SENZIA ALPHONCE MBAGA AND SIX OTHERS v. CHAIRMAN OF THE ELECTION COMMISSION 1996 TLR 102 (HC)

SENZIA ALPHONCE MBAGA AND SIX OTHERS v. CHAIRMAN OF THE ELECTION COMMISSION 1996 TLR 102 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mkude J

B

MISC CIVIL CAUSE NO 147 OF 1992

Flynote

Administrative Law - Orders of certiorari and mandamus - Application for leave to

apply for - C Election Complaints Panel decision - Sections 17(2) and 18(2) of Part

VII of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance (as

amended by Act 55 of 1968) and Section 95 of the Civil Procedure Code.

Law of Limitation - Time-barring - Section 18(3) of the Law Reform (Fatal Accidents

and D Miscellaneous Provisions) Ordinance. The Election Complaints Panel of the

Electoral Commission of Tanzania in Election Complaint No.47 of 1990 had dismissed

with costs an election complaint lodged by seven complainants, the present

Applicants, against one Chediel E Yohane Mgonja and the Attorney General. The

Panel had upheld two preliminary objections raised by the Attorney General that the

complaint was time-barred, and also that the complainants' allegations were not

supported by any previous complaint made through the supervisory delegates' or the

Returning Officer's reports, as required by Section 40(1) of the Elections Act. F

-Headnote

The Applicants contended that, in upholding the preliminary objections taken, the

Panel denied them their right to be heard by the Panel before it took its decision to

dismiss their complaint.

Held:

(i) The six-month period stipulated in Section 18(3) of the Law Reform

(Fatal G Accidents and Miscellaneous Provisions) Ordinance for the application for

leave, must be taken to exclude the time required for obtaining a copy of the ruling

from which it is sought to appeal.

(ii) The application is thus made in time and is allowed.

(iii) The application succeeds and leave is granted to the Applicants to apply

for orders of certiorari and mandamus. H

(iv) The costs of the application are made costs in the cause.

[zJDz]Judgment

Mkude J:

This is an application for leave to apply for orders of certiorari and mandamus made I

under the provisions of ss 17(2) and 18(2) of Part

1996 TLR p103

MKUDE J

VII of the Law Reform (Fatal Accidents and Miscellaneous Provisions) of s 17(2) and

A 18(2) of Part VII of the Law Reform (Fatal Accidents and Miscellaneous

Provisions) Ordinance (as amended by Act 55 of 1968) and s 95 of the Civil Procedure

Code. The Election Complaints Panel of the Electoral Commission of Tanzania in

Election Complaint No 47 of 1990 had dismissed with costs an election complaint by

seven B complainants, the applicants herein, against Chediel Yohane Mgonja and the

Attorney-General. The Panel upheld two preliminary objections raised by counsel for

the Attorney-General namely, that the complaint was time barred and that the

allegations C made by the complainants were not supported by any previous

complaint made through the reports of the supervisory delegates or the returning

officer as required by s 4C(1) of the Elections Act.

The applicants are aggrieved by the decision of the Panel and the gravamen of their

complaint is that they were denied the right to be heard before the Panel made its D

decision dismissing their complaint. Having read the affidavit of Senzia Alphonce

Mbaga and heard the oral testimony of Elinazi Elieza Mbalazi and the statement in

support of the application I am satisfied that there are grounds for an application for

orders of certiorari and mandamus. E

Before I conclude this matter let me say a word or two on the question of litigation.

Under the provisions of s 18(3) of the Law Reform (Fatal Accidents and Miscellaneous

Provisions) Ordinance the application for leave must be made not later than six

months from the date of the decision or proceeding sought to be quashed. In the

present case F the decision of the Election Complaints Panel was given on 5 July

1991 while the present application was filed on 19 May 1992. I note, however, that

the secretary of the Electoral Commission of Tanzania sent the complainants' lawyers

a copy of the ruling under cover of a letter dated 12 December 1991. The letter ref No

ECC/C.50/52/II reads G as follows:

`Please refer to your letters Ref Nos YAM/285 dated first August 1991, 24

August, 1991 and 11th October 1991 on the above subject.

The delay in replying was caused by the absence of the entire secretariat upcountry

since February H 1991 for purposes of hearing election complaints. We have

just come back to the office. Be that as it may, we forward herewith a certified copy

of the ruling in this matter as requested.'

It follows that despite their effort in applying for a copy of the ruling early in August

1991 I the applicants did not receive it from the

1996 TLR p104

Electoral Commission until a few days after 12 December 1991. Now, although there

is A no express provision in the Law Reform (Fatal Accidents and Miscellaneous

Provisions) Ordinance excluding the time requisite for obtaining a copy of ruling in

computing the period of six months from the date of the ruling I hold that such time

must B be excluded as is the case in several other pieces of legislation providing for

limitation of time. I hold therefore that this application is made within time and I

allow it.

In the final result this application succeeds and I hereby grant leave to the

complainants/applicants to apply for orders of certiorari and mandamus. Costs will be

in the cause. C

1996 TLR p104

D