20161208 TZHC Mwanza

-1 i :1 . ~;, IN THE HIGH COURT OF TANZANIA , , I r :.- IN THE DISTRICT REGISTRY AT MWANZA . - I CIVIL APPEAL NO. 70 OF 2014 i ,. l {Arising from the Ruling of the Serengerema District Court Election Petition No. 4 of ~ i 2014 dated 3-11-1014) ! f ISSA WAMBURA .................................................. 1 ST APPELLANT .. . . .. AMIDU IBRAHIM ................................................. 2ND APPELLANT VERSUS NYAKASASA WARD EXECUTIVE OFFICER ........... 15 T RESPONDENT BUHAMA VILLAGE EXECUTIVE OFFICER ..... ~ .... 2ND RESPONDENT NTABAGUZI S/0 ANJERO ................................ 3RD RESPONDENT JUDGMENT BUKUKU, J.: At the District Court of Sengerema at Sengerema, the appellants filed an Election, Peti~ion against the respondents in Civil Cause· No. 04 of 2014, in The matter of the petition for· a declaration that the election of "Mwenyekiti was Makambi ya wavuvi na misitu" Mchangani Island Buhama village, Nyakasasa Ward Sengerema District was .unlawful. It was all_eged at the Distr_ict Court that, on 8th February, 2014, at · Mchangani Island, people in that area held a local election pertaining t i - - _ . . 1 ~ \'.~) electing leaders of the Kamati ya Ulinzi Palisi Jamii. Both the appellants showed their interests in vying for different posts in that election. The second appellant contested for the post of Chairmanship, together with the . . .. - third respondent who eventually, emerged the winner. It is further alleged that, during the process of the election, the. first appellant's, name was cancelled from the list of candidates, allegedly, due to the fact that he is a blind man. As for the second appellant, he surmised that, he did not win the position of chairmanship because the whole election was marred with a lot of irregularities including malpractices caused by the respondents. Simultaneous with the filing their reply to the so called election petition, the respondents jointly raised a preliminary objection to wit:- - "That the applicant's suit is defective and unmaintanable in law as this Honourable Court . lacks Jurisdiction to entertain the case at hand/~ The Preliminary Objection was argued orally and on 03/11/2014, the District Court found that it had no jurisdiction to hear the election dispute r hence allowed the Preliminary Objection and dismissed the plaint as it was defective and unmaintanable. 2 u,. Aggrieved by the said ruling, the appellants have decided to appeal into - this court, challenging the ruling of the District Court. In their Memorandum of Appeal the appellants have raised five grounds of appeal. . . But basically in a nutshell, what they are claiming is as follows:- (i) That, the learned trial magistrate erred in law and fact in dismissing the applicants' election petition on want of jurisdiction. (ii) That the learned District Magistrate erred in law and in fact in disposing the election petition based on the Preliminary Objection instead of hearing the matter inter parties and deciding the case on· merit. (iii) The learned District Magistrate erred in law· and in fact when he failed to take into consideration the fact that the whole election was shrouded with malpractice and corruption. When the appeal was called on for hearing, all parties appeared in person and each fended for himself. According to the first appellant one Issa· Wambura, he told the court that the election was not fair because there was theft, bribery and threats. He told the court that, he and the second appellant, one Hamidu Ibrahim do live at a reserve forest at Kame Mchangani, since 1997 to March, 2003. They were allowed to live in the/4--· 3 , 1- I l .. ' ·q ~ 'J# reserve forest, under a contract, including conserving the forest and paying ! fees for living in the reserve area. They are more than 6,000 people living there, who were all self employed. According to Issa Wambura, the people at the reserve were required to guard the forest and do environmental activities. Narrating further, the first applicant told the court that, according to the Rules, Act No. 14 section 16 and 17, the Forest Reserve Act, gives powers to the Director of Forestry to oversee election of the Forest Com·mittee. He is the one who knows the people living in there. He lamented that, the election conducted did not take into consideration the law. First he submitted that, the election was called prior to the due date (5 years). The annual meeting was to decide on the date of the meeting. People who wanted to be elected sent their names to the chairman of the committee, but this was contrary to what was done by the Village Executive Officers and the Chairman. Expounding on the illegalities of the. election, the first appellant averred that, they were required to submit the application letter with T.shs 1'.000/=, but the law does not require them to give mon.ies, and were n ~ 4 (·,.::../J given receipts. According to the first appellant, before the election, there - were ballot papers. seen around the village and they were then taken to the ~ Ward Executive Officer. That, at 1.00 pm which was the time for commencing the election, the Ward Executive Officer of Nyakasasa, read (.) the names of 871 people who were eligible for voting, and there were. nine · ballot boxes. The first box was for the forest committee but it was written ''Makambi Committee", then there was that of Katibu Mkuu, Commander of Operation, then Bohari, and Wajumbe. Originally the contestants were for the posts of the Chairman, second was Secretary, third was . Commander of Operations, fourth Committee Police jamii, fifth Secretary Police Jamii, six, Commit;tee Police Jamii, seventh Assistant Police jamii, and eight, six elders. Unfortunately in that election, the Forest Committee was not elected and 12 committee members of Police Jamii were also not elected. He thus surmised that, the election was not fair, and that, his name was deleted on the list, and when he enquired as to why his name . was deleted, they tolq him to blame his God. He thus prays the appeal to be allowed. The second appellant, Mr. Amidu Ibrahim also made his submission. He told the court that, he had applied for a post in the_ Forestry Committ 1 r 5 as chairman, and was told to proceed, and that he was vying the post with - Ntabaguzi Angelo, the third respondent. According to the second appellant, : they did their champagne at the forest, and on 8/2/2014 they were to vote. He further told the court that, one Frank, later told them that, some ballot papers have been found the Nyakasasa Ward Executive Officer. Narrating further, the second appellant submitted that, they started voting at 1.01 pm, and that there were nine ballot boxes. After that, around 6.45 pm, they went to count the votes. According to the second appellant, for some reasons, he was refused to enter into the room to count the votes, and he appointed Frank to stand for him. When the results were out, he got 471 votes and the third respondent got 922, and 53 votes we destroyed. He did not accept the results and that is why they have appealed. He equally prays the appeal to be allowed. In reply, the first respondent, Mr. Martin Magina who is t~e Ward Executive Office (WEO) at Nyakasasa, submitted that, normafly, elections of this nature are conducted by the Village Government (Buhama Village). The Village Council normally announces the elections, and as a WEO he W?J.S invited as a Justice ·of the Peace. He went there to supervise the elections on that day which they had agree to conduct the elections,L\l_·_ _ 6 1 1 90_,.CNJvtl__ 1 0~ According to the first respondent, it is true that both appellants participated I in the said election on that day, and he wondered that, if there was ·- rigging, they could have walked out early. Unfortunately, they did not do 0 •- so. According to the first respondent, the people who voted were 871 and something, and that after the elections_ he left. On his part, the second respondent Mr. Charles Subira the Buhama Village Executive Officer had very little to submit. He prayed to adopt their joint reply to the Petition of Appeal. He also added that, it was the Village Council which had decided to call for the election of the Forest Reserve Committee,· and Mr. Angelo, the third respondent, was elected the chairman during that election. Mr. Ntabaguzi Anjero, the third respondent submitted that, he is the .Chairman of the fishermen at Mchangani. ·There is also a Chairman of the Forest Reserve, and BMU (Beach Management Unit). These three committees have their system of election, and they have recently appointed the Beach Management Unit leaders. This committee is different from that of the Forest Reserve. Submitting further,. the third respond_ent told.the court.that, in the morning of the election at Mchangani, v 1 - - 7 ..=:e.e=. started registering. During the afternoon, most of the fishermen returned at the village from their fishing activities. They then started to vote at 1.00 pm and continued voting up to 6.45 pm. During the voting, he had an I ·, agent. According to the third respondent when the results were out, he 1 lI emerged the winner. Submitting further, he averred that, in 2013, 11 i people had vied for various posts and filled their forms, but the election ll I was nullified. In 2014, they applied afresh, and none of the 11 people took ' out forms to participate in the elections. Since the appellant decided to vote to the end, and since he won, he se_es no problem. He also prayed the appeal to be dismissed. In· his brief rejoinder, Mr. Issa Wambura, the first appellant maintained that, this was an election for the reserve forest, and that, the third respondent is Chairman of Makambi. The Nyakasasa Ward Executive Officer, did not tell .exactly how many votes were casted. According to Mr. Wambura, at Mchangani there existed no Forest Committee. For that matter, they did not use the normal channels. On his part, the second appellant, Amidu Ibrahim, averred that, the Nyakasasa WEO did not tell them how many votes were casted, and how many votes he got and how many Angelo got. He lamented that, they had a total of nine ballot boxes, · . ·. . . . ~ 8 (sf:. but people put their elections paper in any of the boxes. According to the Election Act, once people have registered, there is no adding up others, as they had done. Having canvassed through the rival arguments from all parties, I have found it apposite to answer the second ground of appeal, first as to whether the District Magistrate erred in law and fact in disposing the election petition based on the preliminary objection instead of hearing the matter inter parties and deciding the case on merit. I think this ground of appeal need not detain me. I out rightly answer it in the affirmative. The District Court had a duty to decide the merits or otherwise of the point of preliminary objection raised by the respondents first I think this principle is both elementary and fundamental in our legal system. If authority be needed t9 bear me out on this assertion it is not hard to find, I can quickly refer the cases of:- Capital Development Authority V. STABERG Inter.plan GMBH, (CAT) Civil Appeal No. 16 of 1994 (unreported); Tanzania Revenue Authority V. Kotra Company Limited, Civil Appeal No. 12 of 2009 (unreported); ~ 9 CITI BANK Tanzania Limited V. Tanzania Telecommunications Co. Ltd and 4 Others (CAT) Civil Appeal No. 64 of 2003 (unreported). I In CITI BANK TANZANIA Ltd V. T.T.C.L (supra), the Court of 1 . - I I Appeal emphasized this point: thus:- · "but when a preliminary objection is raised which in effect says that the existing circumstances do not give the court Jurisdiction this objection has to be considered and determined first before going into. the merits of the application itself. {See: Civil Application No. 142 of 1999 between Shahid Abdul Hassanali Kassam and Mehedi Mohammed Gulamali Kanji {unreported)". I need to emphasize here that, the question of jurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature. The question of jurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial. It is· risky and unsafe· for the court to proceed with the trial of a . 1$--·· 10 i· . 0- ": case of the assumption that the court has jurisdiction to adjudicate upon the case . ..• .. In view of the above and since the objection was on Jurisdiction "I. - which can be· raised at any stage of the proceedings, I think it will be accepted without further elaboration that, the District Magistrate did not err in law and fact when he disposed the preliminary objection first, since it deserved consideration by the court. This ground therefore has no merit. It is dismissed. I will now turn to the first issue, as to whether the election held at the Mchangani Island Buhama village a_mounted to an election petition such that, the District Court was clothed with jurisdiction to hear and determine the matter as claimed by the appellants. My understanding is that, there are different types of elections held all over the country by different categories of people or groups of people. Such elections can be conducted by different organizations or groups depending on the activities they conduct. Such activities include religious, cultural, social, politi_cal and others. Each of these elections ar:e governed by a set of rules to be abided during the elections and/or after t h ~ 11 u- : elections, for those who consider themselves aggrieved by the outcome of such elections. In this particular case, the appellants herein participated in a local election in their area to appoint their ''Mwenyekiti wa f1akambi ya Wavuvi na Misitu// at Mchangani Island Buhama Village, Nyakasasa Ward Sengerema District. Having been aggrieved by the outcome of the election, they preferred to file an election petition No. 4 of 2014, before the District court of Sengerema claiming that the court had jurisdiction to try their case. I wish to state fr~m the outset here that, in this country, the jurisdiction of the courts for conducting the trial of election petitions is statutorily provided for in the electoral laws. Statutorily, there are only two courts which are specifically designed and vested with original jurisdiction to hear and determine elections petitions. These are the High Court for parliamentary elections petitions and the courts of the Resident .Magistrate or designated District courts for local authorities (Councilors) election petitions. Both these two courts enjoy original jurisdiction in parliamentary and local government election petitions~- 12 - ., U . ' As far as ·the procedure for challenging election petitions results is concerned, the only legally allowed procedure for challenging the election petition results of members of parliament or councilor is by way of an election petition presented either to the High Court or to the Resident Magistrates' court depending on what kind of election results a petitioner wishes to challenge. In this particular case, . it is not disputed that an election was conducted at Nyakasasa Ward at Sengerema District, and that .the appellants herein were aggrieved by the outcome of the said election henc~ filed an election petition at the District Court, claiming that, the said court had jurisdiction to try the said petition. As already intimated, this was a local election. A group called ''Makambi ya wavuvi na misituN decided to elect its leaders. Under any circumstances, thi~ election· cannot be said to be it was a local government election, simply because it was a_llegedly supervised by the Ward Executive officer and the Village . Executive Officer of that a r e a y 13 U :· The law governing elections in any local Government is the Local Government (Elections) Act CAP 292 R.E 2002. In the said Act, the word i ·· "election "has been defined as:- ''an election in a warcl of an elected member of a local authority and includes a by-election for that purpose/~ and, a local government authority means:- ''a district authority of an urban authority established or deemed to have been established under the Acr~ With the above definitions, can it be said that the election of the Mwenyekiti wa makambi ya wavuvi . na misitu// held at Mchangani Island, . . Buhama village, Nyakasasa Ward at Sengerema district qualified to be called an 'election petition/ for the purposes of the Local Government (Elections) Act (supra)? I think, with due respect, the answer is no. The . . election conducted does not fall under the above Act and therefore, the District Court did not have jurisdiction to try the so called "election petition/~ With the above, I find this ground of appeal too, lacks merit. It is equally diSmissedr· 14 · Finally, as far as the third ground of appeal is concerned, I think I need not belabour myself simply because, having satisfied myself that the District Court had no jurisdiction to try the matter, as rightly observed by ... the learned district magistrate, definitely, there was no ·way the same court could have continued· to consider the merits or otherwise, of the election petition before it. With the above, I hold that, this appeal is devoid of merit. It is dismissed. Each party to bear own costs. Order accordingly. Delivered at Mwanza, This 08 th December, 2016. 15