20170222 TZCA Arusha2

IN THE COURT OF APPEAL OF TANZANIA

ATARUSHA (CORAM: LUANDA, J.A., MUSSA, J.A., And MUGASHA, J.A.) CIVIL APPEAL NO. 129 OF 2016 I ONESMO NANGOL'E ...................•..........................·...................... APPELLANT

VERSUS 1. DR. STEVEN LEMOMO KIRUSWA .•••.•••.•••••••••.••••••••••••••• 1ST RESPONDENT 2. THE HONOURABLE ATTORNEY GENERAL .•••••.•••••••.••••••••••••• 1ST NECESSARY PARTY/ 2ND RESPONDENT 3. THE RETURNING OFFICER FOR LONGIDO PARLIAMENTARY CONSTITUENCY .................... 2ND NECESSARY PARTY/ 3Ro RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) (Mwangesi, J.) Dated the 29 th day of June, 2016 • in Misc. Civil Cause No. 36 of 2015 ..........•...•

RULING OF THE COURT 20 th & 23 rd February, 2017 LUANDA, J. A.: This is a ruling following a preliminary objection taken out by the 1st respondent. Briefly the historical background giving rise to the ruling is as follows. 1 In the general elections held in October, 2015, the appellant from CHADEMA emerged as the winner of parliamentary seat for Longido Constituency in Arusha Region. The pt respondent, who contested the seat through CCM, amongst the contestants, lost. The 1st respondent petitioned in the High Court of Tanzania (Arusha Registry) and sought the results be nullified. The High Court (Mwangesi, J. as he then was) nullified the elections results and issued a certificate to the Director of the National Election Commission in terms of S. 113 (1) of the National Election Act, Cap. 343 with a view to conducting a fresh election. The appellant is aggrieved. Exercising his right of appeal, the appellant filed an appeal in this Court to challenge the decision of the High Court. The appeal was to come for hearing on 13/10/2016. Some few days before the hearing date, the 1st respondent, through his counsel, raised a preliminary objection on a point of law that it was not proper the appeal to be heard without joining the 2nd and 3rd respondents in the appeal, who were served with the notice of appeal. The pt respondent prayed the appeal be dismissed with costs as it

was incompetent. The Court sustained the point of objection raised but did not accept the contention that failure to join the 2nd and 3rd respondents, who are necessary parties, rendered the appeal incompetent. Instead, the 2 Court granted leave to the appellant to amend the notice of appeal as well as the memorandum of appeal and record of appeal. Owing to its importance in this ruling, we reproduce en extenso that part hereunder:- "We are, however, not persuaded by Dr. Lamwai's urge that the non-joinder of the Attorney General and the Returning Officer in the matter presently before us has the effect of rendering the appeal incompetent. We cannot read any incompetence in the appeal and, accordingly, we refrain from accepting the urge and, instead, we give leave and allow the appellant to amend the Notice of Appeal as well as the memorandum and record of appeal in terms of Rule 111 of the Rules so as to implead and join as necessary parties, both the Attorney General and the Returning Officer. The amended version of the documents should be lodged within twenty one days {21} from the date of the delivery of this ruling. "[Emphasis ours]. 3 The appellant "amended" the record of appeal. It is this "amended" version which is a· subject of yet another preliminary objection. The pt respondent raised a preliminary objection consisting of two points, namely:- TAKE NOTICE that at the

hearing of this appeal the 1st Respondent above-named shall raise preliminary points of law to the effect that the Record of Appeal filed second time is incompetent and ought to be struck out with costs in that: 1. The said Record of Appeal has been prepared contrary to the order of the Court dated 24h September, 2016/ to wit:- i. It contains amendments not ordered. ii. It does not indicate that it is an amended record and in consequence thereof the appeal contains two Records of Appeal.

2. That the Record of Appeal filled second time is fatally defective in that it does not contain the Notice of address of service of the parties contrary to the mandatory provisions of rule 96 (1) (b) of the 4 Tanzania Court of Appeal Rules, G. N. No. 36 of 2009. In this objection proceedings Mr. Method Kimomogoro and Mr. John · Materu, learned counsel appeared for the appellant; Dr. Masumbuko Lamwai, Mr. Edmund Ngemela and Mr. Daud Haraka, learned advocates represented the 1st respondent; whereas Mr. Juma Ramadhani, Mr. David Kakwaya both learned Principal State Attorneys and Mr. Fortunatus Muhalila, learned State Attorney appeared for the intended the 2nd and 3rd respondents - they are yet to be joined. Submitting on the first point, which has two limbs, Dr. Lamwai said to this effect. The Court has ordered the appellant to amend the record (henceforth the 1st record) namely notice of appeal, memorandum of appeal and the record of appeal. Instead of amending the 1st record, the appellant filed another one (henceforth the 2nd record) and without indicating it is an amended version. It is the submission of Dr. Lamwai that there are two versions of the record of appeal. Not only that, the appellant also effected other amendments like adding pages and volume of record of appeal which was not ordered by the Court at all. He gave instances. The 1st record which has 7 volumes of the

record of appeal and ended with page 2699; while the 2nd record has 8 volumes and ended with page 2723. 5 Dr. Lamwai said it is clear thaUbe amendment effected has gone beyond--, the parameters of the order of the Court. He went further to say that they discovered that the additional pages, in volume 8 was due to inclusion of the ruling of the Court which granted the appellant leave to amend the 1st record. He said the inclusion of the pages in the 2nd record is not a legal requirement as the matter originates from the High Court. Rule 96 (1) (k) of the Court of Appeal Rules, 2009 (the Rules) does not apply. That was not proper, he charged. As regards the second limb, Dr. Lamwai said the 2nd record does not contain the notice of addresses of services of the parties. This is contrary to the mandatory provisions of Rule 96 ( 1) (b) of the Rules. The omission is fatal as such it renders the appeal incompetent. He prayed that the appeal be struck out with costs to three advocates to be certified by the Court. Responding Mr. Kimomogoro started with the first point of objection. As to the inclusion of the ruling of the Court which granted the appellant leave to amend, he said Dr. Lamwai did not read Rule 96 (1) (k) of the Rules properly. The inclusion of the ruling falls within the ambit of "such other document including any interlocutory proceedings". The inclusion in the record was

proper. This is because the bench has changed hence the 6 need to do so. However, he informed the Court that he did not seek leave to do so. The reason for doing that was that the record to be elegant. Turning to the second point, Mr. Kimomogoro said the 2nd record on page (iii) shows the addresses of services. So, they complied with the requirement of Rule 96 ( 1) (b) of the Rules. In any case, if it is not then the omission is not fatal as it did not prejudice in any way. He made reference to Maneno Mengi Ltd & Three Others vs Farida Said Nyamachumbe & Registrar of Companies [2004] TLR 391 where the Court said that not every irregularity or non-compliance with a rule will necessarily render an appeal incompetent simply because the word "shallf'' is used in the rule; irregularities or non-compliance not going to the root or. substance of the matter can be overlooked provided there is substantial compliance with the rules read as a whole and no prejudice is occasioned. He also pointed out that the record is bul~y so some omissions are bound to occur. On the other hand, Mr. Juma supported Mr. Kimomogoro. However, he added that the omission as to the addresses of services is not fatal. He prayed the Court to invoke Rule 4 (2) (b) of the Rules and do justice. 7 In reply Dr. Lamwai said Rule 96 (1) (k) of the Rules is applicable only in the High Court in the course of hearing the

suit or appeal and not in i this Court. He said his friend conceded to have added some pages but he did not seek leave of the Court to do so. We have carefully read the record and listened attentively the submissions presented by the learned counsel viva voce. Without beating about the bush, the crux of the matter in this proceedings is the order of the Court to amend we reproduced supra. The Court granted leave in order for the appellant to amend the record. We should first ask ourselves whether that order was complied with. Did the appellant amend the record as he was ordered? But before we go further it should be clear in our mind when we talk about amendment what does that implies? What is an amendment? According to Osborn's Concise Law Dictionary, Eighth Edition the word amendment is defined thus:- Amendment - The correction of some error or omission, or the curing of some defects, in judicial proceedings. Black's Law Dictionary, Sixth Edition defined the word amend as following:- 8 Amend - To improve. To change for the better by removing defects or faults. To change, correct, revise. On the other hand Oxford, Advanced Learners Dictionary, fifth Edition defines the word as follow:- Amend - To change slightly in order to correct an error, to make an improvement. So, when the Court orders an amendment be effected it means it is to correct or improve the very record which had

already been filed and not to replace it with another document. In our case the appellant did not amend the 1st record as he was ordered. Instead he filed a fresh one (the 2nd record). By any standard that is not an amendment of the record as it was ordered by the Court; it is a fresh filing of the appeal. With due respect to Mr. Kimomogoro the Court did not order for the fresh filing of the appeal. Surely, the order of the Court was not complied with. It is obvious that the 1st record is yet to be amended as ordered by the Court and time had already lapsed. On the other hand, the 2nd record was filed, if at all it was really filed, without the sanction of the Court. Since the 2nd record was not properly filed, the same is hereby expunged. Naturally, the second point of 9 objection as to whether failure to indicate the addresses of services is fatal or not does not arise. In sum, since the order of amendment was not complied with, we have no option except to strike out the appeal which we hereby do. We do so under Rule 4 ·(2) (a) of the Rules with costs to the 1st respondent. There is no doubt that the Court played a major role in disposing this matter. It is not fair under the circumstances to accede to Dr. Lamwai prayer to certify for three advocates. We therefore certify one advocate. It is so ordered. DATED at ARUSHA this 22 nd day of February, 2017. B. M. LUANDA

JUSTICE OF APPEAL K. M. MUSSA

JUSTICE OF APPEAL S.E.A.MUGASHA

JUSTICE OF APPEAL I certify that this is a true copy of the original. A. H. MSUMI

DEPUTY REGISTRAR

COURT OF APPEAL 10