner presented an election petition to
the High Court in Harare in terms of s 132 of the Electoral
Act
[
Chapter 2:01]
(“the Act”), complaining of “irregularities, illegal practice
and corrupt practice” in the election of the respondent.
The
relief sought was an order declaring that the respondent was not duly
elected; the setting aside of the result of the election;
and barring
of the respondent from standing as a candidate in a Parliamentary
election for a period of five years.





Section 132
of the Act provides that:






“(1) A petition complaining of
undue return or an undue election of a Member of Parliament by reason
of want of qualification,
disqualification, corrupt practice, illegal
practice, irregularity or other cause whatsoever may be presented to
the High Court …”.





The
particulars of the specific grounds on which the election was
questioned were stated in para 7 of the supporting affidavit
as
being:






“7.1 The abduction, kidnapping
and torture of members of the MDC by supporters and sympathisers of
the respondent and his party ZANU
(PF). The respondent’s
supporters were made up largely of the war veterans in the area who
were based at Texas Ranch which
is a farm that they had occupied
and ZANU (PF) youths most of whom were also based at Texas Ranch
occupied by the war veterans.
The commander of the entire operation
was Wilson Kufa Chitoro, popularly known as Biggie Chitoro of Mawani
School P/Bag Mberengwa
presently held at Zvishavane Prison.





7.2 Intimidation
and threats to the lives of MDC officials, supporters and members of
their families making campaigning impossible
in the Constituency and
threats of physical harm to these people.





7.3 Robbery,
assaults and rapes on members of the MDC.





7.4 The
murder of MDC supporters.





7.5 Arson
and general destruction of property belonging to MDC supporters.





7.6 Making
a physical and threatening presence at some polling stations by
supporters of the respondent who were wearing prohibited
campaign
material within prohibited distances from the polling station.”






Although
“illegal practice and irregularities” were pleaded as some of the
causes of the alleged undue election of the respondent
as a Member of
Parliament, no evidence of probative value was adduced in support of
them. No more shall be said about them.





The
evidence led at the trial of the petition sought to prove the charge
made against the respondent that he was personally or by
his agent
guilty of the offence of undue influence within the meaning of s 105
of the Act.





Section 105
of the Act provides that:






“(1) Any person who directly
or indirectly by himself or by any other person –






(a) makes use of or threatens to
make use of any force, violence or restraint or any unnatural means
whatsoever upon or against any
person; or





(b) inflicts
or threatens to inflict by himself or by any other person any
temporal or spiritual injury, damage, harm or loss upon
or against
any person; or





(c) does
or threatens to do anything to the disadvantage of any person in
order to induce or compel that person –






(i) to sign a nomination paper or
refrain from signing a nomination paper; or





(ii) to
vote or refrain from voting;







shall be guilty of the offence of
undue influence.”





There
was no allegation that the respondent by himself committed the acts
of violence which constituted the cause of complaint to
the election
court. The
gravamen
of the charge against the respondent was that the acts of violence
were committed on MDC supporters in order to induce or compel
them to
vote or refrain from voting by his agent, Biggie Chitoro
(“Chitoro”), or by his supporters with his knowledge and
consent
or with the knowledge and consent of his agent.





The
respondent denied the allegations.





The
question for determination by the court
a quo
was whether the evidence adduced had established the charge of undue
influence levelled against the respondent. The court
a quo
held that the evidence of the acts of violence committed on MDC
supporters did not establish that they were committed by Chitoro or
that those who perpetrated them did so with the knowledge and consent
of the respondent or with the knowledge and consent of Chitoro.
A
document produced in the trial of the petition showed that the
respondent had listed Chitoro as a member of his campaign team.
The
fact of Chitoro being the respondent’s agent was therefore
established.





The
election petition had not raised as a ground on which the election
should be set aside the occurrence of general violence in the
Constituency. It was nonetheless argued on behalf of the petitioner
that the acts of violence established on the evidence given
by the
petitioner’s witnesses were so widespread as to constitute general
violence, which permeated the Constituency so that the
election
result may have been affected.





The
learned judge held that s 132 of the Act required the petition
to specify, at the time of presentation to the High Court,
the ground
upon which the validity of the election was being challenged. To
wait until general violence was revealed by evidence
adduced from
witnesses in the course of the election trial as a cause of complaint
was contrary to the statutory requirements and
placed the respondent
in the disadvantaged position of not knowing in advance what the
petitioner’s case was so as to be able to
meet it.





The
learned judge nonetheless made the factual finding that the acts of
violence established by the evidence adduced by the petitioner
were
not so widespread in the Constituency to constitute general violence
that may have affected the election result. It was the
finding of
the court
a quo
that the election result was in fact not affected by the acts of
violence.





In
this appeal it was contended on behalf of the petitioner that the
court
a quo
misdirected itself on each of the questions it was called upon to
determine. In determining the appeal it is important to bear
in
mind that the purpose of prohibiting acts constituting undue
influence on a voter under s 105 of the Act, and holding a
candidate
accountable not only for his own actions but for those of
his agent or any other person if committed with his knowledge and
consent
or with the knowledge and consent of his agent, is to
safeguard the purity and freedom of the election process upon which
the democratic
system of government depends.





An
allegation that a candidate committed acts constituting undue
influence within the meaning of s 105 of the Act personally
or
through his agent can have serious consequences on his personal
integrity and political career upon being proved. He or she
may be
disqualified for a period of five years from fighting any election or
voting in an election. An election dispute concerns
the entire
Constituency. It is therefore of paramount importance in a
parliamentary democracy that the electoral process is not
set at
naught and the elected candidate thrown out unless the grounds
mentioned in the Act and on which the petition was presented
have
been clearly and fully proved. The allegations made in an election
petition against an elected candidate must be proved beyond
reasonable doubt.





To
determine whether the court
a quo
was correct when it decided that the evidence adduced by the
petitioner on corrupt practice allegedly committed by the respondent
or by his agent or by some other persons with his knowledge and
consent, or with the knowledge and consent of his agent, did not
meet
the standard of proof against which it was appreciated I narrate the
evidence led by the parties.





Robson
Gambiza





Robson
Gambiza (“Gambiza”) was the chairman of the petitioner’s local
campaign co-ordination committee. On 30 April
2000 at 11 am
he met seven young men on a dusty road in the Constituency. The
young men invited him to accompany them to Texas Ranch,
which
was occupied by some war veterans and landless villagers. At the
farm he was confronted by one Francis Ncube (“Ncube”),
who
appeared to him to be the leader of the people there. Ncube accused
him of opposing farm invasions and having MDC membership
cards and
T-shirts. Gambiza said he was struck on the buttocks with a stick
and ordered to climb a tree. The following day he
was taken to
Ncube’s piece of land and ordered to dig up tree stumps. Later
that day he was taken to Chitoro, who had just arrived
at the farm.
He said that Chitoro was surprised to see him there and ordered his
immediate release. He said he was told by Chitoro
to surrender the
MDC membership cards and T-shirts. Scared of remaining in the
Constituency and continuing with the campaign for
the petitioner, he
left the Constituency to live in Bulawayo.





There
was no mention of the respondent having knowledge of the assault
perpetrated on this witness. It was not made clear that
the assault
on him by Ncube was with the view of influencing him to vote for the
respondent or to refrain from voting. There was
also no evidence
that the assault was with the knowledge and consent of Chitoro.
Chitoro was apparently surprised to see him at
the farm and ordered
his immediate release. The court
a quo
did not accept as credible the evidence that Chitoro told the witness
to surrender the MDC membership cards and T-shirts.





Lewellin
Sibanda





Lewellin
Sibanda (“Sibanda”) was the petitioner’s election agent. On a
date in June 2000 he boarded a bus to go to Zvishavane
when seven men
demanded that he should disembark. They accused him of campaigning
for the MDC. When he remained seated in the
bus, the men caught
hold of him in a bid to pull him to the door. On seeing what was
happening the bus driver drove to the police
station, where his
assailants were arrested on the orders of the officer-in-charge. He
remained at the police station before being
driven to Zvishavane in a
police car.





There
was no evidence of the acts of his assailants having been committed
with the knowledge and consent of the respondent or Chitoro.





Fani
Gedson Hove





Fani Hove
(“Hove”) is a relative of the petitioner. He was a member of
the MDC. On 31 May 2000 at about 2 am
a group of people
came to his home. They forcibly entered the bedroom and started
assaulting him and his wife. He was struck
on the body with sticks
and sustained bruises on the left leg and wrists. A machete was
used to deliver a blow to his left arm,
causing a fracture of the
ulna. His assailants were arrested by the police a few days later.
He could not say whether Chitero
knew of the assault on him.
Chitoro later told him that he would not be assaulted again.





There
was no evidence linking the respondent or Chitoro with the assault on
the witness. It was also not made clear in the evidence
whether the
assault was intended to induce him to vote for a particular candidate
or to refrain from voting altogether.





Obey
Siwela





Obey Siwela
(“Siwela”) was not a member of the MDC but an admirer of the
petitioner. He used to move around the Constituency
in the company
of the petitioner. At the end of May 2000 a group of people wearing
ZANU (PF) T-shirts arrived at his home in the
evening. They
assaulted him several times on the back with sticks. He said he did
not report the assault to the police; nor did
he go to hospital for
treatment. A few days later he attended a public gathering
addressed by the respondent at Rengwe. Chitoro
addressed the people
first and talked about the need for them to get land. He said in
his address the respondent expressed surprise
at the large number of
people in attendance and exclaimed that people feared Chitoro. The
respondent is said to have threatened
that those who continued to
support the MDC would be assaulted, just as a donkey must be
assaulted to get to a drinking hole.





The
learned judge did not believe the evidence that the respondent
threatened people with assault if they continued supporting the
MDC.
He believed the evidence of Dean Jama, who was at the same
meeting. The evidence of this witness was that the respondent
encouraged people to live together peacefully. The learned judge
was in a position to see the witnesses give evidence and had material
on which to appreciate their credibility. There is nothing in the
record of proceedings to suggest a misdirection on his part,
necessitating a re-appreciation of the evidence given by this
witness.





James Zhou





Nhamoineus Nzira
(“Nzira”) was shot at Ndanga Growth Point by Obediah Nemasanga
(“Nemasanga”), a member of the
MDC. On 4 June 2000 six
people – four youths and two war veterans – went to Don Bosco
area in search of Nemasanga.
They arrived at James Zhou’s
(“James”) homestead at midnight and forced their way into his
bedroom hut. James and
his brother Fainos were known members of the
MDC. James was apprehended and taken to his brother’s homestead.
The two brothers
were handcuffed to each other and ordered to walk
towards Texas Ranch. On the way there they were asked to point
at Nemasanga’s
residence, which they did. Three people went
towards the homestead, whilst the others remained guarding the Zhou
brothers.





Nemasanga
opened fire at the advancing team from the direction of the
homestead. One of the three men was shot and injured seriously.

The shooting of their colleague seems to have angered the members of
the group. They thereafter repeatedly assaulted the Zhou
brothers
as they force-marched them to Texas Ranch. They arrived at
Texas Ranch on 5 June 2000, but the vicious
assaults
continued. The Zhou brothers were now swollen all over their
bodies. They had lacerated buttocks. They were told to
bathe and
cold compress was applied on the wounds. One of their captors gave
them a shirt and jersey to wear in an attempt to conceal
their
injuries from Chitoro, who arrived at the farm on 6 June 2000.
When Chitoro saw the Zhou brothers, he asked James whether
they had
come to the farm to be allocated pieces of land. When the reply was
in the negative, Chitoro is said to have accused the
Zhou brothers of
being puppets of white people and supporting the MDC so that whites
could take over the country. James said when
he retorted that they
only supported the MDC, Chitoro kicked Fainos who was lying on the
ground once on the chest. He said he was
not assaulted by Chitoro,
who ordered that they be released.





The
Zhou brothers were released on 7 June 2000 and walked to the
petitioner’s brother’s homestead. Fainos was too weak
to walk
home. James left him behind, but he died the same day of asphyxia
and assault.





It
is highly unlikely that Chitoro would kick Fainos for an answer given
by James to a question he (Chitoro) had asked. The evidence
did not
establish that Chitoro knew of the assaults perpetrated on the Zhou
brothers at the time they were administered. The fact
that he
ordered their release suggests that he did not approve of what had
been done to them.





Mavis Tapera





Mavis
Tapera (“Mavis”) is Fainos’ widow. She said the kidnappers of
James and her late husband stripped her naked and pushed
a metal
object into her private parts. The learned judge 
a quo
disbelieved her evidence. She claimed that the assault took place
in the presence of James and her late husband. The learned
judge
took into account the fact that James did not mention the incident.
She had not told the police about her experience. There
is nothing
in the record to gainsay the correctness of the learned judge’s
finding on the credibility of this witness.





Elizabeth Tati





Elizabeth Tati
(“Elizabeth”) and Barbara Tati (“Barbara”), who was
married to Elizabeth’s brother-in-law, and
other villagers were
kidnapped by a group of men. They were told to walk to Texas Ranch.
In the group of kidnappers was
Ncube. On the way to Texas Ranch
Ncube told the two women that he was going to sleep with them at the
farm. When they arrived
at the farm, he took Elizabeth to a
secluded place and had sexual intercourse with her once, before
sending her off to spend the
night with another woman at the farm.
He later had sexual intercourse with Barbara.





The
evidence of the women being kidnapped and made to indulge in sexual
intercourse with Ncube did not incriminate the respondent
or Chitoro.
There was no evidence on which a finding could be made that the
respondent personally, or through Chitoro, knew of
the acts of
violence perpetrated against these witnesses. The evidence
established that the villagers were released the following
day. It
is not said whether Chitoro knew of their fate at that stage.
Although the two women told the petitioner’s legal practitioner
that they had been raped by Ncube, the court
a quo
disbelieved the evidence of rape. They had not told each other of
their experiences, nor had they reported the incidents to the
police.
They had declined medical examination. More importantly, Chitoro
would not have known of such acts, the occurrence of
which the women
kept a secret.





Simbarashe Muchemwa





Simbarashe Muchemwa
(“Muchemwa”) left Harare for Mberengwa East Constituency. On
his way back the motor vehicle they
were using broke down in
Mberengwa West. The evidence established that they had in
their custody axes, grenades and teargas
canisters. Earlier that
day occupants of a Toyota Hilux motor vehicle had severely
assaulted a war veteran in the area and
left him for dead. These
people also had in their possession axes.





A
group of war veterans in pursuit of the people who had assaulted
their colleague came upon Muchemwa’s motor vehicle. They
surrounded it and ordered the occupants to surrender. Muchemwa and
his group were mistaken for the fugitives who had assaulted
the war
veteran. He was set upon and struck several times on the body with
sticks. He sustained injuries on the stomach. This
evidence also
failed to link the respondent or Chitoro with the commission of the
violence perpetrated on the witness.





Josephine Ngwenya





Josephine Ngwenya
(“Josephine”) left her home in the southern part of the
Constituency on 6 June 2000 at 4 am,
going to Shauro in the
northern part of the Constituency. Although she had claimed in
evidence that she was on a church visit,
the evidence of Lyton Shumba
(“Shumba”), the independent candidate in the election, was that
she went to Shauro to put up
campaign posters for him. The register
produced at the trial of the petition showed that Josephine had been
Shumba’s polling
agent.





It
appears that Josephine put up posters for Shumba near a place where a
public meeting being addressed by the respondent was in
progress.
She was apprehended by ZANU (PF) youths and taken to the place
where people were gathered.





Josephine
said that when she protested to the respondent about her arrest he
did not protect her. She said one of the youths asked
the
respondent what they should do with her. He is said to have replied
that they should “sort her out”. She said she was
then
assaulted by Chitoro.





The
learned judge
a quo
found this witness to be unreliable and disbelieved her evidence
about the respondent inciting the youths to assault her and that
Chitoro assaulted her. He considered the fact that she had lied
about the purpose of her visit to Shauro. She had not disclosed
to
the court that she was Shumba’s polling agent. She had denied
that at the time of her arrest she was putting up posters near
the
place where ZANU (PF) was holding a public meeting. She had
told the police that her assailant was Tekere and not Chitoro.
As a
result of her report, the police had organised an identification
parade, but she failed to identify Tekere. On the perusal
of the
evidence, I am inclined to agree with the learned judge’s
assessment of her credibility.





The
respondent





The
respondent denied that he had knowledge of the acts of violence
perpetrated on the witnesses called by the petitioner. He
said he
always preached peace at the public meetings he addressed. His
message was that people should not be treated like cattle,
which have
to be beaten to be forced to jump into a dip tank. He admitted that
he met Josephine at the public meeting he addressed
at Shauro on
6 June 2000. When she was brought to him, Josephine looked
distressed. When she told him that ZANU (PF)
youths had found
her putting up campaign posters for Shumba, he told the youths not to
molest her. He said Chitoro was included
as a member of his
campaign team because he was the chairman of the war veterans
association in the area. Chitoro was given platforms
to address
people on the land issue at six of his campaign rallies.





Biggie Chitoro





Chitoro
was sixty-one years old at the time. He fought in the war of
liberation as a member of the ZANLA forces operating from
his home
area of Mberengwa. He was the chairman of the Zimbabwe National
Liberation War Veterans Association (“ZNLWA”) in the
district.





Chitoro
said that the war of liberation had been fought primarily to take
back the land that had been forcibly taken from Africans
by white
settlers. After Independence the war veterans believed that the
process of land redistribution was progressing too slowly.
They
could not wait for negotiations between the government of Zimbabwe
and Britain on the funding for the land reform programme.
He went
on:






“We occupied all commercial
farms in Mberengwa East and West, whether government or private.
I, as a person in charge, gave strict
instructions to war veterans
and villagers on the farms to deist from in any way engaging in
violence. As a result, it will be noted
that there was never a
violent clash between occupiers and white farm owners. In fact, we
usually communicated amicably with white
farmers. I told my war
veterans to peacefully mobilise people onto the farms by teaching the
people the history of the land.
I warned people not to physically
assault or force people to come to the land. However, the occupiers
and war veterans were a very
diverse grouping of people and, as such,
there were some persons who engaged in violence such as assault and
poaching.”





Chitoro
admitted that he was a ZANU (PF) supporter. He said he did not
hold a post in the party, nor was he involved in the
formulation of
its campaign strategies. He said he addressed public meetings
organised for the respondent on land occupation.
He denied the
allegation that he threatened people at the public gatherings with
violence. He denied that he kicked Fainos Zhou
on the chest.
He also denied assaulting Josephine.





The
learned judge
a quo
found Chitoro a credible witness. On whether the evidence adduced
on behalf of the petitioner established that Chitoro had knowledge
of
the commission of acts of violence perpetrated on the witnesses, the
learned judge said:






“… some of the petitioner’s
own witnesses exculpated Chitoro from any wrongdoing by saying that
he was genuinely surprised to see them
at the farm, which wouldn’t
have been the case had he ordered their capture in the first
instance, that he inquired whether they
had come to be allocated land
(the Zhou brothers) and invariably ordered the immediate release of
the detained persons (e.g. Robson Gambaza),
or their evidence
shows that he had absolutely nothing to do with their plight (e.g.
Barbara Mavhundwe, Elizabeth Tati,
Tafara Hove).
While the power he seems to have had to order the release of persons
may be taken to mean that he might have
been in overall control of
the whole campaign of abductions and beatings, it is also fair to say
that his prompt release of persons
brought to the occupied farm
against their will could be taken as a genuine commitment on his part
to stamp out any unlawful activities.”





In
my view, the learned judge made a fair assessment of the effect of
the evidence adduced on behalf of the petitioner to establish
knowledge of and consent on the part of Chitoro to the commission of
acts of violence perpetrated on the witnesses. It is important
to
note that some of the acts of violence established by the evidence
were spontaneous reactions to provocation, which Chitoro could
not
have anticipated. The evidence that he invariably ordered the
release of those kidnapped corroborated his own testimony that
he
told war veterans not to assault people and force them to take part
in farm occupations.





As
I have already pointed out, the object of the Act is that the
electoral process should not be reversed and an elected candidate
thrown out unless the grounds on which the statute says the election
may be declared void have been proved beyond reasonable doubt.





In
Kunju v Unni
1984 (3) SCR 162 MISTRA J, of the Supreme Court of India, said
at pp 167-168:






“There is total consensus of
judicial opinion that a charge of corrupt practice under the Act has
to be proved beyond reasonable
doubt and standard of proof is the
same as in a criminal case. See
Mahant
Shree Nath v Chaudrey Ranbir Singh

[1970] 3 SCC 647. This proposition has even not been disputed by
counsel for the appellant. We, therefore, do not propose to
refer
to the catena of decisions affirming the aforesaid view. The High
Court applied the right standard in the matter of appreciation
of the
material placed before it and has come to hold that the allegations
of corrupt practice within the meaning of section 123(4)
of the
Act has not been proved. In such a situation, as pointed out by
this Court in the case of
Baddepalli
Rajagopala Rao v N.G. Ranga

AIR [1971] Sc 261, this Court would not re-appreciate the evidence.
SHAH J, as he then was, observed thus:







‘The finding of the learned
trial Judge is based upon appreciation of evidence of the witnesses
in the light of probabilities.
A charge of corrupt practice under
the Representation of the People Act must be established by clear and
cogent evidence. When
the Court of First Instance on a
consideration of the evidence of the witnesses had refused to place
any reliance upon their testimony
the burden lying upon the party
setting up a plea of corrupt practice becomes no lighter in appeal.
The charge cannot be held established
merely upon suspicion or
preponderance of probabilities. Unless the appellant establishes
that the appreciation of the evidence
was vitiated by gross
misreading or misconception of the evidence or because of failure to
consider important pieces of evidence
which had a bearing on the
charge or because of serious irregularities in procedure which amount
to a denial of a fair trial, the
appellate court will not proceed to
re-appreciate the evidence on which the findings recorded by the
court of First Instance on the
credibility of witnesses.”





See
also
Robinson v
Minister of Lands and Anor

1994 (2) ZLR 171 at 175 A-C;
Barrows
and Anor v Chimphonda

1999 (1) ZLR 58 (S) at 62G-63A; and
Mthinkhulu
v Nkiwane and Anor

S-136-01 at 3.





After
a careful consideration of the circumstances of the case and the
evidence of the witnesses, I find myself in agreement with
the
judgment of the court
a quo
that undue influence was not proved against the respondent. Indeed,
it is very difficult to prove a charge of corrupt practice
merely on
the basis of oral evidence because in election cases it is very easy
to get the help of interested witnesses but very difficult
to prove
charges of corrupt practice.





There
was, for example, no proof that the acts of violence were in the
nature of pressure on the minds of the victims as voters
to prevent
them from voting in a manner they wished for a candidate of their
choice or to refrain from voting in the exercise of
their free will.
As CHANDRACHUD CJ observed in
Sahu
v Singh and Anor

[1985] LRC 31, the offence of undue influence can be said to have
been committed only if the voter is put under a threat or fear
of
some adverse consequence or if he is induced to believe that he will
become an object of divine displeasure or spiritual censure
if he
casts or does not cast a vote in accordance with his decision.
There was no evidence that the victims of the violence were
told to
vote for the respondent or not vote at all.





Realising,
perhaps, that that evidence had not established the charge of undue
influence against the respondent, Mr 
Hwacha,
for the petitioner, argued in his address to the court that the
evidence had established general violence which permeated the whole
community such that the election result may have been affected. He
contended that the election result should be invalidated on
the
ground of general violence. Mr 
Hussein,
for the respondent, argued that general violence had not been pleaded
as a cause of the complaint raised against the election in
the
petition. He said s 132 of the Act did not give the court
power to set aside an election on a ground not alleged in the
petition.





The
learned judge held that the words “any other cause whatsoever” in
s 132 of the Act indicated that the causes specifically
mentioned therein were not exhaustive. The petition may be
presented on any cause of complaint known to the petitioner. He did
not determine the fundamental question whether the court had the
power to set an election result aside on a ground that had not been
pleaded as a cause of complaint in the petition at the time of its
presentation.





Notwithstanding
the fact that it was common cause that the petition did not allege
general violence as a cause of the complaint
the petitioner had made
against the election of the respondent, the learned judge determined
the factual question whether there was
general violence that was so
widespread that it permeated the whole community in the Constituency
that the election result may have
been affected. He held that the
violence established by the evidence of the witnesses was not
extensively prevalent as to vitiate
the election.





It
appears to me the learned judge misdirected himself in accepting the
proposition that he could invalidate the election on general
violence
established by evidence in the course of the trial of the petition
when it was not pleaded as a cause on which the election
of the
respondent was challenged. A petition is not a common law cause of
action. It is a special procedure created by statute.
The law
governing the manner and grounds on which an election may be set
aside must be found in the statute and nowhere else.





In
Nath v Singh and Ors
[1954] SCR 892 at 895 MAHAJAN CJ said:






“The general rule is well
settled that the statutory requirements of election law must be
strictly observed and that an election
contest is not an action at
law or a suit in equity but is a purely statutory proceeding unknown
to the common law and that the court
possesses no common law power.
It is also well settled that it is a sound principle of natural
justice that the success of a candidate
who has won at an election
should not be lightly interfered with and any petition seeking such
interference must strictly conform
to the requirements of the law.”





About
twenty years later the same principle was reiterated by
CHANDRACHUD CJ in
Sahu’s
case
supra,
where at p 39 he said:






“The rights arising out of
elections, including the right to contest or challenge an election
are not common law rights. They are
creatures of the statutes which
create, confer or limit those rights. Therefore, for deciding the
assertion whether an election
can be set aside on any alleged ground,
the courts have to consult the provisions of law governing the
particular election. They
have to function within the framework of
that law and cannot travel beyond it.”





For
a court to set aside an election the cause of the complaint should
have been pleaded in the petition at the time of its presentation
and
established by evidence beyond reasonable doubt. The duty of the
court is to determine whether the petitioner has by evidence
adduced
established the cause of his complaint against the election result.
The effect of s 132 of the Act is that a petitioner
complaining
of an undue election must state the nature of the cause of his
complaint. The cause of complaint must be clearly and
concisely
stated at the time of presentation of the petition to the High Court.





The
respondent is entitled to know the reason why his or her election is
being challenged so that he or she can be able to answer
the case.
It is also clear that the relief the High Court may grant to a
petitioner depends on the nature of the cause of the complaint
against the election result as pleaded in the petition (see s 136).





The
petitioner chose not to rely on general violence as the cause of his
complaint against the election of the respondent. For
general
violence to be a valid ground, it should have been pleaded. As the
laws of election are self-contained codes and the rights
arising out
of elections are the offspring of those laws, the petitioner had no
right to have the election invalidated on the ground
of general
violence unless he had specified it as a ground in the petition.
Such an election could be set aside on the grounds
specified in s 132
of the Act only and those grounds not particularised in the petition
must not be relied upon to set aside
an election.





Notwithstanding
the misdirection on the law, the learned judge found that the acts of
violence established by the evidence of the
witnesses were not so
general and extensive in their operation as to have permeated the
whole Constituency so that freedom of election
may have ceased.
That finding is correct.





There
was no basis upon which the election of the respondent could be
invalidated.





The
appeal is accordingly dismissed with costs.








CHIDYAUSIKU
CJ: I agree.














ZIYAMBI
JA: I agree.








Kantor
& Immerman
,
appellant's legal practitioners


Hussein
Ranchod & Co
,
respondent's legal practitioners