ndugu basil p mramba and another vs ndugu leons s ngalai 1987 tzca 29 7 august 1987

IN THE COURT OF APPEA- OF TANZANIA AT DAR ES SALAAM i (CORAM: Mustafa. J.A.. Omari, J.A. and MapiqanQ. Aq.J.A.,) CIVIL APPEAL NO. 27 OF 1987 B E T W E E N 1. NDUGU BASIL P. MRAMBA . ) . APPELLANTS 2. THE HON„ THE ATTORNEY— GENERAL) AND NDUGU LEONS S. NGALAI ................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Hoghl) (Sisya, J) dated the 19th day of February* 1987 in Election Case No. 119 of t&85 JUDGMENT OF THE COURT " MUSTAFA, J.A. : The first appellant in this appeal, Basil Pesambili Mramba, was the succejs-ul candidate in tha Parliamentary ejection in the Rombo Constituency held on 27th October, 1985. He beat his opponent, Leons Silayo Ngalai, by 22,340 votes, having polled 36,565 votes against Ngalai's 14,225 v'-’tes. Ngalai successfully petitioned "in the High Court (Sisya, J.) against the \ election of Meamba as a <Member of Parliament. The High Court declared the election of Mramba void and from that decision Mr. Mrr.mba has appealed to -this Coxxrt. The Attorney—General has joined as a co— appellant. - 2 For convenience, we caxi the first appellant Mramba and the respondent. Ngalai- Mramba was the Minister of industries and Ngalai-the sitting member for Rombo for the previous fifteen years. Mr. Ngalai's petition to the High Court contained 39 grounds of complaint. They include corrupt \ practices, i.e. bribery and treating,’disruption of campaign meetings, secret campaigns and acts of non- compliance with the na^provisions of the 1905 Elections Act. The High Court dismissed the allegations of bribary and treating and disruption. Ngalai abandoned a number » of complaints in the course of the trial. The High Court found ten incidents of illegal .. ^ ■’ooiiipaigns i proved, three of which were by clergymen. Mr. Ngalai has fj-ied a cross-^appeal against tha thedismissal by the trial judge of two charges of bribery against Mr. .Mramba. He also purported to file a cross-appeal'alleging incidents of treating on the part of Mr. Mramba during three occasions of illegal campaigning. Before us, Mr. ".Lakha appeared for Mr. Mramba, Mr. Mlawa for the Attorney-General and Mr. Jonathan vdlth Mr. Shayo for Mr. Ngalad- Before we proceed t'-> c jal with the appeal, we think it wou?d be convenient to dispose of the crOss- appeal first. On both thj occasions involving bribery, the trial judge foUnd that the allegation of bribery was supported by evidence of witnesses . ... ,./3 nd accepted the sums of money, who had received and acc p . -i nOO/-t respectively# i.e. shs. 1 ,5 0 0 /- and shs. 1 ,000/ re'corroboration of such •it. held that he would requi~ .9. • ’’ hpr0 e he was prepared %o accomplice evidence befo, ... i^hed. He could not find the allegations established. nhoration. Mr'. Shayo submitted find a n y corroborati he trial judge had erred in requir ng before us that the triai j g ..v , He sta^d that if the trial judge ^ corroboration. He star._a - b eU . v e d « , «i— - « " •— »“ r should have found - a l i e n s Proved ij<=> -Fail to under— • r Q-f corroboration. the necessity or stand how in such circumstances Mr. Shayo could contend that the trial judge had erred. Mr. Shayo’s "argument' is'‘totally devoid of merit ^ n e ^ ^ ' further consideration- ^ ^ ^ .; ’> * ' ■ tf r e g a r d s «h. ,Xi.g.Uo»* <* ' *' • * ? ' in *\c Zt . =««.— <* « * « of « » T S V thls x ij court pointed out to Shayo that on those three C * o c c a s i o n s ' t h e a l l e g a t i o n s w e r ® m a d e * » » ■ » « * , - 'v 3 . nd treatinq as such was not alleged „ illegal campaigns, and trea i .tn , . \\ L "those three occasions was not Treating as such _^ c’h?/! '■■■■>■■ n, •si*4 tL1 or put to the other averred, canvassed ^at the.teia , ‘ party. ’’ The'question of treating w a s not in issue **«£r ^ an issue, nor' raised directly or indirectly o r b y implication. Kr. Hra„ba had no opportunity to % % , ' * givet an explanation of ^ Further, among the allegations m d e in th.-_* petition at least one was directly connected with treating, and that complaint Was rejected -by the trial judge. In those circumstances, it •.-•os not. proper for Mr. Shayo to raise these allegations on appsal, since they wera not the subject of adjudication or consideration at the trial court. Mr. Shayo conceded that such allegations of treating w.'re not properly raised, and he abandoned them. The cross-appeal fails. We now turn to the appeal of Mr. Mramba. B^fora we consider the incidents connected with illegal i campaigning which the trial judge found established, we would deal with the grounds of appeal which raised issues °f law. The crucial point of law raised, in our view, is whether an illegal campaign is an illegal practice.The judge appeared to hold, as a matter 0^ course, that an ;;illegal campaign was an illegal --.practice. He stated in his judgment:- "Therefore ..„ election campaign- ... by any body individual oth?r than . the - .Party or by permission of the Political Party is illegal. ... As none of them was .... organized or managed - and not evin authorised by the Political Committee of tho Party each of them was illegal. Each consfcitutdd an illegal practice.". .* 5 Mr. Jonathan supported the judge's proposition. t He referjred to section 51(1) (b) of the Elections Act, 1985, which reads:— "51. - (1) Where there is a contested election in a constituency - (a) ... (b) no candidate at such election nor person acting on his behalf (whether or not such person is acting with the approval or consent of the candidate), shall convene or address any public meeting in the constituency for the purpose of furthering the candidate's election, other than the meeting held by or under the*auspices of the Political Committee of the Party and no candidate or any such other pers°n shall undertake any public or door— to— door canvassing save as may be permitted by the Political Committee of the Party.". He submitted that any act in contravention of the provisions of section 51(1)(b) would be an illegal practice as such a contravention went to the root of the Elections Act, since that would prevent the holding of free and fair elections. He went on to submit that only a prohibited act committed in the course of a lawful campaign would be an act of non—compliance with the provisions of the Elections Act, and not an illegal practice. He instanced the provisions of section 52(2) the contravention of which, such as the failure to affora a fair and equal opportunity to the candidates to address a campaign meeting, as an act of non- t compliance. However, section 52(2) refers to "non—compliance with the provisions of this Part or with any rules of the Party made for the purpose of this Part;" and both sections 51 and 52 are contained ■V • • ••/o 6 - in Part VI of the Elections Act, under the heading "The Election Campaign". J the, deletion Qf.the Mr. Jonathan also referred to I 1 •• ‘ v..-, words "or other misconduct" from section 108(3)(d) of th'3 1985 Elections Act. The provisions of section 108(3)(a) ars the same as those of section 123(3)(a) of the repealed 1970 Elections Act except that in section 1 2 3 ( 3 ) ( the words "any other misconduct" » were included. He was of the view that the deletion of the words "or other misconduct" was done because they were "unnecessary" as they were ejusdem generis with corrupt or illegal practices- Mr. Lakha submitted that an illegal campaign was an act of non-compliance and not an illegal practice*. He contended that . constituted an illegal practice had b-?en sot out in section 1 0 2 (2 ) and section 103 of the 1985 Elections Act. Although tha two sections are not exhaustive in defining illegal practices, yet they are the only ones setting out what would constitute an illegal practice. Similar provisions provide as to what would constitute corruption in tha form of bribery and treating and so on. In elections held under the 1970 Elections Act, illegal campaigns had constituted illegal practices by virtue of the words "or other misconduct contained in the provisions of section 123(3)(a). In CA 22/81 Mzindakava v. Nqua {unreported), the trial court described the three /o7 .7 i illegal campaigns as illegal practices. This Court corrected that and stated "The trial judges found that the three allegations of illegal practices, or more properly, misconduct ... In section 51(1)(b) of the 1985 Elections Act "a public or door-to-door canvassing" is prohibitted. In CA 3/82 Wei 1a v. Kondo & Others (unreported) this Court, in dealing with "public canvassing" as contained in section 6 6 (1 )(b) of the 1970 Elections Act, which was in pari materia with section 51(1) (b) of the 1985 Elections Act, had h-.;ld that "an illegal or unauthorised public campaign o.- ci:irassin7 .... amounts to a misconduct within the meaning c-c the provisions of section 123(3) (a) of the (1970 Eloutions) at page 28, and at page 24, a .pirnilor view was exp cos sod. An illegal campaign was not included in the definition of an illegal practice in i . section 1 0 2 (2 ) and section 103 of the 1985 Elections Act. In CA 20/81 Chiwanga v. Supa (unreported) this Court held that: "not every offence or tho contravention of the provisions of the Elections Act, 1970, amounts to an 'illegal practice'. Th^ expression 'illegal practice' must be confined to the specific offences or contraventions expressly so described.U. In section 108 of the 1985 Elections Act which deals with the avoidance of an election on an election petition,/ the election of a candidate could Only be declared void on the ground of corrupt practices, or illegal practices or for non-compliance with the provisions ........../ « 8 of the 1985 Elections Act. The only other ground would be that the candidate was not qualified. Illegal campaigns were caught by the provisions of section 123(3)(a) of the 1970 Elections Act due to the words "or other misconduct" included therein. i-V* These words are missing in the provisions of section 108(3)(a) of the 1985 Elections Act, and an illegal campaign would not contravene' the provisions of th^ said section 108(3)(a). An illegal campaign, since it was neither a Incorrupt or an illegal practice could only be an act of non-compliance in terms of section 108(3)(c) of the ■i’ ' 1985 Elections Act. Mr. Lakha further submitted that the contravention of the provisions of section 51(1)(b) of the 1985 Elections Act could not possibly go to the root of the said Elections Act. Such a contravention would be a non-compliance with^the provisions of the election f - :V campaign iy the 1985 Elections Act. This Court had pield, in CA 26/81 Kasusura v. Kabuye (unreported) that 'no non-compliance with the election provisions goes to the root". We are satisfied that with the deletion of the words ’*■ 'fir- '■ * • >"or'other misconduct" from the provisions in section -■% 5‘108(3)(a) of the 1985 Elections Act an illegal campaign would not offend its provisions as it would ^no longer be a "misconduct". An illegal campaign . . ../9 9 is not an illegal practice, jn^ tho provisions applicable would b<^ section ”108(3) (c) , which deal with non-compliance with the provisions of the Act. An illegal campaign is such non-compliance. We are of the view that the trial judge erred when he held that the illegal campaigns constituted illegal practices, and contravened either the provisions of section 108(3)(a) °r section 108(3)(d) of the 1985 Elections Act* We hold that an illegal campaign is an act of non—compliance and contravenes the provisions of section 108(3)(c) of the 1985 Elections Act. The other point of law in the appeal refers to the standard of proof required in an election petition, °n this issue Mr. Wlawa associated himself with Mr. Lakha's submission. We think that it has now been established that a petitioner has to prove his case beyond reasonable doubt, as in a criminal trial, although an election petition is a civil matter. This point is not in dispute. An°ther point of law raised, indirectly, concerns the nature of an election petition. Mr. Lakha submitted that members in an audience participating in an illegal campaign would be accomplices, more or less as in a criminal trial, andi.theii~ eirddence : .wo.uld normally need corroboration. We think that an election petition, though primarily a civil suit, has certain features usually associated 10 10 with criminal matters and this factor'nivos it a r,th,r hybrid character. In th« t W Elections Act, thar. are offences which attract punishment in the form of fines or imprisonment. Howler, th.se offences are concerned with corruption, bribery, personation, forgery and other similar kindred acts which are inherently criminal offences. It would soem that persons found to hav, k n i t t e d such acts could be tried in a criminal court, not in the court hearing the election petition. We think that in respect of such offences, as say in a case of bribery, the parties involved would be all accomplices, because they have committed criminal offences. In respect of non-criminal offences which attract no fines or imprisonment and which arise from non- cPmpH m v with tti.- I-W ‘'I,.-, /wt, wo .lo not think that the question of "accomplice evidence" can arise. Those would be acts of a civil nature, and a court would consider all evidence adduced in that context. This is rather an anomalous situation, but, as we have said, the 19S5 Elections Act is of a hybrid Character. We have formulated the above proposition I as a reasonable and workable rule, in the absence of ' any precedent or authority. would follow this rule in dealing with this appeal. . . . . ./II _ w _ In this appeal we would be dealing with a number of incidents in which the trial judge had found that Mr. Xramba hnd b.?en involved in illegal campaigns. tie h-r;v ■ b-'en -.rMrsssod on these incidents at length by counsel for the parties. Basically, Mr. Lakha for Mr. Mramba has submitted that the trial judge had erred in accepting the evidence adduced on behalf of Mr. Nga-'lai in respect of those incidents. Some objections were on the ground that » the trial judge h.id misdiro^;t;«'d himself in law, and some thar. hfc had rrisdirf.cte-j niinself on facts. Tiis i:-: ? :'.rst .m*.-.1 . me! in t-'->rms of the provisions of Rule .">4(1) of in; Tanzania court of Appeal Rules this Court ".ay "re-appraise the evidence and draw inferences of fsct". . h s far as findings b.'sod on f =>-~ts ire conc«*rns;d, ■■••j have not had the advantage the trial iu .ige h.-;d of hearing and seeing the witnesses, ;nd sue.-' findings a r : generally bassd in ' whole o;- in part of .3 tri^l judge's opinion of the demeanour and manner of witnesses. It would be only in rare circumstances that an appellate court would intefere with a trial judge's finding based on such an opinion,. But if there are good reasons to interfere, as for instance if the trial judge had omitted to consider or had misconstrued soma material evidence or had erred in his approach in his evaluation of the evidence adduced, ____/ - n then this Court can and v:ould intei_kfere» Wo would keep this principle in mind in our considerstion of the grounds of appeal. However, before we embark on an examination of the incidents one by one, we think we should disoose of Mr. Lakha's submission that the evidence led on the illegal campaigns was not in terms of the aver ment in the petition. In the petition Mr. Ngalai had averred that Mr* Mramba had conducted "secret11 campaigns. In the issues framed, issue No. 1 r«f.'r*s to the first respondent (i»e<. Mramba) conducting "secret" campaigns, although the 2 nd issue refers to influential clergymen conducting ’illegal" cai.ip^igns., Mr. Lakha submitted that no evidence had b.-en adduced about any "secret;l campaigns; all the campaigns alleged had taken place in the open. We are satisfied that the word "secret" was a misnomer; what whs meant was illegal campaigns, and the trial was conducted and arguments advanced on that basis. Nobody hed or could have been prejudiced. Perhaps what was meant was that th ; campaigns were conducted in "secret" from the Political Committee of the Party. that as it may, we do not think that this objc.ct.ion by Mr. Lakha has substance- The trial judge found that ten illegal campaigns by or on behalf of l'ir. Mramba had taken place. Th.? first illegal campaign took place at Usseri Market ____,/ - 13 - on 9th October, 1985, and wis the ^'subject of grounds 5 and 6 of th : appeal. Thr&e witnsssos testifiad for fir. Nqalai, the nost inrortnrt on.! being P.W. 6 , who alleged that he was pr -s «r-t vhen Mramba was .•>• introduced to the villagers in the Usseri Market as a candidate for Parliamentary elections. Mramba1s achievements were extolled ,nd ae then heard chants of "Mramba", "i-lramba”. saw Mramba in a short procession followed by about two—hundred villagers* ♦ As expected, the version given by Mramba and his witnesses was in direct conflict. Mramba alleged that he was passing through the village and had stopped to buy some potatoes. He met a man whom he knew and he asked the man to buy h.irn some potatoes for which Mramba paid the man. Mramba denied tint ^h^rc was any campaigning or procession or introduction or singing of "Mramba", "Mrambar". His witnesses supported him in that version. This in only a vary brief and abbreviated version of that incident- Mr. Lakha had laboriously gone through the evidence and dealt with each of the witnesses who had testified in excruciating detail. Some of his criticisms of the trial judge's findings on the incident were quite valid. We p^y tribute to Mr. Lakha for his industry* but we do not propose to follow his example in -scrutinizing the evidence in detail. . . . ./14 14 - The trial judqe had two versions beforo him, the versions were in conflict. In his judgment ho said, at page 45 6 of the record:~ 'There are, therefore, these two versions of 'a suDpOsndly same story. °ne of than is, obviously, not true. The duty is, of cours on the court to scrutinize and ;>r.'prois*2 th.. evidence with judicial objecti­ vity ind decide which one of the two versions is true or acceptable. As regards the first respondent, the court does not have to b :lieve the defence story, it is enough if the: said story sounds reasonably probable.11. We think that th trial judge erre-d here. Hr. Ngalai had to Drove his ’lleg.aticn beyond reasonable doubt, and Mr. Mramba did not hnve to establish a "reasonably probable" sounding defence. We think this was a mis­ direction by th - tri•’1 judg ■ on th'.' standard of proof and this vitiates his finding. We allow grounds 5 aa.i 5 of the .appeal. The 7th ■"'round of -i;.»p. il r>.-f :rs to the second illegal campaign which took place at the house of R.7.10 Leshabari on 12th October, 1985. It was common ground that a meeting did tak ; place and w=4s attended by about one hundred people. For Ngalai, three witnesses, P.7.35, P.W.37 and P.W.38 testified. They stated that th ?y ♦ were invited to and attended the meeting. While th^re Mr. Mramba was introduced to the gathering by RoW„13 as a candidate for Parliament and then Mramba stood up and greeted the gathering and confirmed that he was a candidate. Then on>' Rev. Kanuti urnr'd the gathering to vote for Mramba. ..../15 - 15 - Hramba denied that ho was there at all. He said he was with his sister Theodore at the material time. However, for Mramba, K.'I.IO, R.W„8 , RoW.13, R.W-14, R.W.25 and R.W.41 stated that the m eting was for fund raising for the Church., They all denied that there was any illegal campaigning or that Mramba was there. Again Mr. Lakha went into great and minute details in analyzing the evidence adduced by the parties. The trial judge disboli y.. 1 Mramba find his witnesses and preferred the evidonc:. • of Ngalai’s witnesses- Th a trial judge at page 493 c f the record, in connection with this incident st.-ited:- "I hav.- considered th.j defence story as told by R.i/J.s e, 10, 13, 14, 25, and 41 v >ry carefully, and ./ithout beating about the bush, I find that it do s not sound reasonably probabli .". Here again, th-> trial judg 2 had out on Mramba the onus of establishing his defence on the basis that it should "sound reasonably probable". That, as we have pointed out earlier, is i misdirection on the standard of proof, and vitiates the finding of, the trial judge. We allow ground 7 of the ap-> vnl. Ground 8 oi the appeal relates to an incident at Maporora pombe club on 26th October, 1985. P.tf.31, P.Vj.32 and P.W.34 t\?stifi>.'d on this matter for Ngalai. According to . thoir testimony, there were about 40 people in the pombo -club when a landrover driven by ..../16 - IS I p' R W t> T.4 ■ R * •4 3 r . W. B arrived and four p e r s o n s , ~ ^<>b, and another person -nt,r -d th, pombe club. A song in praise of Mramba was sung, and R.W.14 tddrcssed those present urging th.m to vote for Mramba. Shortly thereafter, those visitors left. „1 i? i/j M testified and all denied R.W.8 , .t.w.14 and R*w.^3 ajUIi that they wont to Maporora pombe club; in fact they alleged that they did not know wher,? the pombe club was. The trial judge, in his meticulous way, wont into . j i . ,* i up fool i t s ve d t h ’S the evidence in .great detail® witnesses for Ngalai and disbelieved the witnesses who testified for Mramba. And after reviewing all th, evidence he concluded that this allegation was proved, because "the denials (by R..-i.8 , R.W.14 and not raise any reason’ble doubt in tl»e mind of the court”. Despite Mr. Lakha’s submission that the trial judge had erred in holding that R.W.8 , R.W.14 -nd R-W.43 were partial witnesses, in the absenfw of any reason or ground, we are satisfied that the tctfal judge was justified in coming to the conclusion he did. Ground 8 of the appeal is dismissed. ♦ We come to gro u n d 9 of the appeal. It refers to an incident ,t th- house of ,,lfr-d satok»na on 2nd August, 1905. Thnro, it » js a il-.god, Kr=»ha ■■«.» introduced to a catering of about two hundr.id W f l o >s a Minister foe industries and a i>a r l i * , t „. y c ,ndic,to nd P^ple were » * « ! not to forget him. During the introduction of Mramba certain ceremonial passing of meat and pombe was alleged. Mramba allegedly spoke a few words to the people who gathered there. P.M.19 and P.W.20, who were invited to the party, which incidentally they were informed was for a celebration for Alfred Sa-laktfna1« golden wedding jubilee, testified to the above effect. P.W.21, who had accompanied another invitee to the party at s house, gave similar evidence as to what happened at the gathering. It was alleged that a certain religious \ element was imported into the proceedings, so much so that Mramba was referred to as the son of a lamb, or words i to that effect. Mramba denied that he was at the gathering; on that day he was at Arusha attending a Government meeting. In effect Mramba raised a plea of alibi. R.W.44 testified and supported Mramba's testimony that Mramba was at Arusha acting as an ad hoc Chairman of the meeting, one between Tanzania and Bulgaria. Here again, the trial judge went into minute details, some of which would seem ♦ irrelevant. T'here was a good deal discussed about a missing page from a minute file and the non-production of a hotel receipt. The trial judge considered R-W..V1 (Mshanga), the General Manager of Tanzania Breweries Farms Limited untrustworthy, presumably because hu wis w or kin c in an .institution under Mramba* s Ministry. Mr.- Mramb-t had put forward an alibi, contending that he was elsewhere at ,tho material time. He gav6 evidence of his'movements and *-W .44, who alleged he was acting in an official capacity at the Tanzania-Bulgaria meeting, testified in support. In respect of the alibi put forward, ... / 18 - 10 - the trial judge stated, at page 512 of the record "The Party who puts up an alibi for his defence has the burden of 'proof .... The measure of proof is on a preponderance of probabilitie s" . And again at page 514:- "I find that the alibi put up by the first respondent on this item, does not, on the balance of probabilities raise any reasonable doubt in the mind of this court."- An alibi plea is normally associated with criminal trials. as we remarked, before embarking on an examination of the factual evidence adduced, Ngalai had the burden of provinq his allegations beyond reasonable doubt, as in a criminal trial. We think that the trial judge erred in holding that the person relying on an alibi has to prove his alibi "on a .preponderance of probabilities" or "on a balance of probabilities". W.- think that on such :an issue, as in a criminal trial, the person has only to raise a reasonable doubt, and no question of probabilities, at all arises. The trial judge had erred in rejecting Mr. Mramba’s alibi for the reason he gave, and that was a material error of law as it related to burden of nroof. We allow ground 9 of the appeal. Ground 10 of the appeal. It was alleged that a meeting took place on 20th August, 1985, at the house of R.W.2 Timotheo. The m-eting was ostensibly to celebrate R.W.21s daughter's betrothal, but in fact it was to welcome Mramba as the guest of honour of R.W.2. Mramba arrived with a group of about fifteen people. Mramba addressed the gathering, which was estimated at 500 people by some witnesses, and introduced himself as a candidate for the Rombo seat. He was alleged to have said that in accordance ..../19 I'l - with traditional rites when a young tr--a was honinq to got married ho had to tike somo "litt.l-; thing" to his old people in or 1^-r v.'-' ■’■'tv.n recognition. H.; called on one Rev. Father shao to bl-ss the food. That was done, and food and brinks wp-re served. P.W.2, P .Vv„4 arid P.W.S, v;ho ...jno'1. th?t they attended the meeting on invitation, '■nd testified to that effect. P.W. 3 t-: stif iod ->nd stated that he had helped R.W.2 Timotheo, at R.W.21s request, to cart pombe for the party, and also to slaughter an animal, which he did. His evidence as to what happened when Mramba arrived at the meeting tallied ' '.with thi evidence °F P.W.2, P.W.4 and P.W»5. Mramba denied that he attended the party at the house of R.W.2 at all. He put forward an alibi / and said that on that day he h^d gone to rest at the house of R.j.25 Shirima. That ••/.=>s -just thrae days before the District Party nomination of candidates for the Rombo seat. R.W.25 Shirima confirnv-d Mramba's testimony concerning his visitan^ stay at R.w.25's house, although R.W.25 stated that it was an unexpected visit. R.w.2 Timothjo denied that he had hosted a party on that day at all, and ' particularly contended that he could not possibly have invited P.W.2 Frank to his house as he* and P „W <,2 {’rank were great enemies. A considerable amount of irrelevant evidence w»s adduced in connection with this incident. A good leal of testimony was given as regards the eAmitv between R.W.2 and P-W„2,. .-•and a number of court records apparently ___ ,/20 - 20 - » were examined to discover what had happened. Th was also some sort of a survey made of roads 'leading up to R.W.2's house, with the object of discovering whethar a bus °r other large motor vehicle could approach the vicinity of R.W.2's house. Mr. Lakha concentrated his criticism on the trial judge's assessment of the evidence of the witnesses who testified. He seemed to suggest that th3 ■ trial judgj favoured village Chairmen who testified for Mr. Ngalai but wai less! f ayonrabiy-'oiTiclinQd towards those called by Mr. Mramba. It is true that it was not easy to under­ s t a n d why the trial judge found Mr. Mramba's action in staying at Shirima'shouse to gvoid disturbance at Rombo unbelievable, nor why that should result in his rejecting Mr^hiriroa s.., evidence confirming that Mramba had stayed at his house on the material day. Nevertheless, the trial judge considered the evidence in detail and hewas xfully satisfied that the witnesses for Ngalai had substantially told the truth. He disbelieved R.W.2 Timotheo„ Aftc-r a detailed review of all the evidence I he concluded that Ngalai had established that a m 3 -ating did take place on 20th August, 1985, at the house of and that it was an illegal campaign. We are not orsparod to say that he was w./or^ in arriving at that conclusion, even if wa ourselves mi^hf hTve •:-idocifi -d otherwise. The trial judge did no'; misdirect himself oh law in < deriding this point. •We dismiss ground 10 of the aoojal. ..../21 - 21 - We come to ground 11.. This refers to the incidents at campaign meetings whura it w?is alleged that some motor vehicles, including an inter-city bus, displayed slogans written on the bodies of the vehicles, reading "Mabadiliko Rombo ni lazima".- Mr. Ngalai alleged that the slogan was to his detriment -as it indicated that ha was to be replaced by Mr. Mramba. That was the change expressed in the slogan. A number of witnesses testified to seeing motor vehicles, including a canter, a T.oyota pick up, a- Be$£'Pr$ ■ lorry and especially an Int^r-City Bus bearing this slogan. Itrwould seem that .nearly all the witnesses • i for Ngalai who testified, twelve altogether, alleged that they saw the Inter-City bus with that slogan at different campeign meetings. Mr. Mramba did not clarify whether he saw such slogans but stated that even if the slogan was there it was completely harmless. Three officials involved in the . campaign meetings, R.W.42, District Commissioner Rombo, R.W.47, Chairman of campaign rallios and R.W.48, a supervisory delegate alleged that it was not thair concern to look gt vehicles. K.w.31, a police inspector called by Mr. .Mramba, testified that he had seen an Inter-city Bus with the said slogan painted thereon at Cr»m-.-5J-icn meetings. - Mr. Mramba called R.'W. 33 -.Mohan Sinqh who allaged that he was building the body of the Inter-City Bus TZ 60624. (incidentally Mr. Ngalai in his testimony mentioned TZ 60624). R.W.33 alleged that TZ 6062a --------------- / 2 2 - 22 - was brought to his firm in Dar ’s Salaam in September/ October 1985 and was releas ;'l by him on 18th Dec-amber, 1985, that the bus nev-r L.ft his firm premises betwaan 5th October, 1985 and- 18th December, 1985. He produced his invoice and receipt books and was not cross-examined on this testimony. The trial judge was satisfied that the slogan was directed against Mr. Ngalai and in favour of change for Mr,- Mramba. He held that there was overwhelming evidence which established that at different rallies the slogan was exhibited on the bodies of the motor vehicles. As regards the Inter-City bus, he was particularly i impressed by the evidence of R.W.31, the police inspector which corroborated the evi ence of the bulk of Mr. Ngalai1s witnesses on that vehicle. In view of all this "over­ whelming" evidence he found that R.W.33 Singh had lied. We think it is somewhat drastic to label a witness a liar when his evidence is not challenged in cross-examination. However, we think that the trial judge was entitled to juxtapose the "overwhelming" 33 evidence on one side against the evidence of R.wf. -5 Singh, who relied on his invoice and receipt books in his testimony. Evidence in the f^rm of writing does not necessarily mean that it is infallible or conclusive, or indeed necessarily superior to oral evidence. The trial judg’ must have assessed the testimony before him and then he came to his conclusion, which ^ras supportable on the evidence before him. He was -.’Isatisfied" that the slogan iid exist on -the Inter-City Bus and the other vehicles. ,.../23 - 23 - Mr. Lakha submitted that th-- slogan was innocuous and could mean a change in Rombc without reference to the Parliamentary Candidates. We think that the trial judge was justified in the context of the circumstances, to civ-, to the slogan the meaning £ that he did. We think that was the correct interpretation. The trial judge adopted the proper standard of proof and we dismiss ground 1 1 of the appeal. Now to ground 12. Throe witnesses on the side of Ngalai, P.W.22, P.W.39 and P..J.40 testified. Th ?y \ alleged that they attended mass at Kikelelwa '.Church on the morning of 13th October, 1985. Aft^r Churchservice they got .out and one R.W.5 iVishomba introduced Mramba to the worshippers as a Parliamentary Candidate and then Mramba r.limbed up on his landrover and briefly addressed the crowd stating that'he was contesting the Rombo s^at, and was seeking their support. Mr. Mramba denied that he .swent to Kikelelwa Church on 13th October, 1985, He had gone to Kikelelwa at about 9.30 "urn. to dalivir a letter on behalf of a friend. He delivered the ljtter to R.W.16 and had lunch thervj. Mr. Mramba stated he did not even know where Kikilelwa Church was situated. R.W.5 Mshomba denied that he intr°duced Mr. Mramba after the Church service at Kikelelwa as alleged. H 2 said on that day he was elsewhere attending a meeting. K. .1 Galileo testified that he had assisted Mr. Mramba in locating the house of R.W.16, and ha,! taken Mr. .Mramba there--and- remained there for lunch, which finished at about 3.00 p.m. . . . ./24 - 24 jparently the trial judge was strongly - repelled { R.W.7, whom he found was a brazen liar> to such a extent that he observed, ^g«;. 550 of the racori:- "In the circumstances of this case, it is also my view that great suspicion is thrown ^>n the whole case for the 1 st respondent on this item by the introduction of such a witness (i.e. R.W.7).". R.»V.9 also attended Kikelelwa Church on that day, nd he denied that Mr. Mramba was there Campaigning as alleged. ■R.W.16 confirmed -the visit to him by Mr. Mramba n 13th October, 1985. 'R.W.46 Mandia, a St.Tte H o - j sj ody guard assigned to guard Mr. Mramba during the campaign eriod confirmed Mr. Mramba's evidence in substance. The trial judge was of the viey that Mr. Mramba ras untruthful as he found it inconceivable that Mr. Mramba :Ould have gone all the way to deliver a letter in the lanner and circumstances alleged, and he adverted again :o the introduction of R.W.7 as a witness which to him was 'most damning". The trial judge was not pr;=p?red tc accept the jjvidence of P.W.22 without reservation, but he was :onvinced that P.W .3 9 and P.W.40 were truthful and honest, fitnesses. The trial judge found that the defence ’ L -"levddjoce >n the incident did not raise any reasonable doubt in his nind. He believed the versSLoSf of ev^nns as- given by * «* •W . 39 and P.W.4Q as well as P.'tf.22 and rejected that given >y Mr. Mramba and ths witnesses h'.’ callod. " , Te c a n u t say :hat the trial judge could not have arrived ?t his lecision on the evidence before him.' There were certain -. .... /25 - 25 comments made by th.’ trial judg..- whiuh Mr. L.*kh his criticised, rightly in cur view. 3ut wo do n>>t think those comments, though mistaken -n rather uncalled for, affected the basis and substance of his finding, which was that the version given by P.W.39, P.w„40 and P.W.22 was substantially true. The trial judge did not :err in respect of the standard of proof required. We hesitate to interfere with his conclusion, since ■ he had arrived at it after having taken into consideration all the matters put before him. The number of paopla outside the Church was estimated at 200 or 500. -Ve will ^ assume the number was 500. We dismiss ground 12 of th-j appeal. Ground 13 of the appeal deals with an illegal campaign conducted by a c^ergyman. On this item three witnesses, P.W.15, P-W.29 and P-.W-30 testified for Ngalai. It was r.ll -ged that un 27th October, 1935, at Keni Parish Church Rev. Mrosso introduced. Mr. Mramba to the congregation and asked his congregation f> v^to for him. P.W.15 testified that he attended third m n s . After Holy Communion he alleged that Rev. Mrosso. iskjd the congregation to vote for Mramba ~nd indicated that his picture was on a poster cutside the Church, with a smile on his face. Rev. Mrosso told the worshippers that Mramba had been to the 1 st mass there and hid s ;nt them greetings. P.W.29 testified that he attended 1st mass that day 3 nd that Rev. Krosso asked the congr 3gation to vote for Mramba, and Mramba himself got up in Church and greeted the congregation. P.W.30 also attended 1 st m-ss .... /26 26 and her evidence was the sank, as th vc *’f P.W.29. The congregation was estimated to number between a’** 1,20K- to 1,300. Mr. Mramba denie 3 that h.: had att*ndod Keni Pari'Sh Church th.it day. Ke stated -n that day, polling day, he had no transport .^nd did not attend any Church Service anywhere. R.W,12 gave evidence for Mramba. Hu said h 2 attended the 1 st mass on 27th October, 1985, and hi iid . not see P.rt.29 ther^. He denied any compai-g^fng Nby Rev. Mrosso and said that Mramba was not there. R.W . 2 1 also testified and said that he rx iattended 3rd mass that day, and Rev. Mrosso did not oven mention the election, let alone campa-ien"1 f°r Mramba. R.W.22 stated in evidence that he attended 1 st mass i ' that day and denied that Mramba w?s in Church or that Rev. Mrosso campaigned for him. R.W.46 (th ; bodyguard) gave evidence supporting the version given by Mr. Mramba. Apparently the trial judge -regarded R.W.46 a partisan witness on the side o f Mramba because he was his bodyguard for quite a long period during the campaigning. As Mr. Lakha rightly poin ted out, that does not necessarily • follow. That is One of those observations which Mr. Lakha ..'■V • .h a s complained about in connection with the judg^'s .-%• ■*«*.- •*, - ^ assessment -of-witnesses and their testimony. Th-j trial jWj;. Judge -posed *.-.•• the question "which side spoke the truth”, sin .making his assessment he remarked that Rev. Mrosso rdi4Inot testify. He stated:- ,,../27 - 27 "In the light of the. allegations made, ona v/ould, of course, without necessarily shifting or til­ ting the-- legal burden, have expected the 1 st respondent to be able and interested to call Rev. Mrossc, to give, at least, an explanation or ever e mere suggestion as to why these witnesses should deliberately lie and seek to implicate him. No such explanation or suggestion is available on this item.". Mr. Lakha has submitted that the judge erred in shifting the burden of proof to Mr. Mramba. In the first placo Mr. Mramba had no duty to call Rev. Mrosso <_r any witn 2 ss. In / the second place, it w=>s not for Mr. Mramba to establish and adduce reasons why the witnesses f or-'Mr. should lie. We agr?e that Mr. Lakha’s criticism his merit. However, we think perhaps what the judge meant v;is that , he had accepted P.W.15, P.W.29 and P.W.30 as witnesses of truth, and if that view was to be altered, Mr. Mramba had to show him where he had gone wron^. One way possibly would be if there was evidence which would indicate that those witnesses had reason to lii. In any event the trial judge analyzed the evidence of the witnesses on both sides and finally concluded that he believed the witnesses called by Mr. Ngalai. He said:- "The denial by the 1st respondent, supp >rted by Mr. Mandia, that he went for the 1 st mass at Keni? does not ... raise -jny doubt in the. mind of this Court. ". He was satisfied that an illegal campaign at Keni Parish Church had taken place as alleged. We dismiss ground 13 of the appeal. ..../28 28 Ground 14 of the appeal. It was allag 3d that on 20th October, 1985, at Usseri Parish Church Rov. Kilasara campaigned for Mr. Mramba. Throe witnesses for Mr. Ngalai gave evidence, P.W.14, P.W.36 ani P.W.37. They gave similar evidence. They said they all attended 1st mass at Usseri Parish Church on 20th October, 1985, and mass was celebrated by Rev. Kilasara. Aft^r the sorm.°n Rev. Kilasara addressed the congregation and advissd them to vote for Mramba and that it was for the good of Rombo. On Mr. Mramba's side only one witness P.W.24 gave evidence. He stated that cn 20th October, 1985, he went to Usseri Parish Church to pray. The officiating priest was Rev. Kilasara. He did not hear Rev . Kilasara talk about the election or advise the worshippers to vote for Mramba. He i > ordinarily resided in Arusha, but ha used to visit Rombo on weekends. T’ no trial judge was unfavourably impressed by F.vV.24 whom ha found arrogant when he was answering questions. The judge was impressed by the evidence of P.W.36, and P.W.37 and he found that they were truthful witnesses. He was not impressed by P.W.14, but on assantial points P.W.14's evidence was the same as that deponed to by P.W.36 and P.W.37. He said the evidence of P.W.24 hardly raised any doubt in his mind. He accepted tha evidence adduced by the witnesses for Mr. Ngalai and found that it was established that Rev. Kilasara had campaigned for Mr. Mramba as alleged at Usseri Parish Church. The congregation was put at between 1,200 to 1,300, We dismiss ground 14 of the appeal. ___ /29 29 Now to ground 15 of the aope.al, tia .1 last item 5f illegal campaigning. It was allog ’d that on 20th October, 1985, at th" Parish Church at Lowerere Rev. Hass^we campaigned for Mramba. It was also alleged that Rev. Massaws cursed those Christians who would not vote for Mr. Mramba. P.W.ll, P.W.12 -and P.W.13 testified for Mr. Ngal-ai ovar this ' incident. All these witnes ;es testified that they attended mass at the Lowerere Church "r->n 20th October, 1985, ani the officiating priest was Rev. Leoigr.rd Massawe. Towards the end of the service Rev. Masaawe advised his congregation ' to vote for Mramba whJ was a young man and not to vote for Ngalai who was old. At this there was clapping, but there was also some murmur of dissent. ;\t this murmur Rov. Massawe h ;ld up his cross ani said: "If you d - not vote for Mramba, let this cross fall on you", or wor^s to that effect, Then th^ service ended. The conqregation was estimated to number 1 ,1 0 0 . Rev. Massawe testified as R.W.17. He admitted that he had officiated at Lowerere Church on 20th October, 1905, but categorically denied that he. campaigned for iiramba or «*ur sed those who refused t vote for Kramba. He was of the view that P.W.li, P.J„12 and F.W . 1 3 wer-a liars an .1 had fabricated evidence against him. P.W.30 also testified. He attended Church at Lowerere on the material d.^y r.nd lenied that Rav. Iassawe' campaigned or cursed as .^lleaud. R.W. 35 also tustifio1 on the same line as R.W. 3 0 . ... ./30 - 30 I Mr. ^akha in addressing the judge, had .submitted that evidence given by p.yj.ll, P.W.12 and P.W.13 against Rev. Massawe was impossible to believe. To that the trial judge remarked "In his address Mr. Lakha submits that tha evidence on this point of Lucian Mla s m i > (P.W.li), Pr^ches Pauli (P. .12) and Valentina Raymond (P«W.13) is impossible. Mr. Lakha argues that Rev. Massawe must have been vary fool hardy to have campainged for the First Respondent so openly and publicly, risking disciplinary action from the church and turni- shing his reputation as the authority for organising 428 Christian communities in Usseri. /according to Mr. Lakha, this fsather in his cap wOuldr-: restrain Rev. Massa’we from any public misconduct. Indeed, it is in evidence, which was not disputed in'l which I accept, that there are 428 organised Christian Communities in Usseri.". "In the matter before me evidence has bean given, and which I havs accepted, in itam 3 above, to the effect that one of the Priests told his congregation that all what he had sail in relation to which candidate thay should vote for was not for his personal benefit: It was for the benefit of the whole constituency, the wh>lo District of Rombo. To me, this is the crux of the matter. I have reason to believa that both Rev. Isidore Kilasara and Rev. Andrea MrOssO, and the same must necessarily also be tru 2 with regard to Rov. Massawe, genuinely and sincercly believed that the First ^Respondent woul i bo instrumental towards the development of Rombo. The reason or basis for such a belief is to any upright minded and straight forward person obvious.". ./31 31 "It is hereby iqreaJ tint therv m y b Constituencies which would prefer to hava a candidate who will nfiver be a Minister, because they f sel he rfev°tc more time t-> them. That, however, I cin venture to say, can only happen in developed countries. In undeveloped or Third World Countries of which our is one, having a Member of Parliament who is also Minister is, so to say, "a rare commodity" which must be guarded with morbid jealous. In this instance, the first respondent was a Ministar. Indeed, thara was no guarantee that once elected ha w^uld still be appointed Minister. If one ware to face realities, on th> other hand, thara was absolutely no reason why th;1 Constituents should not have believed that once through their man would not retain his portfolio Jr, at least, given another portfolio, but remain a Minister all the same. History has shown that our governments, both phases 1 anl 2 , arc such that they do n°t change Ministers, so to say, like shirts. I am satisfied that that belief in the First Respondent bringing change to Rombo for the better was real. It w e s real not only to the priests under quarry but to some constituents as well. It is in evidence that at some gathering the First Respondent was even described as the son of Lamb who would save Rombo. Now, if the said belief was real - anl I repeat that, on the evidence anl material available, it was - then . '.what would h'sSa have made it impossible for Rev. Massawe to utter the words attributed to him? He could have genuinely believed that ha was doing that for the good of his followers, for the good of Rombo District.". With respect, these passages contain unnecessary :nd irrelevant speculation and non-sequiturs,and such speculation could not add support to the evidence of hr. Ngalai' s witnesses or detract from the witnesses of Mr. Mramba. It «ould seem that the trial judge hid allowed such speculative views to affect his decision on this item, as he stated, in regard to Rev. Massawe’s testimony: "Rev. Massawe's :denial is understandable.:'„ ___ / 32 3 ;; He then ipp.irently rejected Rev. P.'asnwi’s t -stim-my without further consideration. ■tfe ar.; satisfied that th..- trial judge had allowed irrelevant matters tu affect his decision on this item and his conclusion that Rev. i'nssaws had conducted a campaign for Kramba at the Parish "Church at Lowerere on 20th October, 1935, cannot be supported. We advert briefly to the attempt by Mr. Lakha to establish that the Church at Lowerere: was not cons :cratcd and was not a Church. We agree with tho trial judge that, consecrated or not, that building was used as a Church for purposes of worship ini for tho purposes of the petition it was a Church. We allow ground 15 of the appeal. Of the 10 it“ms of illegal campaign found established by the trial judge, we have allowed 4 itsms, those contained in ground 5 and 6 of the appeal (Usseri Market), ground 7 (Party aP ko slaaba^ri t § house Msinga Village), ground 9 (Party at Alfred Salakana’s house) and ground 15 (campaign at Lowerere Church by Rev. Massawe). VJe have dismissed 6 items, those contained in groun 1 3 3 f the appeal (at Maparara Pombe Shop), ground 10 (Party at h>jsc of Timotheo Lyaruu), ground 1 1 (Slogans on motor vehicles at rallies), ground 12 (campaign by Mshomba outsiie ^ijcelelwa Church), ground 13 (Campaign by Rev. Mrosso at Keni Church) and ground 14 (campaign by Roy. Kilasara at Usseri Parish Church). --- /33 33 In the result we find that Mr. Mramba had conducted <t£l wa£ involved in six (6) illegal campaigns. !'Je hivo stated earlier that*an illegal campaign is an act of non-compliance with the rprovisions of the.; Elections Act, 1985, and would contravene the provisions of section 108(3) (c) of th.-; said act, which reads:- "108.. - (1) ... (2 ) ... (3) The election of a candidate as a member 'shall be declared void on any of the following grounds which arJ proved to the satisfaction of the court, namelfy - (a; ••o ^ (b / . . . (c) non-compliance with the provisions ' of this Act relating to election, if it appears that the election was not conducted in accorlanco with the principles laid down in such provisions and that such non- compliance affected the result of the election;". In order to discover if such contraventionsn had affected the result of the e l rction, it would be nacassary & -v. . . ^ t° find out, as far as possible, how many voters had been involved in these illegal campaigns. At the campaign at - Maparara pombe shop 40 persons wer>’ present; at the house of Timotheo Lyaruu 5(K) persons were prosent; at tha rallies where slogans on motor vehicles were displayed, no estimate of numbers of people present was given by any witness. Obviously, in the absence of evidence nJ numbor | would have beenassigned to these incidents- However, :l>e will make an exception in this case and we will fix an -,v sarbitrary figure, say a nominal number of 2,00C. .... / 34 - 31 - \t the campaign by MshOmba outsida Kikel^lwa Church, 500 persons were present; at the campaign by Rov. Mrosso at Keni Church, 1,30C were present and .a-t the-tcamprlgn at the Usseti ChurCh by Rev. Kilasara, 1,300 persons were present. That would make a tota’l of 5*640 persons who could have been involved.in the illegal campaigns. In view of the fact that Mr. Mramba had won by a margin of 22,340 votes, evsn if an adjustment is made of the 5,640 p-rsons who were involved in the illegal campaigns by transferring those v°tes to Kir. Ngalai, Mr. Mramba would still be left with a very sizable majority. In the circumstances it cannot be said that the acts of non-compliance with the provisions of the 1985 Elections Act in the form of illegal campaigns conducted by or on behalf of Mr. Mramba had affected the result of the election in terms of section 108(3)(c) ’ We allow the appeal. ■ VJa set aside the order *nullifying the election to Parliament of Mr.. Mramba, We confirm the said election. We award the appellants thei^ costs . :here and below.- 7 - .> •‘ ./35 - 35 - We also award t h e 'a p p e lla n ts , the ( - - c c s ts o f the C ro ss-a p p ea l. DATED at DAR ES SALAAM this 7th day of August, 1987# 1 ■■■- A ( 'w v ( A. MUSTAFA J^7 v<< ■ . -- * / JU^aCE. O F - W fa t . ( a . m . a . omar ) JUSTICE OF APPKflT. ( D. P. MAPIGANO) AG. JUSTICE OF h PPEAT, I c e r t i f y t h a t t h i s i s a true c opy of the o r ig in a l^ I ^ . ,-v '■/ /'< -y. /■ ( H. MSOPFE / DEPUTY REGISTRAR