20160725 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY

AT ARUSHA • I CIVIL APPEAL NO. :J,5 OF 2016 I I 1. ELECTION RETURNING OFFICER:,

I ST ARUMERU DISTRICT..................'.................... 1 APPELLANT ' ' ' ' 2. ASSISTANT RETURNING OFFICER I : ND MATEVES WARD .... ■ I ■ II •••••••• ······••'■■■■■■■■■■■■■■ •••••• 2 AP PELLA.NT ' i 3. JULIUS MOLLEL ..........................-. .................. 3RD APPELLANT '

I TH 4. ATTORNEY GENERAL .................. -................... 4 APPELLANT I VERSUS : j I ABEL OLE LE KEN. ■■■ •••••••• ■■■ II ■■■ ••••••• ■'.■ 1111 ■■■ ■■ •••• ■ ■■■■■ 11RESPONDENT Date of last Order: 02/05/2016 Date of Judgment: 25/07/2016 JUDGMENT 1, ' MASSENGI,J The Appellants having been dissati~fied with the Judgment of the Resident Court of Arusha at Arusha py Honourable KAMUGISHA, RM dated 29th March, 2016 appealed to this honourable court on two I I grounds namely:- 1 ♦ 1. That the trial Resident Magistrate erred in law and in fact in certifying that the 25th October, 2015 Ward Councilor Election for Mateves Ward Arumeru District in Arusha Region is null and void for the reason that the 3rd respondent conducted illegal campaign on Election Day which prevented the majority voters from electing the candidate they preferred.

2. That the trial Resident Magistrate erred in law and in fact by failing to evaluate the evidence of the respondent thus nullifying the election results. In this appeal the first, second and third appellants were represented by Mr. Shimbo City Solicitor, 4th appellant was represented by Mr. Muhalila Learned State Attorney and the respondent was represented by Mr. Charles Abrahamu learned advocate. The Appeal was argued by way of written submission. Arguing the first ground of appeal, appellants contended that the trial court grossly erred in law and in fact in nullifying the Mateves Councilor's results with the reason that, the 3rd appellant campaigned on the Election day hence prevented the majority of voters from voting for the respondent, it was their argument that during the trial of the case, the respondent herein who was the petitioner at a trial court brought a total number of six witnesses whom every witness had his/her own piece of evidence contradicting one another, PWl who is the respondent, made it clear at page 14 of the typed 2 Proceedings that, he did not witness the 3rd appellant campaigning on - the election day that is; 25th October 2015, but he claims to have been told that the 3rd appellant passed at various polling station on the election day campaigning that the respondent is a murderer, he should not be voted therefore, the evidence of PWl is of

hearsay, hence should not be considered. It was further argued that the testimony of PW2 one KARISIMA EMMANUEL MALIDAI, made it clear at page 21 of the typed proceedings that, she was a CHADEMA agent at Ematasie 2 Polling Station and all agents including herself were inside the room where voting exercise was continuing but surprisingly she testified that, she witnessed the 3rd appellant passing through the que outside talking to voters that, CHADEMA candidate has kidnapped and killed she also stressed that, she witnessed many CHADEMA's voters changing their minds and vote for other candidates due to that illegal campaigns,the appellants wondered how she managed to see and hear what was going on outside the polling station while sitting inside her polling station supervising the election, appellants added that PW2 also testified that she left the station at 12:00 after fallen sick and again at the Bus Station she saw the 3rd appellant with his PASSO motor vehicle with cream colour telling people not to vote for a murderer and that some voters postponed to go vote and turned back home. 3 It was the appellants' submission that PW3 one ZUREHA JAMA had her own story at page 25 she testified that, she was told by her fellow CHADEMA members that, the respondent had killed,later she suddenly claim that, she was given a lift by the 3rd appellant who was a CCM candidate and that on the

way, he was telling people that the respondent had killed. PW4 one EMMANUEL N. LOBEBEKI was also a CHADEMA Polling agent at Ngorbob B. He contends at page 29 of the typed Proceedings that, the 3rd appellant used a CCM Poling agent one ABDUL KARIM MALIJANI to publish dirty information that, CHADEMA candidate who is the respondent had killed and he made it clear that, apart from being a CHADEMA Member, he is his in law as the Petitioner's brother married his sister and he continued to contradict himself that, the agents were not allowed to talk to anyone, but still claims that, the CCM Agents published the information that the respondent had killed It was the appellant's argument that, PWS one ROSE CHON! at page 34 of the typed proceedings testified that, she voted at Mateves Polling Station and that when she was on que with other voters, they were told by the 3rd appellant that, they should not vote for a killer who is the respondent herein, and she continued to testify that, such influenced them to vote for the 3rd appellant. It was the appellant's submission that, the trial court made a gross error in facts and in Law to rely upon such evidence due to the 4 following weaknesses found in the evidence adduced by the Petitioners side; Firstly, the illegal campaign which ought to be made by the 3rd appellantis the information that the respondent killed the NCCR Mageuzi candidate

hence he was a murderer and was not to be voted, the respondent herein who witnessed as PW1 made it dear on his evidence that, he was arrested by the Police on 24th October 2015 one day before the Election Day and was accused of kidnapping and murdering his fellow NCCR Mageuzi Candidate. They said withtestimonies from PW1, it means he was arrested by Police for being accused of murder and spent that night of 24th October 2015 in Police custody and as the competition between CHADEMA and CCM was too hot in Arusha, and taking into consideration that, Mateves Ward had only eighteen (18) Polling Centers, there is no doubt that, on that night when the respondent was arrested, the whole city including Mateves Ward became aware of his arrest for murder charges. The 2nd weakness according to the appellants on the petitioner's case during trial was the contradictions of the evidence adduced,as each witness described the colour of the car which was used by the 3rd appellant on Election Day differently, while PW6 described it as a vehicle with silver colour at page 37 of the typed Proceedings, PW2 while cross examined at page 23, she said the colour of that vehicle 5 was cream in colour another contradictions was the kind of motor vehicle, while PW2 said the 3rd appellant was driving a motor vehicle made PASSO, PWS said that the motor vehicle was a saloon car starlet. The 3rd weakness is

that the respondent used the CHADEMA followers as his witness without bringing independent witnesses to testify without biasness, PW2, was a CHADEMA agent at Ematasie 2 Polling Station and claims that, she witnessed the 3rd appellant talking with voters that CHADEMA candidate has killed, and that made her fellow followers changing their minds and voted for the other candidate but to the appellant's surprise, the respondent did not bring another agent from other Political parties at that station to testify as to what real happened. Opposing the appeal Mr. Charles Abrahamu learned counsel argued that the testimony of PW2 KARISIMA EMMANUEL MALIDAI who was CHADEMA agent in Ematasia 2 Polling station was concrete and heavy evidence with no element of contradiction or fabrications as she witnesses the whole saga hence the trial court in reaching his findings ought to rely on it, he said there was no assertion in the certified proceedings that PW2 and other political agencies were only inside the room whe~e the voting exercise was continuing because as political party agent PW2 was supervising, monitoring and observing the whole election process and see what is 6 going on in and out of polling station. Section 58(1) a,b,c of The I Local Authorities Elections Act CAP 292 R.E 2015 polling agents are given mandate among othe~ of cooperating with presiding officers and polling assistants

to secure the smooth compliance with the law and procedural pertaining to t~e conduct of the voting and the elections at the polling stations, he ,said it is obvious this witness was observing the voting process inside the room and outside to see if it is in compliance with the Law, he said also in PW2 testimonies she further testifies after saw 3rd appellant 'in queue talking with voters and conduct illegalcampaign she reported to election officer who ' rd chased 3 appellant away because what he was doing was contrary to the Law. This story was never challenged by counsel for appellants ' during cross examination and no contra~ evidence to that effect by the Appellants. Mr. Charles Abrahamu submitted further that the testimony of ' one PW3 ZUREHA JAMA was concrete :evidence the trial court had I to rely due to its correctness because PW3 testified that 3rd appellant I during the voting day was driving her relative's car and gave her lift and on the way she directly heard 3rd appellantcampaign and spread the story to people who were heading to, polling stations there were no contradictions or elements of verbosity, it was one of the testimonies moved the trial court to reach in its fair decision as PW3 7 \ as normal voter did witness and heard 3rd appellant conduct illegal campaign as it was undisputed that they rode in same car. He said that again the testimony of PW4 one

EMMANUEL M. LOBEBEKI who was polling agent at Ngorbob B is one of the concrete testimony the trial court relied in reaching its fair decision as PW4 as polling agent who was around the polling station and monitor all activities all the time did hear and witness correspondence between 3rd appellant and his CCM polling agent. The annotation by appellant's counsels that PW4 testimony is hearsay as it was CCM agent who published the alleged illegal campaign has no leg on which to stand as on page 29 of Mae/ekezo kwa msimamizi wa Uchaguzi wa raisi, wabunge na madiwani 2015 issued by National Election Commission abbreviated as NEC in paragraph 8.4 of the directives prohibits campaign on election day as its says: ''nimarufuku kwa mgombea, chama cha siasa au waka/a kufanya kampeni siku ya uchaguz!'. He added that it is obvious the 3rd appellant did not talk to voters in that particular polling station but rather he approved his polling agent who campaigned illegally and spread the information with 3rd appellant direct knowledge. During cross examination they never challenge this sworn testimony on PW4 heard CCM polling agent circulating the alleged illegal campaign, he saidthe testimony of PWS is another heavy and concrete evidence which moved the trial 8 I court to reach proper reasoning and give its fair and well reason decision as ROSE CHONI who was a normal voter witnessed and '

J heard 3rd appellant campaign illegally and spread wrong information over respondent herein that they should not vote for the killer and she further cemented her story that such story influence them to vote for 3rd appellant. The fact that this witness contradicted herself by testifies that 3rd appellant came with Saloon Car Starlet is baseless with aiming of wasting precious time of this Honourable Court as it was undisputed that 3rd appellant was using saloon car. He further argued that it is obvious counsels for appellants didn't bother to read the said judgment and reason for its findings as the testimony of PW6 MWANAIDI RAMADHANI was not considered by the trial Court in reaching its decision as she was contradict herself and evidence of PW3 and PW4 hence trial Court as temple of justice ought to disregard and take into account evidence of other witness that 3rd appellant conducted illegal campaign on election day. Mr.Abrahamu added that the appellant's accusations that the trial court magistrate made a gross error in facts and in law is baseless as It is undisputed that the illegal campaign which was s.pread, was that respondent herein had kidnaped and killed NCCR Mageuzi candidate hence he was a murderer who will not be available for number of years hence should not be voted, translated to: 9 "Msimchague Abel Ole Leken kwani ameteka mgombea wa NCCR Mageuzi na kumuua

hivyo hatakuwepo kwa miaka ming/' He said it is also undisputed that the respondent herein was arrested by the police on the night of 24th October 2015 and released on 25th October 2015 around 10:00hrs in the morning it is obvious that he was released the following morning due to the fact that the allegations were not true, but as per the sworn witness statement the information was spread by 3rd appellant's on voting day malicious to lower his reputation before eyes of voters 3rd appellant who went further and assume power of court and declare that respondent will save many years in prison hence will not be available and this prevented many people from voting and change majority of voters. He said, There is a significant principle in election petition that was stated in the case of Joseph Sinde Warioba v/s Stephen Wassira and Another Misc. Civil Cause No. 25 of 1995 (unreported) where it was stated:- ' the franchise is the ve,y corner stone of democracy, it is the one right more than any other, upon which all other Constitutional rights depend their effective protection. When the right to vote is denied or abrogated, democracy and freedom fail. Democracy should always be conducted or put in action the way it is preached and accepted' 10 He said the trial magistrate rightly made proper reasoning and , findings as to declare the said election null and void as 3rd appellant acts

denied and abrogated Mateves voter democracy and freedom to choose leader they wishes. It was his argument that it is well settled principle of law that theone who alleges must prove and respondent herein did prove all allegations particularly of conducting illegal campaign during voting I ' day beyond reasonable doubt. There was no any doubt if 3rd appellant herein conducted illegal campaign which lowers reputation of respondent before eyes of voters. He cited the case of Abel Mwanga Vs Eliasaph Lema, Misc Civil Appeal l\lo. 4 of 1982, CA Mwanza (Unreported) where it was held that "It is enough if the Court is satisfied that the evidence has proved the case beyond reasonable doubt" because there is no need proof beyond doubt' He said the appellant's first ground of appeal be dismissed for want of merit. Submitting on the 2nd ground of appeal he said it should be noted that appellants herein during trial they did only bring 3 witnesses, DWl who was assistant return officer in Mateves ward I ' alleged to fail to properly supervise election and DW2 who was announced 2015 general election winner in ',Mateves ward also alleged 11 to conduct illegal campaign during voting day and DW3 who was polling officer in Lemugur polling station . . -J He said in the case of James Omingo Magara Vs Manson Onyango Nyamwenya and Two Others (CA) Civil Appeal No. 8 of 2010 Kenya (unreported). The

Court said: "While the Court should, as much as possible seek to give effect to the will of electorate, it must at all time act in accordance with the Constitution and other electoral laws and regulations made there under Anomalies and incidents of non-compliance with the electoral laws and regulations or incidents aimed to frustrate the election process renders the election to be not free and fair. The same must be declared null and void" It was his submission that the defence evidence which was under scrutiny and contradictions were mere general denial which was not enough to move trial court to believe the story of only witnesses who also they were alleged to conduct illegalcampaign. They could bring polling agents in those particular polling stations or mere voters who were around in particular polling stations to narrate what they witnessed, He said the second ground of appeal is of no merit and they pray the same to be dismissed. 12 In rejoinder, the appellants' counsel reiterated their submission in chief and maintained their prayer for this appeal to be allowed. As far as the first ground of appeal is concerned the evidence of PW2, PW3, PW4 and PWS at the trial court was to the effect that the 3rd appellant was campaigning by extending false rumors about the respondent that he is accused of murder. PW2 Karisima Emanuel Mandai in his evidence stated that he was at

Ematisie polling station as Chadema agent, Thus at 10:00 hours the 3rd appellant passed through the voting que talking with the voters that Chadema candidate has kidnaped and killed.PW3 Zuhera Jama was in a que waiting to vote, her fellow Chadema member told her that the respondent has kidnaped and killed, this witness also told the trial court that the 3rd appellant gave her lift while in the car he was talking with people that the respondent has killed. PW4, Emmanuel M Lobebeki a polling agent in Ngorobob "B" village office, it was his evidence that between 9:00 - 9:45 hours the 3rd appellant arrived at the polling station and talked to one Abdul Karim Mahija telling him that they should go on to struggle as he had already finished Chadema candidate, when he left Abdul Karim started publishing that the petitioner had killed, voters reacted by saying that they can no longer vote for murderer, thus they casted their votes to CCM Candidate. 13 PWS Rose Choni testified that, she went to vote at around 11:00 while at the polling station, arrived Mr.Julius S Mollel CCM candidate and began to announce to them while they were on voting que that they should not vote for Abel ole Leken because he has killed a person. It was the appellant's allegation that respondent's witnesses contradicted themselves in describing the colour of the car which was used by the third appellant, PW2

described it being Passe cream in color and PWS described it as saloon car starlet grey in color as correctly submitted by the appellants' counsel the record of the trial court is very clear on this issue that the respondents' witnesses were not certain of the type and colour of the car used by the 3rd appellant. Though this contradictory is noted the same does not go to the root of the matter, the courts are duty bound to address the consistencies if any and resolve whether they are minor or they go to the root of the matter. In our case at hand the central issue is ascertaining whether the 3rd appellant campaigned illegally against the respondent or not, the fact that he arrived at different pollingstations with a car or not is not a major issue. Therefore the fact that the respondent's witnesses contradicted themselves on the type and the colour of the car the 3rd appellant used is very minor the same as earlier stated it does not go to the root of the matter. Even though the trial court did not explain on the contradiction as regards to the mode and color of 14 vehicle, this court as the first appellate court can step into the shoes · of the trial court and address on the issue of contradiction as I did. The totality of the evidence of PW2, PW3, PW4 and PWS was cogent enough to show that the 3rd ·. appellant conducted illegal campaign on the election day and from the

provision of section 107 (2)(a) of the Local Authorities (Elections) Act Cap 292 is clear that campaigning held in contravention of the Act and the directions issued by the Electoral Authority regulating the duration· and manner of election campaigns constitute illegal pr.actice, section 107 (2) (a) provides:- 107 (1) The election of a candidate as a member shall not be questioned except on an election petition. (2) The election of a candidate as a member shall be declared void on any of the following grounds it is pro_ved to the satisfaction of the court namely- (a) that by reason of corruption or illegal practices committed . in connection with the election, or o,ther circumstances, whether similar to those enumerated or not, the majority of voters where or, may have been prevented from electing the candidate whom they preferred. Illegal campaign alone does not automatically render election void, section 107 (2) (a) of Cap 292 provides for additional requirement that is the campaign prevented the majority of voters 15 from electing the candidate whom they preferred, from the evidence on record 3rd appellant got at Ematasie, Ngorobob 'B' and Mateves polling station after the voters had gathered and were on long queues to the voting and talked to them, though there is no direct evidence of the exact number of people who were reached by him but the evidence of CCM polling agent

at Ngorobob B shows that many people heard of his campaign, the 3rd appellant's story was discouraging voting for the petitioner and to my view it prevented people from voting for the respondent as he was telling people why should they vote for a person who will not be available to stand for them and solve their problems that their vote would be equal to non-voting, PW2 and PW3 testified to have heard from voters who reacted by saying that though they like Chadema but they were not ready to vote for a murderer, the 3rd appellant's illegal campaign therefore affected election results. The second ground of appeal that the trial magistrate erred in law and fact by failing to evaluate the evidence of the respondent is baseless as the evidence of all respondent's witnesses was well analyzed by the trial magistrate, he evaluated the whole evidence and believed PW2, PW3, PW4 and PWS being credible witnesses. It is a principle in law that a trial magistrate is better placed to access the credibility of the witnesses than the appellate court which only reads 16 the transcripts. In the case of Omari Ahmed V Republic (1983) TLR 52 The court held: 'the trial court's finding as to the credibility of witnesses is usually binding on an appeal court unless there are circumstances on an appeal court on the record which call for reassessment of their credibility The same principle was reiterated

in'· Ali Abdallah V. Saada Abdallah Rajah And Others (1994) TLR 132 Where it was held: (i) Where a case is essentially one :pf fact, in the absence of any indication that the trial court failed to take some material point or circumstance into account, it. is improper for the appellate court to say that the trial court has come to an erroneous conclusion; (ii) Where the decision of a case is wholly based on the credibility ' of the witnesses then it is the trial court which is better placed to assess their credibility than an', appellate court which merely reads the transcript of the record. On my part I see no reasons to interfere with the finding of the facts made by the trial court, as the trial magistrate is the one who heard the witnesses and observed their demeanor as they testified, he found PW2, PW3, PW4 and PWS to be reli.able and I see no reasons I whatsoever to think that the circumstances ':were any other than those narrated by those witnesses. 17 I In the upshot, the appeal has no merit and is hereby dismissed 1 i ~ ", in its entirely with costs. I hereby upheld the decision of the trial court as it was proper when it declared the :ward councilor Election for Mateves ward, Arumeru District, in Arusha, Region null and void. I SGD: F.H. MASSENGI

JUDGE i 25/07 /2016 1 I Judgment delivered in Court this 25th day of July, 2016 in the I I presence of Mr. Dustan Shimbo City Solicitor I and Advocate for the 1st rd and 3 Apepllants and Mr. Charles Abraham, Advocate for the Respondent. SGD: F.H. MASSENGI

I

JUDGE 25/07/2016 ! I ! I hereby certify this to be a true copy of the original.

DEPUTY REGISTRAR

ARUSHA 18 'it I i -