19981210 TZCA Dar es Salaam

• ,I IN THE COURT OF APPEAL OF.TANZANIA

AT DAR ES SALAAM (CORAM: f2!]3UVJi_,._ J. ~ •~1. ~~4.__J.,.J,. L.3-1}5!_.~JgAK~j'JGIRA , J A• ) o CIVIL APPEAL NO. 29 OF 1998

BETWEEN . AUGUSTIN LYATONGA MR1™.A 0000000000000000 APPELLANT AND (1) DONATI MATHEW MBWAGAI •••oo~o••o 1ST RESPONDENT _,,__ (2) JABIR ALI JABIR 0000000••~0;0000 2ND RESPONDENT ..I .\ (3) MWINCHANDE ALI MPEMBENWE 3RD RESPONDENT 0000000 (4) YUSUPH MASUDI JONGO 4TH RESPONDENT 00•000,00••• (5) STELLA MIX)E SINGANO •••o••••oo•o 5TH RESPONDENT (6) IBRAHIM SAIDI PONERA ••••oo•ooo• 6TH RESPONDENT (7) KASSIM SAIDI KIAME 7TH RESPONDENT ••-00000000•00 ( 8) HON. ATTORNEY GENERAL • o •••••• .,- • 8TH RESPo:r-IDENT (Appeal, from the decision of the High Court of Tanzania at Dar es Salaam) dated the 2nd day of De9ember 1997 in JUDG!€NT OF THE COURT 'rhis appeal contests the decision of the High Court at Dar es Salaam (Katiti, J.) on a preliminary objection. The appellant was the successf~l candidate in a parlia~entary by-election for the Temeke ·constituency held on 6. 10.

96. The first to seventh respondents were registered voters in the by-election and are challenging the appellant's election before the High Court in an election petition, Miscellaneous Civil Cause No. 139 of 1996. The Attorney General who is the eighth respondent in this appeal is cited as the first respondent in the petition. At the filing of the petition on 21-.10.96, Exchequer Receipt No. 03554725 for 4,5001= was issued by the High Court Registry. This receipt, however, did not particularise the items paid for but states - 2 merely~ HIN RESPECT OF Misc. Civil Case No. 139/96/i On 19.8.97 the presiding judge fixed~ date for hearing the petition but this kept changing for various reasons~ \r!hen the petition came on for hearing on 1.12.97, learned co1msel for the appeilant Mr. Nyange raised a preliminary objection to the effect that security for costs had not been paid as required by rule 11 (1) of the Elections (Election Petitions) Rules; 1971. He submitted that the petition was therefore not properly before the court and prayed that it be dismissed. He should, of course, have prayed that it be struck outo In reply, Mr. Kisusi, learned counsel for the first to seventh " respondents, resisted the prayer by demonstrating that security for costs and other items like filing fees.were all comprised in the omnibus receipt.' As a precaution also he had that morning paid a further

sum of 1,000/=. He was supported by Mr. Kamba, learned Senior State Attorney wh.o appeared for the Attorney General. The court overruled the objection, hence this appeal. We were more or less treated to the same arguments and replies at the hearing of the appeal. Mr. Nyange 1 s basic contentions were that security for costs has to be paid at the filing of the petition or within .the time the petition may be presented, and that it was not paid in this case since the receipt did not spell it out. The relevance of Mr.'-Nyange 1 s further contentions depend rather on whether the foregoing can be answered in his favour and need no particular mention. The answer to the first contention should be looked for in rule 11 {1) itself. It reads: The Registrar shall not fix a date of the hearing of any petition unless the · petitioner has paid into the court as security .for costs the sum of five hundred shillings. ) - 3 - . First of all, Mr. Nyange came up with the argument that ' 1hearing of the petition" commenced with the hearing of all prelim~nary matters. He did so because ,on 17.4.97 the Senior Deputy Registrar of the High Court fixed a hearing da.te for an application to amend the petition. We are unable to agree with him. An application to amend, as distinct from a prelL~inary objection, is directed at the constitution or the making of the petition itself rather than its }' fate. In

this case, for instance, after the ruling on the application to amend, there followed the amended petition, the respondents' replies to the amende~ petition and the petitioners' reply to those replies. Until that stage the petition cannot be said to have been ready for hearing and it is a curious argument which suggests that hearing of a petition comniences with the steps intended to bring the petition about. In truth, therefore, the Registrar never fixed a hearing date of the petition on 17.4.97 or at any time accordin~ to our \ appreciation of the record. Then, secondly, we can find nothing in the sub-rule to support the contention that payment of security for costs has to be made at the filing of the petition or within the time when the petition may be presented, which is fifteen days from the announcement of the. election -results. The sub-,rule makes payment of security for costs a necessary 'C;ndition for the Registrar to fix a hearing date, and to that extent it operates compulsively, but it is not correct to say that a petitioner is obliged to pay security for costs at the time of filing his petition. If the Legislature.had intended such a position it could easily have said so. Accordin,g to rule 8 (1),. for instance, a petition has to be lodged with the payment of the prescribed fee. Similarly, according t; rule 114 (1) of the Court of Appeal Rules a civil appeal can

be lodged in thi,s Court only upon payment of 2,000/= as security for costs. It is therefore clear to us 4 that under rule 11 ( 1) _a petitioner is under no obligation to :pay security for costs at the filing of a petition but may-postpone payment until the pleadings are complete. Mr. Nyange 1 s second bazio contention was that security for costs was not paid in this case., The learned judge in the High Court appears to have been ambivalent on the issue. He observed that "the amount ~f ~,500/i/ may well have comprised the security for costs {._tufJ there- is no way of knowing by just looking at the ERV Generally he held that if security for costs 1vas not in fact paid, it was an irregularity curable under-rule 27 (1) of the Election Rules. ·1:Je were fortunately spared the dilemma of the learned judge for we think the, circumstances were such as to permit an unequivocal answer to the question. Mr. Kisusi 1 s analysis-of the Lf,500/= payment shows an excess or.balance of 1,000/= which not even Mr. Nyange could explain away~ The filing fee' was 500/= according to item 1 of the Second Schedule to the Election Rules~ service charges for two respondents were 2,000/= according to item 12 of the schedule to :he Court Fees (Amendment) Rules, 1996 (GN~ 120/96); and fees for tendering two exhibits come to 1,000/= according to item 17 of the same. The total is 3,500/= leaving a balance of

1 7 000/=. We find it difficult to accept Mr. Nyange 1 s arg1-unent that this was not security for costs me.rely because the receipt did not state so. The rationale of conceding, as Mr. N:yange does, that· filing fees were paid, but net security for costs, when neither item is spelt out .0n the receipt; hardly commends itself to reason. Either everything was paid or - nothing was paid. We think, with respect, the balance of 1,000/= represents payment of security for costs at the rat_e of 500/= for + eac_h respon d en~~. ~n reac h.ing +J T . view .., 1~s . we s_h ould no t b e un d ers t· oo d as condoning the perfunctory inanner in which receipts are sometimes .. - 5 prepared but ;;,ish to deprecate it strongly. \rJe think, however, that. clerical errors in receipts .is an irr~gularity which has no bearing on the form or substance of an election petition and cannot lead to a miscarriage of justice. It is therefore of little moment. The appeal is dismissed with costs. ( DATED at DAR ES SALAAM this 10th_ day of December, 1998 .. D. z. LUBDVA

JUSTICE OF APPEAL B. A. SAMATTA

JUSTICE OF APPEAL { K.S.K. LUGAKINGIRA JUSTICE OF APPJi::AL I certify that this is a true copy of the original. i~J I ( A.G. M\-JARIJA) . .DEPUTY REGISTRAR