GEORGE M SHAMBWE v ATTORNEY-GENERAL AND ANOTHER 1996TLR 334 (CA)

GEORGE M SHAMBWE v ATTORNEY-GENERAL AND ANOTHER 1996TLR 334 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Nyalali CJ, Mnzavas JJA and Mfalila JJA

D

CIVIL APPEAL NO 27 OF 1996

10 June 1996 E

(Appeal from decision of High Court of Tanzania, Moshi J)

Flynote

Elections - Election petition - Pleadings - Not correct to infer a fact which is not

specifically F pleaded in petition - Pleadings vague and imprecise

Elections - Election petition - Parts of petition found to be vague and imprecise -

Order for amendment would not have resulted in delay if court prescribed specific

period within which amendments were to be effected - In circumstances, order for

amendment ought to have been G granted

Civil Practice and Procedure - Pleadings - Amendments to - When amendments

should be granted - Law restated

-Headnote

The appellants appealed against a preliminary ruling by the High Court in an election

H petition in which the learned judge had ruled that the petition suffered from

vagueness and imprecision in a number of respects and he struck out the offending

paragraphs. On appeal the appellant attacked the learned judge's finding on the lack

of specificity in the pleadings and contended that the absence of such specificity

implied that the alleged I irregularities occurred at polling stations throughout the

country and likewise in respect of other allegations the lack of specificity implied that

1996 TLR p335

the irregularities occurred on a large scale and over the full period of the election. The

A appellant contended further that the learned judge had erred in not granting leave

to amend.

Held:

(i) It was not correct in law to infer a fact which had not been specifically

pleaded in the petition. B

(ii) An order to amend the offending parts of the petition or supply further

and better particulars would not necessarily have resulted in delay in the disposal of

the petition since the Court could have prevented such delay by prescribing a specific

period within which the amendments or further particulars were to be C effected by

the petititioner and the period within which the respondents were to file their

answers, if any.

(iii) The principles upon which amendments to pleadings should be made

needed to be reaffirmed: Amendments sought before the hearing should be freely

allowed if they could be made without injustice to the other side and there was no

injustice if the other side could be compensated by costs. D

(iv) The striking out of the offending parts in the present matter amounted

to a dismissal of the petition and this was not required in the interests of justice.

Case Information

Appeal upheld. E

Case referred to:

1. Eastern Bakery v Castelino [1958] EA 461

Dr Lamwai for the appellant.

Mrs Makuru for the first respondent. F

Mr Kilindu for the second respondent.

[zJDz]Judgment

Nyalali, CJ:

This is an appeal by one George M Shambwe, hereinafter called the appellant, against

a G preliminary ruling by B P Moshi, J in an election petition case currently pending

in the High Court at Mbeya, where the Attorney-General and one Peter S Nswima,

appear as the first and second respondents respectively. The second respondent was

the successful candidate in the Parliamentary multi-party elections held in October

1995 in H Mpanda East Constituency. The appellant, who stood as a candidate

sponsored by the National Convention for Construction and Reform-Mageuzi

political party, was unsuccessful. Consequently, he petitioned against the election

results. The petition contains six main paragraphs. The sixth paragraph concerns

allegations of a number of I non-compliance with the provisions of the Elections Act

which allegedly ren-

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NYALALI CJ

dered the elections unfree and unfair. The particulars of the allegations are listed in A

subparas (a) and (y).

Both the first and second respondents filed separate answers to the petition. In their

answers, they not only traversed the various allegations contained in para six, but also

raised an objection to the effect that the particulars of non-compliance as contained in

B subparas (a) to (y) are vague and unspecific. When the objection came up for

hearing on 26 February 1996, Mr Magafu, learned advocate for the appellant

conceded that the particulars contained in paras 6(c), 6(e), 6(k), 6(p), 6(q), 6(r), 6(w)

and 6(y) `suffer from material insufficiency'. Counsel for the appellant however

resisted the respondents' C request for the defective paragraphs to be struck out and

argued that the Court had discretion to have the appellant provide further and better

particulars or amend the defective paragraphs under Order 6, Rule 5 and 16

respectively.

With regard to the remaining subparagraphs, that is (a), (b), (d), (f), (g), (h), (i), (j), (l),

D (m), (n), (o), (r), (s), (t), (u), and (x), learned advocate for the appellant contended

that they were neither vague nor imprecise but contained sufficient particulars as

required by law.

The learned Trial Judge, after hearing both sides and reviewing the relevant law E

concluded that, in addition to the subparagraphs conceded by the appellant, the

petition suffered from vagueness and imprecision also in subparas (a), (b), (d), (f), (i),

(j), (m) and (n). As to subparas (g), (h), (s) and (u), the learned Trial Judge was of the

view that F they contained sufficient particulars as required by law. He was further

of the view that subparas (1) and (r) disclosed no cause of action. He apparently made

no finding on subpara (o).

In the light of these findings, the learned Trial Judge decided to strike out all

defective G subparagraphs, that is (a), (b), (c), (d), (e), (f), (i), (j), (k), (l), (m), (n), (p),

(q), (r), (v), (w) and (y). The appellant was aggrieved by this decision, hence this

appeal to this Court. The memorandum of appeal contains three grounds of appeal as

follows: H

`1. That the learned judge erred in law and in fact in holding that paras

6(a), (b), (c), (d), (e), (i), (j), (k), (l), (m), (n), (p), (q), (r), (v), (w) and (y) of the petition

were bad in law for being vague and unspecific.

2. That the learned Judge erred in law and in fact in holding that the said

paragraphs could have I been struck out on the said grounds without proof that

there had been a demand for a

1996 TLR p337

NYALALI CJ

A statement of further and better particulars and that demand has not

been met.

3. That having found that those paragraphs offended the law of pleading,

the learned Judge erred in not granting leave to amend the petition so that particulars

could be given.' B

In the course of presenting the case for the appellant, Dr Lamwai, learned advocate

for the appellant rightly conceded that he cannot challenge the finding of the Trial

Judge on the subparagraphs which the appellant, through his advocate, conceded in

the High Court as being vague and imprecise. He was, however, entitled to challenge

the C consequential decision to strike out the offending subparagraphs. With regard

to the subparagraphs of which alleged defects were not conceded in the High Court,

Dr Lamwai reiterated Mr Magafu's submission to the effect that the subparagraphs D

contained sufficient particulars as required by law. Specifically with regard to

subparas (a), (d), (f), (i), (j), (m) and (n). Dr Lamwai contends in effect that it is not

necessary in law to name or specify the polling stations where the irregularities of

non-proclamation, recording of voters' registration certificates, improper campaigns,

insecure polling E booths, non-posting of voters list, voting by unregistered people

and destruction of ballot papers are alleged to have occurred. According to Dr

Lamwai, the absence of such specificity in the pleadings implies that the alleged

irregularities occurred at all polling stations throughout the constituency. Dr Lamwai,

however, cited no authority to support his contention. F

With regard to the finding of the learned Trial Judge on subpara (b) to the effect that

the alleged inadequacy of election materials needed to be specified, Dr Lamwai

similarly contended in effect that the absence of specificity implied that the

inadequacy applied to G all kinds of polling materials. Similarly with regard to the

alleged persecution of NCCR-Mageuzi members he contended in effect that the

absence of specificity as to the time when it occurred implies that the alleged

persecution took place during the election period. As already said, no authority was

cited to us in support of the proposition H that silence in the petitions' pleadings

gives rise to any implied fact. As to the finding of the learned Trial Judge on subpara

(r) to the effect that no cause of action was disclosed by the alleged use of the peoples'

militia to provide security contrary to the terms of an agreement between the

political parties, Dr Lamwai correctly conceded that violation of I such agreement

per se disclosed no cause of action and that a cause of action would exist if it is alleged

that the

1996 TLR p338

NYALALI CJ

terms of the agreement were embodied in directives issued by the Electoral A

Commission under the Elections Act.

The first issue for consideration therefore is whether it is correct in law to imply a

fact which is not specifically pleaded in the petition. The answer in our view is to be

found B under the relevant provisions of the elections (Elections Petitions) Rules,

1971, the Civil Procedure Code, 1966 and the principles that underlie those

provisions. We can find no rule either under the elections (Elections Petitions) Rules,

1971 or under the Civil Procedure Code to support Dr Lamwai's contention. On the

other hand we recognise C that the main principle which requires disclosure of

material facts in the pleadings is the well-known and established principle of fair trial.

This principle has many corollaries including the rule that each party is entitled to

have any and every particular of material facts which is cited in Mulla's Civil

Procedure Code, 8th ed at 1197. Commenting on D Rule 4 of Order 6 of the Indian

Civil Procedure Code, which is the same as our Rule 4 Order 6 of the Civil Procedure

Code, 1966, Mulla states:

`The object of this rule is to furnish the opposite party with such particulars

regarding the suit as are E necessary to enable him to find out what case he has to

meet. It is but right and proper that each party should have any and every particular

that will enable him to know his opponents case and prepare himself accordingly, but

he is not entitled to have any information as to the evidence by which they are

intended to be proved. What particulars are to be stated must depend on the peculiar

F circumstances of the case, but generally, as much certainty and particularity must

be insisted on as is reasonable, having regard to the circumstances and to the nature of

the acts themselves.'

Thus bearing in mind the fundamental principle of fair trial and the consequential

rules, G including the rules which the Trial Judge extensively reviewed in his ruling,

we are satisfied that it is not correct in law to imply a fact which is not specifically

pleaded in the petition. The position is of course different where the defendant fails

to specifically deny H an allegation of the plaintiff, in which case an admission of

that allegation may be implied under the provisions of subrule 5 of Order 8 of the

Civil Procedure Code. It follows therefore that we agree with the learned Trial Judge

that the contested subparagraphs in question are indeed vague and imprecise. I

The next issue is whether the Court below was correct in striking

1996 TLR p339

NYALALI CJ

out the vague and imprecise subparagraphs. Dr Lamwai has submitted to the effect

that A the Court below had under the circumstances of this case only two options in

its discretions. The first option is to order the amendment of the offending

subparagraphs under the provisions of Order 6 Rule 16 of the Civil Procedure Code

which states: B

`The Court may, at any stage of the proceedings, order to be struck out or

amended any matter in any pleading which may be unnecessary or scandalous or

which may tend to prejudice, embarrass or delay the fair trial to the suit.' C

It is Dr Lamwai's contention that it was not open for the Court to strike out the

offending subparagraphs under Rule 16 because to do so would amount to dismissing

the election petition on grounds of irregularity contrary to the provisions of Rule

27(1) of the D Elections (Elections Petitions) Rules 1971. Mrs Makuru, learned

Senior State Attorney and Mr Kilindu, learned advocate for the first and second

respondents respectively have countered Dr Lamwai's contention by submitting to

the effect that the provisions of Rule 27(1) do not apply to a decision to strike out

under Order 6, Rule 16 of the Civil E Procedure Code. They further submitted to the

effect that the Court properly exercised its discretion to strike out the offending parts

of the petition because the petitioner/appellant had failed to take corrective measures

in response to the objection raised in the answers filed by the respondents.

Furthermore, counsel for the F respondents argued that an order to amend would

result in delay in the disposal of the petition. Dr Lamwai's short answer is to the effect

that no delay would result if the Court prescribed a specific period during which the

amendments were to be effected.

The second option open to the Court, according to Dr Lamwai, is an order for further

and G better particulars to be provided by the petitioner within a prescribed period

in accordance with the provisions of Order 6 Rule 5 of the Civil Procedure Code. The

position of counsel for the respondents on this aspect of the case is similar to the one

concerning amendment. H

We have carefully considered the arguments on both sides and we are satisfied that

an order to amend the offending parts of the petition or supply further and better

particulars would not necessarily have resulted in delay in the disposal of the petition,

since the Court could have prevented such delay by prescribing a specific period

within which the I amendments of further particulars were to be effected by the

petitioner and the period within which the

1996 TLR p340

NYALALI CJ

respondents were to file their answers, if any. For purposes of future guidance, we

wish A to emphasise that in the interests of efficacy of justice, it should be the rule

rather than the exception, to prescribe specific periods of compliance with court

orders.

We need also to reaffirm the principles upon which amendments to pleadings should

be B made. These were stated by the Court of Appeal for Eastern Africa in the case

of Eastern Bakery v Castelino (1). That Court stated at 462, `It will be sufficient for

purposes of the present case, to say that amendments to pleadings sought before the

hearing should be freely allowed, if they can be made without injustice to the other

side, C and there is no injustice if the other side can be compensated by costs.'

As to the question whether striking out the offending parts of the petition amounts to

dismissal of the petition, we have had to consider whether the petition is unlikely to

succeed without proving the allegations which have been struck out. We note that

the D petition in this case rests entirely on the cumulative adverse effect of a series

of alleged non-compliance or irregularities in the conduct of the electoral process in

the Mpanda East Constituency. This is evident from the concluding paragraph of the

petition where it is stated that `The petitioner submits that all these non-compliance

adversely effected E the results in that a substantial number of voters were

prevented from voting for the candidate of their choice'. We also note that most of

the 17 subparagraphs which were struck out, contain allegations which are so serious

that if all of them are proved, the F petition is likely to succeed. For all these reasons,

we are satisfied that this petition is unlikely to succeed without proving the

allegations which have been struck out. We thus find that the order by the Court

below striking out the offending parts of the petition amounts to dismissal of the

petition.

The next issue that must now be considered is whether the Court below erred in

acting G as it did. The answer is to be found in the provisions of subrule 1 of Rule 27

of the Elections (Elections Petitions) Rules 1971 which states:

`(1) Save as is expressly provided to the contrary in these rules, no petition

shall be dismissed for the H reason only of non-compliance with any of the

provisions of these rules or for the reason only of any other procedural irregularity

unless the court is of the opinion that such non-compliance or irregularity has

resulted or is likely to result into miscarriage of justice.' I

The part which we have emphasised clearly shows that the court

1996 TLR p341

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below could have properly struck out the offending parts of the petition if it was of

the A opinion that the irregularities had resulted or were likely to result into a

miscarriage of justice. What then was the opinion of that court which led it to do

what it did? It is to be found towards the end of the ruling of the learned Trial Judge,

where he states, `I am B settled in my own mind that the interests of fair trial, in the

circumstances, speak out loudly in favour of an order to strike out the offending

subparagraphs ..'.

With due respect to the learned Trial Judge, we do not think that the interests of fair

trial spoke out loudly in favour of the order of striking out the offending

subparagraphs. C Bearing in mind the fact that the case was still in its very early

stages and was only about four months old, the learned Trial Judge clearly erred in

failing to appreciate that the true interests of fair trial, and therefore of justice,

required that the Court should D exercise its discretion in favour of ordering the

petitioner to amend the offending parts of the petition, or to provide further and

better particulars in terms of Order 6, Rule 16 and 5, respectively. As already

mentioned earlier, in making such order, the Court would have prescribed the

periods within which the parties should complete consequential pleadings. Had the

Trial Judge done so, this petition would most likely have been E concluded or

nearing its conclusion by now.

For all these reasons, it is obvious that this appeal must succeed with costs to the

appellant. In order to avoid delay of the petition, it is appropriate that we exercise the

powers of the High Court by doing what the High Court should have done as we are

F authorised by s 4(1) of the Appellate Jurisdiction Act, 1979. We therefore now

allow the appeal set aside the ruling of the High Court with costs and order that:

G (i) The appellant/petitioner amends those parts of the petition which were

struck out by the High Court so as to give better particulars of the allegations

contained therein;

(ii) The appellant/petitioner to file the above mentioned amendments in

the High Court at Mbeya and to serve the same to the respondents within 10 days

from today; H

(iii) The respondents to file their amended answers, if they so desire, in the

High Court at Mbeya and to serve the same upon the appellant/petitioner within 10

days after being served with the amended petition;

I (iv) The respondents are to be paid the costs in respect of the amendments;

and

1996 TLR p342

A (v) The case be brought up before a judge to fix a hearing date or dates in

the presence of the parties, soon after completion of the amendments.

We order accordingly. B

1996 TLR p342

C