20160817 TZHC Arusha

-••,~, --4 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DISTRICT REGISTRY) ATARUSHA DC. CIVL APPEAL NO. 35 OF 2015 {Originating from Kiteto District Court at Kibaya in Election Petition No. 2 of2014) DISTRICT EXECUTIVE DIRECTOR SIMANJIRO DISTRICT COUNCIL WARD EXEZUTIVE I OFFICER ···························••:••······························ 1ST APPLICANT LOIBORSIRET .................. ■■ ■■■ 2ND APPLICANT ) • ••••• 1 1 . 111 • • • • • • • • • • • • 11 ••• MWENYEKITI KAMATI YA RUFAA ......................... 3RD APPLICANT 'VERSUS MOSSES OLE SANJIRO LENGUTUK .................... 1ST RESPONDENT NOAH LOOKUSIE KELELE .... ~ ........................... 2ND RESPONDENT I ELLY RUBEN RORIAN .........•........................... 3RD RESPONDENT I I SAMWEL NGOOPINYO KISAU .......................... 4TH RESPONDENT MAKO LOORKUTA KIPALEY ..'............................ 5TH RESPONDENT . I ffl NAMAYANI MARKO TAYARA ............................. 6 RESPONDENT ' EZEKIEL LESENGA ORMASI ..... ~ ....................... 7TH RESPONDENT JUDGMENT ON APPEAL. S.M. MAGHIMBI, l At the Simanjiro District Court, vide Election P tition No. 35/2015, the 1 respondents herein successfully ~etitioned again~pellants herein and 6 others. Unsatisfied with the decision of the District Court, the appellants vide this appeal and Civil Appeal No 38/2015, lodged the two appeals which were consolidated' upon agreement by the parties and a 1 1 court order dated 17/03/2016. The appellants raised four grounds of appeal namely: 1. That, the trial Magistrate erred both in law and fact by failure to consider and analyze the evidence adduced by the Appellants and their witnesses. 2. That, the trial Magistrate erred both in law and facts by not considering the evidence that the Respondents were called to appear before the Appellate committee and that oral communication (through mobile phone) was organization law. 3. That, the trial Magistrate erred in law by not considering and analyzing the gist of "Kanuni za Uchaguzi wa Mwenyekiti wa Kijiji, Wajumbe wa Halmashauri ya Kijiji na Mwenyekiti wa Kitongoji katika · Mamlaka za Wilaya, 2014" and "Mwongozo wa Uchaguzi wa Viongozi wa Ngazi za Vijiji, Vitongoji na Mitaautakaofanyika tarehe 14 Desemba, 2014" with regard to the election process. 4. That, the trial Magistrate erred in law by considering the evidence brought forward by witnesses other than the seven petitioners themselves. the Appellants prayed for the following orders:- (a) That, the appeal be allowed with costs. (b) That, the judgment and decree of the District Resident Magistrate for Kiteto District Court be nullified, quashed and replaced by an appropriate order under the circumstances. The background of the matter was that the respondents were candidates for different post who were all sponsored by the Chama cha Demokrasia na 2 " j Maendeleo (CHADEMA) vying for i the position of Chairmanship of Orkoringo, Oltotoy, Mtoni, Ichakai and Iretet Hamlet and special seats, for the elections held on December 14, 2014. The respondents (then petitioners) were nominated ,by the assistance returning officer for Oloirbosiret Ward of Simanjiro ,District to contest for the different posts abovementioned. Having filed their nominations, some objections were raised by some members of Chama Cha Mapinduzi(CCM) against them on the ground that they were qot sponsored by their party. The said objections were overruled by the Assistance Retuning Officer and that subsequently, on unknown date,: the respondents were unfairly refused to contest on the election on ground that the Kamati ya Rufaa upheld the objection raised against them. At the District Court, the responaents (then petitioners) alleged that none of them was either informed or participated in any meeting with the 3rd respondent and that the alleged appeal determined their right as candidates in their absence and that they were even not served with the copy of the said ruling. The respondents alleged to have been denied their right to be heard and at the District Court they successfully prayed that the sad bye election results are nullified and that the Court orders another bye election. I By an order of the court dated 17/03/2016, the appeal was disposed by .1 way of written submissions. Both, sides adheres to the scheduling order. However, when I was going through the records of appeal for the purpose of constructing this judgment, two important issues caught my attention. The first one was the limitation of time as per the record in relation to I when the appeal was lodged. The second issue was the propriety of the 3 ,, Election Petition No. 02/2014 at the initial stage of inception at the District Court of Kiteto at Kibaya with regard to the joinder of the petitioners. I hence postponed constructing my judgment and on the 20th day of June 2016 when this appeal came for judgment, the two issues were raised suo motto by the court and the parties advocates were directed to address the court. The parties opted to address the issues by way of written submissions and by leave of the court; the written submissions were filed on the 24/06/2016. On the first issue whether the appeal was filed within the prescribed time. Mr. Mwanga learned Counsel representing the appellants opened his submissions by taking the court back on the time frame for election cases to be brought before the court and time frame for its completion. He submitted that under the Local Authorities (Election) Act, Cap.292 R.E.2010, the election cases should be brought before the court within one month from the date of declaration of the result by the Returning Officer and be completed within 18 months after being brought before the court. He cited Section 114(1) of the Cap. 292:- ''Every election petition shall be presented within one month of the date of declaration of the result by the returning officer" Further that Subsection 3 of the same Cap.292 provides: "The court shall hear and determine each election petition within eighteen months from the date of presentation of election petition" Mr. Mwanga submitted further that the court referred here is the Resident Magistrate Court and an appeal thereafter shall lie in the High Court. That 4 " ,; if one of the party after the delivery ,.of the judgment and being aggrieved by such decision, he can appeal against such decision to the appellate court that is the High Court as per Section 109(1) and (2) of the Cap.292. ·,, He argued that the time frame withiq which an aggrieved party can file his I or her appeal has not specifically provided by the law which governed the said election in 2014, that is Kanun) za Uchaguzi wa Mwenyekiti wa KiJiJl Wajumbe wa Halmashauri ya Kijiji na Mwenyekiti wa Kitongoji katika Mam/aka za Miji za Mwaka 2014. i.e.:! Tangazo la Serikali Namba 321/2014. Mr. Mwanga submitted further that the First schedule part II of the Law of I, Limitation Act, Cap. 89 R.E. 2002 is yery clear when it appears that no any I • written law provides for the time frame upon which an appeal can be instituted, the same can be brought before the court within 45 days. Mr. Mwanga argued that in the appeal Jointly before this honorable court, the appellants applied for copies of proc~edings, judgement and decree on 16th day of June 2015 and 13th day of June 2015 and the same were provided to the appellants on 28th day of July 2015 and both the appeals were filed I before this honorable court on 26t~ day of August 2015 and 1ih day of August 2015, hence within time. hie supported this argument by citing Section 19(2) of the Limitation Act, (Supra) on the exclusivity of time upon I which the parties were waiting to be supplied with copies of proceedings, judgment, orders and or decree. He further supported the argument by citing the cases of Mary Kimaro vs. Khalfan Mohamed, Misc. Civil I Case No.83/1992, High Court at Dar es Salaam. (Unreported) ! Mr. Mwanga concluded his submission by saying that the appeal was lodged within time and this honorable court has jurisdiction to entertain the same as it was rightly filed within time and the time which should be taken ' 5 ,, ,, into account is the one for filing an appeal and not for trial of the election cases and time set for its completion. In reply, Mr. Daudi Haraka, learned counsel representing the respondents submitted on the issue in two limbs, the time for filling appeal and the time for which the appeal is to be heard. On the first limb of the argument he submitted that the District Court pronounced the judgement which is the subject of appeal on 15th June 2015. This means the appellant have appealed as they are dissatisfied with the judgement pronounced on 15th June 2015. The appeal was filed on lih 2015 which is 63 days after the pronouncement of judgement. The law of limitation had imposed a mandatory requirement to file appeal within 30 days. The time discrepancies lapse before instituting an appeal in respondent considered opinion is not a minor discrepancy, because they go to the root of the competency of the appeal in court. Mr. Karata argued that the appeal has died a natural death following the expiry of time for courts to entertain the matter as the law is very clear that appeals should be filed within thirty days from the date of the pronouncement of the judgement. Further that the applicant Counsel brought his application as an afterthought. Mr. Karata submitted further that the procedures are very clear and and the appellants have filed their appeal out of the prescribed time by the law without seeking leave of this honourable court to file their appeal out of time. He submitted further that the court had said in numerous decisions that time would be extended if there is an illegality to be rectified. He cited the case of THA vs Mohamed R. Mohamed Civil Appeal No. 80/99 Court of appeal of Tanzania. He submitted that however, Court has not said that time MUST be extended in every situation. Each situation has to 6 I .; be looked at its own merits. Mr. Haraka argued that in this case, the I appellants have been grossly negligent and surely cannot be heard now to I claim that there is any justification to /be heard contrary to the requirement I of the law. Further that this court is duty bound to see that rules of court I 1 and the law are observed strictly and cannot aid any party who deliberately I commits such lapses. He further cited the case of Mohsin T. Abdallah vs Tarif Mirza and Others Civil App~ication No. 100 of 1999 Court of Appeal of Tanzania [unreported] :where the court held that: I "while the High Court is duty bouhd to supply documents applied for l and to supply them without unteasonable dela½ it behooves the ( parties concerned to exercise diligence in the conduct of their cases, 1 otherwise they cannot escape blame" ' To that effect, Mr. Haraka submittetj that the appellant counsel is arguing j that they had shown the date for vyhich they received copy of judgment ' and proceeding and started to count time from that date. They ought to I have filed an application for extensibn of time to appeal. They must seek ' court permission to file appeal out pf 30 days in accordance to the law. ' That their ground would have been 1that they received copies of judgment l and proceeding late, they seem to have jumped on the procedure which is ' the handmaid of justice. He concluded that their appeal is out of time. ' ' I Mr. Haraka's second limb of arg~ment was on the time to entertain i appeal. That Section 115 (2) of the National Election Act, 343 provides that I that "Every Court shall determine the appeal within twelve months from 'I the date of filling the petition." Thatl the Act provides two scenario, one in ,, which the High Court has original ju"risdiction and secondly where the High ' Court has appellate jurisdiction. He ,'argued J that our case at hand the High I 7 .. ·· Court has appellate jurisdiction hence this case has abetted. As for this court, this line of argument will not be considered any further as the Counsel is mistakenly arguing in line with the National Election Act, Cap.343 while the matter is within the ambit of the Local Authorities (Election) Act, Cap.292 R.E.2010. Having gone through the records of the appeal, the judgment that appeal is sought for was delivered on the 15/06/2015. The copy thereto was certified and hence ready for collection on the 28/07/2015. Pursuant to Section 19(2) of the Law of Limitation Act; Cap. 89 R.E 2002, the 28/07/2015 is when the computation of time begun. Now, the Kanuni za Uchaguzi wa Mwenyekiti wa Kijiji, Wajumbe wa Halmashauri ya Kijiji na Mwenyekiti wa Kitongoji katika Mam/aka za Miji za Mwaka 2014. i.e. Tangazo la Serikali Namba 321/2014which governed the cause of action to this appeal does not provide for a period of time whithin which a party may appeal against the decision of the District Court. That takes to item (2) of Part II of the First Schedule to the Limitation Act (Supra) which provides for a time limitation for an appeal for which no period of limitation is prescribed under the Act. The appeal is to be lodged within 45 days from the date of the decision. Counting from the 28/07/2015 when the copies were ready for collection to the 17/08/2015 when this appeal was lodged is only 20 days. The appeal is therefore within the prescribed period of time. The second issue raised by the court was whether it was proper for the trial court to join the causes of actions for all respondents who were petitioners in different hamlets and contesting different posts. Mr. Mwanga's submission was that the trial court wrongly entertained the said 8 ,,, ·· petition with different causes of actions with different parties who were contesting in different posts and in different claims as per their hamlets. Further that though both parties were dully represented by counsels, this fact skipped their mind, though as officers of the court they are duty bound to address this issue accordingly as the court has rightly requested the parties to submit. Mr. Mwanga submitted further that by inception, it was wrong for the trial court to allow the said petition due to the fact that the petitioners were claiming on different issues and in different places. That others were claiming to be disqualified after due submission and admission of their application forms for contesting in different posts and finally disqualified; others were claiming to be denied contesting forms in different posts. He referred to the contents of the petition whereby the following part establishes the above query on misjoinder of causes of actions and we quote:- 1 . "That the petitioners were disqualified from contesting for Chairmanship of Narakawo, chairmanship of Orkoringo Hamlet, Oltotoy Hamlet, Mtoni Hamlet, Jlchalai Hamlet and Iretet Hamlet of Narakawo Village, the position of members of Village Council in Narakawo villages and that for special seats'~ 2 Failure of the Returning Officer to admit the Petitioners/contestant's application forms for the positions of Hamlet chairmanship, special seats, Council members Chairman Narakawo Village without anyJustification'~ 9 ·· He argued that from the above quoted part of their petition at the trial court justify the query raised by this Honorable Court that, these were several causes of actions in different parts and for different hamlets as rightly claimed by the respondents (petitioners), hence it was wrongly for the court to allow the same without leave of the court, hence bad in law. He submitted further that the suit become badly in law when it does not conform to the rules and procedures prescribed for the settlement of the issue in question. By joining the above causes of action has brought a lot of mishaps which has led the appellants to raise a lot of question as to how possible for the petitioners to win their case though they never show up for their testimony? The answer is that due to the misjoinder of cause of actions in the trial petition has led the same trial court to deliver a problematic decision of its own. Mr. Mwanga submitted further that as officers of the court, they are duty bound to assist this court by stating that the whole proceedings at the trial court were a nullity as there were supposed to be in separate suits/petition so as to allow every petitioner who were contesting in different parts of the Narakowo Village Council to establish their own cases based on their claims which were basically not the same. He submitted further that one can say that those who came to testify in the trial court represented the other petitioners, but the only question remain will be, was there a representative suit in the eyes of law? Was there a leave of the court for those who showed up to represent other petitioners who were contesting in different hamlets? Mr. Mwanga answered these questions to the negative. He hence confirmed the the query raised suo motto by this honorable court that it was not proper by inception to bring one petition for the whole respondents (petitioners) in one petition as there were different 10 . I .. j causes of action, different interests, different hamlets and the reliefs I sought were also different, hence bad in law. 1 Mr. Mwanga prayed for this hono~able court to quash the whole proceedings of the trial court and set ~side the judgment, decree and/ or orders given therein and allow the appeal with costs. I In his reply, Mr. Haraka submitted that the cause of action is one and that I makes the Joinder of parties to be proper. In summary, he submitted that i two principles can be stated as far a$ parties to suits are concerned: All 'I necessary and proper parties have to Qe before the court so as to facilitate I the effectual determination of the n'.latters in dispute. Also, to avoid a. I multiplicity of proceedings, all disputes or questions arising between such parties should as far as possible be d~termined in one action. He submitted further that the Joinder of plaintiffs a~d defendants is covered under Order 1 and 3 respectively of the Civil Proqedure Code, Cap 33 R: E 2002. That i generally, all parties may be joined in one suit if either, where the rights to ! relief which vest in them are in resp~ct of or arise out of the same act or transaction or a series of acts or transactions, or where if separate suits l were brought in respect of the part.ies, common questions of law or fact would exist, the question whether to join the parties in the action or not. is I l left to the plaintiff. / Mr. Haraka submitted further that as a general rule, the Civil Procedure I Code does not compel a plaintiff! to join himself with other potential. ' plaintiffs who may claim under the same act or transaction or a series of 1 I acts or transactions. Neither does it compel him to sue all the defendants he is claiming against in one actiop. That joinder of parties is left to the J total discretion of the plaintiff, but once he decides to join parties he r should do so according to the pre~isions of Order! rule!. That the order 11 gives plaintiffs a discretion to join in one nation if they claim any right to relief either jointly or severally out in the alternative provided that this right is in respect of or arises out of the same acts or transaction or a series of acts or transaction, and if such persons brought separate suits any common question of law or fact would arise. Further that the Order I rule 3 makes a similar provision in respect of joinder of defendants. That all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or a series of acts or transactions is alleged to exist. He supported his argument by incompletely citing an East African case which I shall hence not consider. That in deciding whether to join the plaintiffs or not, the question should not be whether these plaintiffs are interested in the subject matter but it should be whether these plaintiffs have a joint interest in the subject matter. In establishing this joint interest, Mr. Haraka cited Mullah on Civil Procedure where he has suggested that one should ask oneself whether or not if the plaintiffs brought separated actions against the defendant or defendants jointly the evidence, which would be needed to prove the other cases. If the answer is yes, then the plaintiffs could properly be joined because the use of the same evidence by all the plaintiffs' separately would presuppose the existence of a joint interest and the essence of a common question of law and or fact in all suits if the plaintiffs decided to sue separately. Mr. Haraka submitted further that the provision allowing several plaintiffs to be joined in one suit is subject to the court discretion to allow separate trials under Order 1 Rule 2. Separate trials will be ordered when in the opinion of the court the joinder of the plaintiffs may embarrass or delay the trials of the suit. Further that much as it is important that a multiplicity of 12 .. suits should be avoided, this has to be done without prejudice to the more important interest of justice. That multiple suits should not be allowed at the expense of the defendant's right to be able to defend him in the best I way he can or the court ability to fol'low the unfolding of the case. He l submitted further that where the court/is of the opinion that the joinder of the plaintiffs may make the defendant iunable to defend himself against all the plaintiffs simultaneously or may confuse issues the court may take the following action: it may put the plain~iffs to election as to who should be struck out in which case those struck out may bring independent suits against the defendant. Alternatively, it may order separate trials, in which case the same plaint may be used out separate hearings respecting the different plaintiffs are conducted. Lastly, it may make, other orders, as it deem necessary, i.e. it may order a $tay of hearing in respect of some of i the plaintiffs. Mr. Haraka cited the case of, Bank of India Ltd. V Ambalal L. Shah and others (1965) EA 18 Sheridan, J held that ''Although the word ''some" mustgovern the words ''series of acts or transactions" it is not necessary that every defendant should be interested in all the relief claimeq in the suit, but it is necessary that i these must be a cause of action in which all the defendants are } more or less interested although, the relief asked against them may ,, I very... i And further the case of Uganda General Trading Co Ltd. V Jinja Cash Store Ltd. and others {1965} EA 40g and Broads Bank V C.B.Patel (1959) EA 214. I I He argued that one should addres~ one's mind to the causes of an action ' against the person brought to b~ joined as defendants and hot to the 13 ,, claims against them. That indeed the relief brought room either of them may be different bit once a nexus is established between them they can be joined in one action. This nexus is established through the causes of action and not the relief. He argued that the rule refers to ''any right to relief' and not to "any relief". That it is suggested that a right to relief bear the major relationship to the cause of action, hence the above alignment. Adopting this approach has one major advantage. Mr. Haraka submitted further that when the defendants have been joined in one action because they are more or Less interested in one cause of action definitely a common question of law or fact will exist. That although as simple rule of thumb the test, like the one applied in the case of joinder of plaintiffs, will be whether the plaintiff will need the same evidence to prosecute his case against each defendant basically it is not necessary that same interest in same cause of action and common question of law or fact have to exist simultaneously and that is a mis-joinder of defendants can be accused. That however, where there is a mis-joinder of defendants, there is great likelihood of missing causes and that the general rule is that the suit cannot be dismissed only on ground of non-joinder or mis joinder of parties; nor a decree passed by a competent court on merits will be set aside on the ground of mis-description of defendant. As for the current case, Mr. Haraka argued that all respondent are members of one village government, Narakawo, the 9th Appellant. All 7 respondent are challenging the members of the village council for Narakawo who are 4th, 5th ,6th ,ih and 8th respondent. There is no another convenient mode of challenging their election status if not in one suit like this. Therefore the suit is properly brought before your Honour Court. Mr. 14 • I ·· Haraka concluded by urging this Honorable court to declare the appeal incompetent for want of procedures and accordingly struck out with cost. The finding of this court on this issue begins with the title of the petition subject to this appeal. In the records in the said petition No. 02/2014 there were seven petitioners; who are now respondents; whose petition detailed inter alia that: 3 . "That the petitioners were disqualified from contesting for Chairmanship of Narakawo, chairmanship of Orkoringo Hamlet , Oltotoy Hamlet, Mtoni Hamlet, Ilchalai Hamlet and Iretet Hamlet of Narakawo Village, the position of members of Village Council in Narakawo villages and that for special seats'~ 4 .Failure of the Returning Officer to admit the Petitioners/contestant's application forms for the positions of Hamlet chairmanship, special seats, Council members Chairman Narakawo Village without anyJustification'~ From the wording of the petition, the petitioners were petitioning for several causes of actions including, disqualification from contesting for several positions. The positions included that of chairmanship for different hamlets, positions of members of village councils and positions of special seats. Furthermore, the petitioners were petitioning against Failure of the Returning Officer to admit the Petitioners/contestant's application forms for several positions including chairmanships of different hamlets, special seats and village council members. My attention was on the law governing the elections contested in the petition No. 02/2014 which is the "Kanuni za 15 ·· Uchaguzi wa Mwenyekiti Kitongoji katika Mam/aka za Miji za Mwaka 2014. "G.N No. 320/2014 dated 05/09/2014. Article 25 of the GN No. 320 reads: (1) Mgombea yeyote ambaye hakuridhika na uendeshaji wa Uchaguzi atakuwa na haki ya kupeleka malalamiko yake Mahakama I ya Wi/aya katika muda wa siku thelqthini (30) baada ya siku ya kutangaza matokeo ya Uchaguzi. (2) Malalamiko ya Uchaguzi yatakayowasilishwa Mahakama ya Wilaya ni ya/e tu yatakayokuwa yanaliusu ukiukwaji wa utaratibu wa ' Uchaguzi uliowekwa na Kanuni hizi. i The meaning of the cited Regulation is the individuality of the right to file a petition. As the wording goes "Mgombt:a yeyote ambaye hakuridhika" which English translation means "a ~ontestant not satisfied with the process of election". Had the intention .·of the Regulations been that there may be a collective petition, it would have been so expressly indicated in the regulations. In the absence of such wordings and further consideration of the fact that the respondents were vying for different positions in different hamlets, it is the finding ~f this court that the petition was wrongly initiated in the District Court by joining causes of actions . ., Even the results of the contested decision of the appeal board addressed disqualification of each of the respondents individually and not collectively. Each of the respondents filed a separate "Fomu · ya Uchaguzi No. III ya Maombi ya Kugombea Uenyekiti wa Kitongoji". Furthermore, the petitioners were initially contesting the results of different positions including Hamlet chairmanship, special seats, Council members Chairman Narakawo Village. ' It is hence the finding of this court that each of the positions contested ' was its own constituency for the p'urpose of action against the process of 16 .' .. election. As per the cited Regulation 25(1) of G.N. 320 of 2014, in the absence of leave of the Court; each of the corresponding petitions was required to file an individual cause of action and not a collective petition was so done at the District Court. As a result the petition was wrongly initiated and wrongly so entertained. It is for the aforesaid reasons that this appeal is hereby allowed. The proceedings, judgment and decree of the District Court of Kiteto at Kibaya in Election Petition No. 02/2014 are hereby nullified. Any party who is still interested in filing a fresh petition should file a fresh petition subject to time limitation Appeal Allowed. Dated at Arusha this 01 st day of July, 2016 ~ M. MAGHIMBI JUDGE 01/07/2016 Court: Ruling is delivered in Court in presence of Mr. Mwanga, learned counsel for the 4th - 9th appellants and also holding brief for Mr. Mwanangazi for the 1st - 3rd appellants, and Ms. Edna Mndeme, learned counsel representing the respondents and the 1st and th respondent in person this 1st day of July, 2016. J:S.Mi MAGHIMBI JUDGE 01/07/2016 17 - Right of Appeal is explained. SGD: S.M. MAGHI,MBI JUDGE 01/07/2016: I hereby certify this to be a true copy of th~·, original. ~ A.K. RUMISHA DEPUTY REGISTRAR 17/08/2016 ~ 18