So also, over and above the allegation that the Plaintiff has come under direct attack from the United Democratic Front in these broadcasts,
one would have expected evidence to be furnished, may be even in the form of visual or audio tapes, for the Court to directly appreciate
the evidence behind the complaints in issue. We should emphasize that in our system of justice it is always incumbent on the parties
to bring material and convincing evidence before the Court. It is no part of the rules of evidence that the Court will scout for
itself in search of evidence that will satisfy it on any party’s complaint or allegation. The Plaintiff has however merely
been contented with making bare assertions and leaving it at that as if the assertions in themselves are evidence.
It will be recalled, we believe, that exhausted and perplexed with what were clear
gaps in the Plaintiff’s supply of evidence in support of its case to the Court we, at some point during the hearing, even asked
learned Counsel for the Plaintiff why the evidence being alluded to as existing was not really being presented to the Court for it
to assess it itself. The response we got was that as a Court we could indeed order that some tapes about the coverages and broadcasts
complained of be brought to the Court by the 2nd and 3rd Defendants so that we can sample them. Certainly we could not do that as doing so would be fishing for evidence for the benefit of
a party or of the parties to the case. It was the job of the Plaintiff, to ensure that the affidavit in support of its Original Summons
carries enough evidence within it.
As can be further seen even on the allegation the Plaintiff makes in its affidavit
to the effect that it has come under direct attack from the United Democratic Front, the deponent has fallen short of particularizing
the attacks so made, or to otherwise table before the Court the said attacks in legally acceptable evidence for the Court’s
consumption. Further, despite the complaint that the 2nd and 3rd Defendants have not accorded the Plaintiff the opportunity to reply, since Code 5(2) in the 3rd Schedule to the Communications Act 1996 requires that the person so attacked specifically request for such opportunity, no indication
or evidence has been furnished in this affidavit to show that any such request for a reply was ever made and refused.
In the absence of a clear and unequivocal admission of liability in a civil case
there is no escape from the onus to supply adequate evidence by a party that asserts wrongdoing against another. Indeed the very
cases learned Counsel for the Plaintiff have cited and furnished us with clearly demonstrate this. For example in Attorney General and Others vs Kabourou, 2 LRC 757 a Tanzanian case in which the Respondent was challenging the results of a by-election that came out in favour of a Chama Cha Mapinduzi
candidate, and where part of the allegations were that Radio Tanzania, Dar-es-Salaam, had given more airtime to the campaign of the
party of this winner candidate, and that it had been biased in his favour, to prove the case to the Court the parties placed reliance
on extensive live testimony. In our reading of that case there were no less than fifteen witnesses from the Plaintiff’s side
and no less than eight defence witnesses when the case was heard at first instance. The range of witnesses included people who worked
in the media as well as ordinary citizens who had attended the various campaign rallies. They could even recite the attacks that
were made and identify the
officials that made them including His Excellency Alli Hassan Mwinyi.
Another good example would be the case of Tamasese Efi vs the Attorney General of Samoa WSSC 22 of 2000 (unreported) in which the Leader of the Opposition in Samoa was complaining of a ban allegedly imposed on him from accessing television, radio,
and newspapers by the Prime Minister who was also the Minister of Broadcasting in the regime that was current at the time of suing
and his predecessor in the regime preceeding it. Although in large measure too in that case reliance was placed on affidavit evidence,
each and every deponent was searchingly cross-examined on his/her affidavit, and the Court was clearly given ample evidential material
on which to base its decision in the case. Again in that case there were no less than 10 witnesses on the side of the complaining
leader of the opposition and no less than four witnesses on the side of the sued Attorney General.
In our case, in contract, the Plaintiff has put in one affidavit in support, the
supplementary one having been disqualified and rejected on procedural grounds. As earlier pointed out, this affidavit has been sworn
as if it was in support of an interlocutory application, and not for the type of action we have at hand, by being based on information
and belief. Indeed, the affidavit does not divulge the sources and grounds of the information it deposes to. Besides, as also shown,
in the main the affidavit contains bare assertions or allegations, without the requisite supporting proof. The Court, as also disclosed,
has not been provided with any material on which it can test and either confirm or disprove the deponent’s assertions on the
various allegations he has made in his affidavit. In the presentation of the case it was mentioned several times that there is overwhelming
evidence in support of the Plaintiff’s allegations. Without making it available, as
demonstrated by our above analysis of the affidavit in support, we find ourselves at a loss when we search the file before us, which
should be our only repository of evidence for the determination of this case, where this overwhelming evidence really is.
At this point the developments that took place at preliminary objection stage readily
come to mind. Commenced and fixed for hearing in a great rush, it will be recalled that on the very first day this case was called
for hearing, the Plaintiff was found at fault of getting hold of mail between the Public Affairs Committee and the Electoral Commission
and then exhibiting it as its evidence, in a bid to prove some of its allegations in the matter. The Plaintiff was also faulted for
picking reports published by a Media Monitoring Unit that is not part of it and exhibiting them as its evidence. The rules of evidence,
as captured in Order 41 rule 5, clearly forbid this. On this account we disqualified those exhibits as not being evidence the Plaintiff
could exhibit. For a party that had filed an affidavit in support of its case to lose in it four out of the five exhibits it was
going to rely on would most certainly have been quite a set back in its preparation of the case.
One therefore would ordinarily have expected that the party so affected by this blow from the evidential rules would require a bit
of time to reflect on the effect of that impact on its case before forging on. It is not to be forgotten that at the same time as
the Plaintiff lost these four exhibits from its arsenal of weapons meant for the advancement of its case, it also lost a supplementary
affidavit. We would have thought that in the circumstances the need for the Plaintiff to at that time take stock of its case was
very eminent. As happened, however, the Plaintiff openly demonstrated that it did not in the least care about how that exclusion
of what it had filed as part of its evidence really affected its case. Thus the Plaintiff immediately went ahead to ask the Court
for a date only six days away to argue its case as if nothing significant had happened to it in the ruling on preliminary objections.
We found that a bit strange, but it is no business of ours to dampen the faith parties
hold in the strength of their cases. As we have, however, now just shown in our commentary on the balance of the evidence the Plaintiff
was finally left with, it did not measure to the mark the law would expect in a case of this weight. It mainly came from information
and belief when the law required it to be from direct personal knowledge. It also mainly comprised of assertions whose substantiation
was not incorporated within the affidavit, and the Court was given no alternative opportunity to view or otherwise listen to the
coverages or broadcasts complained about by the Plaintiff. The Court was thus not given a chance to judicially assess whether or
not to agree with the deponent’s assessment as made in the affidavit in support.
It therefore came as no surprise to us when in arguing the Plaintiff’s case,
learned Counsel for the Plaintiff tended to frequent the affidavit of Mr Roosevelt Gondwe and its exhibits as a supplement to the
contents of the affidavit the Plaintiff had filed. We merely took this as an oblique recognition and acknowledgement that the affidavit
of Mr Masangwi alone, and as couched, was falling short of amply substantiating the Plaintiff’s action. Thus in order to give
it a boost in the action, parts of Mr Gondwe’s affidavit in opposition and/or its exhibits had to be picked on and exploited
to the advantage of the Plaintiff.
No facts to argument the law
While on the subject of the facts, or the evidence the Plaintiff needed to have loaded
its affidavit with in support of the Originating Summons so as to convince the Court of the violations and the biases it has alleged
against the Defendants herein, we would like to make an observation. It is that as we studied the parties’ processes, skeleton
arguments, and the authorities, and also as we heard the presentations in this
case, on the part of the Plaintiff, we gained a distinct impression that more weight and time was devoted to argument on the law as
compared to argument on the facts that necessitated the case. While we were fully addressed on what the law on media coverage and
broadcasts is in Malawi, in other countries, and at regional and international levels, the facts behind this case, i.e. those that
triggered its commencement, were not given as thorough attention as the law was.
Now when a Court is dealing with a case it is as much interested in the facts giving
rise to it as it is interested in the law applicable. To merely make pronouncements on the law without an adequate factual base may
sit well in a symposium situation or in an academic one, but certainly not in a judgment. We take the opportunity to sincerely commend
the learned Counsel for the Plaintiff for their thorough and effective digging up and exposing of the law on the subject at hand.
Actually the skeleton arguments they filed on behalf of the Plaintiff bear clear testimony of this. Pages 3 to 18 tackle all important
Sections of the Constitution between Sections 4 and 76, all material provisions of the Electoral Commission Act 1998, all material
provisions of the Presidential and Parliamentary Elections Act, (Cap 2:01), and all relevant provisions of the Communications Act,
They also tackle relevant provisions of the United Nations Declaration of Human Rights, the International Covenant on Civil and Political
Rights, apart from spilling over to regional instruments including the African Charter on Human and People’s Rights, and the
European and the American Conventions in respect of Human Rights. As regards case authorities we have been taken on a tour of a chain
of Ghanaian authorities, Tanzanian case authorities, authorities decided by the Privy Council from various parts of the Commonwealth
and even authorities from the House of Lords, among others.
We have also been exposed to a lot of guidelines covering Media Regulatory bodies, equitable access for political parties, Obligation
of Pluralism, Guidelines for Election Broadcasting in Transitional Democracies from Article 19, as well as General comments of the
Human Rights Commission of the United Nations, among others. Our dedicated reading of all this law from legal provisions, precedents,
legal texts, and local and international practices or guidelines has throughout, however, been accompanied by the question, whether
evidentially or factually the Plaintiff has laid a proper foundation for its case.
We find, on assessment, that the Plaintiff has given us an overdose of the law and
a complete underdose on the facts in support of its case. Having made the mistake of attaching four pieces of hearsay evidence to
its main affidavit and having lost the same on the way, and having also lost use of its supplementary affidavit, the Plaintiff took
no steps to recover from this loss of balance in its case. The Plaintiff placed too much faith in an affidavit that depended on information
and belief and which was therefore limping from the word “go”. Worse still the affidavit in question hardly carried the
details or the evidence to substantiate the allegations it contained.
The law, it appears, was recited to such extensive and extreme levels as to cloud the situation or to cover up for this shortfall
in the evidence the Plaintiff was required to furnish to the Court. Our holding in the circumstances is that extremely good though
the Plaintiff was in presenting the law, that per se did not compensate for the clear deficiency in the evidence it furnished in
support of its case. We were not, in this Court, given an adequate base upon which to objectively assess whether the allegations
contained in the affidavit supporting the Originating Summons are or are not true. In so rushing this case through the Court, the
Plaintiff omitted to care for one vital element in it - i.e. the evidence to prove it to the requisite standard.
Mode of commencement of proceedings
The matter herein having been commenced by Originating Summons we also find it opportune
to at this stage just look back to Order 5 rule 4(2)(a) and (b) of the Rules of the Supreme Court and to briefly reflect on it. Matters
to be brought under Originating Summons procedure generally ought to be those where either the sole or principal question to be resolved
is the construction of a piece of law or an instrument under such or matters “in which there is unlikely to be any substantial dispute of fact” (our emphasis).
Without necessarily questioning the wisdom of the Plaintiff for choosing this mode of commencing its case, we note that the assertions
made by the Plaintiff through the affidavit of Mr Masangwi have been met with four affidavits in opposition from the three Defendants
herein. Thus even discounting the shortfalls that we have pointed out in the affidavit of the Plaintiff, the question becomes whether
honestly this was a case on which a Court could properly be expected to adjudicate on affidavit evidence only.
How, even if all the affidavits on the file were of facts from personal knowledge, were we to gauge demeanour and credibility of the
deponents, merely by looking at the mute contents of the affidavits they have submitted? Further, how were we to judge the coverages
and broadcasts complained about herein without being given the opportunity to examine their recordings or without being given other
enlightening evidence so as to come up with our own opinions on them. Was just looking at the affidavits, opposed as they are, going
to help us at all? How were we to choose which affidavit to believe as containing the truth and which one to disbelieve as containing
lies just by looking at the opposing documents?
The Plaintiff having displayed such heavy weaknesses in regard to the evidence it has tried to put at the disposal of the Court through
its affidavit in support, it now seems pointless to survey and assess the defences the three Defendants put up through their affidavits
in opposition. Such would only have been necessary if the Plaintiff had managed to capture some evidence and to procedurally place
it before the Court. As already demonstrated above the Plaintiff has not done so. We take the view therefore that the Plaintiff opted
for a fatal path when it chose not to pay much attention to the grounding of its case in evidence, well apart from grounding it in
the law. We accordingly dismiss the Originating Summons herein with costs.
Pronounced in open Court this day 14th day of May 2004 at Blantyre.