arcado dennis ntagazwa vs buyogela julius bunyambo 1997 tzca 54 26 august 1997

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KISANGA, J.A.. MFALILA, J.A., And MROSSO, A q . J.A.) CIVIL APPEAL NO. 51 OF 1996 BETWEEN ARCABO DENNIS NTAGAZWA ............. . APPELLANT AND BUYOGERA JULIUS BUNYAMBO ......... RESPONDENT (Arising out of the Judgment and Decree of the High Court of Tanzania Tabora Registry, sitting at Kigoma} {Mackanja, J . ) dated the 24th September, 1996 in Miscellaneous Civil Case No. 15 of 1995 JUDGEMENT OF THE COURT KISANGA, J . A .: This is an appeal against the decision of the High Court (Mackanj a , J.) nullifying the election of the appellant as Member of Parliament for Muhambwe constituency during the 1995 general election. The election was nullified on the ground that the appellant, M r . Arcado Dennis Ntagazwa, is a foreigner i.e. a citizen of Burundi, and hence a person not qualified for election as Member of Parliament under our law. Before hearing this appeal we heard a preliminary objection raised by the respondent on the ground that the appeal was incompetent in that it was unaccompanied by the drawn up decree. We overruled the objection orally, and our written reasons for doing so have already been given separately. In this appeal the appellant was represented by D r . J.T. Mwaikusa, learned advocate, while Mr. K.K. Kayaga learned advocate appeared for the respondent. Mr. Kaduri, learned Principal State Attorney appeared as Amicus Curiae. The respondent had filed a petition in the High Court to oppose the appellant's election as Member of Parliament for Muhambwe constituency. After a ruling on 10.4.96 on some preliminary objections to the petition, the matter was set down for hearing on 4.11.96. Subsequently, however, and for reasons which are not recorded on the file, the hearing was re-scheduled for 2.9.96, 9.9.96 and then 16.9.96. Following the long adjournment of 10.4.96 to 4.11.96 the appellant had accepted the appointment as a member of a Parliamentary Probes Committee to investigate into allegations of corruption against some senior Government and C.C.M. officials. When the new hearing dates were communicated to the appellant, the new dates were unsuitable and asked for further adjournment, but when it became evident that the trial judge was not prepared to adjourn the case beyond 16.9.96, the appellant sought to have the case transferred to another judge but in vain. The trial judge, therefore proceeded to hear the petitioner's case, consisting of nine witnesses, in the absence of the appellant or his advocate at the end of which, as stated earlier, he allowed the petition and nullified the appellant's election as Member of Parliament. In seeking the adjournment the appellant had advanced two main grounds. First, he said he had run into problems with his advocate who had lost her husband and, acting on the advice given to him by the court on 27.8.96 in that regard, the appellant engaged another advocate, one Mrs. W. Gama, on 10.9.96, but had not had time to give full instructions to her. Thus on 16.9.97 Mrs. Gama appeared in court with limited instructions to ask for adjournment pending receipt of full instructions and briefing from the appellant, but her plea for adjournment was refused and she had to withdraw from the proceedings. The appellant's second ground for seeking the adjournment arose from his appointment to the Parliamentary Probe Committee. The appellant disclosed to the court that he had accepted that appointment relying on the hearing date of 4.11.96 as originally fixed by the court, by which date the Probe Committee would have finished its work. So that the re-scheduling of the hearing dates to 2.9.96, 9.9.96 and 16.9.96 put the appellant in a difficult position as it came only after the Probe Committee had commenced but before completing its mandate. In advancing this ground, the appellant referred the trial judge to two cases involving similar circumstances. These were the two election petitions in Dar es Salaam involving Mr. Iddi Simba and Dr. Masumbuko Lamwai, respectively. Like the appellant, M r . Simba and Dr, Lamwai were members of the said Probe Committee, and their respective cases had been adjourned pending completion by the Probe Committee of its assignment. Additionally the appellant complained of bragging by some people among whom were some of his opponents especially in Muhambwe constituency, that the appellant stood no chance of winning the petiton because they had bribed the judge. The appellant, therefore, asked for the transfer of the case to another judge as he apprehended that in these circumstances he would not get a fair deal before the trial judge. However, the learned judge, in a lengthy Ruling, and obviously being carried away by emotion at times, discounted all the points presented to him by the appellant and, having refused to grant the adjournment, proceeded to hear the petition in the absence of the appellant or his counsel, nullifying the appellant's election in the end on the ground that the appellant was a non-citizen of this country. It is from that decision that this appeal now arises. Dr. Mwaikusa has filed four grounds of appeal. The said grounds together with the accompanying prayers are set out below:- "1. That the learned trial judge erred in law when he dismissed the Appellant's application to adjourn the hearing of the petition; 2. That the learned trial judge erred in law when he proceeded to hear the petition in disregard of the apprehensions of bias expressed by the Appellant; 3. That the judgment and decree have been entered without due regard to the principles of natural justice; 4. That the evidence relied upon by the learned trial judge was either inadmissible and/or inadequate to sustain the findings and decision entered thereto. IT IS proposed to ask this Honourable Court of Appeal to allow this appeal and issue orders that:- (a) The judgment and decree, as well as the proceedings of the trial court subsequent to 16th September, 1996, be quashed and the petition be heard de novo; (b ) The status quo ante be restored; (c) The Appellant be paid the costs of this Appeal; (d ) The Appellant be awwarded any other relief as this Honourable Court may deem fit and just." D r . Mwaikusa, with the leave of the Court amended the memorandum of appeal by adding an alternative prayer to prayers (a) and (b ) which alternative prayer is fo r :- "An order reversing the decision of the trial court and declaring that the 1995 election of the Appellant as the Member of Parliament for Muhambwe Constituency was proper and valid." We now turn to consider the grounds of appeal separately, starting with the first ground which alleges that the trial judge erred when he refused to adjourn the hearing of the petition. 'The trial judge had acknowledged that the appellant was having problems with his previous advocate who had been bereaved, and he had duly advised the appellant to find another advocate. The advice was given on 27.8.96 an d , accepting it, the appellant instructed another advocate on 10.9.96. In other words, the appellant, accepting the judge's advice, engaged another advocate in a matter of two weeks. The advocate who was engaged on 10.9.96 could not be given full instructions and briefing, and therefore she was asked to travel from Bar es Salaam to Kigoma and enter appearance in court with a request for adjournment pending receipt if full instructions and briefing from the appellant. The appellant cannot be said to have acted unreasonably here. First, considering the expenses involved to hire the services of counsel, it is not surprising for the appellant to say that he could not raise the full advocate fees within two weeks especially after the hearing date was brought forward from 4.11.96 to 2.9.96 Again considering that the appellant was serving on the Parliamentary Probe Committee, it is conceivable that he had very little time, as indeed pleaded by him and confirmed by his advocate, between 10.9,96 and 16.9.96, to brief his advocate in sufficient detail on what happened during the election process. Nor can the appellant be said to have unreasonably absented himself from court on 16.9.96. He was serving on the Parliamentary Probe Committee. As stated before, he had accepted appointment to that Committee in reliance of the original date of 4.11.96 fixed by the court for the hearing of his case. Had the court adhered to that date theappellant would have completed his assignment with the Committee in time for the hearing of this t case. The appellant was therefore justified in asking for adjournment pending completion of his assignment with the Committee which he had taken up relying on the original hearing date of his case as fixed by the court. Not only that. Mr. Simba and Dr. Lamwai who were also serving on this Committee, had their respective election petitions adjourned by the High Court pending completion of the work of the Committee. The appellant would have every reason to think that his request for adjournment would equally be granted. He cannot, therefore be said to have acted unreasonably in seeking the adjournment. The trial judge was fully appraised of all these matters *through the correspondence sent to the court by the appellant. We think that the trial judge wrongly disregarded them when he refused to grant the appellant's application for adjournment. The second ground of appeal criticises the judge for proceeding to hear the case notwithstanding the apprehension of bias expressed by the appellant. Again we find merit in this complaint. As stated earlier, the appellant managed, to engage another advocate within fourteen days after being advised by the court to do so. But although the said advocate engaged in so short a time pleaded with the judge to grant an adjournment to enable her to obtain the necessary instructions and briefing from the appellant, the judge completely refused and proceeded to hear the case. The appellant was justified to apprehend that he would i not get a fair deal from a judge who was prepared to urge the appellant's advocate to proceed with the conduct, of the case notwithstanding that the advocate had insufficient instructions and briefing from the appellant. Indeed the appellant's apprehension or fear becomes even more apparent in the light of what transpired immediately after the judge had ruled against granting the adjournment. The appellant's advocate immediately gave oral notice of her intention to appeal against the judge's ruling, with the request to be supplied with a copy of the ruling. This was followed by a written notice of intention to appeal addressed to the Registrar and accompanied by request for proceedings, with copies to the court case file and the opposite parties. This notwithstanding, however the judge immediately proceeded to hear the case until he completed it. He did not pause or stop to allow for the appeal process against his ruling to take effect. Although a formal notice of intention to appeal was duly given, with a copy to the court case file, there is no evidence that the copy of proceedings which the appellant's advocate had requested for the purposes of the appeal has been supplied even though the judge endorsed on the file that the appellant's advocate should be supplied with the same; and indeed there is no indication that the judge who immediately proceeded to hear the case ever released the case file for the typing out of the proceedings. Be that as it may, it is clear from the judge's ruling that the intended appeal initiated by the notice in question never materialized. g It must be pointed out that the learned judge acted improperly here. Once the formal notice of intention to appeal was lodged in the Registry the trial judge was obliged to halt the proceedings at once and allow for the appeal process to take effect, or until that notice was withdrawn or was deemed to be withdrawn. But the course adopted by the judge here effectively twarted the appeal. That was wrong, and had the correct procedure been adopted the present proceedings might not have been necessary. Thus the appellant's apprehension of bias was justified in those circumstances; he could not be certain that the judge who was capable of frustrating his appeal would act fairly and impartially in hearing the petition. Consequently, we are satisfied that his request for the transfer of his case to another judge was wrongly refused by the trial judge. The third ground of appeal criticises the trial judge for violating the principles of natural justice. We have to say at once that this complaint is amply justified. In wrongly dismissing the appellant's application for adjournment and proceeding to hear and determine the case after hearing only the petitioner's case, the trial judge thereby condemned the appellant unheard. This was a serious matter, especially as the issues of the appellant's election and citizenship being adjudi­ cated upon were of great constitutional importance. We therefore have no difficulty at all in upholding this ground of appeal. To sum up so far, we have found that the trial judge wrongly dismissed the appellant's application for adjournment, especially after the appellant had expressed reasonable apprehension of bias on the part of the trial judge. We have also found that following such refusal the judge wrongly proceeded to hear and determine the election petition in total disregard for the principles of natural justice. The effect of these errors was, in our vies, to render the proceedings a nullity starting from the day they were continued in the absence of the appellant or his counsel. Consequently we allow prayers (a) and (b) of the memorandum of appeal. Accordingly it is ordered that the proceedings of the trial court subsequent to 16.9,96 are hereby declared null and void, and that the petition be heard de novo before another judge. It is further ordered that pending the final disposal of the petition as ordered, the status quo ante of the parties is hereby restored. Having taken this view of the matter, it is now neither necessary nor proper to consider the alternative prayer calling upon us to review the decision of the trial judge on the merits and find that the appellant was duly elected Member of Parliament for Muhambwe constituency. It is for this reason that we shall not consider ground four of the memorandum of appeal. In the result, therefore, this appeal is allowed with costs. DATED at DAR ES SALAAM this 26th day of August, 1997. JUSTICE OF APPEAL JUSTICE OF APPEAL JUSTICE OF APPEAL