19811204 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM ,. ,., 'tcoAAM: Ny~lali,,: C.,J.,, Mustafa* Mwakas~ndo, Makame, Kisanqa,: JJJJ .. A) CIVIL APPEAL NQ .. 22 OF 1981 BETWEEN CHRISAN'l' MAJIYATANGA MZINDAKAYA • 0 0 • ·• G O O O • APPELLANT A 14 D GILBERT LOUIS NGUA 0 • • 0 0 0 0 • • o • o o o o e RESPONDENT (Appeal from the Judgment, Decree and Order of the High Court of Tanzania . at Mbeya) (Lugakingira, Samatt~ & Mushi, JJJ) dated the 16th day of June, 1981, in Civil Cause No., 9 of 1980 JUDGMENT OF THE COURT MUSTAFA, Jo.Ao: In the Parliamentary General Election. in the .. Sumbawanga Rural Constituency in October 1980 Mr., Chrisant' Majiyatanga Mzindakaya emerged the victor, beating his opponent M+• Gilbert Louis Ngua by 12,711 voteso Mro Mzindakaya polled 33r974 and Mro Ngua polled 21,263 votes. Mro Ngua successfully challenged the validity of the election in . the. I~igh Court which declared the . election void., I . Mro Mziridakaya, (hereinafter called the appellant) is now appealing against that decision., .In the petition .in the High Court there were a number of allegations against th~ppellant of non-compliance with the \ provisions of the Election~~ct (hereinafter called the Act), as well as a number of allegations of illegal and corrupt practicesQ The High Court, which was composed of three judges, found some allegations of non-compliance proved but that such non-compliance had not been shown to have affected the result of the election and thus Could be ignoredo The trial judges found that three 2 ... allegations of iiiegal practices; ~r more properly misconduct, as well as an act corrupt practice,.- were proved to their satis- . faction., They held that the acts of misconduct -''may· have prevented the majority of the voters from.electing the candidate whom they preferred" in terms of section 123(3) (a) of the Acto That was sufficient to void the electiono They also he).d that. the appellant had· committed a corrupt practice in .terms of section 123(3) (d) of the Act which also would void the electiono The appeal is directed against the finding of the High Court on the issue of acts of misconduct and their effect on the electicn, as well as the issue of the corrupt practice. We will deal with the issue of the corrupt practice firsto It was alleged that the appellant was supplying milling machines to his constituency immediately before and during the electiono It was common ground that sue~ machines were in great demand · and in short supply. However, the supply of milling machines was not alleged in the petition filed by Mro Ngua; it arose ex improvise when PoW .. 12 Mwatujobe, the then Area Commissioner for_Sumbawanga District, was giving evidence .. He stated that the appe~lant was buying the milling machines, but he did not know whether the appellant was using his own money or otherwiseo The milling machines were brought fr.om Dar es Salaam and off-loaded at the Sumbawanga District Headquarters, from where they were distributed t9 the villageso He stated that the appellant, from Dar es Salaam, used to telephone instructions,- to him or to the Distri~t CCM Chairman as to the disposal of the ·machineso In all eleven or twelve machines were brought to Sumbawanga .. / 3 - OoWoS Kameka, the CCM District Chairman, also testified about these machineso He stated that the machines came from SID0 in Dar es Salaam.. It was known in the villages that the appellant was the Chairman of SID0o He stated that the machines were received in ~umbawanga by the SID0 Branch Manager, and that the machines . were not' kept at the District Headquarters. Villages . . allocated the machines were told to go to the SID0 branch at >e•: Sumbawanga to pay for them.. He said that during 0c:tober 1980 seven or eight ~illages received the machines .. D.. W.6 Henga., a SID0 employee in the Rukwa Region, gave evidenceo His duties included the supply of milling machines to villageso The villages used to fill application forms for machines in quintuplicate. The applicants retained one form, and submitted the other four to the DDD. The DDD made his recornrnenda- ti9ns .and submitted one copy to the RDD and one to the SID0 office .at .Sumbawanga. The Sumbawanga SID0 office submitted a copy to SID0 Headquarterso He exhibited two such applications in respect of two named villages which had received milling machines, being Exhibit D2 at the trial. Then SID0 Headquarters reply to such applicants informing them if they are successful, (two such letters were pr9duced as Exhibit D3 at the trial) and SID0 Headquarters forward the machines to SID0 office at Sumbawanga fo~ collection by the villages after they pay the initial 10% deposita DoWo6 said he received .eleven milling machines from SID0 Headquar::3.:.:-3 in 19800 The.trial judges, after briefly refe.r;ring to the three witnesses, PoWo12, DoWo5 and DaWo6, who had testified on this matter, in their judgment stated, inter alia:- "The evidence of the 1st respondent was to the effect that loans for the purchase of the machines were being approved by a sub-committee of SID0's Board of Directors and that he·was not a member .of oooe/4 'I 4 "the sub-commi tteeo Secondly, he agr~ed that he knew that such machines were being supplied in his constituencyo But, thirdly, he claimed that the machines were being supplied throughout the countryo We have carefully considered the evidence on this matter and we are satisfied beyond reasonable doubt that the 1st respondent was behin9 the supply of the machines in his constituencyo In this view we are strengthened by two factorso First, while in the.witness-box the 1st respondent did not seek to dispute the evidence of Kameka on the pointo Secondly, the evidence before us demonstrates beyond peradventure that at least ten machines were distributed in the constituency during the campaign periodo And according to the Rukwa Regional Small Industries Promotion Officer (DoW.6), only eleven milling machines were received by his office throughout 19800 It is also significant that no evidence was adduced to establish the supply of such machines anywhere else in the Rukwa Regiono Having regard to the whole evidence on this subject, we hold that the supply of these machines was intend~d to influence the voters. we are satisfied that this was a corrupt practice within the meaning of So 112(a) of the Elections Act, 1970. 11 0 The evidence of Kameka referred to by the trial judges reads:- "Milling machines for villages started arriving at Sumbawanga in 19770 They used to be brought at intervalso During Mzindakaya's visits to the villages the villagers were telling him that they needed milling machines. Mzindakaya used to advise them to fill forms and submit the~ to SIDOo He promised that as Chairman of the Board of Directors of SIDO he would try to help themo He said he would ensure they got them.". We can see noti1ing objectionable in the appellant I s assurance t) :1i.s constituents that he would help them obtain milling machi~ese It is not known in which year those assurances were given, in 1978, 1979 or 19800 It is true that ten or eleven machines were distributed in the appellant's constituency during 19800 From the documentary exhibits at the trial court, (Exhibit p2), written applications were made in June 1979. It is possible that deliveries were deliberately timed to coincide with the election campaign, but no evidence was given to that effect. There was no evidence that such machines were supplied_ anywhere else in the Rukwa Regiono But then no attempt was made to discover if other villages had made applications for such machines and had failed to obtain themo The onus to establish these matters was on Mro Ngua. There was no onus on the appellanto I • ,,. ... _, ,·'_~- v.5 We think that there was suspicion, perhaps even strong suspicion, that perhaps the appellant was "behind" the supply of the machines in his constituency with the intent to influence -:~he '\,:oter·s, but we are not NSatisfied that the evidence adduced ., "':-· im·coui-t could support a finding of corrupt practice. · On this > /· . p~iJ~t we respectfully differ from the trial judges .. . ~-... ->We now come to the misconduct issue • Mro Ngua had complained .: ,-:-· . .., that· the). party and Government leaders had illegally campaigned ~i!,., .'\-~.-: ·.;· (fott'. the appellant • There were three incidents of such camp 9 ignin10 .;._ . ._,The first one took place at Tatanda Village on 10th October, 19800 .{,. ~uring that campaign meeting under the auspices of the District Executive Committee of the P~rty, DoW.5 Kameka, the sumbawanga r ./· · q,1strict Party Chairman, took the floor and extolled the qualities >. of the appellant, alleging that he was responsible for the creation ·. of the Rukwa Region, of the Nkasi District and of the Lyangalile Vj.llages Development Company. There was no occasion·for such a panegyric and it was certainly improper. The supervisory delegates at the meeting expressed their disapproval by banging the table in order to persuade Kameka to resume his seat. Kameka denied that he made such a statement, but the trial judges were right '!::_fl have disbelieved him. Th~ sec.end incident occurred in the Kaengesa Village on the 1~th . Qctober/:_19800 ,.•·· •. The Party Regional Secretary for Rukwa . . ~', .. Mr o, .. _Michaef· ...Baruti unexpectedly turned up at the meeting, accompani,::·.:.'. :_-( ..· ·. '. by the wt~es -of tl)e appellant and the Regional. Party Chairman, re$pec:i_ively. -i.~ey arrived in a motor vehicle, belonging to SIDO . ' ., ' -, \ . , '"'.~.· which w~-~ th~n Bking used by the appellant. They all sat in " ·;~ a "'pro'rrtt:nent position with the campaign officialso There was ·"~'-: ··'evidence that the Regional Party Secretary was supposed to have been somewhere else at that particular timeo • 0 0 .. /6 .J. ' 6 The third incident took place at Miangelua Village on October, 1980 .. Two Party officials, K~manga a member of the District Working Committee and of the Regional Executive Committe~ and Mbela, Chairman of a Party branch addressed a meeting of ten-cell leaders, called by PoWa3 Nzyunguo They urged them to choose the appellant as their member of Parliament and spoke disparagingly of Mro Nguao They told the ten-cell leaders and elders to spread the message to others. There was evidence that some of the ten-cell leaders carried out that assignment and spread the messagee They believed that it was a Party directive and had to be obeyed. It seemed th~t P .. W.. 3 had second thoughts and arranged to have Kamanga and Mbela arrested. However, they were shortly thereafter released, It was alleged that when arrested both Kamang""1 and Mbela stated that they had been sent by the Regional and District Party Chairmen and the appellant to conduct that campaigno According to PoWo6 Urasa, a police officer, he had received reports from four villages that Kamanga and Mbela had been urging villagers to vote for the appellanto It was i~ evidence that at a campaign meeting residents from two or three villages would gather to ~ear the candidates. Kamanga and Mbela were travelling in a p~ivate vehicle, apparently on hire, and the trial judges found, rightly in our view, that it must have been used for the unofficial campaign for the appellant as there was evidence which established that the authorities had sufficient transport for the distribution of election materials and did not need nor hire any private motor vehicleo oooe/7 ) ,'. 7 It was in evidence that during the whole of the election campaign the appellant was staying at the house of the Regional Party Chairmano There was also evidence that the appellant, the Regional Party_Chairman and the Regional Party Secretary were great friends, and used to meet in a special room popularly known as Lancaster House, in a bar at Sumbawanga. The trial judges, after detailing these incidents, said:- 0we have seriously considered the impact on the election of the Party Leadership during the campai9n period and we have come to the conclusion that such conduct may have prevented the majority of the voters from electing the candidate whom they preferred."• Mr. Mkude who led the team appearing for the appellant, by and large agreed that the three incidents took place. His main contention is that these incidents did not prevent the majority of the voters from electing the candidate of their choiceo As regards the first incident, he submitted that the supervisory delegates had expressed their disapproval by banging on the tabl,.10 To the villagers, that banging was an equivocal acto He also submitted that Kameka had acted in good faith., _That submission is entirely without merito As regards the second incident, when the Regional Party Secretary attended the meeting with the two ladies, Mro Mkude submitted that there was no evidence led to establish that the villagers knew that the ladies were th~; wives of the appellant and the _ Regional Party Chairman, respectively, or that the vehicle used was the appellant'so That is so., However, one must realize that it was a general election campaign meeting in a rural constituency, which is a rare and important occasion occurring once every five years, and the Party Regional Secretary and the two ladies occupied a prominent position sitting with the Party officials who were eooo/8 8 in charge of the campaign. Even if the villagers did not know the ladies, it would be natural to infer that they would want to find out the identity of such important visitors, accompanied as they were, by the Regional Commissioner, and it would be stretching credulity too far to imagine that the villagers would not have discovered their identitieso As regards the third incident, Mro Mkude submitted that it was not established that Kamanga and Mbela were. sent by the Regional and District Party Chairmen and the appellanto Kamanga and Mbela did not give evidence and the three persons named xhad denied that they did so. We think that Mro Mkude made a valid point when he submitted that it was not for his client to call Kamanga and Mbela to testifyo We also appreciate that it was difficult for Mro Ngua to call these two persc;ms, who obviously would not want to support his caseo However, we think that the evidence that Kamanga and Mbela were sent by the appellant and his friends was inconclusive. Mro Mkude called attention to the !l'ajority that the appell.cnt had over Mr'o Ngua and submitted that these acts of misconduct could not have prevented the majority of voters from electing the candidate of their choice. We wi 11 now consider the words in section 12 3 ( 3) (a) "the majority of the voters were, or may.have been prevented from electing the candidate whom they preferred"., In our view that is not a matter of quantification of numberso We have to view and assess the situation within the context of the factual matri;:o In rural areas much information is passed by word of mouth and communication by the so-called "bush telegraph" is a time honoured phenomenono If a number of people were told that the Party had directed that a certain person is to be preferred, it would be 9 reasonable to infer that the message would be spread far and wideo The three incidents took place within a span of fourteen dayso The appellant was openly and closely associated. with the top leadership in the Party; he stayed with the Regional Party · Chairman; the_· Regional Party Secretary escorted his wife to a pubiic meeting and was using his car; a member of_ the D_istrict Working Committee and Regional Executiv~ Committee was travelling around asking voters to vote for him and the Sumbawanga District Party Chairman in an open meeting spoke of his sp~ctacular I achievement so It appeared that the Party lea9ership in sumbawanga in a phalanx was backing the appellant vigorously., Taking into account the central position that the Party holds in our country, we think the trial judges were right to hold that the conduct (of the Party Leadership) may have prevented the majority of the voters from electing the candidate whom they preferred., In the result we find that the tri~i judges erred in holding that the appellant had committed a corrupt •practice, but that they were right in holding that acts of misconduct in terms of section 123(3)(a) of the Act had been.committed which "may have prevented the majority of the voters from electing the candidate whom they preferred.". ' 10 The appeal fails an<l is dismissed with costso DATED :at DAR ES SALAAM this 4th day of December, 19810 ·· F. L. NYALALI CHIEF· JUSTICE Ao MUSTAFA JUSTICE· OF APPEAL - ~.M.M. MWAKASENDO . .. ... , JUSTICE OF APPEAL Lo Mo MAKAME JUSTICE OF ,~EAL R. H. KISANGA .. JUSTICE OF APPEAL I certify that this is a true copy of the originalo l :::-,.. -==--- ,,/ -- ···-------Jl l~lA-_Q_ "'" ( Jo Lo ,MNAL~ . SENIOR DEPUTY REGISTRAR J