19811114 TZCA Dar es Salaam2

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: Nyalali, Co Jo, Mustafa, JoAo. and l':1akame, J.A. ) CIVIL APPEAL NO. 19 OF 1981 B E T W .E,·E N VITUS VITA PANCRAS MAGINGI o 0 0 0 0 • 0000-000 APPELLANT A ND THE ATTORNEY GENERAL ) RESPONDENTS 0 C O o O O O e • • • 0 MUSTAFA SALIM NYANG'ANYI) (Appeal from the Judgment of the High. C~urt of 'Tai:izania. at Dodoma) (Maina, Jo) dated the 11th day of April, 1981, in Miscellaneous Civil Cause Noo 5 of 1980 JUDGMENT OF THE COURT MUSTAFA, J.Ao: In the General Parliamentary Election in the Kondoa C0 nstituency in October 1980.the successful candidate was Mr. Mustafa Salim Nyang'anyio He beat his opponent, Mr. Vitus Vita Pancras Magir:igi, by 3,824 votese He polled 47,548 votes and Mro Magini 43,724 .voteso Mr. Magini filed a petit~on in the High_Court challenging the validity of the election, but 0 his petition was dismissedo He is now appealing against that · · dismissal., His appeal is based on two main grounds. He has submitted that there was non-compliance with the provisions of Seetion 5(1) I of the Elections Act and as a result the election was void. He has aiso submitted that a recount be ordered as the trial judge had erred by not ordering oneo , r ,.. ,. 1 r 2 \·Je will first deal with his submission regarding Section 5(1) of the Elections Acta It reads:- "5(1) - The Commission shall divide every constituency into polling districts and shall publish in the Gazette a notice specifying such polling districts.". Mr. Chambakare for the appellant had submitted in the High Court that the Electoral Commission had failed to divide the Kondoa Constituency into polling districts and had failed to publish a notice in the Gazette specifying such polling districts. The trial judge_found that the Commission had divided the Constituency into polling districts but had failed to publish the requisite noticeo It was in evidence that by a circular letter dated 17th . September, 1979, and received by the Returning Officer (D.Wo8) . of the Kondoa C0 nsti tuency, . the Director of Elections, on behalf of the Electoral Commission, had directed that in rural areas villages should be polling districts and in urban areas wards should be polling districtso The letter further instructed all Returning Officers to subm_it lists of such polling districts to the Directoro The Returning Officer (DoW.8) duly made a list of such polling districts for Kondoa Constituency and submitted ' it to the Director on 26th November, 1979. 'TJ1ere were altogether 159 polling districts in the Kondoa Constituencyo A Government Notice Noa 153 dated October 1980 was published in the Gazette which listed the polling districts of the country's constituencies, but those for Kondoa Constituency were somehow missingo The election took place on 26th October, 1980. A Government Notice Noo 33 ~ated 27th February, 1981, was published posthumously, as it were,·listing the missing Kondoa polling districtso ooooo/3 3 Mro Chambakare has contended that the polling districts J had not been demarcated by the Commission, but by the Returning Officer (DoWo8)o He sub~itted that the Commission should have issued a list of its own, or included it in the Government Notic8 Noo 1530 He said that the list submitted by DoWo8 to the Commission had.not been approved or confirmed or certified by the Commission, and when it was so certified or approved by publication in Government Notice Noo 33, the election had already taken placeo Like the trial judge, we think that the Commission, by instructing that in rural areas all villages, and in urban areas, all wards should be polling districts, had in fact divided and demarcated the polling districts in the constituencieso DoW.8 just carried out instructions with regard to the Kondoa Constituency; all he did was to supply the names of the villages and wards to the Commission; these villages and wards were already designated as poiling districts by the Commissiono The Commission itself had divided the Kondoa Constituency into polling districts. There was no particular regulation laid down for the demarcation of polling districtso As regards non-pub~icab~on, the trial judge had held that it was in effect non-compliance with the provisions of the Elections Act relating to election and would be governed by the terms of section 123(3)(c) of the Elections Act which reads: "12 3 - e 0 0 (1) ooo (2) ooo (3) The election of a candidate as a member shall be declared void on any of the following grounds which are proved to the satisfaction of the court, namely - (c 4 " (a) (b) 0 0 0 (c) non-compliance with .the provisions of this Act relating to election, if it appears that the election wa;: :no;-. co11ducted in accordance with the principles laid down in such provisions and that such non-compliance affected the result of the electiono II o The trial judge found that the voters' choice was not affected by such ·n·on.-publication of the polling districts in the Gazette and that such non-compliance did not affect the result of the electionn Mro Chambakare has contended before us that any non- compliance with the provisions of section 5(1) is fatal to the validity of an election, and that section 123(3)(c) is inapplicable to non-publicationo He referred to the words "ncn-compliance with the provisions of the Act relating to election" and submitted' that the woJ:'ds "relating to election" restrict the application of section 123(3)(c) to matters contained in Chapter IV and Chapter V uf the Elections Act vi:-1ic:h refer to "P,1::-liamentary and Local Elections" and "Election and Voting Prc:icedure" respectivelyo Non-publication j_s contained in Chapter I which deals with "Preliminary" o We a1.·e sa',::i.sfied that the words "relating to election" in their plain and natural meaning apply to all steps concerning the process of an election, including the demarcation of polling districts and the publication thereofo They do not bear a special or restricted meaning as contended for by Mro Chambakareo If one were pedantic one could argue that the words "relating to election" would rule out post election matters contained in some provisions concerning magister:~al jurisdiction under Chapter VII headed nAvoidance of elections and election petitions"., We are satisfied that Mro Chambakare's contention on this point has no substanceo r: .,.. ,... We now come to the complaint concerning the trial judge's refusal to order a recounto In the petition itself there was no demand or prayer for a recount. It ~ppears tha~ this request arose ex improvise during the.hearing of the petitiono After the petitioner's case had ended, Mr. Chambakare asked for a recount, invoking the. inherent powers of the Court under section 95 of the Civil Proc·edure Codeo He alleged that the light was poor and insufficient ~hen the votes were beihg countedo The trial judge dismissed the application stating that he would deal with it at a later stage after he had heard more evidenceo At the conclusion of the respondent's case Mro Chambakare renewed his application for a recounto .The trial judge rejected it and stated that after having h~ard evidence on both sides he had found no reason to exercise· his inh.erent powers in favour of the petit~oner. The trial judge in his Judgment came to the co~clusion that no recount of the votes was asked for as alleged by the petitioner, that before th e Returning Officer declared the 1 .t.esul t both the petitioner and the respondent had declared that they had no complaints and that all the votes cast had been fully and properly accounted faro Nothing that Mro Chambakare has said ir:i this Court has persuaded us that the trial judge erred in, refusing a recounto There were no circumstances which required a recount~ • . • .., • .j: 6 In our view the appeal has no merito It fails and is dismissed with costso D,\TED at DAR ES SALAAM this 14th day of November, 1981o Fo Lo NYALALI CHIEF JUSTICE ( Ao MUSTAFA ) JUSTICE OF APPEAL ( L.. Mo MAKAME ) JUSTICE OF APPEAL SENIOR DEPUTY REGISTRAR