20160729 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY]

ATARUSHA MISC. CIVIL APPEAL NO.2 OF 2016 (Arising from Misc. Civil Cause No.6 of 2015, in the Resident Magistrate's Courts of Manyara) .

1. ALLY SHABAN! Mt,HIMBANI .................. 1 ST APPELLANT 2. THE RETURNING OFFICER .................... 2ND APPELLANT 3. THE ATTORNEYS GENERAL .................... 3RD APPELLANT

VERSUS JACKSON BUU HAIBEI ................................... RESPONDENT

JUDGEMENT Date of Last Order: 20/06/2016 Date of Judgment: 29/07/2016 BEFORE: S.C.MOSHI, JUDGE The appeal originates from the Resident Magistrate Court of Manyara Election Petition in respect of Duru Ward Councillorship election results. The 1st appellant and the respondent contested for the position. The 1st appellant was declared by the 2nd appellant to be the winner. The respondent was not satisfied with the election results; hence he preferred the petition to the court. The court determined the petition and found that the 1st appellant uttered defamatory words against the respondent; and that the defamatory statements constituted grounds for annulling the election. Consequently the trial court made an order to that effect. The 1 I election of the first appellant as a councilor for Duru ward was declared Null and Void. Aggrieved by the decision, the appellants lodged this appeal on the following grounds:- 1. That the Trial Court erred in Law and fact for deciding in the favour of Respondent based on the matter which was not set forth by the Respondent in his Amended Election Petition.

2. That the Trial Court erred in Law and fact for acting Contrary to the principle of functus officio by allowing the respondent to be heard on a new ground not set in the Amended petition which was previously sought to be amended and denied by the same Court.

3. That the Trial Court erred in Law and fact that automatically amends the Petition to nullify the Election results basing on the claim(s} which was intentionally reported to the improper forum by the Respondent while disregarding the proper forum.

4. That the Trial court erred in Law and fact for failure to evaluate properly the evidence before it and as the result wrongly nullifying the election results ofDuru Ward 5. That the Trial Court erred in Law and fact for failure to observe the law, which requires the election matter to be proved to the satisfaction of the Court.

6. That the Trial Court erred in law by making wrong interpretation of Rule 20 of the local Authorities (Elections Petitions} Rule~ 2010. 2 ' I However the third point was dropped at a later stage, so there remains five points of appeal. The appeal was disposed of by way of written submissions. The first appellant was represented by Mr. Tadey Lister, Ms. Florida Kimambo represented the 2nd appellant; and the third appellant was represented by Mr.Masaki Elisante, State Attorney whereas the respondent was represented by Mr. Robert Rogert. I have taken into consideration the submissions and the record as a whole. I will start with the first, second, and sixth grounds of appeal; the three points are centered on the applicability of Rule 20 of the Local Authorities (Election Petitions) Rules, 2010. On 1st ground of appeal; that the Trial Court erred in law and fact for deciding in the favour of respondent based on the matter which was not set forth by the respondent in his Amended Election Petition. Submitting on this point, the appellants urged among other things that, the only reason that the Trial Court declared the Duru Ward's councilors Election null and void was the fact brought by the Respondent through his advocate on 21/3/2015, the date when the Court was framing the issues of the Case, that there was illegal campaign conducted before 25/10/2015. They said that, it

is fundamental principle in civil suit which by equal measure will apply to the Election Petition that parties are bound by their own pleading. The Election of a candidate as a member of a District Council can be 3 I declared void only on an Election Petition upon proof to the satisfaction of the Court of the grounds stipulated in the Election laws and not on other grounds. Section 107(1) and (2) of Local AUTHORmES (ELECTION) ACT CAP 292 R.E.2015, Puts mandatory requirement on the fact that Election of a Candidate as a member shall not be questioned except on an Election petition. This is supported by the words of Rule 3(1) of GN No.448 of 2010. They contended that, therefore the provisions of Rule 20 of the GN No.448 together with Order XIV Rule 5 in any how is not aimed at elapsing the importance and the position set above. They urged that, the Election Petition before the Trial Court was left behind by the petitioner and used the room under Rule 20 of GN No.448, together with Order XIV Rule 5 of CPC to discuss something which was not in the Election Petition and again based on that the Court nullified the Election of counselor for Duru Ward. They stated that, the grounds which may be taken at hearing with the leave of the Court must be taken together with the grounds in the Election Petition, but not to amend the Election Petition. That, looking at the grounds in Election

Petition Versus the grounds added at the hearing stage, and the decision of the Court you may find that the Respondent abandoned all other grounds and emerged with new one. 4 i I They contended that, therefore new fact was allowed by the Trial Court, the appellants were not given the chance to respond on it. This is contrary to the Law. They referred to the case of GEORGE M. SHAMBWE VS ATTORNEY GENERAL AND ANOTHER [1996] T.L.R.334. In this case the Court of Appeal held that:- ''lt was not correct in Law to infer a fact which had not been specifically pleaded in the Petition" They urged that, therefore the principle of fair Trial was violated in the Trial Court, in this scenario. The Appellants were not given the opportunity to plead in support or denial of the new fact. On the other hand, the respondent's advocate responded interalia that, it is wrong for the appellants to deny and allege the fact that the issue of illegal campaign was not pleaded at all. The issue of illegal campaign was pleaded at paragraph 5 of the Amended Election Petition. That paragraph only restricted the scope of the period of illegal campaign to the date of election, 25th October, 2016. The only aspect there, is the issue of time. He said that, this is the reason why the respondent's counsel, advocate Robert Roghat, on the first hearing date when the issues were framed, i.e.21 st February, 2015, prayed

for the leave of the trial court to the effect that the scope of the period of illegal campaign be extended to cover the whole period of the election campaign even th before 25 October, 2016. The prayer was made under Rule 20 of the Local Government (Election Petitions), Rules G.N. No.448 of 5 2010, read together with Order XIV, Rule 1(5) of the Civil Procedure Code, CAP.33 R.E.2002. He said that, on that date, the Petitioner, herein the Respondent, produced a list of additional documents to be relied upon by the Petitioner pursuant to the order of the trial court made on 10th February, 2016. A letter of complaint of illegal campaign dated 08th October, 2015 against the 1st appellant and the 2nd appellant as the returning officer was admitted without objection by the appellants and marked as Exhibit PEl on 22 nd March, 2016. Also a reply letter from the 2nd appellant to the respondent dated 13th October, 2015 bearing Ref. No. DED/BBT/E.10/VOL.III/3 was admitted without nd objection by the Appellants and marked as Exhibit PE2 on 22 March, 2016. Under Exhibit PE1, the respondent complained to the 2nd appellants against the illegal campaigns which were openly conducted by the 1st Appellant even before 25th October, 2016. In this respect Mr. Robert cited the case of MUSANGA NG'ANDWA VS CHIEF JAPHET WANZAGI AND EIGHT OTHERS [2006] T.L.R. 351, in which the court held among others

that, •~ cause of action means every fact which would be necessary for the plaintiff to prove in order to support his title to a decree, in other words, a cause of action is the sum total of those allegations upon which the right to relief claimed is founded, and that, in determining a cause of action, only the plaint together with anything attached should be looked at The plaintiff is under no obligation to anticipate any special defense which might be available to the defendant" 6 ' ' ' I l I Mr. Robert said that, while framing the issues it was right for the trial t court to rely on paragraph 5 of thJ Amended Ele~tion Petition I l I I together with the additional documents which were later admitted as II Exhibit PE1 and Exhibit PE2 as decided in MUSANGA NG'ANDWA's case, the plaint, in our case the Amended Election Petition, and any I I ' other attached documents, which in dur case is a ~list of additional documents were enough for the trial bourt to legally determine the grounds even in the absence of a spelific prayer by the Petitioner's I ' I counsel. This is because by filing additional documents the petitioner ·I : extended the scope of time frame of the acts of the illegal campaign complained in the Amended Election Pktition. : He stated that, the manner in which t~e Appellants have submitted is I .I . I I as if the ground of illegal campaign is never pleaae9 at. all by

the I Respondent. Thus, the averments ahd submissions.· in relation to I Section 107(1) and (2) of the Lo!a1 Authorities (Election) Act, I CAP.292 R.E.2015 as well as Rule 3(1~ of G.N. No.448 of 2010 are of no relevance whatsoever to support/the Appellan.~'s appeal. In the contrary, the same supports the respondent's case that the trial court nullified the election on the ~asis of the Amended Election Petition and on the light of other fact~ known and recbgnized by law. He stated further that, the appellantJ also alleged 'that the Amended 1 Election Petition before the trial °Jourt was left behind by the I . . petitioner and used the room under Rule 20 of G.N. No.448 of 2010 read together with Order 14, Rule/ 5 of the Civil Procedure Code Cap.33 R.E.2002 C'CPC'') to discuss something which was not in the Amended Election Petition. I 7 I I I ' . ' \. He pointed out that, Rule 20 of G.N. No.448 of 2010 and its proviso give mandate and discretion to the court to determine and decide on the grounds beyond those stipulated under any Election Petition or any attached documents. It reads:- "The petitioner shall not, save with the leave of the court, urge or be heard in support of any ground not set forth in the petition'~ Provided that the court shall not, in determining a petition, be confined to the grounds set in the petition'~ He said that, in addition to Rule 20 of G.N. No.448 of

2010 and its Proviso, Order XIV, Rule 1(5) of the CPC, provides for the following while the court is framing issues. ''At the first hearing of the suit the court shal~ after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material proposition of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend'~ Further to that, Order if one reads Order XIV, Rule 3 of the CPC provided for materials from which issues may be framed. The Rules reads:- "The Court may frame the issues form all or any of the following materials- 8 a) Allegations made on oath by the parties, or by any person present on their behalf, or made by the advocates of such parties. b)Allegations made in the pleadings or in answers to interrogatories delivered in the suit c) The contents of documents produced by either party " (underlined is ours). He contended that, it is of utmost importance to note that the laws cited above grant a wide discretionary powers and mandate to the court to go beyond the pleading and consider contents of any documents produced by either party while framing issues. He also responded to appellant's urgument that they were denied a chance to respond to the purported new fact. The appellants cited a case of GEORGE M. SHAMBWE VS ATTORNEY GENERAL AND ANOTHER [1996] T.L.R.

334. Mr. Robert urged that, this case is highly distinguishable from our present circumstances because in our case there was no any new fact which was allowed by the trial court saves for the extension of the scope of the existing fact in the Amended Election Petition. He stated that, the appellants in their submission have alleged that the trial court has violated the principle of fair trial by denying them a chance to respond to the purported new fact. It was his contention that, there was no any new fact which was brought by the respondent before the trial court except for the extension of the 9 ... scope of the existing fact as found in paragraph 5 of the Amended Election Petition which was duly served to the Appellants. Further to that, the Respondent's advocate stated that, the fact of illegal campaign was pleaded under paragraph 5 of the Amended Election Petition. On top of that, the 1st Appellant responded to that allegation in paragraph 2 of his reply to the Amended Election Petition· dated 15th December, 2015 and received in court on 16th December, 2015, which reads: "That the contents of paragraph 5 of the Amended Election Petition are denied, the petitioner shall put to the strict proof thereof. The 1st respondent states that he did not campaign to any one or insulted anyone on the Election date, rather he went in his poling center to vote and thereafter he visited

other polling center to see how the Election conducted, and the visitation was not done by the 1st respondent alone, even the petitioner visited the poling center. " Apart from him, the 2nd appellant also responded to that pleaded fact through paragraph 2 of its reply to the amended Election Petition dated 15th December, 2015 and received in court on 16th December, 2015. The paragraph reads:- "That the contents of paragraph 5 are disputed and the petitioner is put into strict proof thereof'~ With regards to the additional scope of the period of illegal campaign; he said that, the Appellants were given full and enough 10 .t. opportunity to be heard. That on that matter, the trial was fair for the following reasons:- i. As the appellants admit themselves that the prayer to extend the scope of the period of the illegal campaign complained of by the respondent was made before the issues were being framed and it was after deliberations by the parties that the trial court granted the prayer. This means that, the appellants were not taken by surprise during framing of issues and the subsequent hearing of the matter. ii. During framing of issues the Appellants agreed on the two issues, the first one being whether the 1st respondent did illegal campaign against the petitioner. See page 36 of the typed proceedings by Hon. B.K. NGANGA, RM. In other words, the issues were not imposed by

·the trial Court. The learned counsels for the appellants signed on the agreed issues meaning that they voluntarily conceded. In fact, they are part and parcel of the framed issues~ Denying them at a later stage is merely an afterthought. iii. The Appellants got ample time to hear all the evidence by the respondent in support of the issues, they cross-examined all the witnesses appeared in court, and later on they managed to produce their evidences and witnesses in support of their defence save for the 3rd appellant who voluntarily opted not to produce any evidence or witness probably due to his role in the case as a necessary party. 11 That was it from the advocates regarding the first point of appeal. As I shown above, the appellants urge that new matters which were not pleaded were brought in when the cdurt was framing issues. They urged that the petitioner used the robm under Rule 20 GN No 448 I , together with Order xiv rule 5 of the G:PC to discuss what ' was not in the petition. They contended that, this was contrary to section 107(1) and (2) of the Local Authorities Act (Election} Act, Cap. 292 R.E 2015 which puts mandatory rJquirement that election of a candidate as a member shall not· be questioned except on an Election Petition. I have considered this line of argument. However I , considering the record it is evident that on 21/3/2016 the respondents advocate moved

the c~Jrt under the pr~visions of Rule 20 GN No 448 together with Order Liv rule 5 of the. CPC. It is also apparent from the record that the issue of illegal campaign was J pleaded in paragraph five of the amended petition .. Looking at the petition and the proceedings as indiJited above it is my view that no .I new issue was added. The issue of illegal campaign was pleaded and the prayer to add the time frame wbs requested in accordance with I the law and the court granted the prayer. Rule 20 ,of G.N. NO 448 gives powers to the court to considkr matters whicli were not set in the petition. The law reads thus: "The petitioner shall not save with the leave of the court urge or be heard in support Jr any ground not set forth in the petition; Provided that the court shall not in determining a petition, be confined to the grounds set i) the petition". I 12 I • I . II In the case at present leave was given by court to the petitioner to I add the facts as shown above; this was ~ithin the ambits' of the law. I I Concerning Ground no 2 that, the Trijl Court erred in lalw and j I fact for acting contrary to the prinbiple of functus officio by I I allowing the respondent to be heard on a new ground not I set in the_ amended petition which ;was previously sought to I be amended and denied by the same court. In relation to this l I point, the appellants submitted among/other things that,

trial Court on 27/1/2015 denied the. respondent's prayer to amend the I Amended Petition. The Respondent ahd Appellants were satisfied I with the Trial Court decision. Therefore/under the principle of functus officio, the Courts are bound by their previous decision. This means that' the same Court cannot make anbther decision on the matter which was already decided by it. Thi~ aims at avoiding conflicting decision of the same court on the sarTie matter. In this respect they cited the case is the principle i~ the case of TANZANIA TELECOMMUNICATION CO. LTD & 3 OTHERS VS I TELECOMMUNICATION TANZANl'A LTD. CIVIL REVISION l NO.62 OF 2006. (UNREPORTED) Court of Appeal of Tanzania has this to say at page 6 paragraph 6. f · "In the case before us we think the order of the Court of 10.3.2014 in o·vil Revision NJ. 112 of 2003 dismissing the Application finally disposed of t)e Application. fot revision of the .I High Court Proceeding. At this stage to bring back the I functus officio'~ ·I . proceeding seeking revision colld we think,. render the Court While the Trial Court has the ruling dated 27/1/2015 denied the prayer to amend. The trial Magistra~e was required to warn himself , in allowing the leave to the respondJnt of being heard on a new fact which previously sought by his throlgh the amendment and denied 13 • by the Trial Court. The act of the Trial Court to allow the

Respondent through Rule 20, reading together with Order XIV Rule 5 to argue on the issue of illegal campaign before 25/10/2015 is like to allow him to amend the issue in the Election petition. In response to this urgument Mr. Robert said among other things that the allegation is misconceived; the trial court was never functus officio at all when granting the prayer by the learned counsel for the respondent to extend the scope of the ground of illegal campaign to cover the period even prior to 25 th October, 2015, the election date. Functus officio simply means that the matter which has been conclusively determined or disposed off cannot be entertained again. They are mixing the trial court's orders the one that dismissed the prayer by the petitioner's counsel to file another amended Election Petition and the one that granted the prayer by the petitioner's counsel to extend the scope of the ground of illegal campaign to cover the period even prior to 25th October, 2015 the election date. The first order aligns with the appellants' counsel argument of functus officio but the second order does not. There is no way that the trial court would become functus officio on matters of framing issues even before the issues were framed and even before the first hearing date commenced. The respondent did not indicate the particulars of the amendment I sought in his prayer at the trial court.

The trial court rejected only I the prayer to amend the Amended Election Petition. These are 14 • different prayers which attract distinct decisions and orders. The issues which formed the basis of adjudication of this matter were framed by the parties themselves. The trial court merely adopted those issues, and, the major issue which all the parties agreed to was whether the 1st respondent did illegal campaign against the petitioner. If the appellants in deed had an issue on that date they could raise it before the trial court in terms of Order 14, Rule 2 of the CPC because the issue of functus officio is an issue of law so that the same could be settled before proceedings on hearing the case on merit. To support their position the Appellants have cited the case of the Court of Appeal of TANZANIA TELECOMMUNICATION CO. LTD & 3 OTHERS VS TELECOMMUNICATION TANZANIA LTD, CIVIL REVISION NO.62 OF 2006 (UNREPORTED) He said that, this case to be completely distinguishable in our present case. In this case, the court was invited or invoked to revise a case which it previously revised. Under the present circumstance the trail court granted two distinct orders as explained in detail above. The first order which denied amendment of the Amended Election Petition did not dispose off the suit to the extent of tying the hands of the trial court to frame issues. That was it from both advocates

in relation to this point. I have taken into account of both side's submission it is my view that, the respondent's urgument is at the upper hand. The application made under Rule20 of G.N. No.448 is quite different and distinct from the 15 •' • application for amendment of the petition which was inade before the court on 21'1' January, 2016. For the! principle of fundus officio to bind the court, the court ought to hJve made a dElCision on the issue; in such case the court cannot. revoke its decision. I have considered the case of TANZANIA TELECOMMUNICATION I . CO. LTD & 3 OTHERS VS TELECOMMUNICATION

I TANZANIA . LTD I ' (supra).However our case at present1 is distinguiShable . from the above case for the reason that the decisions made by the court were based on different applications. It is t~erefore obvi~us ;that the court was not functus officio to determine dn application, which ,was made under Rule 20 of G.N. 448 of 2010. On 6th ground; this ground revolves around applicability of Rule 20 of the Local Authorities (Elections Petitions) Rules, 2010. The appellants argued that, the Trial Court erred in laW by making wrong interpretation of Rule 20 of the Local Authorities (Electio~s Petitions) ' ' Rules, 2010. The respondent whilEf'. prayed for !_eave to argue an illegal campaign before 25/10/2016 cited also Order XIV Rule 5, (The .I . . Provision relating to power to amend and strike out issues). Rule 20 of GN No.448 provides for the gro~hds which miiy be taken during the hearing. The stated that, in gra~ting leave to a party who want I : to be heard on the ground under R~le 20, the Court should be very careful in respect of the following things:- 1. There must be a fair trial, henJe parties must be bound by their pleading. 16 • Also that, where there is a new fact it is important that the opposite party should be given an opportunity to respond to the matter before proceeding with the hearing on the said fact.

2. The court must be aware of his its previous Order/Ruling. I have considered the submissions, however having discussed the 1st and 2nd points as I did, It will be a repetition to discuss this point as the arguments are similar to the two points which have been decided upon. It is my view that the law was properly observed; the facts which were added were already pleaded, they were included in the issues and both parties were given opportunity to bring their evidence to prove the issues. Also as decided above the previous order was quite different and distinct from the later order. Regarding ground No. 4, "That the Trial Court erred in Law and fact for failure to evaluate properly the evidence before it, and as the result wrongly nullifying the election results of Duru Ward". The appellants contended among other things thus: The reasons on which the Trial Court declared the Election of Duru Ward void is what was referred by the Trial Court as "Defamatory words", during the hearing of the Election Petition before the Trial Court, the Respondent tendered exhibit PE1 and PE2 as the gist of his complaints and called other four witnesses to testify on existence of the illegal campaign before the Election date, 25/10/2015. The respondent agreed that, he was aware of the existence of ethics committee at the Ward level and he did not report the matter of illegal campaign before

25/10/2015 to the Ward Ethics Committee. 17 • . They contended that, failure to report the matter before the ethics committee cannot be a bar to the one who wants to go to court to do so, but the evidential weight of complaints which were not earlier reported to the relevant Ethics Committee are considerably reduced. They referred to the case of Daniel Nsanzugwanko Vs Attorney General Civil Appeal No.106 of 2012 (unreported) where the Court of Appeal held that:- "The appellant who was a signatory to the Electoral Code of Conduct was bound by the code to report the complaine~ we agree that failure to refer the complains to the Elector Code of conduct did not bar the Appellant from filing the petition. However, we agree with the Trial Judge that his failure to refer his claims to Electoral Code of conduct watered down his case. As already said the standard of proof in Election Petition is proof beyond reasonable doubt" They further said that the trial court failed to analyze properly the evidence before it for the following reasons: 1. That trial Court failed to warm itself on the fact that all the respondent witnesses are the members of Chama cha Mapinduzi CCM, therefore were there just to support the respondent because he was from their party.

2. That, the witnesses submitted not any document as the proof st that 1 appellant show it to them as adduced by PW2 or even to ask the 1st appellant to bring it to Court if is within his custody, hence all the witnesses explanation on the existence 18 ~ of document purported to contain defamatory words are mere Maginative, have no any realistic and proved not.

3. There were no any proof of the existence of the Election meetings in the dates were the Respondent and his witnesses complains the delivery of defamatory words by the 1st appellant, in the 1st appellant's Election meeting. The respondent failed to tender even the Ward Election Campaign timetable of Duru Ward to evidence as whether the 1st appellant conducted Election Campaign in the complained date. It was not a duty of 1st appellant to bring it in the Court as far as the 1st Appellant denied to have the meeting in the date as alleged by the respondent and his witnesses except on 22~10/2015.

4. That all of the evidence of the Respondent's witnesses corroborated not, someone speak as he heard 1st appellant in a certain Election meeting, no one in the said meeting brought to prove the existence in conformity of what said by the respondent's witnesses, who are party member with the respondent, hence their evidence must be taken with a lot of care.

5. That the evidence of DWl and DW2 in the Trial Court raises a reasonable doubt against the respondents evidence, on existence of the said Election meeting which the 1st Appellant alleged to have give out the defamatory words, existence of the complains, credibility of Respondent's witnesses. 19 They contended that, if what is alleged by the Respondent and his witnesses are true that there were illegal campaign before 25/10/2015, while the said facts were in the knowledge of the respondent, why then, the respondent filled his Election Petition on Dec, 2015 or even in the Amended Petition pleaded even once, the existence of the said illegal Campaign before 25/10/2015 in December, 2015 without taking in that important fact or why was not taken even in the Amended Election Petition. On the other side, urguing in respect of this point, respondent's advocate stated that, the Appellants themselves agree the fact that failure to report the matter to the Ward Ethics Committee is not a bar to file a suit for one who wishes to do so. Failure to report the matter to the ward committee only reduces the evidential weight of the complaints which were not earlier on reported to the relevant Ethics Committee. He said that, the facts of DANIEL NSANZUGWANKO's case are distinguishable from the present case. Different from the respondent in the present case, in the case of Daniel Nsanzugwanko,

the appellant, did not file any complaint at all. But in our case, which is distinguishable, the respondent filed a complaint to the Returning Officer, the 2nd Appellant, long before even the election date. The only mischief in this case is that the respondent filed his complaint to an Appellate Authority of the Ward Ethics Committee. Despite that fact, the most important thing is that the respondent filed a complaint; he did so with good and justifiable reasonable reasons. The respondent explained in details the reasons for not channeling 20 'I . his complaint at the Ward Ethics Committee but instead decided to file the same to the Returning Officer. He told the trial court that the Ward ethics Committee is chaired by Ward Executive Officer (WEO) who is subordinate to the Returning Officer, the District Executive Director (DED). His complaint was partly against the 1st appellant and partly against the 2nd appellant, the Returning Officer. He urged that, logically, owing to the nature of the complaint, the respondent made a right and rational judgment to channel his complaint not to the WEO but the Returning Officer as a proper body to determine such complaint. The act of the respondent of channeling his complaint to the Returning Officer is justified on the ground that the rules which requires an aggrieved party during an election campaign to channel his/her complaint to the

Ward Ethics Committee which is chaired by WEO, were not comprehensive enough. The rules did not clearly and expressly provide for procedure as to where such an aggrieved party should lodge a complaint which involves partly his fellow opponent and partly a government office, like the Returning Officer in our case. The assumption by the rules is a if a complaint on an election campaign would be as against opponents only. Such assumption by the rules excludes complaint against government officials, this is the difficult and challenge that the respondent faced when choosing the right forum to lodge his complaint while knowing that part of his complaint was against a body superior to the Ward Ethics Committee chaired by WEO who is a subordinate and answerable to DED, the Returning Officer. On the other hand, even the Appellants 21 themselves have failed to cite such rules because they know those rules are not mandatory. It was his argument that the objectives and relevance of the rules is to prevent an afterthought complaint on post-election suits. In order for an aggrieved party to succeed in a suit, he/she must prove in accordance with the requirement of the rules that he/she actually filed a formal complaint and the same was entertained and decided by one of the bodies stipulated in the rules. In our case and distinct from DANIEL NSANZUGWANKO's case, the respondent duly lodged a

formal complaint to body superior to the Ward Ethics Committee, also, different from DANIEL NSANZUGWANKO's case, the appellant therein, did not furnish any justifiable grounds for his failure to refer his claims to Electoral Code of Conduct in order for him to make the Court to think and decide otherwise. He further said that, during hearing. WEO, DW2 confirmed before the trial court that where one was complaining against the Returning Officer, he/she had to lodge his/her complaint before the Returning Officer because it was not in his level and therefore under his position he could not entertain such a complaint against his superior body. The respondent, who testified as PWS, informed the trial court that he decided not to lodge his complaint to the Ward Ethics Committee but rather to the Returning Officer because part of the complaint was against the Returning Officer. He further stated that WEO was 22 • Ward Ethics Committee's leader and the Returning Officer being the leader of WEO gives directions to WEO. For that reason, it is obvious and goes without saying that there is no way that WEO would be able to make findings and decisions against his boss. That is why even when the Returning Officer received the letter of complaint from the Respondent i.e. PE1 did not hesitate to reply the same vide his letter i.e. PE2 for he himself know and accepted to be in a proper position

to hear and determine the matter regardless of the existence of the Ward Ethics Committee, Paragraph 2 of Exh. PE2 reads:- ''awali ya yote Tume ya Taifa ua Uchaguzi hairuhusu kampeni zinazochochea chukl matusi na udanganyifu wa aina yoyote kwa wananchi Jambo hili kinakemewa na mamlaka zote na kama swala hili /ipo vyombo vinavyohusika vitafanya kazi kwa mujibu wa taratib14 kanuni na sheria zilizopo'~ He urged that, the Returning Officer could not have replied in such a manner if he knew that he was not a proper forum or if knew that he had no authority over the Ward Ethics Committee. The respondent believes that, the Returning Officer did not advice him differently including asking him to forward his complaint to the Ward Ethics Committee because the Returning Officer had powers to hear and determine his complaint. He submitted further that, the alleged documents to be in the possession of the 1st appellant during election campaign were a mere sham. They never existed. The respondent proved during trial that st the 1 appellant actually used fake documents to blackmail voters. 23 • . The 1st appellant never disclosed the alleged documents neither at the campaign nor during trial. The reason is obvious-such documents never existed. This is one of the reasons that the respondent decided to write a letter of complaint to the 2nd appellant. In his reply letter, the 2nd appellant

denies to have furnished such documents to the 1st appellant. Paragraph 3 of the Reply letter which says, inter alia. ''pili, kuhusu ombi lako la kupatiwa taarifa ya nyaraka anazotumiwa kukutuhumu na mae/ezo ya kuwa amezipata wapi? Ofisi yetu hafjawahi kutoa nyaraka na taarifa ya fedha hizo kwa mgombea huyo'~ That was it from the counsels in respect of this point. I have considered the submissions in respect of this point. The issue here is whether the court did properly evaluate the evidence. The arguments raised the issue as to whether the evidential value is reduced because the respondent did not report the complaints to the Ethics committee in accordance with GN No.294 which was issued on 27th July, 2015. Both parties agreed that, failure to report the complaint to the ethics committee is not a bar to refer the case to court. According to the case of DANIEL NSANZUGWAKO (Supra) failure to report the matter to the ethics committee may vitiate the complainant's evidence. However the weight of evidence has to be assessed by the court by looking at the evidence as a whole. In our case there is evidence through Exhibit PEl complaint letter by respondent to the Returning officer and Exhibit PE2, the response by the Returning Officer to the respondent. These letters show that, the respondent reported the illegal campaign on 8th of October the same 24 I I •date which the issue of

theft of road construction fund was raised at a campaign rally and various people told. the respondent that the information about the theft was given to them by the 1st appellant. I concede to the proposition which was made by Mr. Robert that the gist and the objectives or the relevance of the rules is to prevent an afterthought complaint on post-election suits. This case is distinguishable from DANIEL NSANZUGWANKO's case, because the respondent duly lodged a formal complaint to body superior to the Returning officer whereas in DANIEL NSANZUGWANKO's case, the appellant did not furnish any justifiable grounds for his failure to refer his claims to Electoral Code of Conduct in order for him to make the Court to think and decide otherwise. In this case the complaint was lodged timely hence it is not an afterthought, as said, this case is distinguishable from the case of Daniel Nsazugwako(supra). The evidence should be considered as a whole. There is evidence of witnesses who heard the utterances. The witnesses include of PWl Manaseh Bhaghari, PW2 Yusuphu Martin, PW3, Michael Hangali, PW4, Augustina Lohay and PWS Jackson Haibei (respondent). The testimonies of these witnesses narrate the statements which were issued by the 1st appellant. Certainly, it is obvious that naming a candidate to be a thief is defamatory as it lowers the candidate's reputation. It is my view that the

statements which were made by the 1st appellant have the effect of directly affecting the results of the election. 25 tlt On· 5th point of appeal; that the Trial Court erred in Law and fact for failure to observe the Law which requires the election matter should be proved to the satisfaction of the Court. I agree with the parties that, the standard of proof of all Election Petition is beyond reasonable doubt. see the case of FREDY TUNGO MPENDAZOE VERSUS ATTORNEY GENERAL AND TWO OTHERS Misc. Civil Appeal NO.98 of 2010(HC) at Dar es salaam, pp.13 and 14.The court quoted the case of MANJU SALUM MSAMBYA VS THE ATTORNEY GENERAL AND KIFU GULAMHUSSE IN KIFU, Civil Appeal No.2 of 2002; in this case the court held that:- •~ ..the burden of proof on a petitioner is a heavy one: he is required to prove his allegation to the satisfaction of the court, which has been interpreted as proof beyond reasonable doubt ... '~ The court also quoted the case of Lutter Symphorian Nelson vs. AG and Ibrahim Said Msabaha[2002] TLR. 419 where the Court of Appeal held that the burden is heavy on who assails an election which has been concluded The appellants contended that looking at the evidence of PW1, PW2, PW3, PW4 and PWS versus the evidence of defense, that of DW1 and DW2, the respondent failed to prove the evidence as he failed to refer the complaint to the Ward Ethics Committee. When discussing

ground No. 4 I pointed out that failure to refer the matter to the Ethics committee do not bar a party to refer a case to court but it affects the weight of evidence. However in this case, as 26 I I.,. discussed above, the complaint was referred to the returning officer, hence it was not an afterthought and the witnesses; PWI, PW2, PW3, PW4 and PW5 were called to testify in that respect. PW1, on 23/9/2015 heard the first appellant saying the respondent stole the money, same statement was heard by PW2 at an election campaign on 3/9/2015, PW4 testified of the event of 24/9/2015 at Yekotonic village, and the evidence of PW3 and PW5 regarding the 22/10/2015 event where the 1st appellant shouted "thief, thief'. The evidence in its totality shows that, the appellant asserted defamatory words by naming the respondent to be a thief. The statements were communicated to various people. On the other hand the testimony of 1st appellant's witnesses Dwl and Dw2 did not rebut respondent's evidence, both witnesses stated that if there was such allegations should have been referred to the Ethics Committee. Their evidence doesn't reveal if these witnesses attended the campaign meetings which the respondent alleged defamatory statements were uttered. DW1 testified of his campaign being disturbed by CCM campaigning car, which had loud music singing, "C.C.M ni walewale, Wapinzani ni wa/ewale,

tutawakanyaga, tutawafinyanga, tutawatupa'~ DW2 an assistant Returning gave a general account how the· complaint should have been handled. There was no evidence to oppose the testimonies of PW1, PW2, PW3, PW4 and PW5 which explained specific events. Therefore, taking the evidence as a whole, I am satisfied that the case was proved on the required standard; that is beyond reasonable doubt. 27 (ij, . ihat said, the appeal is dismissed with costs for 1acK of merits. Right of Appeal is explained. s.c.~

JUDGE 29/07/2016