ARUSHA KALWA AND FIVE OTHERS v WILBROAD SLAA AND ANOTHER 1997 TLR 250 (CA)

 

ARUSHA KALWA AND FIVE OTHERS v WILBROAD SLAA AND ANOTHER 1997 TLR 250 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Mfalila JJA, Lubuva JJA and Samatta JJA

B

CIVIL APPEAL 29 OF 1997

26 September 1997

C (An appeal from the ruling of the high Court of Tanzania, Arusha, Nchalla J)

Flynote

Elections - Election petition - Scrutiny and recount - Scrutiny by way of recount not

legally competent relief

D Elections - Election petition - Law to be applied - English law not applicable

Elections - Election petition - Scrutiny - Nature of relief

-Headnote

The appellants were the unsuccessful petitioners in the High Court in an election

petition. The relief E sought in the High Court was for a `scutiny by way of

recount'. The judge in the High Court held that the relief sought was misconceived

and incompetent in law and the application was therefore dismissed. The issue for

determination on appeal was whether the relief sought was available under the

Elections Act, 1985.

Held:

F (i) The matter had been complicated and confused by the manner in

which the relief sought had been handled at the trial: scrutiny and recount had been

confused as issues;

(ii) The element of recount was not provided for under the Elections Act.

Whether the English law concept applied in Tanzania was governed by the Judicature

and Application of Laws G Ordinance, Chapter 453, which prescribed two

conditions, viz that the statute concerned had to be of general application and there

should be no specific legislation in Tanzania dealing with the matter in question. In

the instant case neither condition was met;

(iii) Section 112(d) of the Elections Act provided that scrutiny could be

obtained where a seat H was claimed for a candidate on the ground that he had a

majority of lawful votes. In the present case it had not been indicated in the pleadings

that any of the unsuccessful candidates had a majority of votes. Scrutiny had in fact

been sought in such generalised form that it amounted in effect to re-doing the whole

exercise of counting the votes in the whole constituency;

I (iv) Recount was not one of the reliefs set out under s 112(d) and it was

logically incorrect to introduce in the pleadings the element of a

1997 TLR p251

recount of votes as a relief in an election petition. As regards scrutiny,

the application was A properly rejected on the grounds that the conditions under s

112(d) of the Act and Rule 12 of the Elections (Election Petitions) Rules, 1971 were

not satisfied.

Case Information

Appeal dismissed.

Musei for the appellants. B

Maira, Mirambo and Mrs Lyimo for the respondents.

[zJDz]Judgment

Lubuva, JA

On 29 October 1995, general elections were held in this country. This involved

parliamentary and presidential elections. In the Karatu constituency, the first

respondent, Dr Wilbroad Peter Slaa, a C candidate sponsored by the political party

Chama cha Demokrasia na Maendeleo, commonly known by its acronym Chadema,

was declared to be the elected member of parliament. The appellants as registered

voters, were dissatisfied with the results of the election. They filed an D election

petition in the High Court at Arusha ie Miscellaneous Civil Cause No 9 of 1995. From

the pleadings, the petition sought among others, the following reliefs: First, the

election results in Karatu Constituency to be declared null and void. Secondly, an

order for a scrutiny by way of recount. The E Honourable the Attorney General was

joined as the second respondent among the parties.

Before the trial commenced, the Court ordered the issue regarding scrutiny to be tried

first. During the trial on the issue on scrutiny, the petitioners, the appellants in this

appeal, applied for leave to F amend para C in the petition regarding reliefs. As a

result, para C was amended by substituting the words `scrutiny by way of recount' for

the words `recount of the votes.' At the conclusion of the trial on the issue of

scrutiny, the learned judge (Nchalla, J) held that the relief sought for scrutiny by way

of recount of voters was misconceived and incompetent in law. The application was

therefore G dismissed. This appeal is against the order of dismissal.

In this appeal, the appellants are represented by Mr Musei, learned Counsel. The first

respondent, Dr Wilbroad Peter Slaa, is represented by Mr Maira and Mr Mirambo,

learned advocates. The H second respondent, the Honourable the Attorney General,

is represented by Mrs Lyimo, learned Principal State Attorney. A seven point

memorandum of appeal was filed. In paragraphs 6 and 7 of the memorandum of

appeal it is stated:

6. The Honourable trial Judge misdirected himself in law in dis- I

1997 TLR p252

LUBUVA JA

A criminating against the voter petitioner respecting the relief of scrutiny

under s 112 of the Elections Act No 1 of 1985.

7. That the Honourable trial judge further erred in law in wrongly

interpreting and applying the term `scrutiny'.

B From the totality of these grounds, it is our view that one central issue is raised in

this appeal. That is, whether the relief sought, namely scrutiny by way of recount of

votes is available under the Election Act, 1985. Mr Musei, learned Counsel, strongly

contended that the learned trial judge erred in law in not ordering a recount of votes

as sought in the reliefs. The reason he stated, was that C while it is conceded that the

Election Act, 1985 does not provide for the recount of votes as a relief in an election

petition, still he maintained, the relief could be granted by applying the English law.

In support of this submission he referred the Court to the book by the distinguished

authors, Norman D and Schefield on Parliamentary Elections, Third Edition at page

536 wherein `scrutiny' is described as follows:

`Scrutiny is the term used to describe a reviewing of ballot papers following

an order of the Court.

E The petitioner, respondent, their Counsel, solicitors and agents are at liberty to

be present at the inspection which takes the form of a recount.

Each side makes its own list of ballot papers which it objects to or claims to be

added.'

F On the basis of this authority, Mr Musei further submitted that as the law in

Tanzania provides for the relief of scrutiny in an election petition and not a recount, a

wide interpretation should be given to the word scrutiny under the English law. He

went on in his submission, by applying the English law G under the provision s 2 of

the Judicature and application of Laws Ordinance, Chap 453, the relief of a recount

would be available as urged by the petitioners, the appellants in this case. That is so,

he insisted, because, under the English law, scrutiny takes the from of a recount.

H Mr Maira, learned Counsel for the first respondent was quick to respond to these

submissions. He said, Mr Musei's resort to apply the English law is misconceived. As

there is a specific legislation governing elections in Tanzania, he stated, the English

law cannot be applied. Furthermore Mr Maira urged, by virtue of the Judicature and

Application of Laws Ordinance, Chap I 453, in appropriate

1997 TLR p253

LUBUVA JA

situations, the English Statutes which would be applied in Tanzania are statutes of

general A application. In this case, Mr Maira maintained, the law on elections is not

a statute of general application in which case, it would not apply in Tanzania.

Addressing himself at length on the law relating to elections in Tanzania Mr Maira

stressed that as the conditions set out under s 112 (d) of B the Elections Act 1985 and

Rule 12 of the Elections (Election Petitions) Rules 1971 were not satisfied, there was

no legal basis for ordering a scrutiny. Mrs Lyimo, learned Principal State Attorney for

the second respondent fully associated herself with Mr Maira's submissions. C

As already indicated, the issue in this appeal is whether the relief of a scrutiny was, in

the circumstances, available. We wish to make it clear from the outset that it is

apparent from the record that in dealing with the issue of scrutiny, the matter was

further complicated and confused D by the manner in which it was handled at the

trial. As a result, it seems to us that throughout the proceedings on the issue of

scrutiny, the learned judge, with respect, confuses scrutiny on one hand and recount

on the other. From the record, the sequence of events in the proceedings bears this

out. Before the commencement of the trial, the Court ordered the issue on scrutiny to

be tried first. What is more, it is also apparent that at some stage, while the issue on

scrutiny was still being E tried, the court also allowed an amendment to be effected

in the pleadings. The amendment so effected, in our view, introduced a new element

to the pleadings. That is, the relief of `scrutiny' as originally sought, was further

qualified by adding the words `by way of recount'. The new element of F a recount,

as we have observed, is not provided under the Election Act, 1985 as one of the reliefs

to be sought in an election petition. Yet, with due respect to the learned trial judge,

he allowed the amendment which, to some extent, contributed towards the confusion

that ensued in the proceedings that culminated in the ruling, the subject of this

appeal. We shall revert to this issue G later.

We shall next deal with the issue whether the English law would be applicable in

order to avail the relief of a recount. Mr Musei learned Counsel firmly maintained

that it would. With respect, we do H not agree. There is no gainsaying that under

the Judicature and Application of Laws Ordinance, Chap 453, two conditions are

necessary for an English statute to apply in Tanzania. First, the statute concerned

must be a statute of general application. Secondly, there should be no specific

legislation enacted in Tanzania dealing with the matter in question. In the instant

case, the first I condition is not

1997 TLR p254

LUBUVA JA

A satisfied because, the legislation involved is not a statute of general application.

The second condition is not met either.

This is because in Tanzania there is the Elections Act, 1985 which specifically

provides for election matters. In that situation, we can find no basis for applying the

English law in Tanzania as B contended by Mr Musei. Consequently, we are in

agreement with Mr Maira, learned Counsel for the first respondent that the

applicable law in this case was the Elections Act, 1985. In our considered opinion, the

English law on parliamentary elections though in part is similar to the Elections Act,

C 1985 of Tanzania is not applicable for the reasons we have already given. Having

this view, it follows that we are of the view that the amendment to the pleadings in

this case which was effected on the authority of the English law, was misconceived

under the law in Tanzania.

D Next, we intend to address on the question of scrutiny. This is one of the reliefs

that may be claimed under s 112 (d) of the Elections Act, 1985. The question is

whether in terms of the provisions of this Act, scrutiny as sought in the petition was

warranted. The learned trial judge held that the conditions set out in the Act were

not satisfied for which reason, Mr Musei, raises serious E complaint of

dissatisfaction. In part, s 112 of the Act provides:

`(a) ...

(b) ...

(c) ...

F (d) Where the seat is claimed for an unsuccessful candidate on the ground

that he had a majority of lawful votes a scrutiny'

(emphasis supplied)

From the provisions of sub-clause (d) of s 112 of the Elections Act, 1985, a necessary

requirement G is that the pleadings should indicate that a named particular

candidate who was unsuccessful in the election had a majority of lawful votes. In

other words, if certain identified votes which are objected to are to be added, such an

unsuccessful candidate would be the winner. In the case before us, apart from the

prayer for scrutiny which was, as already pointed out, qualified with the H request

for a recount of votes, it is not indicated in the pleadings that any of the unsuccessful

candidates, had a majority of votes. Because of this omission in the pleadings, the

learned trial judge held that the application was misconceived in terms of s 112 (d) of

the Election Act, 1985. He I addressed himself in these words:

1997 TLR p255

LUBUVA JA

`On a careful interpretation of the above quoted provisions in relation to this

petition on the issue of scrutiny, I find A that the petitioners did not comply with

Section 112(d) of the Elections Act in that they omitted to plead in their petition that

a particular unsuccessful candidate in the Karatu Parliamentary elections had a

majority of lawful votes.

... Four of the candidates were defeated. Now which one of these four

unsuccessful candidates are the petitioners B claiming for scrutiny to be held in his

favour?' (Emphasis supplied).

In considering the requirements of the law under s 112(d) of the Act as shown in the

above extract of the judgment, the learned judge took into account further conditions

which are provided under C Rule 12 of the Elections (Election Petitions) Rules 1971

which provides:

`12 (1) -- `Where scrutiny under the provisions of paragraph (d) of s 112 of

the Act is sought wither by the petitioner D or a respondent, the party seeking such

scrutiny shall not less than six days before the day fixed for the hearing of the

petition, lodge with the Registrar a list of votes intended to be objected to by him and

of the objections to each vote. . . . ' E

To our minds, the provisions of this Rule are clear and unambiguous. It is a

mandatory requirement that in processing the petition, the party seeking scrutiny

shall lodge with the Registrar of the High Court a list of votes intended to be objected

to not less than six days before the date fixed for F hearing the petition. In here, no

list at all of votes intended to be objected to was lodged, let alone the time prescribed

of not less than six days before the day fixed for hearing the petition. With great

respect, it is ridiculous and impractical to seek a scrutiny of all the votes in the whole

constituency of Karatu as Mr Musei was apparently endeavouring to do in this case.

That, to our minds, was not G the objective of the legislature in providing in the

Elections Act, 1985 for scrutiny. Needless to overemphasize, scrutiny is aimed at

disputed and specified votes which are the subject of scrutiny in order to ascertain the

claim by the petitioner that he had a majority of votes. In sum total, in this H case,

scrutiny was sought in such generalised form that it amounts in effect to re-doing the

whole exercise of counting the votes in the whole constituency. For that reason we

are satisfied that the learned judge was justified in his conclusion that the conditions

set out under s 112(d) of the Elections Act, 1985 and Rule 12 of the Election Rules,

1971 I

1997 TLR p256

LUBUVA JA

A were not satisfied. We cannot accept Mr Musei's claim that the omission in the

pleadings to specify that a particular unsuccessful candidate among the petitioners

had a majority of lawful votes was a mere slip. It is a fundamental and mandatory

requirement which goes to the very root of the matter with which failure to comply

renders the granting of scrutiny untenable. Such, we are B satisfied, was the position

in this case. That being the legal requirement which was not complied with, we are

unable to accept Mr Musei's assertion that the learned judge erred in holding that the

C prayer for scrutiny by recount of the votes was legally misconceived and

incompetent.

At this juncture, we pause to consider the distinction between recount and scrutiny.

From the record, it is apparent that the learned trial judge referred to recount of votes

and scrutiny D interchangeably. In order to clear the confusion, it is desirable to

briefly address on the difference between scrutiny and recount in relation to the law.

From the outset, it should be made clear that the two reliefs are distinctly different

and available under the Elections Act, 1985 at different stages E of the process of

counting of votes and the period after the declaration of the election results. These

differences have to be looked into against the background of the major changes that

have been effected on the Elections Act, 1985. It is common knowledge that the

Elections (Amendment) F Act, 1990 and the Elections (Amendment) Act, 1992

together with other subsequent amendments were aimed at, among others, ensuring

close supervision and monitoring of the process of voting by presiding officers, polling

assistants and polling agents at every stage in the course of counting votes. In the

process of counting votes Sections 78 and 80 of the Elections Act, 1985 provide for the

G recount of votes at two stages. First, at the stage when the counting of votes is

being completed at the polling station. At that stage a presiding officer may be

requested for a recount of votes by the candidate or his counting agent present when

the counting of votes takes place. Second, when the H addition of votes takes place

at the office of the Returning Officer, the candidate or the polling agent present at the

polling station may request the Returning Officer to check the addition in order to

ascertain the accuracy of the disputed report of the results from the polling stations.

After the addition of votes and declaration of the results, the Elections Act, 1985 does

not provide for I the recount of the votes. That is, s 80(3) of the Elections Act, 1985

for the last stage when a

1997 TLR p257

LUBUVA JA

recount of votes is sought. For the period that follows after the declaration of the

results, to seek a A recount of votes as a relief as it happened in this case would be

untenable and misconceived in law. The period that follows after the declaration of

results may well involve the time an election petition is filed in Court. It is common

knowledge that in an election petition, one of the reliefs that may be claimed is a

scrutiny. Section 112 (d) of the Elections Act, 1985 provides for scrutiny B among

other reliefs. Recount is not one of the reliefs set out under this section. For this

reason, it is in our view legally incorrect to introduce in the pleadings the element of

a recount of votes as a relief in an election petition. On that basis and with due

respect, we think the learned judge confused and mixed up the two reliefs which are,

as already indicated, available at different stages. In part, he C stated:

`Consequently, on the totality of my findings based on the interpretation of

the Election Act, 1985 I rule that the prayer for scrutiny by recount of the votes in

the 1995 Parliamentary elections for Karatu Constituency is both D misconceived

and legally incompetent.'

(emphasis added)

In our view, on the face of this statement, the general impression which emerges is

that both the E reliefs for recount and scrutiny were legally incompetent. This, with

respect, is not correct because, one of them, namely, scrutiny was a competent prayer

allowed by law in an election petition. As already observed, it is the recount of votes

that the law does not provide for. It was this relief which F was incompetent and

misconceived in law because it was being sought at a stage when the law does not

allow as correctly held by the learned judge. In short, it is our view that the two

reliefs have been described in such a way that it is misleading and confusing. We are

however, satisfied that as regards scrutiny the application was properly rejected on

the grounds that the conditions under s G 112(d) of the Elections Act, 1985 and Rule

12 of the Elections (Election Petitions) Rules, 1971 were not satisfied. In the result,

despite the mix up and confusion on recount and scrutiny, we agree with the final

conclusion that scrutiny was not in the circumstances, available. H

In ground one, Mr Musei, learned Counsel had also raised the issue of res judicata.

Having closely listened to his submissions it is apparent that he was not referring to

res judicata in its strict sense as provided under s 9 of the Civil Procedure Code, 1966.

Rather, we understand him to take the I view that it was a contradiction on the

1997 TLR p258

LUBUVA JA

A part of the learned judge to hold that the Court had no jurisdiction to grant a

scrutiny contrary to an earlier ruling if the Court on 12 September 1998. With

respect, we do not agree with Mr Musei, learned Counsel on this submission. As

countered by Mr Maira, learned Counsel and Mrs Lyimo, B learned Principal State

Attorney, we agree that there is no contradiction in this ruling, the subject of the

appeal and the earlier ruling by the learned trial judge as regards the issue of scrutiny.

The reason is simple. That is, that the earlier ruling involved the issue whether the

Court had jurisdiction to deal with the application for scrutiny. On that, the learned

judge held and correctly so in our view, C that the Court had jurisdiction to deal

with the matter. On the other hand, the issue involved in the ruling, the subject of

this appeal, was whether in the circumstances of the case scrutiny was warranted.

The learned judge was convinced that the requisite conditions were not satisfied for

the D granting of scrutiny, and he dismissed the application. On our part, the legal

position is so clear that the learned judge can hardly be faulted in his decision of this

point. In the earlier ruling the judge was of the view that the Court had jurisdiction to

deal with the issue while in the subsequent ruling E which gave rise to this appeal,

the Court in exercise of its jurisdiction, dismissed the application on the grounds that

there was no merit in it. In those circumstances, we are satisfied that there was no

contradiction in between the earlier ruling and the one complained against in this

appeal.

We reject this ground.

F In the result, and for the foregoing reasons, the appeal is dismissed with costs to

the respondents. We also remit the case to the High Court for continuation of the

hearing of the petition where we hope it will proceed expeditiously from the point

where the ruling of the High Court of 25 G November 1996 was delivered.

1997 TLR p259

A