mujuni joseph katarina vs samwel ntambala luangisa and another 1987 tzca 26 1 january 1987

IN THE COURT OF APPEAL OF TANZANIA

AT DAE ES SALAAM (CORAMs MUSTAFA, J.A.g OMR, JJ. And MAPIGANO, Ag. J.A.) CIVIL APPEAL NO. 25 OP 1986 MUJUNI JOSEPH KATARAIA. . 0 0 0 0 . APPELLANT

VERSUS 1• SAMWEL NTAMBALA LUa 1\GIdA jj RESPONDENT 2. THE ATTORNEY GENERAL 5* ’ ° (Appeal from the decision of the High Court of Tanzania at Bukoba) (Mwalusanya, J.) dated 12th d3y of September, 1986 in Misc. Civil Cause No, 23 of 1985 JUDGMENT OP Till] COURT MUSTAFA. J.A.s In the Parliamentary election held in the Bukoba Urban constituency in October, 1985, the 1st respondent herein Samwel Luangisa was the successful candidate. The 1st respondent won by 570 votes over his opponent Mujuni Katarala­ the appellant herein. The 1st respondent polled 6 ,8 4 6 votes while the appellant polled 6,476 votes. The appellant challenged, the election results in the High Court (Mwalusanya, J.) by way of an election petition, but his petition was dismissed with costs in September, 1986, and he is now appealing to this Court. The Attorney-General has been joined as a second respondent in thia appeal. In the High Court the appellant had alleged corruption, illegal campaigning and. the exercise of undue influence on the part of the 1 st respondent and. various acts of non-compliance with the Elections Act on the part of the election officials. . / 2. The High Court dealt with all the points raised in the petition and dismissed all the charges of corruption and illegal campaign and acts of undue influence alleged. The High Court held that there were certain acts of non-compliance on the part of

the election officials but concluded that those acts related to a very small number of voters and did. not affect:the result of the election| We will consider the ten grounds of appeal filed try the appellant, Mr. Rutashobya appeared for the appellant in the appeal before us, Mr. Kahangwa for the 1st respondent and Mr, Mreaa for the attorney General. The first ground of appeal- alleged that the trial judge had '"‘played a partisan rolet! at the trial, presumably in favour of the 1st respondent. This ground, can conveniently/be taken with ground 10 of the appeal. In ground 10 the appellant alleged that the trial judge "had misdirected himself when,he declared that the appellant's eounsel^has not shown him how the illegal practices and coninvention and non-compliance of the Elections Act 1985 had affected.the results without asking the advocate to clarify on that and it was not proper for the judge to declare that before he heard ^he submissions of the respondent's counsel and wrote his judgment",* Mr* Rutashobya based that serious allegation of the trial judge b^ing a partisan on the following ground. -After Mr. Lipiki, who at the trial had acted for the_app©lxant, had completed his fisal-submission,,to thecourt ,1the.vtrji.al judge made the.,,following observation-which was^on the record. - 3 "I wish only to observe that you have,not shown how the illegal prsctices and

contravention or non-compliance of the Election Act has affected, the results. As for the illegal campaigns you have not shown as to how they prevented the majority of the voters from electing the cand.idate of their choice. If you had alluded to those points in your submission you would have rendered ir(y job easier and helped ne a good deal". In the judgment itself the trial judge adverted to this matter. He referred to several decided cases where certain acts of non-compliance had been found not to have affected the results of an election and therefore could not nullify an election. He continued "I have dwelt at length at these preliminary remarks because they are important but particularly because counsel for the petitioner Mr. Lipiki appears not to have been aware of these provisions. In his final submission he invited this Court to nullify the election even if the contraventions in question did not affect the results of the election.... ..." Mr, Rutashobya submitted that the trial judge had already made up his mind to dismiss the petition as soon as Mr. Lipiki had. made his final submission. He contended that the trial judge should, after Mr. Lipiki had finished., have asked. Mr. Lipiki "to clarify" on the point about results being affected. In answer to this Court Mr* Rutashobya said "ffy submission is that reading through Mr. Lipiki's arguments at the end of the trial

he had referred to the results being affected by the illegal practices or non-comjiLiance". We think that the trial judge made his observation more in sorrow than anything else. He had expected help from counsel appearing before him, including Mr. Lipiki, in deciding his case. It is clear that in law, certain acts of non-compliance, ..../4 . - 4 - if they do not affect the result of an election, cannot have the effect of nullifyingit* It would seem that Mr. Lipiki was not conversant with that aspect of the law, as he apparently submitted that any act of non-compliance, irrespective of whether it affected the election result, would nullify an election. If after the observation by the trial judge, Mrj Lipiki had wanted to "clarify" certain matters* he was at liberty to seek permission from the court to do so. The Court was still in session, and the trial was still proceeding. Mr. Lipiki did not seek such permission. In these circumstances it seems extraordinary to ua that Mr. Rutashobya had thought fit to complain in the way he had done. It was for Mr. Lipiki, if he had wanted to "clarify" matters, to do so. The judge had indicated to Mr, Lipiki what was wanted. In answer to this Court Mr. Rutashobya hadstated that Mr, Lipiki, in his final submission, had referred to the issue about results being affected by illegal practices or non-compliance with election provisions. we have

since read Mr. Lipiki’s submission as contained in the record of appeal and we can find no trace of such reference. Mr. Rutashobya misled us. He should be more careful and more responsible in his submissions before a court; or in making a serious allegation against the trial judge of being a partisan of the 1st respondent, unless he had some sort of evidence to substantiate such allegation. Not a shred of evidence was forthcoming about the trial judge being a partisan.' We are aware that Mr. Rutashobya had only been recently admitted to the Bar, and we will, on this occasion overlook what clearly is irresponsible and possibly improper conduct on his part. We may not be so lenient in future. - 5 - On ground 2 it was contended that the trial judge had intimidated or threatened P.W.27 Wilbard. Yusufu and had erred in rejecting Yusufu's evidence alleging corruption. During his testimony Yusufu alleged that the 1st respondent gave him Shs. 200 to help in the former's election campaign. When cross-examined by coilnsel for the 1st respondent Yusufu stated: "I am sure I can be convicted of corruption. I did not think it is a bad thing,.......,1 don*t know that to receive a bribe is an offence”. Me, Rutashobya purported to file a supplementary record of appeal in terms of Rule 92(1) of the Court of Appeal Rules, However the record consiated of an affidavit by the appellant and

a PbC>1i0©i>{sy of a newspaper item apparently dated 13.8.86. Counsel for both the respondents submitted, that it was not a supplementary record of appeal and referred to Rule 89 of the Rules of the Court of Appeal as to what constituted, a record of appeal. The newspaper item clearly was inadmissible and. the affidavit purported to refer to something not in the record, of proceedings. It would seem that what Mr. Rutashobya wanted was either to challenge the accuracy of the record or to seek to introduce additional evidence. If he had so wanted he had. certainly adopted the wrong way and method of doing so. The so-called supplementary record is not admissible and will not be looked at. There is just no evidence to support the allegation that the trial judge intimidated and threatened P.W.27 Yusufu. The trial judge dealt at length with the testimony of P,Wr27 Yusufu and. the 1st respondent and liis witnesses on the allegation of the bribe of Shs. 200 being given to Yusufu, and concluded that Yusufu was a. liar and could not be believed. We see no reason to differ-from that finding. - 6 - Both ground. 3 and. ground 5 refer to the party held at the 1st respondent's house at Kitendagalo Village on 6.8.1986, It was common ground that a party was held there on that day, ^he 1st respondent's version was that it \iras a party for close relatives to welcome him home after an absence of

2 months in Dar es Salaam where he attended the Budget Session, Only one outsider P.W.10 Joel, a close friend, was at the party. He said he personally did not invite anybody as he had arrived only the previous day. He said in evidences "It was for me to bid farewell to my friends and. they were congratulating me for having finished my five year term safely. It was just a family get together to congratulate me for having finished my term safely5'. The persons who attended ate food and a religions song was sung. There were no speeches nor was there any campaign during tioe party. There was a funeral of a neighbour that day and R.W.20 Lugusha, the District Party Chairman passed by on his way to the funeral and joined the 1st respondent for food. R.W.12 Jones and R.W.19 Jesse also attended the funeral that day, but did not join the party, P.W.11 Salum and P.V/.12 Alfonce alleged that they were invited to and attended the party. They alleged that at the party vhich was attended by many people R.W.20 Lugusha spoke and urged the 1st respondent to be the candidate for the new Parliament and that was agreed to by acclamation. He said among those present supporting the 1st respondent was R.W.19 Jesse, A number of people signed the 1st respondent's nomination after the 1st respondent had agreed to stand as a candidate. He said P.W.10 Joel was also at the meeting together with Party and

Government Officials, Incidentally p.w. 11 alleged that the ts-t respondent had. invited all the leaders, players and • . . . /7• - 7 - fans (presumably supporters) of the Balimi Football Club to the party. However no other member of the Football Club attended the party.- P.W.12 was a watchman of Sukoba Town Come il. The trial judge went into the evidence adduced by the witnesses on both sides in great detail. He disbelieved, both P,W.11 and P.W.12 as to what transpired at the party. He gave his reasons, a. cogent one being that it was highly improbable that the 1st respondent could have invited, to a campaign party all the "fans, players and leaders" of the Balimi Football Club which formed a large group and could contain enemies as well as friends, especially as there was undisputed, evidence that there was some friction between the football Club and the 1st respondent. The judge also was of the view that if R.W.19 Jesse was at the party as the 1st respondents supporter it was difficult to understand why the appellant did not object to R.W.19 being appointed the Chairman of the campaign meetings on 2.10.85. The appellant stated that he had no objection to the appointment of R.W.19 as Chairman, and he did not object on 12.10.85 when the supervisory delegates were introduced. The judge was satisfied that both P-,W,11 and P.W.12 had lied in court. He preferred the version of the

party as given by the 1st respondent and his witnesses. In fact the evidence of P.W.10 Joel would also support the version given by the 1 st respondent. In our view it was open to the trial judge, after assessing and analysing the evidence, and with the opportunity of seeing and heaxing the witnesses testifying, to have accepted or rejected the evidence of P.W.11 and. P.W.12. We could not find any misdirection or non-direction on his assessment of the evidence, .......... / 8 . _ 8 - In ground 4 the appellant alleged that the judge had erred in finding that there was no evidence that non-citizens had voted and in ignoring evidence which showed that several unregistered persons were permitted, to vote. This ground is totally baseless. The petitioner testified that he was informed, by one Kakwezi that two non~citizens whom he named had. voted. Kakwezi was not called to give evidence andthe petitioner's evidence was hearsay and inadroissible. Four non-citizens attempted to vote and were caught and their voting cards confiscated.. Mr. Rutashobya attempted to argue that because 4 non-citizens were . caught trying to vote, that was evidence that a number of non-citizens must have voted. That is a good, instance of turning an argument on its headl In ground 6 it was alleged th':t there was evidence that some people voted, at polling stations not allotted to them, and that some voters

were denied their right to vote. The appellant contended that the trial judge erred in holding that such non- compliance with the election provisions did not affect the election result. It is true that the judge found that 5 voters voted at polling stations notallotted, to them, and he held that since that misconduct created the same conditions for both candidates, the contravention did not effect the result of the election. Similarly the judge found that 6 non-registered voters had used "floating cards", and thus 6 registered voters had been deprived of their votes. He similarly held that that did not affect the result of the election. Three persons, 2 drivers and a policeman, were deprived, of the right to vote, as they were assigned duties outside their constituencies on election day. In any event only 14 votes were involved 5 and in whatever way one looked at it, considering the majority was 370 votes, that could not have affected, the result of the election, /o - 9 - Ground. 7 was concerned with non-stamping of ballot papers. Only one such instance was proved and one vote was spoiled in this way. This could not be said to have had any effect on the election , result. Ground 8 readss "That the judge improperly dismissed, the evidence proving that properly registered voters were disqualified to vote", A number of school boys, about 100, had their registration oards

withdrawn. The 1st respondent hqd complained to the Assistant Returning Officer P.W.33 '^sere that under age students had. been registered as voters. P.W.33 checked the admission registers as to the age of the students, and withdrew 100 or so registration cards as he found that those students were under-age. Three such students testified.. P. 17,6 Leogratias admitted he was under-age and. 2 others P.W.7 Rwt'feangila and. P.V/ , 8 Abdul Razak alleged that they were then over 18 years and of age. All these 3 witnesses gave evidence of their age themselves. No birth certificate was produced nor were parents or relatives called who could, testify as to their dates of birth. In our view both the evidence of age contained In the admission registers and. that given by the students themselves was hearsay. In fact no proper evidence of the students' age was established. However, the evidence of age contained in the admission registers was ante litem, unlike the evidence of age given by the students at the trial. If the appellant had wanted to establish that the students were improperly deprived of their right to vote, it was fox him to establish that fact. He had failed, to do so. At the highest, two students could perhaps be said to have been so deprived, ^hat figure could not have affected the election result, ........ /, 10 - 10 - Ground 9 is concerned with the interpretation of

section 6l(c)(iii) of the Elections Act 1985. The appellant alleged that the judge bad erred in its interpretation. It reads "61i The voting at an election shall be conducted ...in the following manner — (&)•••••* (b).... (c) immediately before the presiding officer or polling assistant delivers a ballot paper to any person - (iii) the nuabor of the voter in the copy of tho register of voters or part thereof shell be narked on the counterfoil.... ♦ • • • a o * » * o o o * o « * * # o # o o o o « o » !t There were some 596 counterfoils of ballot papers which were irregular in that the presiding officer had recorded only the serial number of the voter instead of recording 5 numbers i.e. the registration centre number, the constituency number and the voter's serial number. However the Assistant Returning Officer was positive that the irregularity did not §ffect the voting as the voters voted, in the normal way and. he was able ‘‘to trace where the voters voted by reading the printed number on the counterfoil and then tracing it in the Register of voters as to where it was allocated and. if it voted or not". He established in Court that all the 596 voters voted in accordance with the law. It was contended on behalf of the appellant that the irregularity was fatal as it offended the provisions of a booklet, caHed :iGuide to the Presiding Officers on the election Procedure”. The

trial judge held, tint the law applicable was the Elections Act as contained, in the provisions of Sec. 6l(c)(iii), which, provided that what was necessary was ,rthe number of the voter ................. / 1 1 . - 11 - in the copy of the register of voters, or part thereof shall be marked on the counterfoil*" Mr. Rutashobya contended that the words "or part thereof" refer to the register and from there he went on to argue that the number of the voter by itself was insufficient, and that the registration centre number and the serial number must also be marked on the counterfoil. We think that Mr. Rutashobya is in error and we agree with the trial judge that the Elections Act requires only that the number of the voter be recorded. This ground of appeal also fails. That would dispose of all the grounds of appeal preferred by the appellant. However Mr. Rutashobya also raised, an issue not disclosed in the petition of appeal. He refered to an alleged act of corruption in which one relative of the 1st respondent by the name of Justina d/o Patrick was involved, in respect of the campaign for the 1st respondent. P.W.5 Oswald had testified that, as head of an Ngoma group, he was approached by Justina who allegedly gave him Shs^ $,000/- and. a gallon of "gongo", an illicit liquor. P.W.5 stated that he met Justina in her house as he was called there. He was accompanied by among others,

R.W.1J John Kijiko, R.W.16 Abdul Rwekaza (Secretary of CCM Branch) and. R.W.14 Marco Kahwa, treasurer of his ngoma group. Justina was present and handed Shst 5*000 to R.W.14 Marco the group treasurer saying that was given by the 1st respondent for the campaign. P.W.5 was the only witness produced by the appellant concerning that alleged incident. The 1st respondent denied hcving ir:danything to do with that alleged act, and called R.V/.13 John, .l.Wil6 Abdul and R.W.14 Marco, who all denied, that there was any such meeting or handing over of money and so on. Justina was not called., - 12 - Mr. Rutashobya has u.-r.ec. before us that the Court must draw an adverse inference from the failure on the part of the 1st respondent to call Justina, as Justina was a very important witness, We agree that Justina was an important witness, and we are surprised that she was not called. However the other three witnesses called to refute the story of P.W.5 Oswald were also important, as they were alleged '^y P.W.5 to be with him when the incident took place. Justina was a relative, while these 3 others were not. We think in this case the 1st respondent had adduced credible and sufficient evidence which the judge accepted and believed to rebut the evidence provided by P.W.5. -Each case has to be judged on its own facts, and we are satisfied that in this case, the failure to call Justina did. not

call for any adverse inference to be drawn against the 1st respondent. We were referred to an unrcported judgment being C.A. No. 4/82 Abel Mwanga v. Elisaph Lima, where because an important and crucial potential witness was not called by Abel l'Wanga., the Court drew an adverse inference against ^Vanga. However the facts in that case were differrent. Mwanga in that case denied knowing the person who was not called, and i%anga’s acquaintance with that person a matter of prime importance in the course of the trial. There was sufficient evidence adduced which showed that Mwanga knew that person, and the onus was on Mwanga- to refute that evidence His failure to call that person in the circumstssices resulted in the adverse inference being drawn,, In his judgment the trial judge had "assumed" on several occasions. He "assumed" that if, for instance, the 100 students were improperly prevented from voting, that number should have been taken into account, to the prejudice of the 1st respondent. ..../13. - 13 - Based, on such ‘'assumptions" he arrived at the figure of 117. He statgd, in view of the majority of 370 in favour of the 1st respondent, even if the 1 1 7 votes were taken into account, that would not have affected the results. Mr, Rutashobya had, not unnaturally, tried to rely on these "assumptions", as if they were findings of fact. We venture to think that perhaps the trial judge had meant that if •he was wrong on certain issues, then the appellant should hove had the advantage of 117 votes, and even then, the election results would not have been affected* Thea appeal is dismissed with costs* DATED at DAR ES SALAAM this day o_ ____ 1987. A. MUSTAFA

JUSTICE OF APPEAL A . i'io A o OMAR

JUSTICE OF APPEAL D. P. MAPIGANO Ag. JUSTICE OF APPEAL. I certify that this is a true copy of the original. (Jo I-I. KSOFFE) DijPUTY REGISTRAR.