AUGUSTINE LYATONGA MREMA AND OTHERS v ATTORNEY-GENERAL AND OTHERS 1996 TLR 273 (HC)

 

AUGUSTINE LYATONGA MREMA AND OTHERS v ATTORNEY-GENERAL AND OTHERS 1996 TLR 273 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Maina J, Kyando J, Mackanja J

G

MISC CIVIL CAUSE NO 59 OF 1995

13 November H

Flynote

Elections - Election petition - Supporting affidavit - Facts asserted not in personal

knowledge of deponent - Affidavit not conforming to provisions of Order XIX rule

3(1) of Civil Procedure Code

Elections - Election petition - Jurisdiction of High Court to enquire into election of

President - I Jurisdiction ousted by article 41(7) of Constitution

1996 TLR p274

-Headnote

The petitioners sought declaratory orders in the High Court that the whole electoral

A process nationwide be nullified; that the electoral Commission be reconstituted

after some condition was fulfilled; that fresh general elections be held nationwide;

that the third and fourth respondents be barred from participating in any elections for

five years; and for ancillary relief. The petitioners contended that the misconduct

complained of had B been made throughout the country and in almost every

constituency; that the Presidential election was involved in the petition; and that

once a Presidential candidate was declared elected, the jurisdiction of the Court was

ousted.

The respondents raised preliminary objections that the application was incompetent

C because the supporting affidavit did not conform with the provisions of order XIX

rule 3(1) of the Civil Procedure Code; that the application should be dismissed

because on a balance of convenience the second respondent would suffer greater

injury than his adversaries; and that the petitioners had not shown that they were

likely to succeed in D their petition. It was contended that the founding affidavit

contained assertions of fact which were not in the deponent's personal knowledge.

Held:

(i) What was contained in the the founding affidavit was knowledge

obtained by the deponent from other people who allegedly witnessed the misconduct.

In those circumstances the affidavit did not comply with rule 3(1) which required E

the affidavit to be confined to facts of which the deponent had personal knowledge.

Where an affidavit was based on the deponent's beliefs, grounds for such beliefs had

to be disclosed. Failure to disclose the source of information rendered the affidavit

defective. The petition had to fail on this ground alone.

F (ii) Article 41(7) of the Constitution, in unambiguous language, ousted the

jurisdiction of the High Court to inquire into the election of the President once the

National Electoral Commission had declared the election results. If it was necessary to

vest in the court powers it was asked to exercise, then Parliament should have made it

clear in the Constitution in relation to this very important matter. G

Case Information

Petition dismissed with costs.

Cases referred to:

1. Ibrahim Mancharle Marwa v The Attorney General and the Director of

Elections Civil Case No 3 of 1995 (unreported) H

2. Salima Vuai Foum v Registrar of Co-operative Societies and three

others Civil Appeal no 36 of 1996 (unreported)

3. Lakshminarasmhiah and others v Yorakki Gowder [1965] AIR 310

Dr Lamwai and Mvungi for the Petitioners. I

Mr Salula, Mr Mwidunda and Mrs Katinda for the First and Second Respondents.

1996 TLR p275

MACKANJA, J

Mr Kapinga for Third Respondent. A

Mr Muccadam for Fourth Respondent.

[zJDz]Judgment

Mackanja J:

This is an application of great public interest. We are asked by the applicants to order

the Director of Elections, the second respondent, not to declare any results in the B

on-going general elections pending the final determination of the petition which is

the genesis of this application. We are also asked to order the said Director of

Elections not to proceed with the conduct of elections in Dar es Salaam Region

pending the C determination of the said petition.

The matters we are called upon to decide will be put in clearer focus after a brief

reference to the pleadings in the petition. According to para 1 of the petition Mr

Augustino Lyatonga Mrema, Professor Ibrahim Lipumba, and Mr John Cheyo, the

first, second and D third petitioners, respectively, are presidential candidates for

NCCR-MAGEUZI, CUF and UPD, in that order. Chief Abdallah Fundikira, Flora

Kambona, Thomas Ngowi, Wilfrem Mwakitwange and Emanuel Makaidi, the fourth,

fifth, sixth, seventh and the eighth petitioners are, in terms of para 2 of the petition,

registered voters of political E parties listed as UMD, TADEA, NCCR-MAGEUZI,

PONA and NLD. And the ninth, tenth, eleventh, twelth, thirteenth, fourteenth and

fifteenth petitioners are, in terms of the third and the fourth paragraphs, officials of

various ranks of NCCR-MAGEUZI, CUF, TADEA, F UPDP, NAREA and

CHADEMA political parties. The petitioners are alleging a number of irregularities

which, in their contention, have rendered the 29 October Presidential and

Parliamentary elections not free and fair. They seek declaratory orders in the manner

claimed in para 12 of the petition, namely that the whole electoral process nationwide

be nullified; that the Electoral Commission be reconstituted after some condition is

fulfilled; G that fresh general elections be held nationwide; that the third and fourth

respondents be barred from participating in any elections for five years; the usual

claim for costs; and the traditional prayer for any reliefs this Court may deem fit to

award. H

In these proceedings Dr Lamwai and Dr Mvungi advocate for the petitioners. Mr

Salula (Senior State Attorney), Mr Mwidunda and Mrs Katinda (State Attorneys)

appear for the first and second respondents; Mr Kapinga appears for the third

respondent and Mr I Muccadam appears for the fourth respondent. Although all the

respondents were served with the chamber summons with which

1996 TLR p276

MACKANJA J

the application was instituted, Dr Lamwai has made it clear during his submissions

that A the relief his clients seek is directed at the second respondent.

As is the practice of this court this application is supported by an affidavit. In this case

the supporting affidavit was sworn by Willy Ringo Tenga, the Acting General-

Secretary B of the NCCR-MAGEUZI. He appears in these proceedings as the ninth

petitioner. He swears partly on matters which form the subject of the petition, and

partly, according to para 4 of that affidavit, that they have been compelled to bring

the petition at this stage on the following grounds: C

(a) that the misconducts complained of in the petition have been made

throughout the country and practically in every constituency;

D (b) that the Presidential election is involved in the petition; and

(c) that once a presidential candidate is declared elected, the jurisdiction of

this Court is ousted.

Dr Lamwai has argued very forcefully in support of the application, especially as

regards E the evidential quality of the affidavit which supports the application. He

contends that according to para 3 of that affidavit the elections were illegal and that

they were not free and fair. He realises the normal practice of filing petitions under s

108 of the Elections Act but he contends that it became necessary for them to file a

petition respecting the F entire presidential and parliamentary elections because art

41(7) of the Constitution of the United Republic of Tanzania ousts the jurisdiction of

this Court once a presidential candidate has been declared a winner. If, therefore, the

equitable order they seek from this Court is not issued, this Court will cease to have

jurisdiction to hear any petition G against the President's election. When he was

asked from what law this Court derives power to declare the general elections null

and void in one petition, Dr Lamwai responded by saying that the Court derives that

inherent power from s 2(2) of the H Judicature and Application of Law Ordinance

which confers on this Court unlimited civil jurisdiction. Thus if, in his view, it is

found that the whole general election is irregular, then the entire electoral process

and its results should be nullified. He has drawn our attention to para 9 of the petition

under which all the alleged irregularities are listed. At I some stage in his

submissions, however, Dr Lamwai abandoned his application for a restraining order

against the declaration of

1996 TLR p277

MACKANJA J

results involving parliamentary candidates because almost all the results are out by

now. A So we are left with the President and the Dar es Salaam elections.

As regards the presidential elections, it is the contention of Dr Lamwai that it is not

the intention of the Constitution, nor of the law, to close the Court's jurisdiction in

declaring a B president who is not elected in a free and fair election. He therefore

urged that the case be concluded before the general elections for Dar es Salaam

Region are held, presumably if the petition will succeed. For if those elections are

conducted before the determination of the petition, the whole proceeding will be

superfluous. It is their C complaint that the President will not be elected lawfully

during the ongoing elections and that the nation should not be compelled to live with

a president who is forced upon it. So that the election of another president would

rather be delayed as no vacuum in the presidency will thereby be created. The

incumbent President has, according to Dr D Lamwai, and we think he is right, all

the constitutional authority until he hands over the reigns of power to the

presidential candidate who will be declared the winner. So His Excellency President

Ali Hassan Mwinyi will be constitutionally in power until another president is

elected. In a country which has respect for the rule of law, however, the E delay in

electing another president should not be inordinate.

Now, there are several conditions-precedent before the applicants can succeed. Dr

Lamwai has cited Ibrahim Mancharle Marwa v The Attorney-General and the

Director of Elections (1) where this Court (Mapigano, J) recently held that one of

those conditions is F that there must be a serious question to be tried on the facts

alleged, and a probability that the plaintiff will be entitled to the relief prayed in the

substantive claim. It is learned counsel's submissions that they have a strong case if

they are given an opportunity to lead evidence in proof of the allegations which are

contained in para 9 of the petition. G

It is the contention of the petitioners that the Dar es Salaam elections will be illegal

because they contravene s 67(1) of the Elections Act in that the power to postpone an

H election is conferred on a returning officer. Learned counsel's attention was drawn

to the fact that the Dar es Salaam elections are not covered in the petition. He

responded by saying that he has covered those elections in his arguments because his

clients have as one of their prayers to have the National Electoral Commission

dissolved and I reconstituted, which means that the Commission cannot therefore

conduct the elections. We doubt if this contention is sound.

1996 TLR p278

MACKANJA J

It is the further contention of Dr Lamwai that the petitioners will be prejudiced if the

Dar A es Salaam elections are conducted because the irregularities they complain of

in the petition have not been rectified. As well as that, it is the petitions' contention

that parliamentary election results so far declared create prejudices in the electorate

in B favour of the winning political party. Dr Lamwai has ruled out the possibility of

the electorate being sympathetic with the political parties which appear not to have

done well in the elections so far.

Mr Salula has opposed this application very strongly. He raised several grounds in C

addition to the three preliminary objections which are contained in the affidavit of

Alex Banzi who swore it on behalf of the second respondent. Two of the preliminary

objections were abandoned after Dr Lamwai dropped his clients' prayer which related

to an order which was intended to restrain the second respondent from declaring D

Parliamentary election results. We had, however, directed earlier on in these

proceedings that what was brought as preliminary objections could be pursued by Mr

Salula in his submissions when arguing the main application for injunction. Suffice it

to say at the moment that Mr Salula contends, on the basis of the remaining ground of

E what constituted the three preliminary objections, that the application is

incompetent because the supporting affidavit does not conform to the provisions of

Order 19, Rule 3 of the Civil Procedure Code. Secondly, he argues that the application

should be dismissed because, on a balance of convenience, the second respondent

would suffer F greater injury than his adversaries. Thirdly, that the petitioners have

not shown that they are likely to succeed in their petition. We have decided to

dispose of these issues one after another.

It is Mr Salula's contention that Dr Tenga's affidavit contains assertions of fact which

are G not in his personal knowledge. He submits that the matters Dr Tenga deponed

on could not have been in his personal knowledge because he was all the time around

in Dar es Salaam. So that he could not, unless he was informed by someone else, have

known that there was misconduct throughout the country and practically in every H

constituency as he asserts in para 4(a) of his affidavit.

We agree with Dr Lamwai that what is contained in Dr Tenga's affidavit is evidence

which cannot be assailed by learned counsel's statement from the Bar as Mr Salula

does. But that is far from saying that the credibility of a deponent, much the same I

position as applies to a witness, cannot be put under scrutiny. We know that

1996 TLR p279

MACKANJA J

like all human beings, Dr Tenga is not omnipresent. He has not sworn that he visited

A every polling station, let alone every constituency, to see for himself and to acquire

personal knowledge of the alleged misconducts. If he therefore came to know of any

misconduct it must have been in his official capacity as Acting General Secretary of B

NCCR-MAGEUZI. He therefore acquired knowledge of what is contained in para 4(a)

of his affidavit from other people; from people who allege to have witnessed the

misconduct, if any. We are satisfied that in those circumstances the affidavit does not

conform to the clear provisions of Order 19, Rule 3(1) of the Civil Procedure Code

which C lays down a mandatory condition that:

`3 ...

(1) Affidavits shall be confined to such facts as the deponent is able of his

own knowledge to prove, except on interlocutory applications on which statements of

his belief may be admitted: D

Provided that grounds thereof are stated.'

It is a statutory requirement that where an affidavit is based on the deponent's beliefs,

grounds for such beliefs must be disclosed. So also, it is now settled law in this

country that where an affidavit is based on information received from others, the

source of that E information must be disclosed. Decisions of the Court of Appeal and

this Court on this issue abound, but the most recent authority is the Court of Appeal

decision in Salima Vuai Foum v Registrar of Co-operative Societies & Three Others

(2). Their Lordships had this to say at p 4 of their typed judgment: F

`The principle is that where an affidavit is made on (an) information, it should

not be acted upon by any court unless the sources of the information are specified ...'

G

Failure to disclose the source of information renders the affidavit defective. Since the

affidavit which supports this application is incurably defective the application has

been rendered incompetent. It would fail on that account alone. H

In his second ground Mr Salula submits that some of the applicants have not shown

how they will be injured if their application for an injunction is refused. They are not

vying for the presidency, he contends. It is his view that even those who are

contesting in the presidential election cannot establish any injury. How do they know

that they will lose in I the election before the Electoral Commission declares the

results? So on a balance of convenience who, between

1996 TLR p280

MACKANJA J

the litigants, will be adversely affected? The second respondent contends that the A

Government has already suffered greatly in financial terms. Hence Mr Salula submits

that there is evidence from paras 10 and 11 of Alex Banzi's counter affidavit which

shows that so far the Government has spent some forty billion shillings for running

the B ongoing electoral process and that it has already spent another sum of over two

billion shillings for the preparation of the Dar es Salaam rerun of general elections.

We understand this plea as being a forbidding reason for another general election if

the ones in progress are to be nullified and that, therefore, the second respondent will

suffer C immense financial hardship were the electoral process to be reversed.

Dr Lamwai does not believe that the government has spent all that money as claimed

by the second respondent. Even if the money was spent, he argues, it is like a person

who D broadcasts grain seed on rocks; it will not germinate. He submitted, quite

correctly, in our view, that democracy has a high price. We, however, do not agree

with him on all the indicia of that price as regards our political circumstances. For he

went on to make remarks which were loaded with veiled threats of violent

repercussions if a decision was E not reached that will be acceptable to the followers

of his clients. We have been alarmed by that remark but we will leave it rest there for

the moment. We intend to declare our position on it at a later stage. We, however,

agree with Dr Lamwai that it will be a black day indeed for this proud country if a

government will be thrust upon the F nation through corrupt, fraudulent and rigged

elections for fear of nullifying electoral results by reason only of money spent to

conduct proved sham elections. Of course the onus to prove that the elections have

been rigged in favour of any of the participating parties is upon whoever alleges so. In

fact, this application is not the right opportunity at G which any alleged impropriety

in the conduct of the general elections can be pursued. It is our considered opinion,

nonetheless, that democracy which is expressed through free and fair elections at

regular intervals, cannot be compromised for fear of expenses. General elections are a

noble and worthy cause on which public funds and resources H must be put to use

for the benefit of the public good. That is why it is absolutely necessary that money

must be spent to prepare and conduct free and fair elections. It is for these reasons

that we find Mr Salula's contention in this behalf wholly untenable. I

We have, earlier on in this ruling, observed that the petitioners contend that they

have a good case and that, therefore, their prayer

1996 TLR p281

MACKANJA J

for an injunction restraining the second respondent from declaring Presidential

Election A results and from conducting elections for the Dar es Salaam Region

should be granted. In particular, they argue through their advocate that the court will

cease to have jurisdiction in this matter as article 41(7) of the Constitution ousts that

jurisdiction. Mr Salula concedes this constitutional limitation; he argued, however,

that the petitioners B can question the validity of article 41 of the Constitution in

Court. He concluded his submissions by inviting this court to consider decisions in

other jurisdictions which are relevant to this case. He cited India as one of those

jurisdictions. C

Mr Kapinga submits that the applicants have a duty to adduce evidence in proof of

their claims. The only evidence there is, he observes, is the affidavit of Dr Tenga. We

have no doubt Mr Kapinga is correct in his submissions. For as he contends, para 3 of

that affidavit does no more than saying that: D

`... we are raising several grounds which go into showing the illegality of the

whole electoral process and the fact that they were not free and fair.'

These are mere allegations which afford no proof to the claims. What is more they are

E claims contained in an affidavit which has been found to be incurably defective.

We do not see anything in Dr Lamwai's further submissions which tends to show an

improvement in the evidential quality of that affidavit. Nevertheless it is imperative

that whoever alleges the existence or the non-existence of a set of facts has a duty to

lead F evidence in proof of those facts. This rule of evidence is equally applicable to

applications such as this one. More importantly, courts in this country have always

been cautious in their approach in considering applications for restraining orders such

as is the case here. We think this is a sound approach because as it was observed in

the G Indian case of Lakshminarasmhiah and Others v Yorakki Gowder, (3) at 312

while quoting an excerpt from 28 American Jurisprudence at 217,

H `... The extraordinary character of the injunctive remedy and the danger that

its use in improper cases may result in serious loss or inconvenience to an innocent

party require that the power to issue it should not be lightly indulged in, but should

be exercised sparingly and cautiously only after thoughtful deliberation, and with a

full conviction on the part of the court of its urgent necessity. In I other words the

relief should be awarded only in clear cases, reasonably free from doubt, and, when

necessary, to prevent great and

1996 TLR p282

MACKANJA J

A irreparable injury. The Court should therefore be guided by the fact that the

burden of proof rests upon the complaint (sic) to establish the material allegations

entitling him to relief.'

This is a sound proposition of law which we intend to apply to the facts in this

application. B

It has been argued for the applicants that there is justification for the injunctive

remedy because their chances of success are overwhelming and that there is a serious

question to be determined. Dr Lamwai has pointed out several instances which he

considers pertinent, namely that elections were not conducted on one day; that up to

C now elections are going on. Maybe it is so, but these are statements which were

made from the Bar: They do not constitute evidence and the issues they raise do not

appear in the affidavit which supports the application. We are, after a careful

consideration of the law and the application as whole, satisfied that the applicants

have failed to show the D existence of any serious question which is to be

determined in the petition. And, in any case, we find it difficult to say affirmatively

that the petitioners have a strong case in respect of which, on the facts, there is a

probability of succeeding in their enterprise. We E base this conclusion on the

following grounds: Firstly, the petitioners have not shown how, individually or as a

group, they are going to suffer any mischief or any hardship should the presidential

elections results be declared or should the Dar es Salaam Region elections be held.

Secondly, no proof has been led to show that who, of the F presidential candidates,

will win. Thirdly, as Dr Lamwai correctly pointed out at some stage in his

submissions while referring to Marwa's case (supra), the applicants must show that on

the facts alleged there is a serious question to be determined.

Finally we have to consider if we are vested with the necessary jurisdiction to issue

the G equitable remedy in the form of a restraining order which is sought. We are

fully aware that jurisdiction is a creature of legislation. Dr Lamwai referred us to s

2(2) of the Judicature and Application of Laws Ordinance which gives to this Court

unfettered civil jurisdiction in cases where there are no specific provisions. We agree

with him in H principle generally, but we find specific provisions in the Elections

Act, 1985 which confer jurisdiction on this Court in respect of specified electoral

issues. On the other hand, however, article 41(7) of the Constitution is unambiguous

language, ousts the jurisdiction of this Court to inquire into the election of the

President once the National I Electoral Commission has declared the election results.

It provides

1996 TLR p283

MACKANJA J

A `41 ...

(7) Iwapo mgombea ametangazwa na Tume ya Uchaguzi kwamba

amechaguliwa kuwa Rais kwa Mujibu wa ibara hii, basi hakuna Mahakama yeyote

itakayokuwa na mamlaka ya kuchunguza kuchaguliwa kwake.' B

Whereas, therefore, article 41(1) to (7) of the Constitution makes provision for the

election of the President, it does not grant jurisdiction to any court to inquire into the

fact of that election. We are mindful of the fact that the duty of this Court is to

interpret and to implement the law as we find it and not to question the validity of

that law unless a C petition has been lodged in the appropriate manner, the purpose

of which is to challenge the validity of a particular piece of legislation. It is therefore

open to the applicants to see how they can challenge article 41(7) of the Constitution.

In the meantime, it is our view that if it was necessary to vest in this Court powers we

are asked to exercise, then D Parliament in its undoubted wisdom should have made

it clear in the Constitution in relation to this very important matter.

Apart from the foregoing, reference was also made to the applicability of s 11 of the

Government Proceedings Act. We have considered those provisions but we do not

see, E in view of the above observations, the relevance of that piece of legislation to

this application. We will not make any further comment on it.

There are three more issues we have to cover. One of them relates to Mr Muccadam's

affidavit. We rejected that affidavit but we reserved our reasons. The following are

our F reasons. It is undisputed that Mr Muccadam is an advocate of this Court and

courts subordinate to it. He is empowered by Order 3, Rule 1 of the Civil Procedure

Code to appear and to act for litigants. In that connection he is empowered to swear

affidavits in relation to matters which arise from the conduct of cases and on matters

which are not G in the personal knowledge of his clients. As we have seen Order 19,

Rule 3 requires that affidavits should be confined to such facts as the deponent is able

of his own knowledge to prove; the only exception being on interlocutory

applications where statements of belief may be admitted subject to the condition that

the grounds for such H belief are given. In the instant case all matters on which Mr

Muccadam deponed are in the personal knowledge of the fourth respondent's

trustees.

We therefore rejected that affidavit because it did not conform to the statutory I

requirements as laid down under Order 19, Rule 3 of the Civil Procedure Code.

1996 TLR p284

MACKANJA J

Another matter we have found necessary to address is Dr Lamwai's conduct in court.

At A one stage during his submissions a question was put to him and he gave a very

unexpected answer. He wanted the Court to tell him whether to answer that question

in his capacity as a politician or as an advocate. We did not expect that Dr Lamwai, a

B distinguished advocate of this Court, would have wanted to turn a session of the

High Court into a political circus. We consider that attitude as being very

discourteous to this Court and we do not expect him to behave in the manner he did.

What is more grave, however, is when he informed the Court during his submissions

C that followers of his clients will not accept a decision which will not be in their

favour! We consider those remarks to constitute an act of intimidation of this Court

and an interference in the due process of the law. Those remarks will not in any way

influence our decision one way or the other; we reaffirm our resolve to dispense

justice fairly, D without fear or favour. In the same vein we decry and deprecate any

act which, though unwittingly, will have the effect of inciting members of the public

to disobey the constitutional authority of this Court. We are satisfied, however, that

Tanzanians are a peaceful people who are sufficiently mature politically and who will

not be influenced by E those unfortunate remarks.

For the reasons we have given, the application for the two injunctive reliefs, which

are:

F (1) an order to restrain the second respondent, the Director of Elections,

from declaring the Presidential elections in the on-going general elections, and

(2) an order to restrain the same second respondent from conducting the

elections for Dar es Salaam Region; G

is dismissed with costs.

1996 TLR p285

A