ARCADO NTAGAZWA v BUYOGERA BUNYAMBO 1997 TLR 242 (CA)

 

ARCADO NTAGAZWA v BUYOGERA BUNYAMBO 1997 TLR 242 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JJA, Mfalila JJA and Mroso AgJA

G CIVIL APPEAL 51 OF 1996

26 August 1997

H (From the judgment and decree of the High Court of Tanzania, Tabora, Mackanja

J)

Flynote

Civil Practice and Procedure - Trial - Adjournment - When to be granted

I Civil Practice and Procedure - Court - Reasonable apprehension of bias

1997 TLR p243

-Headnote

The appellant had been elected as a Member of Parliament but the election was

nullified on the A ground, as found by the court in an election petition, that the

appellant was a foreigner. In an appeal against the court's decision the appellant

contended that the court had erred in dismissing the appellant's application for an

adjournment of the petition; that the Court had erred in proceeding to hear the

petition in disregard of the apprehensions of bias expressed by the appellant; that the

judgment had been entered without due regard to the principles of natural justice;

and that the B evidence relied upon by the judge was either inadmissible or

inadequate to sustain the findings.

Held:

(i) That the trial judge had acknowledged that the appellant had

experienced problems with his previous advocate who had been bereaved. Despite

these problems a second C advocate was briefed within a short period. Given the

appellant's duties as a member of the Parliamentary Probe Committee it was

conceivable that he had had little time to brief his advocate. In the circumstances he

had not acted unreasonably and the court ought to have granted the adjournment; D

(ii) The appellant was justified to apprehend that he would not get a fair

deal from a judge who was prepared to urge the appellant's advocate to proceed with

the conduct of the case notwithstanding that the advocate had insufficient

instructions and briefing from the appellant. The appellant's apprehension became

even more apparent after what happened E immediately after the judge had ruled

against him in the adjournment application and the advocate gave immediate notice

of her intention to appeal against the judge's ruling with a request to be supplied with

a copy of the ruling. Once the formal notice of intention to appeal had been lodged in

the Registry the trial judge was obliged to halt the proceedings at once and allow for

the appeal process to take effect: the course adopted by the judge F had effectively

thwarted the appeal. The appellant's apprehension of bias was accordingly justified;

(iii) In wrongly dismissing the application for adjournment and proceeding

to hear and determine the case after hearing only the petitioner's case, the trial judge

thereby G condemned the appellant unheard. This was a serious matter especially as

the issue of the appellant's election and citizenship being adjudicated upon were of

great constitutional importance.

Case Information

Appeal allowed and proceedings of trial court declared null and void. H

Dr Mwaikusa for the appellant.

Kayaga for the respondent.

[zJDz]Judgment

Kisanga, JA

This is an appeal against the decision of the High Court (Mackanja, J) nullifying the

election of the I appellant as a Member of

1997 TLR p244

KISANGA JA

A Parliament for Muhambwe constituency during the 1995 general election. The

election was nullified on the ground that the appellant, Mr Arcado Dennis Ntagazwa,

is a foreigner ie a citizen of Burundi, and hence a person not qualified for election as

Member of Parliament under our law. Before hearing this appeal we heard a

preliminary objection raised by the respondent on the ground that the appeal was

incompetent in that it was unaccompanied by the drawn up decree. We B overruled

the objection orally, and written reasons for doing so have already been given

separately. In this appeal the appellant was represented by Dr J T Mwaikusa, learned

advocate, while Mr K E Kayaga, learned advocate, appeared for the respondent. Mr

Kaduri, learned Principal State C Attorney, appeared as Amicus Curiae.

The respondent had filed a petition in the High Court to oppose the appellant's

election as Member of Parliament for Muhambwe constituency. After a ruling on 10

April 1996 on some preliminary D objections to the petition, the matter was set

down for hearing on 4 November 1996. Subsequently, however, and for reasons

which are not recorded on the file, the hearing was re-scheduled for 2 September

1996, 9 September 1996 and then 16 September 1996. Following the long

adjournment of 10 April 1996 to 4 November 1996 the appellant had accepted the

appointment as a member of a E Parliamentary Probe Committee to investigate

allegations of corruption against some senior Government and CCM officials.

When the new hearing dates were communicated to the appellant, the appellant

informed the Court F that the new dates were unsuitable and asked for further

adjournment, but when it became evident that the trial judge was not prepared to

adjourn the case beyond 16 September 1996, the appellant sought to have the case

transferred to another judge but in vain. The trial judge, therefore, G proceeded to

hear the petitioner's case, consisting of nine witnesses, in the absence of the appellant

or his advocate at the end of which, as stated earlier, he allowed the petition and

nullified the appellant's election as Member of Parliament.

In seeking the adjournment the appellant had advanced two main grounds. First, he

said he had run H into problems with his advocate who had lost her husband and,

acting on the advice given to him by the court on 27 August 1996 in that regard, the

appellant engaged another advocate, one Mrs W Gama, on 10 September 1996, but

had not had time to give full instructions to her. Thus on 16 September 1996 Mrs

Gama appeared in court with limited instructions to ask for adjournment I pending

full instructions and briefing from

1997 TLR p245

KISANGA JA

the appellant, but her plea for adjournment was refused and she had to withdraw

from the A proceedings.

The appellant's second ground for seeking the adjournment arose from his

appointment to the Parliamentary Probe Committee. The appellant disclosed to the

court that he had accepted that appointment relying on the hearing date of 4

November 1996 as originally fixed by the court, by B which date the Probe

Committee would have finished its work. So that the re-scheduling of the hearing

dates to 2 September 1996, 9 September 1996 and 16 September 1996 put the

appellant in a difficult position as it came only after the Probe Committee had

commenced but before completing its mandate. C

In advancing this ground, the appellant referred the trial judge to two cases involving

similar circumstances. These were the two election petitions in Dar es Salaam

involving Mr Iddi Simba and Dr Masumbuko Lamwai, respectively. Like the

appellant, Mr Simba and Dr Lamwai were members of the said Probe Committee, and

their respective cases had been adjourned pending completion D by the Probe

Committee of its assignment. Additionally, the appellant complained of bragging by

some people among whom were some of his opponents especially in Muhambwe

constituency, that the appellant stood no chance of winning the petition because they

had bribed the judge. E

The appellant, therefore, asked for the transfer of the case to another judge as he

apprehended that in these circumstances he would not get a fair hearing before the

trial judge. However, the learned judge, in a lengthy Ruling, and obviously being

carried away by emotion at times, discounted all the F points presented to him by

the appellant and, having refused to grant the adjournment, proceeded to hear the

petition in the absence of the appellant or his counsel, nullifying the appellant's

election in the end on the ground that the appellant was a non-citizen of this country.

It is from that decision that this appeal now arises. G

Dr Mwaikusa has filed four grounds of appeal. The said grounds together with the

accompanying prayers are set out below:

`1. That the learned trial judge erred in law when he dismissed the

Appellant's application to adjourn the H hearing of the petition;

2. That the learned trial judge erred in law when he proceeded to hear the

petition in disregard of the apprehensions of bias expressed by the Appellant;

3. That the judgment and decree have been entered without due regard to

the principles of natural justice; I

1997 TLR p246

KISANGA JA

A 4. That the evidence relied upon by the learned trial judge was either

inadmissible and/or inadequate to sustain the findings and decision entered thereto.

It is proposed to ask this Honourable Court of Appeal to allow this appeal and

issue orders that:

B (a) The judgment and decree, as well as the proceedings of the trial court

subsequent to 16 September 1996, be quashed and the petition be heard de novo;

(b) The status quo ante be restored;

C (c) The Appellant be paid the costs of this Appeal;

(d) The Appellant be awarded any other relief as this Honourable Court

may deem fit and just.'

Dr Mwaikusa, with the leave of the Court, amended the memorandum of appeal by

adding an D alternative prayer to prayers (a) and (b), which alternative prayer is for:

`An order reversing the decision of the trial court and declaring that the 1995

election of the Appellant as the E Member of Parliament for Muhambwe

constituency was proper and valid.'

We now turn to consider the grounds of appeal separately, starting with the first

ground which alleges that the trial judge erred when he refused to adjourn the

hearing of the petition. The trial F judge had acknowledged that the appellant was

having problems with his previous advocate who had been bereaved, and the trial

judge had duly advised the appellant to find another advocate. The advice was given

on 27 August 1996 and, accepting it, the appellant instructed another advocate on 10

September 1996. In other words, the appellant, accepting the judge's advice, engaged

another G advocate in a matter of two weeks.

The advocate who was engaged on 10 September 1996 could not be given full

instructions and briefing, and therefore she was asked to travel from Dar es Salaam to

Kigoma and enter appearance in court with a request for adjournment pending full

instructions and briefing from the H appellant. The appellant cannot be said to have

acted unreasonably here. First considering the expenses involved to hire the service of

counsel, it is not surprising for the appellant to say that he could not raise the full

advocate fees within two weeks especially after the hearing date was brought I

forward from 4 November 1996 to 2 September 1996.

1997 TLR p247

KISANGA JA

Again considering that the appellant was serving on the Parliamentary Probe

Committee, it is A conceivable that he had very little time, as indeed pleaded by him

and confirmed by his advocate, between 10 September 1996 and 16 September 1996,

to brief his advocate in sufficient detail on what happened during the election

process. B

Nor can the appellant be said to have unreasonably absented himself from court on 16

September 1996. He was serving on the Parliamentary Probe Committee. As stated

before, he had accepted appointment to that Committee in reliance of the original

date of 4 November 1996 fixed by the court for the hearing of his case. Had the court

adhered to that date the appellant would have completed C his assignment with the

Committee in time for the hearing of his case. The appellant was therefore justified in

asking for adjournment pending completion of his assignment with the Committee

which he had taken up relying on the original hearing date of his case as fixed by the

court. Not only that, Mr Simba and Dr Lamwai who were also serving on this

Committee, had their D respective election petitions adjourned by the High Court

pending completion of the work of the Committee. Whether the decision to grant

those adjournments was right or not, the appellant would have every reason to think

that his request for adjournment would equally be granted. He cannot E therefore,

be said to have acted unreasonably in seeking the adjournment.

The trial judge was fully appraised of all these matters through the correspondence

sent to the court by the appellant. We think that the trial judge wrongly disregarded

them when he refused to grant F the appellant's application for adjournment.

The second ground of appeal criticises the judge for proceeding to hear the case

notwithstanding the apprehension of bias expressed by the appellant. Again we find

merit in this complain. As stated earlier, the appellant managed to engage another

advocate within fourteen days after being advised G by the court to do so. But

although the said advocate engaged in so short a time pleaded with the judge to grant

an adjournment to enable her to obtain the necessary instructions and briefing from

the appellant, the judge completely refused and proceeded to hear the case. The

appellant was H justified to apprehend that he would not get a fair deal from a judge

who was prepared to urge the appellant's advocate to proceed with the conduct of the

case notwithstanding that the advocate had insufficient instructions and briefing from

the appellant.

Indeed the appellant's apprehension or fear becomes even more I

1997 TLR p248

KISANGA JA

A apparent in the light of what transpired immediately after the judge had ruled

against granting the adjournment. The appellant's advocate immediately gave oral

notice of her intention to appeal against the judge's ruling with the request to be

supplied with a copy of the ruling. This was followed B by a written notice of

intention to appeal addressed to the Registrar and accompanied by request for

proceedings, with copies to the court case file and the opposite parties. This

notwithstanding, however, the judge immediately proceeded to hear the case until he

completed it. He did not pause or stop to allow for the appeal process against his

ruling to take effect. Although a formal notice of C intention to appeal was duly

given, with a copy to the court case file, there is no evidence that the copy of

proceedings which the appellant's advocate had requested for the purposes of the

appeal was supplied even though the judge endorsed on the file that the appellant's

advocate should be D supplied with the same; and indeed there is no indication that

the judge who immediately proceeded to hear the case ever released the case file for

the typing out of the proceedings. Be that as it may, it is clear from the judge's ruling

that the intended appeal initiated by the notice in question never materialized.

E It must be pointed out that the learned judge acted improperly here. Once the

formal notice of intention to appeal was lodged in the Registry the trial judge was

obliged to halt the proceedings at once and allow for the appeal process to take effect,

or until that notice was withdrawn or was deemed to be withdrawn. But the course

adopted by the judge here effectively thwarted the appeal. F That was wrong, and

had the correct procedure been adopted the present proceedings might not have been

necessary.

Thus the appellant's apprehension of bias was justified in those circumstances; he

could not be certain that the judge who was capable of frustrating his appeal would

act fairly and impartially in G hearing the petition. Consequently, we are satisfied

that his request for the transfer of his case to another judge was wrongly refused by

the trial judge.

H The third ground of appeal criticises the trial judge for violating the principles of

natural justice. We have to say at once that this complaint is amply justified. In

wrongly dismissing the appellant's application for adjournment and proceeding to

hear and determine the case after hearing only the petitioner's case, the trial judge

thereby condemned the appellant unheard. This was a serious matter, especially as

the issue of the appellant's election and citizenship being adjudicated upon I were of

great constitutional importance. We

1997 TLR p249

KISANGA JA

therefore have no difficulty at all in upholding this ground of appeal. A

To sum up so far, we have found that the trial judge wrongly dismissed the appellant's

application for adjournment, especially after the appellant had expressed reasonable

apprehension of bias on the part of the trial judge. We have also found that following

such refusal the judge wrongly B proceeded to hear and determine the election

petition in total disregard for the principles of natural justice. The effect of these

errors was, in our view, to render the proceedings a nullity starting from the day they

were continued in the absence of the appellant or his counsel. Consequently we allow

C prayers (a) and (b) of the memorandum of the memorandum of appeal.

Accordingly it is ordered that the proceedings of the trial court subsequent to 16

September 1996 are hereby declared null and void, and that as from that point the

petition be heard de novo before another judge. It is further ordered that pending the

final disposal of the petition as ordered, the status quo ante of the parties D is hereby

restored.

Having taken this view of the matter, it is now neither necessary nor proper to

consider the alternative prayer calling upon us to review the decision of the trial

judge on the merits and find that the appellant was duly elected Member of

Parliament for Muhambwe constituency. It is for this E reason that we shall not

consider ground four of the memorandum of appeal.

In the result, therefore, this appeal is allowed with costs.

1997 TLR p250

A