19870722 TZCA Dar es Salaam

A'l.1 DA.tl. GS ; cLAAII CORAMi CIVIL APP:::lA.L NO. 4 Ol? 1987 .SUM.BU ABDALLAH G,tLLAWA. • • • • • API':;:;;LLANT AND MAIIAJ:iI 3.AJAJ3U ICUJOWA. • • • • . • • RIJSPONJ)ENT (Appeal from Jche Judgment of the High Court of T8nzania at Singid.a) (Lugakingira, J.) dated. the 27th day of Narch, 1986 in Civil Case NoJ_of_l-9S2, JUDGMENT Q1i' THE c01mT MAKA.ME, J •-!k!g The appellant and the re,,pondent in this appeal were contestants for the Singida TJrbsn Constituency in the 1985 Parliamentary Elections., The :result was that the appellant defeated the respondent by a margin of 462 votes so he was d:µly declared the victor. 'l1he respondent was disatisfied 9 therefore. he petitioned the Hi1:s"h Court to l1av2 the election declared void. He alleged a formidable number of violations 1 some by the appellant personally, and other_s by elect ion officials. Only two allegations against the appellant personally were upheld, the High Court (Lugakingira. 9 J.) finding that the appellant, the successful candidate 9 had corruptly given to P.W.11, a person called Rll.MADHANI DULB 9 Shs. 200/- cash and- a bar of laundry soap, in-'6.t-dor that P. W.11 wouJ.cl car;1pa ir;n for himy and promising that he would further reward the witness after the elections if the appellant won. The trial court was also satisfied. that the appellant had conciucted an iUe 0 al cornpaign at Kisaki Village -\ when he sllegGd.ly addressed villagers on what has come to be \ •.•!'•o••/2. \\ \ I \ I ~ referred to as the 'Kindai land. famw 1 • The respondent was also · found to have eE;tablL~hed vsrious a_llegations against election offiofals, which formed part of tlc0 basis for avoiding the election.• The Attorney General filed. an appeal P but at the eleventh hour Nr. Ihemap fo_;'.' the Attorney General, informed this Court that the Attorney General had abandoned the idea, and sought leave to withdraw. Leave·was duly_granted and the position is therefore that the election stands avoided as a result of the course ·ad.opted by the Attorney General, whatever the outcome of the prenent appeal before us. Perhaps we should. add, for the • avoidance of doubt 9 if there be any 9 that no criticism whatsoever )i is intended ag8 inst tl;i.e Attorney _ General for adopting the course he did g We are merely placing the matter on record. Learned Counsel before us were Mr. Haulle for the appellant and JVir. Alimwike for the respond.ent respectivelyo The same learned advocates represcmted the partiss at the trial. Mr. Haulle filed a long memorandum of appeal, with twenty three grounds of complaint, the first fourteen being against the finding tha.t the appellant had bribed. P.W.ll. The rest of the volley related to the Kindai land issue. Mr. Haulle addressed this Court for several hours but we have to express his submissions, a· lot more briefly o Essentially he submitted that P. W.11 had told lies and the tri81 court should have disl)elieved him. Mr. Haulle submitted that the story· that the -rendezvous at which P.W.11 was allegedly given •tobacco I by the appellant 9 a. bar of soa'.p and Shs. 2001'-, wa.s agreed. upon a.t the l{it_itimo Ca.-ttle Auction ,vas -: ne-cessarily untrue because the appellant d.id not at all go there as he was indisposed and at home, as evidenced by the · _, •.•.• /3. .- .. . - 3 medical chit 9 Exh. D. 16. f'i.r. Eoul1c tried to build. a lot around Ex:h. 16 9 trying to pei:·;:;uade u.;3 tiwt the appellant could not have gone to Kititimo on the day P.11.11 said ho met him. · iiJe are not impressed by Mr. Haulle 's subrcission on this aspect. We are satisfied that thGre was really nothing necessarily to stop the appellant from going to Kititimo 9 as alleged.. The d.istance is said to be two miles or so 9 and it would appear that the appellant was not unwell enough not to go bock to thf hospital on the material day as advised by his doctor, D.W.18, BRill'JO EAIIDE. However, to say that the appellant .was not unable to go to Kititimo is different from saying that ·he did go as alleged. The allegation of corruption against the appellant, ·~ aspiring parliamentary candidate, was a. very serious one 9 so we have to analyse P.W.ll's testimony very carefully. The appellant was at., the material time a cons1)icuous figure. He was not only a. parliamentary candidate:g he had been. the' M.P. for the area immediately before the carnpc1 ign. Whiie 1-:i. W;,11 might have n'ot been able to remember who else he saw at the auction on this day he had an encounter with the appellant, it should not have been impossible for the respondent to locate some other person or persons to come forward, only less than a month after the event, to say that the appellant was at Kititimo on the material day. This alleged Kititimo encOlmter was importan_t in the context, because it wa.s supposed to bo tho foundation of the rest of P.W.11 's story. On it was built the $unday visit to the appellant's.house and the 'gifts I received there. lJo one has testified to seeing P.Well there and P.W.11 did not even mention anybody among the ca.rousing crowd when he allegedly went back to the appellant's house after the election. P .W .11 is obviously not above telling fibs - - 4 - a, former TANU Chairman 9 Ward. Ex:ocutive Officer, and a Party stalwart s:i,;nce 1960 who said. he did not realize that the appellant, who was ask~ him to campaign for hiu~ w:<1 in;foct giving him a bribe. He mad.e no report to anybody about this until he allegedly went to cry on P.W.12 1 s shoulder for not being given more I zawadi 1 after the election. He would hove known that what he had received. we,s a bribe and we find it extraordinary that he would have oonfessed to P.W.12, .a. CCM Branch .Secretary. It 'is not impossible that in his vainglory he merely sought to identify himself with the successful cand.id2te. We are of the view that it would be unsafe to avoid an election on the rc1tre:c1~th of the testimony of such a shady character. We find Vir. E:::x_lle 1 s complaint on this has merit. We wish to observe bowever 9 tl19t if w2 wGre satisfied that the story told by P.W.11 was true we would not h2vG felt impelled to find out whether P .W .11 had carried out hiu po_-ct of the I contract 1 - whether he had in: fa,ct campaigDEJd. for the appellant. It would have been the appellant's actus ~ and. !~. ~ we would focus on, not what P.W.11 did thereafter. We now move on to the Kindn i Land issue. The learned trial judge was satisfied that the appellant 'did go to Kisaki in September, 1985 and conducted an illegal campaign there as alleged by P.W.20 OM.ARI NKHUKUTA. Mr. Alimwike for the respondent urged us to uphold this findine'. Ifo submitted thot J?.\J.20 was a truthful witness and that the witnesses c,Jlled by the 2ppellant were not believed by the trial court. 11c, further called our attention to the fact that P .W .19 ALOY CE NTA:tIDU 9 the Ward Secretary for Ipembe Ward 9 of which Kisaki Village is pa.rt,said that in the year 1976 he did not 8llocate to anyone any hmd in the two hundred - od.d acres owned by" the Vet,:::rinary :Department. 0 •••• • /5. - 5 t.· ., It was the appellant I s contention that the whole Kindai land. story wa.s cooked up merely to implicate the appellant, there being no Kindai land. dispute 9 tho truth being that the veterinary land was being freely cultivated by suveral people since way back in 1976; It was the appellant's c!Jse therefore that he could not have used'. the land. in q_uestion os a bait for the impending election. We have had a coreful look at t'.1.e evidence. We are unnble to differ from the triol court's view on the matter. What emerges from the evidence is that the allocation by P.W.19, relied on by thC:: appellant relotGd to the Kilimo cha Kufa na Kupona operation, and. that had. nothing to do with the prohibited land at Kindai. A.s the learned trial judge observed, Sheikh IDDI KALULU' s evidence 7 and Exh. D.15 9 f8 iled to promote the appellant's caso. We think it is significant also thot the appellant did not wish to call NKI11GU 9 the man he alleged. had, along with P.W.19 9 permitted. people to cultivate the veterinary land. Further, wef\ook a close look at the evidence of another witness called by ~.he ap1x'll&:t1t 9 D. W.10 MATHA.YO HANGO 7 the Singida Urban District CCM Choirman. During his sojourn -: .. in the ,fitness box he touched on the Kindai land issue and he had clearly something to hide. He prevaricated, but it still managed to come out that Gallawa wss posed against 1Bwana Mifugo 1 in the rr:attGr, and this is not without significance. We are satisfied, on the evidence 9 that the appellant d.id go to Kisaki in September, 1985 ond that he did conduct the illegal campaign as alleged. We accordingly uphold the trial court's finding on this and dismiss t h'e appellant ts cor:1pla:i.nt. 8 - - We therefore find that the ads 3t Roche c:ind Sororteta polling stations were ccts of' non-ccr,11)1iance with the provisions of the Elections Act. We excluC::c the 199 votes at Roche and .the 170 votes a.t Soroneta from the count of the votes cast a.nd hold thet the exclusioh of those two lots of votes affected the re~lts of the election. We a.llow the appeal with costs, s~t aside the judgment and deCl'ee of the High Court, including its order for costs and subs~itute therefor an order declaring that the electioh of ttl~ J:espondent Edwe.t'd Oyombe Ayila to be a member of Parliament for th.e 'I'arima constituency null and void. I, DATED e,t DAR ES SALAAM this 22nd day of July, 1987 • A. MUSTAFA JUSTICE OF APPEAL A. :M.A. OMAR JUSTICE OF APPEAL D. P. MAPIGANO I AG. JUSTICE OF APPEAL ' I certify that this is a true car,; of the original • .,/ (J. H. MSOFF8) DEPUTY REG IS~:r.R..AR ~