GERVAS MASOME KULWA v THE RETURNING OFFICER AND OTHERS 1996 TLR 320 (HC)

GERVAS MASOME KULWA v THE RETURNING OFFICER AND OTHERS 1996 TLR 320 (HC)

Court High Court of Tanzania - Tabora

Judge Mackanja J

F

CIVIL APPEAL No. 2 OF 1995 G

28 May 1996

Flynote

Election Petitions - Locus standi in election petitions - Petitioner seeking to nullify

election H results in constituencies other than his own - Whether petitioner has

locus standi - Local Government (Elections) Act, 1979, Act No. 4 of 1979

Civil Practice and Procedure - Submissions to Court by the parties - Meaning and

purpose of I submissions - Written submissions contained in only five sentences -

Whether constituting submissions

1996 TLR p321

-Headnote

This was an election petition against the results of the 1994 local government

elections A in Meatu District. The appellant was a registered voter in one of the

wards and he sought to nullify the election results in all the wards of the entire

district. The trial court magistrate upheld a preliminary objection to the effect that

the appellant had no locus standi. He appealed to the High Court. At the hearing of

the appeal the parties were B directed to make their submissions to court in writing

and the advocate for the appellant submitted to court a document with five sentences

only:

Held:

(i) Submissions to court must contain reasons and bases for legal and

factual C propositions put forward by learned counsels as officers of the court; the

five sentence document submitted on behalf of the appellant does not constitute any

written submissions as required by the court;

(ii) The law gives a right to a registered voter in local government elections

to D petition to court against election results in the ward in which he is registered as

a voter; the petitioner in this case was a registered voter in only one ward and had no

locus standi to petition against the election results in all the wards in the district.

Case Information

Appeal dismissed. E

No cases referred to.

Byabusha, for the Appellant

Masalu, for the Respondents

[zJDz]Judgment

Mackanja, J: F

The appellant was a registered voter in the last councillors' elections in Meatu

District. He petitioned before the Resident Magistrate's Court at Shinyanga which has

jurisdiction over Meatu District, for the nullification of election results in the whole

of Meatu District. His petition was based on 14 instances of alleged non-compliance.

If he had succeeded, G the elections would have had to be rerun in the whole of that

district.

On the first day of hearing Mr Masalu, learned advocate for the respondents, namely

the Returning Officer for Meatu District and the Director of Elections raised a

preliminary H point of objection to the effect that the petitioner had no locus standi

to impugn election results in the whole district. It was argued by Mr Masalu, who was

upheld on this point by the Trial Court, that according to the provisions of s 110 of

the Local Government (Elections) Act 4 of 1979 the appellant's right to challenge the

election results was I restricted to the ward in which he had registered to vote. He

therefore had no right to chal-

1996 TLR p322

MACKANJA J

lenge elections results in wards in which he was not registered as a voter. In reaching

A this decision the Trial Court considered the application of ss 19(1) and 110(a) of the

Local Government (Elections) Act, 1979. So the petition was dismissed because the

appellant had no locus standi. He was aggrieved, hence this appeal. B

The memorandum of appeal contains only two grounds. Firstly, it is contended that

the learned Resident Magistrate erred in law when he dismissed the petition on the

ground that the appellant had no capacity to petition against the election results in

the whole of Meatu District without considering the requirements of ss 110(a) and

111(a) of the Local C Government (Elections) Act. Secondly, that the Trial Court

erred in law and in fact and thereby mishandled the petition as it raised triable issues

which ought to have been determined on merit after a full hearing.

Let me say right away that the second ground raises no cause of complaint at all, D

because these issues could be heard and determined if the appellant had succeeded in

establishing that he had locus standi in prosecuting his case. Once the Trial Court

held that he did not have that capacity the petition became incompetent, and

therefore null and void. Such being the position the petition ceased to have triable

issues before the E subordinate court because there remained nothing to determine.

In this connection, and as Mr Masalu has correctly pointed out, s 111 of the Act

which makes provision for reliefs which can be awarded to a successful petitioner has

no relevance at all to the stage at which the petition was dismissed. So there remains

only the first ground of F appeal to be considered.

As regards the first ground of appeal when this appeal was called for hearing the

parties were directed to make formal written submissions. It would appear that Mr

Byabusha, an advocate based in Musoma, was engaged by the appellant to prepare the

written G submissions for the appellant. He did so and filed a document with five

sentences, the operative part of which read thus:

`May it please your Lordship,

In addition to my grounds of appeal I wish to submit that the learned Trial

Resident Magistrate H misconstrued s 19(1) of the Local Government (Elections)

Act, 1979 No 4 since that section relates to a voter and not a petitioner like myself. A

petitioner is governed by the provisions quoted in my first ground of appeal ...'

Learned counsel who drew the appellant's submissions did not care to make a correct

I citation of the Act, nor did he find it necessary to elaborate on the alleged

misconstruction of s 19(a) although

1996 TLR p323

MACKANJA J

he should have realised that his generalisation is pregnant with serious aspersion on

the A professional capability of the learned Trial Magistrate. I find it unnecessary to

admonish learned counsel but he should realise that what he drew for his client are

not submissions at all. Submissions must contain reasons and bases for legal and

factual B propositions which are put forward by learned counsel as officers of the

court. In these circumstances the appellant has not filed any written submissions as

required by the Court.

With or without submissions the first ground of appeal raises an important point of

law. Has the appellant locus standi to pursue his mission as he alleges? And what is

locus C standi, or the right to sue is based on very firm and sound principles in this

country and elsewhere with comparable jurisdiction to our own. It is now well settled

in India, England and East Africa that the traditional rule regarding locus standi is

that judicial redress is available only to a person who has a legal injury by reason of

the violation of his legal D right by the impugned action be it by a public authority

or by a private individual. The injury could be to property, body, mind, reputation or

to some statutory or constitutional right such as free and fair elections. It is in these

circumstances that a voter can be said E to be aggrieved by the election results

which are rigged in favour of one of the contestants or by election results which have

been influenced by non-compliance with statutory electoral procedures. As a voter,

therefore, the appellant could, in an appropriate case, be aggrieved by the local

government election results. The issue then F to what extent his right to challenge

these results find expression in the law which created his right to vote.

The appellant's right to petition the Court against election results starts with his being

registered as a voter. Section 15 of the Local Government (Elections) Act confers

qualification to register as a voter to every Tanzanian who has attained the age of 18

G years unless he is otherwise disqualified under s 16. The appellant enjoyed an

unqualified right to be registered as a voter. The second condition is that every

Tanzanian cannot be allowed to be registered in every ward in which elections are to

be H held. Section 17 unambiguously declares that no person shall be registered as a

voter in more than one ward. The appellant was bound by this condition, and he does

not say that he violated the law by being registered in more than one ward.

It would appear that being qualified to register as a voter per se does not confer the

right I to challenge election results to such a person. According to s 110(a) an

election petition, the civil action

1996 TLR p324

MACKANJA J

by which election results can be challenged, can be presented by one or more of the

A following persons, namely:

`(a) a person who lawfully voted or had a right to vote at the election to

which the petition relates; B

(b) a person claiming to have had a right to be nominated or elected at

election;

(c) a person alleging himself to have been candidate at the election;

(d) the Attorney-General.' C

The appellant falls under the first category.

Section 110 cannot bring out the intended meaning if it is to be construed in isolation.

As Mr Masalu correctly pointed out, those provisions have to be read together with s

19(1) of the same Act. It provides: D

`19(1) Subject to the provisions of this Act, a person registered as a voter in

any ward shall be entitled to vote at any election in that ward, and shall be entitled so

to vote only at the ward where he is registered and not elsewhere.' E

In fact the proviso to ss (2) of s 19 declares that a person shall not vote at any polling

station other than the polling station allocated to him.

In my view of the law I have considered above, anyone who is qualified to register as

a F voter can only vote if he is registered. So the law creates two rights. The first one

is the right to register as a voter; the second one is the right to vote after registration

as a voter. In my construction of s 110(a) a person who can present a petition is that

who registered to vote. It does not matter if he exercised his right to vote or not. In

any case the right to vote can be exercised in the ward in which the petitioner was

registered, and G the interest he can pursue by an election petition challenging the

election results will be limited to the ward in which he was registered to vote.

The combined effect of ss 19(a) and 110(a) of the Local Government (Elections) Act is,

therefore, that a voter may be aggrieved by the results in the ward in which he was

H registered to vote. That is where his constitutional interest in free and fair

elections lies. The appellant cannot, in good judgment, find fault in election results in

other wards in which the elections have been satisfied by the fairness of the electoral

exercise. He simply does not have locus standi beyond his own ward. The appeal does

not therefore I have any merit.

The appeal is dismissed with costs.

1996 TLR p325

A