19870807 TZCA Dar es Salaam

IN THE COURT OF APPEAL W TANZANIA

AT DAR ES SALAAM (CORAM~ MUSTAFA I J ,A. ' OMAAJ, .J...A. !'+i.:!.lfA~~J~NO' Ag·- .3. ·A•) CIVIL APPEAL NO. 6 OF 1987 B,ETvffiEN m ''.ANlJEL ABRAHAJVlU NANYARO • • • • • • A})Pli:LLANT AND 1• PENIEL OL::~ SA I TADA U. , • • .1st RESPO~ffiENT 2. THE HON. ATTORNEY GJZNERAL. • 2nd R:.:";SPOIIDENT (Appeal from a Judgment and decision of the High Court of Tanzania at Arusha) ( Chua 9 J.) dated 31st d.ay of May, 1986 in Miscel~"!.,n!_ou,.!l. Civil Cause No, 120/85 ;- JUD3-MENT OF THE COURT This is an appeal from the judgment of the High Court at Arusha (Chua, J.) d.ated 31/5/86 9 dismissing the petition of Emmanuel Abrahamu Nanyaro 9 the appellant herein, and awarding costs to the respondents i.e. Peniel Ole Saitabau (hereinafter referred to as the first respondent) and the Hon. the Attorney General of Tanzania. The appellant a.nc1 the first respondent were candidates in the parliamentary election for the Arumeru constituency that was held on 27/10/85. Upon the conclusion of the counting of the votes and after the result of the election had been ascertained the first respondent, who was the incumbent, was declared re~elected. The first respondent polled 41,022 votes against the appellantls 36,217. ... f I ... 2 The appehant wos disscitisfied and. he brought a pet it ion in the High Court seeking the nullification of the election, He impleaded the Attorney Generol as a second

respondent, In the High Court the appellant wcs represented by Messl:'s Jonathanp Sh8yo and Mahatane~ I'Iessrs Lobulu and Oj.s:re appeared for the first respondent~ and r1essrs Mlawa and Kimongoro appeared for the Attorney General. Mr. Mahatane and Mr, Lobulu ·•,.--:· .. ·•·····,·· have been retained by the appellant and the first resp6ndent, respectively, to argue this appeal. The Attorney General is represented by Mr. Ihema. pl ' ) The appellant challenged the victory of the first respondent on several grounds, some of which he expressly or impliedly abandoned in the course of the proceedings in the High Court, Those grounds can suitably be classified into and discussed under three categories i.e. illegal ieampa~ns on the part of the first respondent at certain rallies~ illegal c.s:mpaigns and corrupt practices on the part of the first respondent carried out in his office~ and what was termed 0~3 d.isEmfranchisGmcnt as woll 8s irregularities at ce~tain polling stations. I~ his judgment the learned trial judge held that the allcgotions of illegal campaign and corrupt practices were not established. tc, his satisfaction. ' ~ _'-::;) He found that only 60 voters were d.eprived of their right to vote .... - due to the non-avail;;lbility of ballot papeEs. He heldp however, that this shortcoming did not affect the results of the elect ion in view of the fact that the margin of

victory was 4,805 votes, This appeal has been brought on eleven grounds but Mr. J\fuhatane has found it convenient to argue it generally and not ground by ground, and properly s.o in our view, as some of the grounds a.re intimately intertwined, •••••o/3. . - 3 - Mr. Mahatane has attacked the finding of the High Court in respect of the alleged illegal ca;rpaigns at the rallies. In the petition the appellant set out_ four such aEegations. Th0 f:i.rst is that rrthe first respondent throughout the period of the official campaign made unsolicited fc1lse and/or exaggerated cbims with respect to development projects started in the constituency during his previous tenure of office. 11 'rt1e se_cond allegation is that 11 the first respondent throughout the pc::-iod of the official campa:i,gn corruptly promised his audiences that i:'.:' re~elected he would eonti.ni..e to raise funds and to direct all t1is efforts to complete the said projects. 11 The third allegation is that i'the first respondent throughout the period of the official carnpa ign wrongfully induced the electorate by making false aml/ or exaggerated claims th0t he ha.d been instrumental in getting His IGxcellency the President of the United Republic to revoke le::;.scs of nine farms previously owned by public and private companies ond to regrant those farms to people living within the constituencyH. And. the fourth

allegation is that 11 the first respondent in refe.:.:'::'ncc to the farms referred to above corruptly promised that if re-elected. he would see to it the.t the farms were reallocoted to individuols living ,rithin the constituency,ir Four correspond.ing issues were fro med and recorded by the Court and bosically the question posed. in eoch issue was whether the first respondent had. actually made such cla :i.ms and promises. I . According to the evidence adduced by the appellant himself, the first respondent made such claims and promisos at three campaign rallies, namely ot i'1akuyuni 0ljoro and at 0lasiti on 20/10/85, and at Karangai Maweni on 23/10/85. The appellant· allege<! that at Mbuyuni the first respondent, at the beginning •• ••o•/4. / ' . ,. 4 of his speech, made reference to the Oljoro dispensary and to nine farms situate at Oljoro that were previously held by public and. private companies and whose rights or leases had been revoked by the President. He sfated thot the first .:ces:oondent told the cathering that he had looked for Shse 220,000/- fo:.:: the completion of the dispensary and thot he and bis colleague:: had seen the Presid.ent and prompted him to revoke the leoses 9 and that he promised. tha.t the nine farms would be regranted to somE: of the residents of 0 ) Oljoro. The testimony of his witness P.\J.10 .Cdward Iisangi was similar except that he did not

mention the President :in regard to the nine farms. The first respondent denied the allegations. Ho stated that the only occasion when he tolked about t~ dispensary was when he was answering a question from the audience. He had been asked what he had done, as a Menl)er of PL,rliament, to have the construction of the dispensary com~leted. He said that his nnswer wDs tpat there were plans to have the con,struct ion completed. He denied that he went· further to say that he had obtained a sum of Shs. 220,000/- for that project. D.W.21 .Saidi Tillya, the Cha i.rman of Olj oro, ge.ve ev"i.,1ence on his side, lending him support, The appellant Dlleged that the first respondent mode similar \, remarks about the dispensory and the nine farms at the Olositi rally. He called P. W,9 Azizi AbdallDh who backed him up. JJut like P.W.10 Bdword Msangi 1 s 11 the evidence of P.W.9 wc-s silent on the role the President had ployed in mak:ing the n:ine forms availoble to the residents of Oljoro. The first respondent I s version wos diffGrent. He told. the Court that the only occasion on which he mode mention of the nine farms at that rally was when he was again responding to a / / • 0 •• 0. /5. • r. 5 question about a certain list of l2ndl2ss people thot hod been forwarded to the District Heodq_u2,:krs. He recalled telling the crowd. thot the Govel'.'filment h:id ot-reed 9 Ui)On certain

conditions being satisfied 9 to revoke the l2nsc:,s in .~e,Jpect of those nine farms and. that upon the satisfaction of the conditions the farms would be apportioned to those li3tedo He denied that he mentioned the sum of Shs. 220 9 000/- in connection with the dispensary•. Again D.W.21 Soid.i Tilly1:1 9 who o;ttcnded. L:d meeti::1g 9 gave evid.ence thot substantially supported trL version of the first '\ ·,respondent. The campaign meeting nt K2rcn::;oi Maweni was held on 23/10/Sj•, If we go by the evidence of the a:lpellant and his witness P.W,12 David Urassa 9 there, as at Hbuyuni ond 018siti 9 the first respondent disclosed. to the rDlly 9 in the course of his main od.dress 9 that he had secured. a sum of shs. 100 9 000/- for the construction of a cattle dip and a clinic, and that he asked. the crowd to re-elect him so that he may complete the l)rojects he hwl started. He prod.uteo. P.W.14 Msee Kipanga whose t,.-:-:::ti1:~0'.",;:' wao parellel except thnt he d:i,d ·')not mention a cattle dip, The first respon·'c-:,t c -'· :itted :;':..::-t h0 said something about a cattle dip at that rally, but denied having soid anything about a clinic 9 pointing out thcJt there was alrec(\y or.e at thc:it · place. He said that he had. been asked a quest ion by one person relciting to the project of conve:rtine; a certain trench into a cattle dip, which project still remained on the drawing

board. He said that that was the occasion he referred to the sum of shs. 100,0.00/. ·. that had. been Dlloca.ted to the project by the approprie,te Distriet authorities. ms account found support in the testinony of D.u,, · William Mo.ringe 9 whose power of recollection favourably impressed I the trial judge,. ..... /6. ' ' - 6 - The first respondent also tendered the minutes of the review meetings, exhibit D.15, in ansHer to the allegc;tions levelled . against him. These were minutes of tl-le 11:ieetings of the D:hstriet ' Political Committee of the Party th~t were held almost every morning d.uring the period of the official _campaign. As is now well-known, the District Political Conmiittee of the P~rty is the organ that is legolly charged with th<? organization and conduct of the election ccJmpaign. 0rdinc:rily nsetings of that Committee are held on a cla ily bDsis durine- thCi period of campaign t6 diseuss \ ' ___ .~ the business of the compaign in the constituency and review what has taken place. In the discher~;c of these functions the Committee listens to any misgivings, gric\·oncos 2nd co1~1ments of any of thoae who are officially concerned, includ :'.::.:::· tlle two candidates, Thi~f incidentally 9 is on<? of thG cl istinc'.; _'2c:t;ircs th8.t character~e the Tanzanian parliorncmtary ·olGctorc:•:. 1:.rocess, .. acain It is to be observed r .L thot the caqpaigh meetings

at Mbuyuni and 0lasiti took plocc on 20/10/85. According to exhibit_ D.15, whose accur::.•:::y 1·c;-~ n0t challen3ed, there was sueh ) a review mE.'ding on 21/10/85 in the r.1orniiv.. Nothin{s was said by the appellant about the :"-13e onc'.'Jr exos::t:.rotGd claims and prom:i,ses which the first respondent allog2dly made at those two rallies, It is to be observed also, as tbc triol judge did, that the Karangai rally was held on 23/10/85 os wos the rally at a place called Makiba. Now in the review meeting thd was held :in the morning of 24/10/85 the appellant did not, likewise~ raise? any complo:i,nt in respect of the ICnrangai rally 9 though he is on record os h~vj,ng raised a complaint of that nnture L'1. regnrd to the r·ally at 1'1akiba• which complaint, however 9 was not a sut,ject of any of the particulars set for.th in the petition. ..~ •• /7. I - 7-- The learned judge reviewed and ap~roised tho evidence. In his vantage position the judge was not satisfied by the ·veracity . of the witnesses called by the 8ppellopt. He notic;;,d some discrepDncies in t.heil;' evidence. Ho pointed. out, for instance, that with regard to th~ Mbuy,mi and Olasiti rallies, P.W .. 9 .Azizi Abdallah and P.\~.'\.O Edward Msangi hDd, unlike the appellant., not \ mentioned the Presiden:tf The judge considered D.bf.21 Saidi Tillya, to be a reliable witness ♦ And with regord to the Karongai

rally, ,-.._ the judge preferred the version of the first respondent wtilich as '~J observed found support in the evidence of D. W.9 William Ho ring~• The ...... - judge nlso adverted to exhibit D.15 ond then took the view that the absence of any complaint in those ninutes about who.t was allegedly spoken by the first respondent at those rallies cast a real reasonable doubt in the case of the 0ppellont. The judge reonclooed by aeying, in effect 7 that stc:itenents like "I have seen the Presid.ent. in connection with the nine farms a.t Oljoro and the President has in consequence revoked the leases in respect of those forms ond the forms will be reg-ranted to the residents of the area •••• o. were not objectionable and did not in 11 the least offend the provision of section 97(a) of the Elections Act, 1985, as it was a true stat2nent ond not made with arry intention to induce. any voter to vote and so on. The gravamen of the appeal in regard to the alleged. illeg~l campaigns at the rallies is agDinst the learned jude-e's fincling on the credibility of the witnesses, Indeed, Mr. :Mahatane tu?s put in the forefront of his argument the submission that the judge erred in disbelieving the witnesses colled by the appellnnt generally,. and that th€ reasons given by the judge for d.oing so were bad.. He has .:i.rgued that if the words attributed. to the first respondent by the appellant

and his witnesses are truei then I / 8 - they constituted illegal campaigns and prnctii.ces on the part of the first respondent and that they sufficed to ovoid the election under sections 97(a) and 108(3)(a) of the b"lections Act, 1985• In fact Mr." Lobulu had taken a prel iL1inary point in the High Court before the hearing started. He subr:1itted at some length that the allegations in questions were what he described as 11 innocuous 11 and. that they did not afford the appellant a reasonable ground of complaint under the :Glections Act. Mr, Hlawa. who, as shown 9 represented the Attorney Generel expressed a similar view. The judge was not persuaded and in his ruling dated 3/4/86 ~,1 he stated that he v,ns not prepared at thot stag<:} to· say that the acts complained of we.re harmless. We have considered the jud~ment of the High Court. In principle we are unable to fault the dGcision of the lea.med judge. The judge believed the evidence produced by the first respondent.· Soll}d of the reasons that h2 gave for believing that evidence seem to us to b<: sound. The failure by P.W.9 Az:i.zi Abdallah and. P.W,.10 Edward J\'.fsangi to make any reference to the . President in respect of what the first respondent had. told the meetings et Mbeyuni and. 0l2siti about the nine farms was clearly a material detracting circumstance. We are disposed to think that a statement to such meetings

and at such places to the effect that the President had at the instance of a concl id.ate revoked the leases of the farms is doubtless the kind. of stcitement that would h£lve mtld.e a great impc:ict and impression in the m:i.nd of any attentzye listener. It is not the sort of thine which would have been easily forffotten. Land appear □ to hzve been an exciting subject. The appellant himself told tl1e court that the problem of scarcity o:f land in that area was a vexing one Emd of long-st~nding• . •t,••o•o/9. \ 9 I., A13 stated earlier, the appellant did not complain to the: CoroDittee at the review meetines and the absence of any complc:! int by the appellant in exhibit D. 15 also detructed from the credence of the appellant 1 s case. We have had. a look cit section 97(a) of the .l!]lections Act, We share the view of the learned. jucl:;e that all that the first respondent said £it the three ralJ.ies, as recounted by the first respondent and his witnesses, wc:s fair and sq_u£Jre and did. not offend the provision of that section. \:le have also had. a look at section 51(4) of that Act, which enjoins the ors,mizers ,of the ~) election campaign to i;accord a fair one: equal op:_)ortunity to ea.eh of the cond idates: 1 •G are unable to r ::Dd into the terms of that sub-section any allusion to a recrt:irGi:G~:t t~c:t c candidc1te should not address th~ raJ.lics about hiG r0ol

··:c'.~ic,·,Tec;rt,s. '!c put the questionsg What is an :.:J.cctior, cc:,·:1pc1i:.::1 oll a:x,ut: Is it not true that the whole o'.Jject of ::::t~c'.1 a cai:rai,·n i:3 to enable the electorate to intelligibly assc1.J'.-: 8nd "'.'ate the con1)etence of the candidates? And can it be sensibly denied. L::it past performance or non-performance is one o.: the :lSt,al and vital factors that the ord.inary voter would. invariably take into consic]eration in sueh an .J exercise'? Before we leave this part of the appenl we will say a few word.s in regard to Mr. Lobulu 1 s subraission aoout the pleadin:3"s. We are unable to agree with :tvir. Lobulu 1 s contention that the pleadings in respect of those c11le~3tions sboulc:I have been struok out at the be~inning. As we have already pointed. out, a preliminary point was taken in that rcgard before the start o:f the hearing. It is elementary that at tha.t stage the judge could only look at the pleadings in the petition ~d. nothing else ♦ In principle he had to decide the ..... /10. 10 - point on the footing that the allegations of the · · ai)pellant :in the petition were true in manner and form. The appellant used the words 11 corruptly 11 or ;1wrongfully 11 in those pleadings and. we feel that he t h,ore by suff ic ieu.tly disclosed causes of complaint~ In our view, therefore, the judge was richt in overruling tl1e preliminary objection. But

that is not to say that the petition is perfect in every .respect. AJs we hove had occDsion to rerr.nrk at tho hearing of this appeal, the petition can 9 in form, bordly lay clah.1 to elegance, and it could have been better cl.rafted and :3l10'1lcl have conta.ined details of the campaign m<?et incs in which t b0 worcs ,-,ore spoken e,s ,-toll as the dates on which those r:1oetincs took ploco, We turn to the allC?(~ntions of illcc_:c1l ca· '.lX1i~-:-ns anc1 corrupt practices committed by the first respondcmt in l-:!.is office. The allegations were that nthe first ;~'cspon::}ent th;:·ou(;hout the period between the dissolution of the National i1.ssenbly in the month of July and the polling day usecl the office norcr: _ly uaed by the Hemher of Parliament for the const::~uG :c~· c.s o tc:se for conductin::; illegal " campaigns aricl co1:rupt prnctices by dictrbutinr; and/or :;:,rop~ ( selling scarce commodities t::-, ~)rospecb:.re votcrs;i• 'l'he first respond ant, apparently QX ·sbundanti c'autela, denied the a1legat ions in a Written Answer (there is no req_urer,1ent at lc:1w to file such an Answer), stating that during the period in question he occasionally visited that office: to collect mail and. iifor like ,bonafi.:.k pursuits 11 , and that he disclosed the same to the appropriate authorities •. . The point, which apparently remains unresolved and which is not .. the concern

of the eourt, is wh<?the.t: a former Member of Pa:rliament can use the office that had. been allocated to him during his ·tenure of office after Parl iarnent has been d issol.ved • • • • 0 ••• /11. . . f . .., . .J 11 .. The principal witnesses for the appellant were P.W.2 Ataiwa Luka, P.W.4 Afrael Reuben Kaaya, P,W,5 Edward. Mbise and P.w.,6 Akyoo Joseph .Anael. All these re::ided at a. place called KinGot'i and. that might mean something. The learned judge felt that it was unsafe to act on the evidence of those witnesses and he stated. his reasons. What may be o~served stra iGhtaw:Jy is that none of the witnesses claimed to have obtained such 5::oocls from the f:i.:tst respondent without giiving adequate money value in exchange. P.W.2 Ataiwa testified that he bou::;·ht 10 iron sheets and 5 I rid 0 es from the first responc1ent for a sr:.m of sh,J. 1, 700/-, the transaction takinc place in the office in que,stion, which was situate I in the :District Party Duilcling, d t'.~c : -,?;~nin~; of October, 1905 6 That was after be hacl civen an c1rc '.ertokin; to cr.r_::;Ja icn for the first respondent. kta iw2 was a coraplcte s~ror::cr to the first respondent and. he said that the transoction toot a1Jout five 1:1inutes~ Dy his own repeated anC: explicit aclr.1i'.::si0n, Atgiwa would not hesitate to tell a lie when it suits him~ The test ir.1ony of P. W.4 "~frccl s'.:.01-Ted that be

called at the office of the first responc1 ont in r:iid-October 1 1985, upon being informed by Ataiwa of the 2-.,ilabiL~~" of tbe iron sheets at that office. He found the first .respon,:ent i:a there and he told him that he was in need of iron sheets. 'rhe first respondent replied an<l said that he could sell th<? iron sheds to hiL1 if ancl when he procured five people each }.Jr0i-)arec1 to l)uy 10 oheds and to' campaign for him. He went back to Kingori ancl lo:,ked for the five people, He only succeeded to get one, that is P .W .5 i::dward. The two went to see the first respond.ent in his office. According to them, the first respondent refused to .$lll thP: sheets to thera, telling afrael that he had not fully net his C'.)ff"ition • . . . . . ./12. •. - 12 - The trial judge found the accounts of AfraGl and Ed.ward contrad.ictory on the jJoint whether there was any further talking in that office after the first respond.ent ha(l declined. to sell the sheets to the two men •. What olso happened. is that uncler cross- examinat ion Afrael misdJ;?Gcribed the location of the District Party Building and the jud.e;e was apparently left_. in serious doubt as to whether Afrael had evor visited that place. And the. judge took into consicleration the t-Gstiu:1ony of :O.W .16 Iseac -Mdhias to the effect that round thot time P.U.5 Edward was undergoing treatment in the hospital after

sustainine e leg fracture. The other witness,. i.e. P.H.6 Akyoo 9 told the court that he bought 16 iron sheets and. 4 ridges f.rom the first respond:ent in the latter's office in early October, 1985. He claimed tha·b he paid a. price of Shs. 2,500/-.· Like P.W.4 Afrael 9 this witness did not come off well under cross-e.~rnrnination. His story that the sheets he purchased. were meant for roofine hi:=:: wattle house that had. been d.ubbed long before he bought the sheets nad.e little sense to the learned judge. The judge .r.ei11arked in the followine; lines~ "The Court takes judicic",l notice of the fact thot a. house dubbed with nrud unle:ss roofed would have by October 1985 bc-·:,n so b2cJJ.y damaged by rains in this part of tho world tl18t no person in his_ proper frame of mind. would do w(1r.:t P.w.6 al1Gged1y did, P.w,6 did not even thatch the c1lleged house with grass and. wanted this Court to believe that he did what he asserted. 11 ' The first respondent denied. tl10t he had sold any iron sheets to any of the witnesses. Tndeec1 9 he :lenied ever 1;1eeting any of them before. The judge found for him. The question that arises on thir; appeal is whether the learned judge wa.s ~ in his refusal to accept the evid.ence of the four witnesses .called by the appellant. TLs issue involved was a factual. one and a.a a ma~or of el1;mentary prir.ciple we hDve to ma.ke due ••..•

/13. -- - ... .,. ....... - 13 ... allowance for the fact th8t the judge had oGcn and heard the witnesses • while we have not. Obviously P~W.2 jltaiwa \·WG tlh unreliabl0 witness. \Ihat fell frora his own mouth portrayed. him llrJ en unprinciplad character. There were conflicts and inconsistencies in the evidence of P ,\:I .4 Afrael and P.W.5 Edward. Tho court w::s asked to believe the story that the first respondent, who reedily sold. some sheets to two complete stranr;ers, P.W.2 Ataiwa end P,\1.6 Akyoo; without attaehing any condition• would almost at the snne period ].)Ut 3 conc!ition on the sale of the same kind of good.s to P ,w .4 Afrael, I judge was entitle<l. ta r~j.ect the eviclGnce of these witnesMs and The le:arned he d.id so. Ai:; pointed out already, the p::htion cht➔ r5eJ the f:i.rat respondent with corruptly d istributirie; and/or purportedly sell inc ocarco goods between July, 1985 and polling day i.o. 27/10/ss. The first respondent admitted that durine tlwt period. ·~e hcd helped cartel in people by procuring iron sheets and rid[';e;:; fron l'I/S G11LCO of Dar es Sa.la.am which, we are given to un~;er,;ta:::·L, fo 2 oubsL: iacy of M/S Jilurainium Africa Ltd.. It seeL1ed that iron :1:·1eots uerG very ~! ifficult to come by and the appellant's help was neede:~'" He said that he had the goods conveyed to Noshi by rail and that l1e subseq_ucntly handed over

the same to certain individual.g whom he named.. r.rhat took place in October, 1985. He happened to be a c1.irector of the 'l'2i1zania Railways Corporation and by reason of such office, he said, the goods were transported free of charre. He waB candid enour;l1 .to disclose that that was not the first tir;ie for hin to clo such a thing. The lot he brought from GALCO went to D .w .3 Esther lklami, a widow of his personal friend who had paid G!,.LCO for tl1er.1 in February, 1985; D•\'1_•6 Helena Frtmcis, his niece who uas elso a wid.ow, who had p€lid for ther:i in October, 1984~ D.11.8 J)hn Lyimo, l. - 14 - an acquia intance, who had pa id for them in July, 1985 i and .n. W, 18 Amina Laizer, a sickly woman, who had paid for them in May, 1985,· Some of these people had been looking for the f,;oods since 1983 or 1984. The first respondent also forthrightly admitted that he had the sheets of D.W.3 Esther and D.w.6 Helena delivered to their homes free. Parol and clocumentary evidence that was adduced by those four people supported the first respondent's testirao:ny 1 . The .first .respond&nt• s· evidence went on to show that in August, 1985 he procured 90 ridges for the Sura Lutheran Church and had them sent free to Arusha from Dar es Salaam by a lorry belongine to M/S Tanzania Dairies Ltd. of which Company he was also a director. The ridges had been purchased by the Church

months back and they were collected from his office by the clergyman D.W.2 Isaac Mbise who, incidentally, refused to take the oath in the witness-box, citing the Biblical Second Cornmandrnent. There was no evidence that tbe first respondent ever solicited for votes at the ti.me he was handi:mg over the sheets in question• And there was clear evidence thc:t all those :people who received the sheets and the ridges from or through the first respondent had actually pa id the manufacturers H/S. GALCO the price for the soods •. The learned judge appreciated the fact that those individuals and the Sura Lutheran Chureh derived some berndit by way of service rendered by the first respondent 2nd. the waiver of the freight charges. He took the view, however, th,t th2 services were gratuitous and he found no evidence that the first responclentrs· conduct was calculated to induce those 1:9neficiaries to vote for him at the eleetion,. In reaching thc:t fin~'in:.:· the judge took into consideration t,.he faet that ·the first rc3pond.ent had agreed to help them long before Parliament was dissolved, the fact that some of them . were related to him and the fact thD~ h2 e::1joyec1 the privilece of ' transporting his goods free by ·v~.1..~tu·e c..'.',, ::iein::; a director of the -'a;•• Rgilways Corporation and the Tanz?nia l::i2;ies;1 ./C""\.., '} . ,/ / ~ .. I C - 15 ... • The learned judge was

referred to the observation of this Court in the case of £hris,a~..J1ajiia.t._anga ,l'lzJnd,a.ksYa v~ G~~be:rt Lou~s. !FAa, 1 Civil Appea.1 Noi, 22/81 (unreported)} that there is nothing objectionable in a Menl.ber of Parliament assisting his constituents in their sbcial d.evelopment., · We are satisfied, as was the learned judge, that the serviceo the first respondent rendered constituted valuable consideration within the meaning of paragraphs (a) and. (f) of section 97 of the Elections Act. However the vital question is whether the first respondent was actuated 'by corrupt or illegal motive, nar:1ely a d.esire to induce tho'se beneficiaries b 7ote for him at the el0et411tj This point was forcefuil:y- canvassed bcfc.::-c the High Court and. the ieai'ned judtse vtent into the matter at c,_:'.:1sic:cl'EJb1e length in hie! T . judgment• he jud.fe was satisfied thot tbore wos no corrupt or illegal motive. Mr.· Mahatane has submitted th2,t a corrupt raotive was inferrable from the circumstances that ettcrnied. t~10 proc :ement and. the (1.elive.r~os of the goods. The question is whetl-ier that inference is irresist:i_bl@t I ,I Mr. Mahatane has laid some stross on the fact that the free transport was unsolicited. and the fact that t:i.e d.eliveries almost coincided•with the beginninc of the official election campai__sm, There is some force in that ar1sument. We arE: of the view that

the judge had considered all the relevant factorEJ and circumstances relating to th:i.s matter and that he was justified in arriving a.t the conclusion he did. It was possible to infer a corrupt motive, as Mr. Mahatane contended, but we are fsr from being persuad.ed tha.t the circumstances pointed irresistibly and inevitably to a corrupt mot~ve, 'indeed the circumstances, in the context of the situation, were equally, i! not more, consistent with innocence, / , _,. .••• /16 • ., f I.; . I l 1!"1 ' 11 .., ' r- -·- .. 16 - Und.ol'atandably we were not adci.ress0d on the issue of disenfranchisement. We have read the ·evicl<?r.cc pertaining to this ~ r point and we may briefiy say thiE;. \-Je entirely agr0e with the finding of the trial judge that o~ly 60 people were unable to exercise their ri,eht to vote,,~ cJCC 1Junt of the shortae-G of ballot ·!l · papers at Olkun__~edo and ilmba.roni poll in3 stDt ions.- This did not affect the results of the election, civen the rnare;in of victory:. For the reasons we have stated above 9 this s p1:>eal •is dismissed with costs.• DATED at DAR ES SALAAM this 7th day of AUJU:l~ 9 1987_. A. MUSTAFA JUSTICE OF APFG!J., -·>! A. H. A. OMAR

JUSTICB OF APPEAL Ag• JU7l'l CE OF .i:JlIE AL \ I certify tba t this is a true coy:; ,.:.: the oricinal.• ~ J 1?. :.GI .3'.i:Riill. l