N

IN THE COURT OP APPEAL OP TANZANIA AT BAR ES SALAAM • (CORAIVI: KISANA LA., IVIPALILA, J.A, AndROSO, Ag.JA.) CIVIL APPEAL NO. 51 ..OP 1996 BETWEEN ARCADO DENNIS NTAGAZWA ••• .. APPELLANT AND BUYOGEA JULIUS BTJNYAMBO 0 RESPONDENT (Arising out of the Judnent and Decree of the High Court of Tanzflia TaboDa Registry, sitting at Kigorna) (Mackanja, J) d.ated the 24th September, 1996 in iscellaneoiis Civil Case No 15 of 1995 ------ JUDGMENT OF THE COPLT KISANGA, J.Ah: This is an appeal against the decision of the High- Court (Mackanja,. J) nullifying the election of the appellant as Membei of Parliament for uaambwe constituency O during the 1995 general election0 The elecbion was • nullified on the ground that the appellant, Mr. Arcado Dennis' Ntagazwa, isa foreigner i:e a citizen of Burundi, and hence a person not qualified for election as Meber of. Parliament under our lawn Before hearing this appeal we heard a preliminary objection raised by the respondent on the •ground. that the appeal was competent in that it was unaccompanied by the drawfiup decree. We overniled the - 2- objection orally, and our written reasons for doing so have already been given separately0 In this appeal the appellant waC ±epres'ented by Dr. J.T. Mwaikusa, learned advocate, while Mr. KK Kayaga, learned advocate, appeared for the resbideht, Mr. Kaduri, learned P1'incipal State Attoiër appeared as Amicus Curiae. The respodent had fiéd a petition in the High Court to oppose the appellant's elëctioh as Member of Parliament fOr Muhambwe contitueicy. After a ruling on 10.4.96 on some preliminary objebtion to the petition, the matter was set down for hearing on 4,11e96ó Subsequently, however, and for reasehs which are not recorded on the file, the hearing was re-scheduled for 2,996, 9996 aud. 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 Probe Co:mmitee to investigate into allegations of corruption against some senior Government and off iials. Then the new hearing dates were communicated to the appellant, the appellant informed the Court that the new dates were unâuitable 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 WOOM I — - 3 - of which, as stated earlier, he allowed the petition and nullified the appellant's election as Mem'ber of Parliament. In seeking the adjournment the appellant had advanced two main. grounds. F{rst, he said he had run into problems with hi adobate 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 eligaged another advocate, one Mrs. W Gama, on 10.996, but had not had time to give full instrucbions toher Thus dn 16.9.9Mrs. Gama appeared in court with limited instructions to ask for adjournefit pending full ihâtructions and briefih.g from the appellant, but her plea for' adjournment was refused and she had to withdrawfroin the pibceedi.ngs. he appelin' second ground for seeking the adjouiment arose from his appointment to the Parliamentary Probe Committee0 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 difficuIG 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 involing similar circumstances. These were the two election petitions in Dar es Salaam WWWW -4- involving Mr. Iddi Simba and Dr. Masumbuko Lamwai, respectively. Like the appellant, I1ir. 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 Mahambwe constituency, that the appellant stood no chance of winning the petition because they had bribed the judge. The appellant, therefore, asked for the trans±erof the case to another judge as he apprehended that in these circumstances he would not get a fair deal before the trial judgee 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 adjouxmnent, 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- -5--- "1. That the learned trial judge erred in law when he dismissed the Appellantts application to adjourn the hearing of the petition; 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; That the judgment and decree have been entered without due regard to the principles of natural justice; That the evidence relied upon by the 1 ' learned trial judge was either inadmissible and/or inadequate to sustain the findings and decision entered thereto. IT IS proposed to ask this Honourabie Court of Appeal to allow this appeal and issue orders - that:- 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 nova; The status quo ante be restored; The Appellant be paid the costs of this Appeal; The Appellant be awarded any other relief as this Honourable Court may deem fit and just." Dr. 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 for:- An order reversing the decision of the trial court and declaring that the 1995 election of the Appellant as the Member of Parliament for Mthambwe Constituency was proper and valid." We now thni 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 the trial judge had duly advised the appellant to find another advocate. The advice was given on 27.8.96 and, 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 Dar es Salaam to Kigoma and enter appearance in court with a request for adjournment pending 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 advocao 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 confiried by his advocate, between 10.9.96 and 16,9.96,