20011227 TZHC Dr es Salaam

~ AT...-r,---=~•...,.."""~ DAR ES B.AL.A.J\M 8AMATTA CoJ O KLSANGA J oAo And LUGAKINGIRA, J oA.) ¢ - • - , a • ' • T ~ . - ~•.•!'...1=,~-~•,-.,,.-,~•,<-'~~--•·•·•*•~:r,~-··~,20~~- ~ - • ~ - CIVIL. APPEAL NO~ 6'.1 OF 2001 •.. . ··f •( . BETWEEN ! . EDWARD MAB.ANJA NG' AHWANI • o O 0 0 0 APPELLANT {- I AND . i I· . 1. TF,E EONOURiillLE ~T'l'ORNEY GENERAL. ' 0 0 RESPONDENTS 2. ISAAC 'MANJOBA .CEEYO (Appeal from the decision of the H~gh Court of Tanzania at Tabora) dated the 22nd day of August, 2001 in I . . . r~~2~~;_i.~e.t~£Lill. .9J1;.@~li9.:..2-£i..T?09Q •. . I I This appeal ~ises .from the decision of -the High Court (Mwita, Ji) requir:ing the appellant to comply fu11.y 'dith the order -of that court which had required him to fije an -a.mended petition' with further and better particulars. The background to the .case Jflay - . -be ....stated ·~ - . briefly :, . as follows:- The /·appellant filed an ~lection' petition seeklhg, among other tl:l:ings, for a declarat:Lon ! that the election of the respondent to Parliameni during the General • ! Election of the year 2000 was null and void. Both respondents duly . I filed their respective replies to the petition. / The second respondent :in his reply raised a preliminary objection compla:i.n:ing, among other thingo, of the vagueness of some of fhe grounds of the petition. He aslced. for further and better :particulars and, granting the same, the cpurt ordered the appellant to filf an amended petition •••/2 I 3 , ConseqQently thO court made an order requnmg the aptllant to comply. fully. by furnishing full pa/ticulars in respec~ of the allegations ~f corrupt practices, specifying the time[ for doing It is from that decision that the appellant ;is nlow appealing; the ~e~pqndent has also cross-appealed. Dr, Lamwai, learned a~vocate for the appellant,! filed a total . :1 of seyen grounds of appeal. At the hearing he argued the first four grounds together, ground five and seven separately Jd abandoned the sixth ground. I The thrust of his argument in the first four. grounds is that it was not open to the second responaent to opt, . I as he did, not to file a reply to i:;he amended petitirn• Learned coµ,na.e~ conceded that there is 110 specific provision[ of the law which requires a respondent to file a reply to an al'llended petition, . I but cont~nded that where the a~ended petition makes specific alJ,..ega.tions. 1 this necessarily calls for a reply• He said that in his an1ende.d petition the appellant had made specific allegations of corrupt .practices and illegal practices to which lit was obligatory for the s~cond •. respondent • to file. a reply . and'.. respoJd I to them specifica+J.y as rf;lquired under rule 3 of Order 8 of the Civil Proqedure Sode. Under rule 5 of that Qrder, counset went on 1 failure ·.,·,, by the sec#pd respondent to reply to tte specific ailegations of ,corrupt anJ illegal p>actices in the, amended petititn amounted to an admission of those allegations which, in terms of rule 4 of Order 1a'.:O:f~he Civil Procedure Code, en.titled the apPel+ t to an ex-'-parte jud~llleilt on admission "cgainst the second respondenj' I 5 I had been inserted from the beginning~ the writ as amended becomes the orig:in of the action, I In the context of th~ present cc.1.se the amendment dat1s back to the I date of the original petition. SL-ice the second respondent had duly replied to the original petition, then if he opts, as he has done 1 .. 1 not to reply to the amended petition, his reply to t e origina ~ 1 petition becomes equally a reply to th~- am-en.~~tition which takes . .• •'.<,·-\ I effect on the same date as the original petition~ more so as it is· conceded that there is no specific provision of the law requiring amended the respondent to file a reply to the [ petitifn" There can be no force in Dr. Lamwai 1 s contention that the amended petition contains specific allegations of corrupt practices apd· illegal practices which called for specific replies., - :For, these were mere elaborations which did not change the basic allegat~ons contained I · in the original petition which has been du1y replied to. The obligation to reply as urged by Dro Lamwai would attach only if the amended petition had raised new basic issues or lalle.~atio:ns, which it did not to. Dr. Lamwai also contended that even accepting the reply to the original petition as being eq_ua1ly a reply to t\le amended petition, that reply consisted merely of' a general denial which could not suffice. It was incumbent upon the seconl~ respondent to deal specifically with each allegat:in...,.., ':Chat e.rgUi"Ilent is equally I untenable. The trial judge in his ruL .1g saidj fot/er alia: LPerusal of the second respond.ent:s re!ily to the ~riginal petition shows that ! allegations of fact were specifically denied. 11 Responding to these submissions, Mro Ngwembe, lkarned state I attorney, and Mr. B. Makani 1 learned advocate, for first and second respondents, respectively, supported the view taken b~ the trial judge. They submitted, in effect, that since the amended petition I did not involve the making of any new basic allegations, the reply by the second respondent to the original petition se~ved equally as I I It is undisputed that when the court made the -order for the supply of further and better particulars it also gav~ the respondents I the option to file responses to the amended petition.if they so . de~ired. So that when the second respondent decided/ not to reply to the amended petition, he was exercising the right which he had under the court order. I i Dr. Lamwai's submission that it was obligatory/ for the second respondent to reply specifically to the specific allegations of corrupt and illegal practices made in the amended pJtition appears to overlook one important matter. rhese were not bdsic allegations. 1 I They were simply further and better particulars i~eo an elaboration ' i of the basic allegations made in the original petition. According ! to a commentary in the Supreme Court Practice 1993 Vol. 1 p. 370 I . on rule 8 Order 20 of the Rules of the Supreme Court in England 0 11 . I i\n amendment duly made, with or without leave, takes effect not from the date I when the amendment is made, but from the I date of the original rl0f'11111ent which it amendso ••• .... 0 0 0 Thusr wh0n an amendment is ·mo.de to the writ, the amendment dates back to the de.te of the I original issue of the writ and the action continues as though the amendment I •.•/5 furnishing further and ~etter particulars 1 with the oplion to the respondents to file amended replies thereto if they so: desired. I The appellant complied. The first respondent replied ~o the amended petition but the second respondent declined to. do so on ground that the amended petition still lacked the parJiculars he I had asked for. Whereupon the appellant urged the co it to invoke 1 I rule 14 ( 1) of Order 8 of the Civil Procedure Co.de as amended by . I GoNo NO. 422 of 1994 and enter an ex-parte judgement against the I . I second respondent for failing to reply to the allegations made in the amended petition. The court refused to enter ex-~rte judgement. It took the view that the amended petition did not change the basic allegations in the original petition. It also found ~hat a perusal of the second respondent's reply to the original peti/tion showed that the allegations of fact were specifically denied.. In those circumstances, therefore, the court concluded that ttle second I respondent could not be said to have failed to reply/to the amended petition wherein the basic allegations had remained· unchanged. On that account the court found that rule 14 (1) of Order 8 of the- Ci.ril Procedure Code as ame:pdA-<l. was not applicable. j ,. 1-- ··---., ___ _ However the court went further and found that its order for the supply of further and better particulars was com~lied with only ! partially; the relevant part of the court;s ruling /ead.s:- ,:rn the instant matter amendment was effected as ordered but full particulars~ respect of the allegations of corrupt practiceJ were not furnished.;, •••/3 t,\ I I " ..:.:;...:. I 6 We too, have perused the second respondent 9 s reply and! think that the learned judge was right. In~eed we think that Dr.iLamwai is not serious in raising this point. Because aftei~ the i'eply was . I ·filed the court heard and ruled cin a prelim:inary objecrion to the pet.it.ion raised by the second respondent :in that repl~. If Dr. Larnwai wer-e serious in his allegation th,'3.t the reJ:i_y was merely I a g.e:i:iaral denial, he would have raised that point there and asked I for the appropriate order• but it is curious that he did not. In I the up shot and for the r.eason.s set out herein, we hold that the . I se.ccntl respondent properly exercised the option not to reply to I .,. 'tile ~nood 1>etiti.on and• therefore, the first four -groi.,nds o.! \ I I \ !(' appeal fail. In the fifth grottnd ~f appeal it is alleged tl-dt the learned I judge wrongly held that the further and batter pru:-tfoul;;u:-s eu:ppliQd I in the amended petition relating to the allegations 0f corrupt pn:1.eti.oes ""9:r'Q. n.o"t sufficient,. 'I'~ al]..ogGd acts of hw-ru:ptioll consist of giving money to voters at a polling station~ I treating voters to a free breakfast and distributing salt and sardines to i voters• As regards money, the particulars disclose ;the names of the persons who allegedly distributed the money to ioters 1 the day II . ,.( r l and time of such dishing out of the money and the polling statioh---·------· I at which this was done. .As for the breakfast, the particulars identified the restaurant and time at which the bre!kfast was allegedly served and the person who paid for it. And as regards I I the salt and sardines, the particular~ ;~P~tified the motor vehicles_ I on which these items were loaded, the owners of the motor vehicles 1 and the villages to which those items were transpo~ted and I distributed, and the day and time when this allegedly happened. I •••/7 i I We are inclined to agree with Dr. Lamwai that these parriculars were sufficient. We think that they adequately. infonner t~e second respondent what the appellant's case against him was so/ as to enable h:im to prepare his defence, and that the rest was really a matter of evidence. That ground, theref'ore succeeds •. / I In the seventh and the last ground of appeal, DrJ Lamwai I .ei-itieise.s the trial judge for condemning the appellant in costs, I and here aJ..s.o. we think that the criticism is justified! b3. Dr.Lamwai I has argued, the learned judge having found that there was partial .. I compliance with his order for the supply of further ana better . I particulars, he should have reflected this in his order for costs, I but he did not. The second respondent was made to bear the costs in full which, with respect, we think """ m-ong. Thia/ ground of appeal also .succeeds. I I Coming now to the cross-appeal, the sole ground /it raises is .I fttrther and that the court erred in extending the time for supp 1Ylfllg I better particulars ordere-d earlier. This issue was e:tfective.ly < I detennined in the course of our dealing with grounds dne to four of . I . the appeal when we held that the further and better.pch-ticulars I supplied :in the amended petition were sufficient, the/ import of. which is that it was open to the court to proceed to trial and not I to extend the time for supplying further and better particulars. I It is clear, however, that the prayer in the cross-appeal for I striking out the petition is untenable bf,catIBe for the reasons I . already giyen the way forward now is to proceed to tr/al. I /••• /8 I I I I I I I In the event both the appeal and the cross-appial /partly succeed. We allow the appeal in groUhd five and $et' asdd,e_ the further order 'dated 22/8/200{] for the supply of further and qetter particulars ordered earlier. It is directed that the High Court now proceed with the trial on the basis that the par"!;iclars as. supplied in the amended petition are sufficient. We; aJo allow . , I. the appear in ground seven· on the :Lssue of costs and' order that each party is to bear . ·his 0"111 cos ts in the High Court . l . I. As both the appeal and the cross-appeal in this Court have partly I succeeded;. we also order that each party is to _bear h:Ls own costs bf the appeal. i I DATED _at DAR ES SALAAM·th:Ls·27th_ · · 2001 •.. BoA, SAMfrTA CBIEF ·JUS~ICE ••.;$.-' """~. RoHo KISAMA JUSTICE ~- - OF 1?PEAL . I KoS oK~LUGA.\I:,iGIRA I --------=-=--:;,~ JUSTICE OF l'.>PEAL I I certify that this is a true ~opy of the origin.h. I :. J .-·-.:·.·•~j I . :'.. i I I I 's . •,.,.T :,;.~. , ·;, ,,. ,..·-. .... :_