19820525 TZCA Dar es Salaam2

\ IN THE• COUR'I' OF APPEAL OF T,,NZANIA

AT DAR ES SALAAM ~ ~ (_C_o_r_a_m_._:___N_Y_',_'-\L_ALI, CJ,,, MUSTAFA! iVJl,vAK,\SENDO, MAKAME & KISANGA, JJJJ • CIVIL APPEAL NO. S OF 1982 . ,. .. Bi:::'l'WE._,N 1 .. 41 . • 1. 2. . \rJILLIAM Sr1K~l<I OTl!HlICL AHIA. • I,. .. .. .. f .. . .- •,·' .. A N I) • , • . , 1.> CHC:DIEL YOHANE MGON,JA; ·\:i. P. , ' · ·•· 2. · THE HON. AT'J.'OR~_swtRA!] ) ~ ~- ) ·• 0 0 ·, . .' 0 0 •RESPONDENTS • ..:...,. 1 •I . ' .. .. . J •: -----·- ,., ~ " .. , • • : • . (Appeai 'from the ,Jt.;dgm~nj: a~d Dec~r'!e· ·• of F~ .. • t}H-~ High Court of Tanzania!> • ~ . •• at 'Arusha) , ·:. · ,i • '-<- ',I t . " ' • . . ( J\·i)I.Ghi'lGA 1 ai-:ct • • ,.RUBAMA, J.:t ) ... • J ,. f . . t • .. " f - , Det'ed t.~e 11th day of . :, ... ,."" ~ .. .in··. .. Miscellaneous Civil•~ause No •. 84 ~£ 1980 . ,. . . . . .. . ~ . .. t ~. .... ..----- ..., • ... .f •. f I t ·• ., ·: . '.J.UDGMENT OF TYE .COURT .. I .. A I • .....,,,.- ,MUSTAFA, .. ,,J.A.:. V • ' . .. '• .-... In· tJ:ie General·'Parliamentr.iry. Elccti,,::s in October 1980, '' t~e f~rst respondent ,f'iR.· MGotiJA· t • . wori the scc:,t at the Same Consti- ,. • " ..• • .. tuency beclting his• opponen't MHo f'L'\NON<3I C;Y ? , 662 vote so The • t , I ~ ; .- , first 3;E!sp~:m.ct12.n~ poiled :17;156:votP.s agains.t his o~ponent' .s ... f • ~ - ,.. If"' .... ' 1~·,494 vo_tes •.. T~!O duly regist{red votE;rs -:cf the Same Consti- ,. ... . . ttuency ,. MR.

\iJILLii~M· BAi<i\'RJ. and MR. OT_Hl:Nil·:i", AHIA, under the .. .• "'. . ~• •• .. (' . t' ,,,.,,_ ~ '",•, I - . provisi:ons . ,bf -section 1: of~the '1::1ectio~"'1S ,\ct ~ ~ "' (hereinafter .. .. .. 1 -:'°\ 6 ~ t ~ call~d the Act) petiti6r;;,c!i·in .~h•! · Hig:r; Court to annul the ~ ' el~ction on various grounds. • ' .~ 4 .. The.~etitio~:~s ail~ged illegal '. . ,.. ~~ c?mpaigning, non-complianc~ Mith the Acf, ~i~use ~f public 'transport,· improp<--r clisqualific',:ition. of cbc;'istf-!red voters, • • .. vote-rigging,. undue influence ,rnd,.so on.· £·::.qhteen substantial -:r _•; . · i• . ·J"' 1.-~; ..... ·•. i?c ;G.· .., i;.:..,.,t~,, •. . -~ t .~,. ...,.,.,.~>"...., r ·'=-· ,_.Jf,.>,.,?! .,_, _,.;. .::: . ;'.'~c' • .,ii. ••• ~~-".,..,.;-· ~ ~,,--~ ~ ,.,;i • ·- "" ,..,~•.,;,;.., ..~~~.::...:/ ';o.w....:- - ' - " ~ 1 2 . issues, based on the allegations contained in the petition were framed at the beginning of the trial. The petitioners abandoned three issues. The High Court bench, composed of three judges, delivered thrP.e separate judgments. All the judges made findings on the contested issues. In the result CHIPETA, J. hel<;i that he would have declared the election void. MAGANGA, J. and RUBAMA, ,J, dismissed the petition and declared the election valid. The petitioners are appealing against the dismissal of I their petition to unseat the first respondento "' All the three

judges found the allegations containect in issues 7, 9, 10, 11, 12, 15, 16 and 17 not proved. They all found that the allegations contained.in issues 6, 8, 14 and 18 proved, , either partly or substantially, but they h~ld that ctid not affect ~ the result of the electiono It is in respect of the allegations contained in issues 1, 2 and 3 that the High Court judqes disagreed. CHIPETA, J. found that the acts of misconduct alleged in issues 1, 2 and 3 have been proved. MAGANGA, J. found that the allegation of misconduct in issue 1 proved, and as regards '\ issue 2, he found that only one person campaigned for the first respondento In respect of the allegations in issue 3, he held that the officials n3med did make the statements alleged but that, in his view, those statements did not constitute canvassing for votes for the first responden~. RUBAMA, Jo found that the allegations contained in issues 1, 2 and 3 were not proved, except for one act of misconduct contained in issue 3. We think it will b,2 conveni•cnt to set out the allegations in issues 1, 2 and 3: 0040/3 '}:;~,{~ i\4• " .... 3 .··:1./f '- ,t;i•,.:' ··. . ·1· • 1a Did any public officer using public transp~rt campaign on behalf of first respohdent in the iabsence of Manongi? 2 •. Did first respondent have any agents and if so did they with his knowiedge connivance or approval conduct door- to-door campaign outside the

orficial campaign meetings? 3o Did the District CoCoMo Chairman and the Area Commissioner campaign for the first respondent thereby discriminating against Manongi? The trial took several months and a great number of witnesses were called by the parties, and the proceedings were protractedo Mro Jonathan appeared for the appellants be:f,9re us. He ,'il"/.ii·::, ?'' al so appeared for them in the High CourL He hast''l:filed numerous grounds of appeal, some of them challenging the ~~dings of fact by two of the: trial judges" He also, in the first ground of appeal, complained against a ruling made by MROSSO, J. which disallowed his aprlication to file an amen~ment alleging corrupt practices against the first respondent. He contended that MROSSO, Jo misinterpreted section 130(2) of the Act. This ruling by MROSSO, J 0 was, in the course of the proceedings, confirmed by the trial judgeso Mr. Mahatane, who was the first respondent's counsel at the tiial, has appeared for him before us. He has filed a notice of grounds affirming the majority decision of the High Court and a cross-appeal ag~inst the minority decision of CHIPETA, Jo Bolh the notice and the cross-appeal contain numerous groundso Mr. MI awa, who appeared for the Attorney.:..General, has also put in a not cce for affirming the majority dec:i'.i'ion. Th'e grounds set out in :,e notice correspond substantially to those filed

by Mro Mahatane. ... 4 i After a close scrutiny of the proceedings and judgments of the trial court and the notices and appeal and cross-appeal filed here, we were of the view that the material issues before us· were contained in the first ground of appeal.by Mro Jonathan, that is, the contention that f1ROSSO, Jo had erred, and the allegations contained in issues Noo 1, 2 and 3 framed at the trialo We invited counsel to address us at length on these four matters, but that, if they wished, they could thereafter address us on the other grounds they had raisedo Learned counsel agreed with our suggestion, and directed their arguments and submissions on the four matters we have mentionedo Some desul.tory attempts were made at arguing one or two other grounds, but these attempts were not pursued, and in the end we need only concern ourselves with the four complaints stated above. Both learned counsel attacked findings of fact made by the judge or judges against their respectfve client6' caseo Some of the complaints may have a certain amount of merit. All the three I ,' judges assessed and analysed the ·e.v?--den_ce of individual witnesses, and took into consideration the demeanour of the witnesses, and \ then believed o~ disbelieved themo One judge would be mote analy- tical in his assessment, another more concer.ned with the ge!1eral '• impression. However, after due dsliberation

and a study of the findings of fact made by the three judg€s, we have come to the conclusion that the most appropriate way for us would be to accept such findings of fact as were accepte<l by all or a majority of the judges, and reject such as were rejected by all or a majority of the judgeso Wff have arrived at this conclusion as, by and large, our conclusions on facts would broadly correspond to the results of this approacho / eoooo/5 __._ - . . -....... ~ ! t dt - 5 W,~ will now deal with the first ground of appe.:H, the contention that MROSSO, Jo •:!rr.~d in r:..::,fusing the application for. amendment a Mro Jonathan fiL d the: petition in the High ,Court 0 before 15th Decembt:)r, 1980. Th-2 dabc of the publication of the E:li2ction r1:e~sul t in the Gazette was November 21st, 19800 The last day for filing the petition would have been D~cember 21st, i9BO, in terms of section 130 of the Acta According to the affidavit filed by Mro Jonathan in support of his application for amendment-, he was informed by his cli~nts on December 15th, 1980, that they had discoV(➔ red that the first respondent had committed illegal or corrupt prc:icticcs in relation to the elect.iono . He thereupon drew up an amended petition including such illAgal or corrupt practice& alleged against the first r2spondent and on or about January 5th, 1981, applied for leav~ to file such amendment.

The application was opposed by Mro ivlah'3tan2. MROSSO, Jo heard the application for amendment and refused it. He gave the reasons for such refusal on 12th f!!arch, 1981o He referred to the provisions of section 130 ( 2) of the Act, which providt that an ehiction petition presented in due time, may, in order to allege corrupt or illegal practicl~s, be amended with the l•~ave of the cou'rt, within tha time in which an ,?.lection petition may be prosented, that is, within thirty days of the publication of th(~ elections result in the Gazetteo He h,,dd that the application was made out of tim(~, and that the court had no power to all.ow amendment. He held.that the Limitation Act was not applicable to election peti tionso We are satisfied that MROSSO, J. was wiong. \ of the Umitation Act r•,ads, \ --- Section 46 "where. a period of limitation )for an}"p,i:-oceeding is prescribed by any written law\~ then unless the contrary intention appears in such laW'.j and subject to the provisions of section 43, the provisions of the Act shall apply as if such period of limitation had be.::n prescribed by the Acto "o There is no contrary intention appearing in the provisions of section 130(3) of the Act, and section 43 of the Limitation Act in no way diminishes the effect of section 460 MROSSO, Jo erred in holding that he had no discretion in the matter of the application for amendmento We

were :prepared to deal with the amendment application: in the appeal, and asked Mro Jonathan to advance any reasonable or sufficient cause in terms of section 14 of the Limitation Act for the delayo He had been instructed on the allegations concerning corrupt or illegal practices on 15th December, 1980, and he had until 21st December, 1980, to fiL= such amendment, within the time allowed by section 130{2) of the Acto He did not do so. On 5th January, 1981, he filed the application for amendmento Mro Jonathan stated that he could not advance any reasonable or sufficient cause for the delayo In the result we refuse his application for runendmento We now deal with. th~ -allr::gations contained in the first issueo B·oth CHIPETA, Jo and J,iU~GANGA, J. found that the first r,,;tspondent, but not the others, used government transport to conduct unauthorised campa~gns for himself at Parani and Jitengeni Secondary Schools. They believed evidence from P .. Wo29, PoWo30, P.W.31 a11,d PoW.32 that the first respondent visited Parani, Scho;=>l scmetime in August 1980 and that th•s:, first respondent in the campaign meeting gave out footl:>alls and :promised his audience ••• ..,/7 ,.1 ' . 7 jerseys and other game and sport equipment if he was elected and that he asked for their support in the coming election. W2 accept this findingo Once this evidence is accepted then tha first

respondent would be guilty of a corrupt practice. We have earlier referred to the failure of Mr. Jonathan to amend with a view to bringing in this element of corruption. However, this evidence was introduced without objection from Mr. Mahatane or the Court, and is clearly admissible evidence. The evidence itself indicates an unauthorised campaign in the school coupled with illegal or corrupt practices. The first respondent gave evidence to rebut these aliegations, and he also called a witness 1R.W.23 Amon Mbwana to refute it. 1R.W.23 Amon was a pupil at the Parani School during 1980. From the unsuco'!ssful attempt at amendment by Mr. Jonathan,· the first respondent must have been aware that efforts to accuse him of torrupt and illegal practices were very real. Howev2r, the failure of the application to amend had not rul2d out the introductt 0 ,~ of such evidence, unless such evidence was objected to and such cbjection upheld. Once such evidence has been introduced~ we, '' ~"~ .. 1:.'.: on appeal, must deal with it. Nr. Mahatane has .submitted that the first respondent would be prejudiced in such an event as he had not directed his mind to this aspect of the case owing to the failure of Mro Jonathan to obtain amendment to include corruption. The first respondent had assumed that he was safe from such an attacko Indeed CHIPETA, J. in his judgment (po 588 of the record) held that

the promises made by -t.}le first respondent amounted to an illegal practice as defined in section 123-.{3..Hd) .of the Acto I ~~\!'. t~:. < • 8 He howeV8.i: felt that he was precluded from considering this asepect of the evidence, in view of MROSSO, Jo's tuling on the application for amendmento JVli1.GANGA, Jo similarly held (po 799 of the record) that Mro Jonathan was estopped from inviting the :_,. ~ .,....·. ·-- .....~ court to address itself on. ,the ground of corruption because of the ruling of MROSSO, Jo and also because it was not pleadedo We think that the two judges had erred in holding that they were precluded from dealing with the charge of corrupt or illegal practices because of the ruling of MROSSO, J. The evidence conc~rning such charge was not inadmissible, and did not depend on the amendment application. such evidence, that is, concerning the promises made, could have been objected to, in view of the ruling of MROSS0 7 Jo, and if the objection was upheld, this evidence would not have b~:en introduced at the trial o But once it was introduced it was perfectly good evidence. The trial I court was not precluded from dealing with a ground of complaint which has not been pleaded, see Rule 6 of ,the Elections Ruleso The only point we have to consider is whether the first respondent might have been prejudiced. Counsel for the first respondent had full opportunity to

cross-examine on this evidence, and did so thoroughlyo The first respondent himself gave evidence on this matter, denying that he had visited the Schools in August 1980 or made the statements alleged against hirno He called 1RoW.23 Amon to challenge this evidenceo The evidence of the unauthorised campaign meeting and the promises made in the ::-(· meeting form an integral piece of testimony, and the first respondent clea~ly directed his mind to this evi<lence and made vigorous efforts.to refute it 0 Indeed, Mr. Mahatane in his final submission to the trial court expressly i-eferred to this·-ctiar.ge . of c.orruption (p_o S·t.1 of the record) o We are satisfied that ooeoo/9 •. i l' 9 this matter was clearly in issue at the trial between the parties and that the first respondent did not sufrer any prejudice by default or otherwise. The next point to be considered is whether at the time of the Parani School campaign the first respondent was a "candidate" within the meaning of the AcL CHIPETA, J. held that a person becomes a candidate when he takes out nomination forms to get the requisite twenty-five nominating signatories, as he.would then submit himself for electiono "Candidate" is defined in section 2 of the Act as " .... a person who submits himself for election .... ". MAGANGA, J. held that a person who has .taken out nomination papers would be _a candidate, even before he

submits his nomination papers. Both the judges held that on his own evidence the first respondent was between 4th or 5th to 11th August, 1980, in'·the Same Dis.trict looki,ng for twenty-five supporters to sign his nomination. forms dnd he was ther'efore a candidate in August 1980. However, it was not clear exactly when the Parani School meeting took placeo In all probability it must have taken place during the first respondent's search for nominating signatories; although the evidence did not positively exclude the unlikely possibility that it could have taken place before, say 4th ,August, 1980, that is, before -~he first respondent could have taken out his nomination paperso We have duly considered the.words "submits himself fo:r election"o The word "submit" would mean surrendering or offering oneself, and once a person submits or offers himsi~lf for election he would become a candidate. Th,:: taking out of nomination papers would mark a positive step towards the process of being elected, ' \ I 'I 10 but we do not think that the taking out of such nomination papers must necessarily. precede the acquisition of the status of a candidat~. However, the period within which one can become a candidate ~hould be within a certain time frame. We think the time would be when Parliament has been dissolved and/or the seats become vacant" A person with political ambitions inay rush to take

on the role of a candidate after Parliament has been dissolved and seek support from the votersi even before he has taken out nomination papers. The first respondent was seeking support at the Parani School meeting. In Wharton's Law Lexicon 14th Edition "candidate" has been defined as follows:- " ••• a competitor, one who solicits or proposes himself for a place or office. The name is derived -from the toga candida in which the compet~tors at Rome were habited. In the Corrupt Practices .Acts the expression has a specially extensive'~eaning. See Corrupt and Illegal Practices Prevention Att 1833, s63 In the Corrupt Practices Prevention Acts ••• the expression 'candidate at an election' and the expression 'candidate' respectively mean unless the context otherwise requires, any person elected to serve in Parliam_ent at such election, and any person who is nom.inated as a candidate at such election, or is declared by }:limself or others to be a candidate on or after the day of the issue of the writ for such election, or after'the dissolution or vacancy in consequence of which such writ has been issued" o This definition is repeated in Halsbury's Laws of England 4th Edition in Volume 15 p~ragraph 684, when· dealing with that term under the Representation of People Act. And in paragraph . 776 of the same Volume it. is stated: "In order to cons.ti tu te the of fence of bribery it does

not matter how long before an elec:tion a bribe is given provided the bribe is operative at the time of the election ~ o • " o •••• /11 ... 11 This statement is similar in.effect to the provisions of section 113 of otir Act, .as far as bribery before an election is concernedo It would seem that the'definition of a candidate in English Law correspond to.what, in our view, is the meaning of "candidate" in our Acto We also will now consider what is meant by a "contested election" under the provisions of section 66 of the Acto It was submitted by Mro Mahatane before us that a conte~ted election arises only after the two candidates have been finally nornin~ted by the National Executive Councilo We disagree. "Contested election'' according to section 2 of the Act "means an election in a constituency ooo at which there is more than one candidate"o Th~re was a contested elec.tion at the s,,me Constituency right from ,·:, the starto i<· . We will deal with issues 2 and 3 togethero On issue 2 only one ~erson lRoW.8 Chambua was ;found by two juc::l.9es to have campaigned for the first respondent out_s.ide the official campaign meetings.. ·, ·;"'-. _· . . . ,; As regards issue 3, two judges found that the C.. CoM .. .' ! • ,' •• Chairman MWANYIKA '. and ' . the Area Commissioner MKELLO campaigned f.or . . :.~ the . first ' - . . ~ respondent . on. two occasions - - and ., - all three

judges ;-' ,' ~ _found that they camp~i9ned for the responden_t on one occasiono On .18th ,' .- ,·'t August, 1980, twq judges found that the c.c .. M. D~.s.trict Party Chairman MWANYIKA said to. the Primary Conference deleg?tes .. L ,., . . ;_ ; . . . . .· :-. .· . after_ the Primary Nomination apd, wh,en they were collecting their a~lowances at the District Office, "the Gambalala Village leade~s have n? ,~rains, because t,h,ey wer.e .compla~ning that Mgonja had done .nothing ··:-. . . for them while in fact he had helped them to get a school, healtp centre, dis~!lsary etc.". /1? .· 12 Two judges also found that later on the· same day 18th August, 1980, while the CoC.,M., Chairman MvlANYIKA was travelling in the Area Commissi.oner M.KELLO' s vehic-le to Same Hotel, in the presence of seven other delegates ir;tclUding the Area Commissioner, said "it was good luck that Mr., Mgonja had gone through the .... preliminary nomination successfully". He went on to say "the main job was to assist, even with blood, Mr. Mgonja to win the election"., All three judges found that on pth October, 1980, while on their way to Ruvu Jiungeni in the Are.a Commissioner MKELLO' s car, Mr., MKELLO said in the presence of his fellow passengers: "These are difficult times. Why don't the Wapare understand., When we have achieved victory, we will have to hold political seminars to educate the Wapare on

the importance of choosing the right member for Parliament';., In reply the C.,C.,M., D~strict Chairman MWANYIKA said: "It is true, we must stand firm, otherwise we will fall, because outside pressure is supporting_Manongi 11 • Accompanying MR., MKELLO and MR., MWANYIKA were the driver, a I . security officer and P.,W.,42 Kunambi. . RUBAJV'IA, J., 1 who found only this incidqnt proved,.held that MR., MWANYIKA and MR., MKELLO did not commit a misconduct because the audience was small and because they did not take ... steps to carry out their intentions. He invoked the provisions of section 124 of the.Act in favour of the first respondent., r-1AGANGA, J., , who· found al 1 the three incidents proved, held that the statements above did not amount to canvassing for votes for the first respondent. They only amounted to declarations· of open support for the first respondent as ag.ainst Mr., Ma~ongi "· ,, 13 I / CHIPETA 1 Jo, who also found all the three incidents proved, hel.d tnat they amounted to campaigning by MR .. MWANYIKA and MR. MKELLO for the first respondent. He held that taking;.-4. i·nto account the cumulative effect of the acts of ·misconduct in respect of issues 2 and 3, ·it was impossible for him t.o say that they did not affect the result of the electiono# ' The word :"Campaign" connotes an organised. course .• qf .. action, and according to the C~ncise Oxford

Dictionary it is an attempt to rouse public opinion for or against a party or a candidate. To canvass is to solicit votes. In regard to issue 3, MRo MWANYII<A and MRa MKELLO hctd clearly expressed, on at.least three occasions, their support f-e.t:" ~ first respondento These two officials form the. top leadersLip of the District, one the top Party Official, the other the top. Party cum Government Of'ficialo They were supposed ,,,,to be impartial referees. They had.access to all areas of tho. Constituency, and according to them, they were responsible for the mobilisation of the voters in the Constituency, and they were:, monitoring the election process, even on election day itself. They made their declarations in no uncertain terms in favou~ of the first respondent, tQ members of the public. Admittedly, .. the audiences before whom they made the statements were restricted ¾i and small., ·c:omprising half a dozen to a dozen per.sons at any one ti~, but nevertheless they were members of the public.. :,!\e C . ~ tlJ.~ti-:lct Chairman went to the length of saying. that h~ would. assist ·'tMl ,first respondent even if it meant spilling blood. eeoo•ii614 ._ .- • . z,~,:--~:- . ~ .~ .... ~◄ C 14 It must be quite clear to those who heard them that these two officials wanted people to vote for the first respondent:.- That would be canvassing or campaigning. 0 since the audiences were

small, could such canvassing have affected the result of the election? If these two were ordinary members of the public the answer would clearly be No. But these • two were very important and influential public offici_?ls representing the Party and the Government. How far would their influence extend? They made it very clear that they •would leave no stone unturned ·to help the first respondento However; there was no evidence that they took any further steps or approached other voterso Could it be said that what they did might have··. affected the result of the election? It is not_an easy point.to_ I . ... •,_ •. • But in view of the paucity of evidence,. we do not ,think, '- in th~ circumstances, that the majority of voters "may have been " prevented from electing the candidate whom they preferred.". To sum up, we find as follows: In respect of issue 1, we are satisfied that the first respondent conducted an illegal campaign at Parani Secondary ,. I School and that he committe<l corrupt practices during that campaign in terms of secti¢n 123(3)~d) of the Act. In respect of issues 2 and 3, we find that the ille~~l campaigns did not affect the. result of the election. We allow the appeal, set aside the judgment and decree of the High Court, and substitute therefor an oraif declaring the election void. • • 0 ./15 ,:11111 ' We award costs to the appellilnt$, both here and below, • ·l . . but we do not certify for two counsel. We also order the costs for th~ preparation of the record of appeal be disallow~a as the record was badly prerar~d an"d was most unsatisf;;ict<;>ry. DATED at DAR ES SALAAM Jthi s 25th day of. Mo1y, 19 82. F. L~ NYALALI

CHIEF JUSTICE f .. ;-- • . ... • A., MUSTAFA JUSTICE Of·APPEAL • / I l. J . • - ..... t L.~ M. MAKAME JUS§~CE OF APPE~L • . 'iY-:, :, T ~~~ R.H. KISANGA • JUSTICE OF .11.FP!::AL .:i; certify that this is a xtrue copy of the origin.~.~,._., ti. " . ...-,._·"" ( L. A. A. KYA!'iDO ) DEPUTY REG.: ST _.;:·_.\R ------- DSPUTY REGL;'/H.A.R \' . "· I .... C1 -,. ••