19871218 TZCA Dar es Salaam

... ,.,_., . ·•-· IN THE COURT OF APPE.1\.L OF TANZANIA AT DAR E3 S AIJi..AM (corui:f-J;. ·or,'.IAR J.A. 9 9 ~1FALILA 1 ·14g. J.A.·And MAP:tGAN0 2 Ag. J.A.) CIVIL, APPEAL NO. 32 OF. 1987 BEI'WEEN ' .. -~ · ATTORNEY.GENERAL. .. .. . • • AflPELLANT AND 1 AMIR UBERI MTTV · A • • • • •. • •.~ lst RESPONDENT 2: f,.BJ,jlL~ zwi£t~A §! ; . ; ; ; . 2rid 'nl?.S'.PO:NDEI~ (A~p~al. from the Judgment: ~i' th~-- JJJgif.Court of Tanzania at Tan_ga) (Shungu 9 Esq. 9 PRM, E.J) in Misc. Civil Cause No. 4 of 1985 JUix;MENT OF 'IHE COURT MAPIGA_N0..1,~ •. J .A.; This is an appeal by the Attorney-General from the judgment of the High. Court at Tanga in an election petition brought by two voters. Two men, Mr. Alfani Ally Kihzyo and Mr. Muya Zuberi Sha.bani 9 had made a run for Parliament in the 1985 general election in the Korogwe constituen<:_Y• 'Mr. Kihiyo won the ,,contest by a majority of 1,004, having _polled 26,960 vote·s against ,Mr. _Sha1'.en1ts 25,916. There ...... were 1,156 rejected ballot ~ papers, 'So·· Mr~ Kihiyo' was. declared to be elected. Polling took place on 27 /16/s5. . . ..-· •· • The loser's two brothers i.e. Mr. Amir Zuberi Muya and Mr. Abdali'eh Muya were dissatisfied with the results and they petitioned the High .Court citing seven breaches and/or shortcomings . on the part of the election officers and praying for the avoidance of the ~lection of Mr. Kihiyo as a M~mber of

Parliament for the constituE:;ncy. Three of those allegations were not established by the evidence and they do not conce~ us in this appeal. The petition was heard by Mr. Shungu, Principal Resident Magistrate, in the exercise of his extended jurisdiction. On 6/1/87 the l.earned magistrate pronounqed judgment allowing the petition. The results of the election were nullified and the petitioners were granted the costs • •••••• /2. . •. <' - 2 - As indicated at the outset, t~e Attorney-General is aggrieved by the decision of the learned magistrate. In this appeal he was represented by Mr. Ihemap Principal State Attorney, while the petitioners who are now ihe respond.ents were represented by Mr. Hramba, learnGd advocate, who also appeared for them in the High Court. ,.. ~itially the successful candidate Mr. Kihiyo was a party to the proceedings as first respondent. But upon an application made by the petitioners before the start of the hearing and over his strong objection, and. after hearing legal arguments, the learned magistrate ruled that Mr. Kihiyo was improperly joined. Accordingly, the magistrate made an order striking out his name. The propriety of that order isthe subject of the first ground of this appeal and though it was not pressed we nonetheless deem it useful to say two or three words about it, as we think the point raised is one of general importance. We propose to

do that straightaway. We start by adverting to Rule 26 of the Elections (Election Petitions) Rules, 1911, here:inafter to be referred to as "the Rules". Paragraph (1) thereof lays down that subj€ct to the provisions of the Elect ions Act and. the Rules, the practice and procedure in respect of a petition shall be regulated, as far as may be, by the rules regulating the practice and procedure :in a civil suit. The rules•governing · the joinder of parties ih a civil suit are conta.L"'led in the Civil Procedure Code, 1966, notably Order I. Traditionally parties are classified into two categoriA!a, namely necessary parties and proper parties. Necessary parties are those without whose presence before the court no effective decree can be p::i_ssed in the suit. A good example of these are the legal personal representatives of a deceased.in an administration suit.. Strictly speaking the question of joinder of necessary parties is one of substantive law. It is thus not affected by rule 9 of Order I of the Civil Procedure Code wbich provides, · inter. a1ia, that no suit shall be defeated by reason of non-joind.or of _parties. • ..• /3 3 - Proper parties have been d€scribed as those whose presence before the court.mayb? necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved. in the suit. One object of adding these parties is

to bind them and thus avoid future litig~tion. Another object is to protect their interests and the interestrs of the· defend.ants. In the standard commentaries on the Indian Code of Civil Proced.ure 9 from whi,ch our Civil Procedure Code bas borrowed. very heavily 9 the following cases nre instancedi ( 1} A, one of the relntions of 8 dee.eased person brings an administration suit against the other relations. B applies to le a.dded as a party alleging that he is an adopted son of tile deceased. He can be added as a party in order to avoid multiplicity of suits; (2) A, alleging that he is the adopted son of B9 deceased, sues c,.the widow for possession of certain properties of the deceased. The reversioners to the este,te of B, who dispute such adoption may be added as parties in order to protect their interests. We turn to Hules 4 and 5 on which Mr. Mbezi learned counsel who was then advocating for the successful candidate sought to rely. On a careful readi!lg of these provisions one would appreciate that in essence they implement the basic principle outlined above and do. not· make ~ny fundamental departure from the provisions of the Civil Procedure Code. Paragraph (1) of Rule 4 pertains to a situation where the Attorney-General is not the petitioner and prescribes that he must be made a party to the proceedings. It should be obser.-ved, however, that where the

Attorney-General has been joined as a party with the urisucce3sful candidate,- paragraph ( 2) of Rule 5 entitles him to inform the court in writing that he he.a no interest in the petition, and empowers the court to act on the information and remove him from the petition if the court is satisfied that no misconduct on the part of any election officer is alleged. Paragraph (2) of Rule 4 applies to a petition that charges the successful candidate or any person acting for or on t1is behalf with any misconduct or contravention of any provisions of any written law • . . . . . /4. .. "' ~- 4 - It stipulatGs that in such a situation the succ~e:;;sful candidate must be m2de a party. Mr. Mbezi sought to espGcially rely on this paragraph and for ease of reference :Lt is set out :i.n full hereunder, viz:- (2) Where a petition olleges ony misconduct or 11 contravention of ony provisions of an:r w:ritten law by the successful candida-::G or· by m1y person acting for or on behalf of ths successful candidate, the successful candidate shall be made 5 party to the petition in addition to the Attorney-General 11 • For the purpose of the instant case. ·t,he vitol :·,.:~:r=:.3 in that paragraph are "by any person acting for or on behalf of the successful candidote 1• • Paragraph (3) of the some Rule i18s reference to a petition pre.sented by the Attorney-General. It. por1n:i.ts hiCT to mnke

as respondents all such persons who are 1:,_kely to be adversely affected in the event of the relief sought by him being grunted. Finally, paragraph ( 1) of Rule 5c This paragraph is widely phrased and deals, as the margin says 9 with the add it ion and the substitution of parties. It confers discretion cin the court 1 where the only person mad.e a party to a petition is the Attorney-General, to make tho unsuccessful cnnd.id.ote or: __ "'·::w· uthe:c _:peY.:;~on a party to the petitionp if tho court consider:::; it -d0si:~:.::b1e 01:: n.Gcess81'"J for the purpose of deciding the ·issues inrnlved.~ Now we think it is clear from tb?.se p.1'.'ovisions tb.ot in the case of the successful candidate he can ol".\7 be 1:~ode 3 par".;y wtere either of the following three circt-!J-n::Jcar:ce.s c-0·::o :i.nr.;; (a) where there is m allegation of misconduct or cont.t'ava:.~:t:Lcn of r:::ny statutory provisions levelled ag 8 inst him or against arg peJf::::on who was acting for or on his behc:ilf~ (b) where in a petiti.on presented by the .1:'.;torney- General he is likely to be adversely affected. in the event of· the relief sought by the Attorney...Gen2~al bejn~ granted:; nnd '(c) where the court deems it necessary or <los:L1::·~.,, .... for the pv..r:pose of determining the issues involved :in t!,2 :Y:t. :i.-:: ion,, Mr. r1bezi in the High Courtr likewise T1ro Ihe:-:1a in this

Court, submitted that there was a circumstance that operated. to bring the petition within- the scope of Rules 4 (2) and. 5 (1), namely the averment set forth in p8ragraph 8A {i) of the petition 0 There it is alleged that 11 0n the election day, at I·-1wak:i.rwumbt and Jitengeni ,.. . - 5 - A polling stations the presiding officers persuaded voters to vote for I the first respondent (i.e. the successful candid.ate) and not Muya Zuberi Sha bani". It is to be observed however that the petitioners had actuGlly pledged by affidavit to refrain from seekins· to show that the two presiding officers were Bcting for or on behalf of the successful· candidc1te and that they actually kept their word. The argument for the successful candid.ate woe that the paragraph in question should. have been construed broad.ly as suggesting that the two presiding officers were acting for or on behalf of the successful candid.ate. We are unable to subscribe to that construction. We take· that paragraph to allege, prima facie 9 that those presiding offic~rs were acting purely on a tangent of their own, albeit that the successful cancliclatG benefited by that exercise, that is if the allegation is true. In our view the wording of Rule 4 (2) hc1s to be given its natural and ordinary meaning. We understand the words "any person acting for or on behalf of the successful candid.ate" to imply an arrangement or

a plot between the successful candid.ate and·ttwt other person. It was also contend.ed that Rule 5 ( 1) should have been applied, bec::iuse, it was pointed out, the successful candidate was a person intcrosted in the proceedings and bound to be adversely affected by the success of the petition. The laarned magistrate d?smissed this contGntion. Much as he appreciatGd -t~ pomt he just could. not see wey hG should ke.ep thE:' successful candidate as a party to the petition when th0re WcJS nothing whatever in the petition for him to answer. We respGctfully a~ree with the lean:ed magistrate. If we could go further 9 We wonder why the successful candid.ate .should keep crying foul considering the fact that when he appeared. before the High Court as a witness for the Attorney-General he gave an altogether neutral evidence 9 and the fact, as-already mentioned, that the~e was nothing in the evidence adduced by the petitioners that implicated him. · We are satisfied that the learned rnagistrnte wos ri€ht in ddding the nnme of the successful candidate from the petition. We accordingly dismiss the first ground. ·of the appeal. We now turn to deal with the four allegations of misconduct and/or non-compliance with the provisions of the Elections Act, 1985. 'l'he first allegation was that there were gross interferences ~;ith the freedom of the voters at two polling stations, to wit

Mwakinyungi and Kituo cha Mifugo (in Jitengeni Polling District). As we have already ••••• /6 6 mentioned• the allegations was that the two presiding officers at those polling stations had unduly influenced the voters to vote for the successful candidate. In relation to Mwaki.nyungi polling station five witnesses gave evid.cmce for the petitioners. These were P.W.3 Salome Lazaro 1 P.W.4 Marfam Nowa Fundikira, P.W.5 Lazaro Tadeo Akili, P.W.6 Hamisi Ally and P.W.8 Saidi Sele!!1£lni. These witnesses alleged that they were voters at the election and that they were induced, by mGans of threats or forcep by the polling officers 9 into voting otherwise than they freely willed. But all of them had admittedly lodged no complaint against the polling officers. The learned magistrate . ' believed two of these witnesses, namely P.W.3 Salome Lazaro and P.W.5 Lazaro Tadeo Akili, encl disbelieved or doubted the truth of the accounts of the rest. In fact one of them was clearly exposed to be on outrico-tlt liar. P,W.3 Salome Lazaro was not an ordinary villager. She was o memb<?r of the village political committee and the learned magistrDte rated her &8 an iriipressivl:l witness. She tol~ the Hicrh Court that she presented herself at the polling station ancl thvt when her turn to vote came she entered the screened compartment in order to record her vote. She said that as she was about to cDst

her vote one of the polling officers came into the compartment, held her hand and ordered her to vote for Mr. Kihiyo whom she did. not prefer. She complied because, as she putit, she felt distressed. She could not produce her cortificate of registration, claiming that it had been destroyed by rain water. P.W.5 Lazaro Tadeo Akili ettid in effect the samG thing. He also could not produce his certificate of registration. He said he lost it when his house fell down. 11.gainst that evidence the Attorney-General adduced evidence through D.W.3 Erick Richard and D,W,5 Richard Mohamed, the presiding officer, to thG effect that there Jas no such coercion or interferences at that. polling stat ion, The Attorney-General also produced D. W.4 Daudi Mjoge, the village chairman, who stated that P.W.3 Salome Lazaro had not raised any comp~aint in that regard even at the meeting of the village political coL1Iilittee that was subsequently convened. to discuss the election. D.W.4 also refuted P.W.?'s allegation that his house had fallen down.• . . . •. /7. l. 7 - As we have observed~ the learned magistrate found P.W.3 and-P.W.5.. to be truthful witnesses and hcted on their testimony. It has been submitted, in fine, that the learned magistrate should have approached · the evidonce of these two witnesses with greater caution, but we will recur to that submission in a moment. In relation to Kituo cha

Mifugo polling station the petitioners brought three witnesses, and their evidence found favour with the learned magistrate. There was'f±rsit P.W.11 Abdi Hussein Msagati •., According to him, earnest ond strenous attempts were made by a polling officer inside the compartment to impede his freedom of choice. In the process a physical struggle over the ballot paper ensued, what the l.:,arned magistrate characterized as a 11 mini-scuffle 11 • The witness successfully withstood the pressure and he eventually cast his vote for the candidate of his choice. He alleged that he later reported the incident to D.W.14 Ally Selemani MDhanyu who was the polling agent at that pollmg station. But D.W.14 denied that allegation. · Next therG was P.W.12 Ramadhani Molewa Mbelwa. His evidence was substantially similar with that of P.W.11. He claimed that he:::->:_:_,::_:.~-·:': complo ined to th.:; village secretary about the poll mg officer's action, but th0 said village secretary was not called as a witness. Then there was ~.w.17 Saidi Kijazi Malimbwi. He stated that he was directed to vote for Mr~· Kihiyo and that he submitted to the 1 • demand and voted for Mr. Kih:cyo "because of hunger and frt;stration 11 J · Apparently h0 did.~not report the incident to any one. D.W.10 Mwanamvua Mohamed w,~lS the presid.i.ng officer at Kituo cha Mifugo and D.W.11 Kiago Msangi was her assistant. Like \ D.W.14

these two witnesses denied that they tried to exert any pressure on any voter to vote for any of the two candid.ates. The learned magistrate dismissed their denial and he did so quite peremptorily in the following words:- 11The allegations of the petitioners 1 witnesses about persuasion at Jitongeni were naturally denied by the officials. I would not have expected them to do otherwise''~ •... -la, ll;, 8 - And thnt wns that. The: learned magistrate found that there were interferrnces with the liberty of the voters at the two polling stations and this weighed heavily with him. Indeed, though he did not sDy so in terms, it is clear from the penultimate paragraph of his judgment that the alleged intcrfcr<onces were the overridinc reason that ultimately led him to ovoid the election. In effect, he found that the alloged interferences were of such nature and magnitude that they prevented the election from being an entirely free exercise of the franchise of the voters. Th0 second ground of the appeal is'diructed at the findings of th€ learned mngist~ate on the credibility of the witnesses he belfoved-. l~s .stated above, it is the Attorney-General 1 s subr.1ission ~ that th1: learned magistrate should have approached the evidence of those wt&nesaea with greater caution. Counsel has submitted that it was unaeie to rely on the evidence of P.W.3 and· P.W.5. We think there is substance

in this submission. It appears that the learned magistrate d.id not direct his mind to the fact that these two witnesses had not reportad the alleged interferences to any one in good time, even while Mr. Akaro who then represented the Attorney-General had made o fairly lengthy submission obout it. We think that this point merited consideration. P.W~3, for one; had ample opportunity to raise the matter before the neeting of the villac-e political committee· that was hGld after the election. She did not uttor a word about it, even though that meeting had been specifiMlly convmed to review the election~ As we have observed, the leomod magistrate rated ·her aa an impressive witness. He might be right. Howeverf we find it highly doubtful that she could have taken the situation lying down, so to speak. With regard to the alle~ed interferences at Kituo cha Mifugo pollint• station we entirely ogree with _the view expressed by Mr. Ihena,1 which view was shared by Mr. Mranba • that it was a' serious error on thG part of the learned nagistrate to treat the Attorney-General's witnesses as he did.· It was obviously an unjudicial teDperoment and a wrong approach and it strongly smacks of prejudgment~ The r:iatter was strongly contested and in our view thE: evidence adduced by the Attorney-General deserved an equable and objective evaluation. It is just impossible for us to say whether the

learned nagistrate would hnvG reached the saBe decision if he baa· sufficiently and fairly reviswed and. weighed the evidence of the Attorney-General • •••• /9. -_. - 9 - In the event we allow the se:cond ground. Next we turn to the second Dllegation and this has reference to the third ground of the appeDl. It was alleged in the petition that~ "In Jitengeni polling district thGre were two regist;-ation stations and at the time of registration voters were inforraed that two polling stations would be opened at the stations where registration took place and that·,~-~W would vote there. (But) on the election day three polling ·stations were opened (elsewhere) and voters got confused regarding where they would vote i:lnd consequently t1any did not v0te 11 • It wDs common ground that in the polling district in qm stion the registration of voters had taken place at two places i.e. Village Shop A and Village Shop B. There was believable evidence that at the tine of registration the electorate: had been told that on the day of election the tw~ shops would. also serve as polling stations and that each of the would-be voters would vote at the place .he or she had registered. Further 9 it was common ground that in due course this arrangenent wos changed by the Returning Officer'. He designated three other places to be polli.n/I stations, na1:iely Kituo cha Mifugo, Shule ya Msingi arid

Nyur,1ba ya Mnshini. The petitioners contended, although this was not part of their pleading-s, that the Returning Officer had foiled to observe the- provisions of section 56 (a) of the Elections Act. · '.11he petitioners produced twelve witnesses in their endeavour to Gstoblish th,, al~egotion. These witnesses were P.W.9 Alli Mohm1ed Habib, P.W.10 Mwajabu Hussein Makasi, P.W., 11 Abdi Hussein Msagati, P.W.12 Ramadhani Molewa Mbelwo, P.W.13 Habiba Hassani 9 P.W.14 Athuranni Hauisi Shechambo, P.W.15 Asha Shauri, P.W. 1"6 Abdallah Juma Madada, P.W.17 Saidi•Kijazi MDlimbwi, P.W.18 Juna Hassani, P.W.19 Abdollah Mohamed Mwaeyero and P.W.20 Ibrahin Athunani. / By and large the evidence of these twelve wi,tnesses was a mass of dEJtoils about how they presented. thenselves to the ' polling stations that had been allocated to ihem, how they were told thnt they wore not listed to vote there, how they were successively directed or referred to other polling stations, how soue of thes gave up in the end, and how others reached et their re-allocated ·polling stations only to f:lnd the poll closed. In short their evidence, when ta~en together, portrays tho prevailing state of affairs ·oa one of great confusion that was ~~centuoted by some singular indifference and discourtesy displayed by one or two polling officials, so much so that a considerable ntlfilber of voters despaired and went home

without voting • . • • • • • • ;10. - 10 - Two of these witnesses i.e. P.W.9 nnd P.W.10 had been the r.egistrotion flssistonts at Shop A ond Shop B, respectively. These two octuolly voted at Kituo cha Mifugo and Shu~e ya Msingi, respectivly. P.W.11 9 P.W.12 and P.W.17 also voted. These-~._, thre.:, 9 flS we l1av0 olready seen, ware the witnesses who clD i:oed that attenpts had been Eiade at Kituo cha. Mifugo polling station to prevent the free eJ:ercise of their franchise. Those who said. they gave up and. left without voting were p·.w.13, P.W.14, P.W.15 9 P.W.18 and P.w.19. And those who sa'id they arrived at the:ir re-nllocoted polling station after the poll had-closed were P. W.16 and P.w.20. The learned magistrate accepted the evidence of these witnesses on tile point. In consequence he found thflt a large number-of voters in that polling district did not.exercise their right to vote on account of the alleged confusion. That, as we will try to show presently, is probably not true. One thing is clear. No ulterior raotive on the part of the Returning Officer or any of the organizers wns alleged, let alone proved. According to the Returning Officer D.w.s Petro Mdoe, the cancdlation of Shop A and Shop B and thG selection of Kituo cha Mifugo, Shule ya Msingi and Nyunbn ya Mashini stem:.ued from two considerations, one being the number of p~ople who had registered as voters in

the polling district and the other being the general suitnbility of the places. He had apprehended thot there would hnve been ht;·avy pressure on the two polling stations that had earlier been earuarked. Apart frora that the local Party officials had mode ropresentat ion to him depreciDting Shop A and ShoJ> B and recommending Kituo ch.a Mifugo 9 Shule ya Msin&i nnd Nyur.1bn ya Mashini. He gave notice in writing showing the voters that had been assit.,"!led to each of the three polling stations and had the notice placed in conspicuous places at the polling stations. The notice was displayed at thos~ places as from 16/10/85, that is ten days before polling day. The evidence of the Returning Officer found support in the testi1:1ony of the local Party officials like D.W.12 Saidi Salurau, the village Chairman, and D.W.13 Athumani Shekilango 9 a member of the village political cof'.ll11ittee. These witnesses added that the village authorities employed one local crier nicknrmed Dodoadodoa to ;noise the changes abroad around the polling ,.: district • • • • • /11. - 11 The AttornGy-General also led evidencG through the presiding officers as well as the polling agents at those polling stations to deny that thero 1-1as mich confusion as alleged by the petitioners. They stated that in tho few instancos where voters called at the wrong polling stations they were directed. to go to their

assigned stations. The learned magistrate preferred the version of the petitioners nnd held thDt the Returning Officer had not adequately complied with the provisions of section 56 (a) of the Elections ,\ct. l\nd he belittled the Returning Officer as a person who was not equal to the task. It hos been submitted th3t the learned magistrate erred in holuing so and. we respectfully agree. Section 56 (a) read together with section 47 imposes certain adninistrutive duties to be perforned by the Heturning Officer. One of theia is to give notice in such manner as he thinks fit as to the vokrs assigned to each polling station 1 where D -polling district happens to have two or more polling stations. Such notice r:rust be given more than seven days prior to the election d.ay. On our part we hesitate to say that the GVidence of the Return:ing Officer in regard to this natter wns false. As we have shown above, his evidence did not stand alone. The local election organizers lent him full support and there is nov£Jy we can say with certitude that these witnesses were lying. We are satisfied that the circumstances clS narrntC::d by these witnesses warranted the change. As observed, tho Returning Officer notified the electorate of the changes ten days • .. - before the election dny, and other appropriate actions followed. We can hardly think of any other practical measures that the

Returning Officer and the local organizers should have tnken in that connection. And look at the, nearness of those three polling stations: Shule ya. Msingi is about 200 paces fror.a Kituo cha MifugoP and Dbout 600 paces from Nyumba ya Mashini 9 nnd from Nyu.mba ya Mashini to Kituo cha Mifugo is also Dbout 600 paces. Surely these are ensily walkable distances. ....\ ··•··.. . . - ..... ~ Having carefully considered all these facts and the law applicable we nre de:finitely of the, opinion that the Returning Officer did not contravene the provisions of suction 56 (a) of the Elections Act. We are satisfied that if there were any voters who eenuinely wanted to vote but did not vote on account of the substitution of the polling stations their number must have been minmal • •••••• /12. \ . -. , . • · - 12 - In all s1:ven witnesses alleged. that they did not vote on account ' of th0 change. It was in Evidence thGt in the whole polling district 1,079 people had rGgistered as voters. Those who voted wGre 726. Thus those who did not vote were 353. However, we dismiss as unlikely the possibility that all who had registered actually turned up to vote. We doubt if the turn-out ever gets to 900/4 at such elections·. The turn-out in the whole Korogwe constituency was of the order of 70%. The raargin of victory, ns shown, was 1,044·. So even assuming that all those who registered came forward

and made a bid to vote and. tru::it the 353 would have voted for the candidnte who lost thnt nlone would not have affected the results of the election since the winner would still have had. a majority of 691 votes. We think the l0nrned msgistrate should. have paid due attention to this fact. For what we have stated we; allow the third gr.ound. \fo then turn to the third allegation, namely that on election day ' a.t Kwene:ngu Shule ya Msingi polling, station ballot boxes wEre opened by the presid.ing officer. The Attorney-Gener.Jl admitted this allegntion from the very st.Jrt and the only question that arose was whether the opening of the ballot box w2s done in good faith or not. It happened that in the Korogwe constituency some presid.ing officers had been given the keys to the b8llot boxes by the Returning Officer and we ru::ive been informed from the bar that this was contrary to the directive of the Electoral Conmission. However, it appears to have; been common ground that this was z a bona fide mistake on the part of the Returning Officer. D.H.2 Manento Mjema, the presiding officer at Kwemmgu Shule ya Msingi polling station, was one of the presiding officers who were ,given the keys. I:IG rGlatGd. tho circuBstances under which the ballot boxes came to be opened at the polling station. According 'to his account, one voter, a woman,. had entered. the screened room to cast her

votG. She took an unduly long time to do so and he D.W.2 became curious. He went inside the screened room to find out what was: happening. We will let him take up his storyg .,,, "I noted. that she; was pressing somethin:-.: .. · into ·the parliafilentary box. On cl::Mking I found ,:,u-c that the piece of paper wns a presidential ballot paper. The ballot paper was stuck. I had no way of extracting it or pushing. it in ( demonstrated how the ballot paper •••.•• /13. !I- t," .• j - , . ~·1 • 13 was stuck). I called the militia and polling agent, I auggGsted to them that w~ open the ballot box. They ogreed. So I broke the seal and opened the ballot box_. I extracted the ballot pnper. I then found two more presidential ballot papers in the parliamenta.cy- box. I took them out. I opened the presidential ballot box. I found three pnrlinmontary ballot pa~rs. I took them and ,._ I put them into the parliamento.ry ballot box. I then resenlGd both boxes c:md locked them ngDin. All this time t the polling agent and militia were present. I could not know at this moment where the Returning Officor was. He was going a.round all polling stations". The polling agent P.W.23 Mnguni Kiondo and the militior.ion P.W.4 Iddi Bakari cane to give evidence on behalf of the petitioners. They wore examined on this incident and they gave corroborative evidence. The learned magistrate stated in his judgment

that he was not impressed by the explanation given by n.w.2. He took the view and found it aa a fact thDt the ballot box~s were opened in bnd faith. He mode some reference to section 1_09 (b) of the Elect iona .Act, but we confess our inability to apprehend the .relevance of thDt provision-~· The Attorney-General has contended in the fourth ground of appeal that the learned magistrate erred in holding that the opening ··of those ballot boxes was done in bod faith. Mr. Iheoa has submitted, and Mr. Mromba, has conceded, that there wns no firm evidence to support the finding of the learned mogistrate. With respect, we also ·see none. We a.llow the fourth grourid~ Finally we come to th~ fourth olleg0tion. This is the allegation that certain polling officers omitted to stclmp several pnrliamenta.ry ballot papers with the official Lmrk and that 222 such ballot :pa.p.ers that had been cost for the unsuccessful candidate were declared spoilt. This is another aliegotion that was not denied by the Attorney~ General, throughout~. !t is by no means clear. where those votes ware c0st~ The evidence of P~W.22 John Buko and D.W~21 Enda Mlikaria is importont. These witnesses were the counting agents of the unsuccessful and successful condiclotes, respectively. The teatiraony of D.W.21 showed. tb&t 206 other ballot papers that had been cast for the successful candidate also did not bear the

official mark and that they too were declared spoilt. This piece of evid£noe stood unchallenged and in fact P.W.22 tended to lend it support when he told the court that many more votes were spoilt in that manner. ., . - 14 - The learned magistrate dealt with this matter in a rather bewildering manner. This is what he stated in his judgraent: 11 It would appear tru:it a certain official at a particular polling station chose curiously not to stmnp l"hlya I s ballot papers del iber.atGly. If it Wl:!S accidental we would. have expected this accident to appear on Alfani Kihiyo •a ballot papers ........ it was a. serious irregularity on the part of the officials not to star..1p Muya's ballot papers deliberately". The Attorney~eneral has taken issue with that finding in the fifth ground of the sppeal. He has contended that 11 the learned magistrote erred in holding that there was a. deliberate omission on the part of the eloction officials to stamp only Mr. Muya 1s ballot papers"• Y.u:. Mramba has conceded, and we think properly so 9 that there WM no cogent evidence to support the finding of the learned magistrate tho.t the omission to atamp those ballot papers was deliberate. In actual fact the question whether that omission was deliberate or not was not one of the issues that had been franed and was never seriously urged n.t the trial. As Mr. Mramba has pointed out, the

petitioners were not in the least suggesting that there had been any tampering with the ballot papers in question. .lmd on the evidence as summarised above it was clearly a non-direction on the part of the magistrate to soy that the omission was one~sided. In our view much remained in the reau of conjecture about that omission. We feel that the omission ean plausibly be explained upon the theory that it was due to the sheer ignorance of some polling officials, end we agree that nothing should have turned on it in this case. We mny add that the successful candidate would still .retain a martin of victory even if 222 votes were to be adjusted in favour of the unsuccessful candidate~ We therefore allow the fifth ground of the appeal. In the circumstances the decision of the learned magistrate cannot be allowed to stand. We allow the appeal and w~ set aside the order nullifyin{s the election to Parliament of Mr. Ki~o. We aff.iXI!.l-t!.!,e election and we award costs to the Attorney-General ~an0 ct::b'l' ,.-ue,:e . e ow .. ,. / v: . ") ·, I I.... . ··' u"- , ,-. o-:PA'l'_EP, at ·D;IJl ES SALAI\M th ia 111th "day of December, 19 87, f\. •,~~;/ .~/ • :J• ,.·· •·.•~ · ; (•) . .. . /15 ,t_::~;-',•j_;' • j f - 15 ..; A. M.A. OMAR JUSTICE OF APPEJ.J, L. M. MF.A.LILA Ag •. JJJSTICE OF APPEAL D. P. MAPIG.11.NO Ag. JUSTICE OF APPEAL I certify that this is a true copy of the original. JJ-:~-v (J. J.M. MIi.CK.ANJA)

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