EMMANUEL ABRAHAMU NANYARO v PENIEL OLE SAITABAU 1987 TLR 47 (CA)

 

EMMANUEL ABRAHAMU NANYARO v PENIEL OLE SAITABAU 1987 TLR 47 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mapigano Ag JA, Mustafa JJA and Omar JJA

7 August, 1987 H

Flynote

Evidence - Credibility - Whether trial judges's refusal to accept evidence of witnesses of I the appellant is irregular - Whether failure of PWs to make any reference to the "President" in their testimony is a material detracting circumstance - Whether failure of petitioner to complain to the committee at a review meeting and the absence of any complaint by the said appellant in exhibit D.15 also detracted from the evidence of the case.

Election petition - Avoidance of election - Whether addressing rally about personal achievements or past performance contravenes 8 s. 51(4), 97(a) and 108(3)(a) and necessarily calls for avoidance of election under ss. 97(a) and 108(3)(a) - Election Act, 1985.

Election petition - Corrupt motive - Whether services through Tanzania Railways Corporation and Tanzania Dairies Ltd by respondent director for social development infer corrupt motive.

Civil Practice and Procedure - Preliminary objection - Whether sustainable where there is disclosure of cause of complaint.

-Headnote

The appellant who had lost in a parliamentary election petition in the High Court alleged D illegal campaigns at rallies and contested the trial judge's finding on the credibility of witnesses. Counsel for appellant submitted that the trial judge erred in generally disbelieving appellant's witnesses and that the reasons given by the judge for so doing were bad, that the judge erred in his finding of witnesses credibility.

Held: (i) S. 51(4) does not prevent a candidate to address a rally about his achievements;

(ii) sufficient disclosure of causes of complaints entitle a judge to overrule preliminary objection;

(iii) unreliability of witnesses, conflicts, inconsistencies in their evidence entitle judge to reject evidence;

(iv) there is nothing objectionable in assisting in social development if such assistance is innocent, not actuated by corrupt or illegal motive, namely desire to induce votes. Obiter dictum : Election results cannot be affected if the margin of victory votes is greater than the number of disenfranchisement vote.

Case Information

Appeal dismissed.

Cases referred to:

1. Chrisant Majiyatanga Mzindakaya v Gilbert Louis Ngua Civil Appl No 22 of 1981 (unreported).

Mahatane, for appellant A

Lobulu, for first respondent

Ihema for the second respondent

Judgment

Mapigano, Ag. J.A.,Mustafa and Omar, JJ.A. : This is an appeal from the judgement of the High court at Arusha (Chua, J) dated 31.5.86, dismissing the petition of Emmanuel Abrahamu Nanyaro, the appellant herein, and awarding costs to the respondents i.e Peniel Ole Saitabau (hereinafter referred to as the first respondent) and the Hon. the Attorney General of Tanzania. The appellant and the first respondent were C candidates in the parliamentary election for the Arumeru constituency that was held on 27.10.85. Upon the conclusion of the counting of the votes and after the result of the election had been ascertained the first respondent, who was the incumbent, was declared re-elected. The first respondent polled 41,022 votes against the appellant's 36,217.

The appellant was dissatisfied and he brought a petition in the High Court seeking the nullification of the election. He included the Attorney General as a second respondent. In the High Court the appellant was represented by Messrs Jonathan Shayo and Mahatane, Messrs Lobulu and Ojare appeared for the first respondent; and Messrs E Mlawa and Kimongoro appeared for the Attorney General. Mr. Mahatane and Mr. Lobulu have been retained by the appellant and the first respondent, respectively, to argue this appeal. The Attorney General is represented by Mr. Ihema.

The appellant challenged the victory of the first respondent on several grounds, some of which he expressly or impliedly abandoned in the course of the proceedings in the High Court. Those grounds can suitably be classified into and discussed under three categories i.e illegal campaigns on the part of the first respondent at certain rallies; illegal campaigns and corrupt practices on the part of the first respondent carried out in his office; and what was termed as disenfranchisement as well as irregularities at certain polling stations. In his judgement the learned trial judge held that the allegations of illegal campaign and corrupt practices were not established to his satisfaction. He found that H only 60 voters were deprived of their right to vote due to the non-availability of ballot papers. He held, however, that this shortcoming did not affect the results of the election in view of the fact that the margin of victory was 4,805 votes.

This appeal has been brought on eleven grounds. But Mr. Mahatane has found it convenient to argue it generally and not ground by ground, and properly so in our view, as some of the grounds are intimately intertwined.

Mr. Mahatane has attacked the findings of the High Court in respect of the alleged illegal campaigns at the rallies. In the petition the appellant set out four such allegations. The first is that "the first respondent throughout the period of the official campaign made unsolicited false and/or exaggerated claims with respect to development projects started in the constituency during his previous tenure of office". The second allegation is that "the first respondent throughout the period of official campaign corruptly promised his audiences that if re-elected he would continue to raise funds and to direct all his efforts to complete the C said projects". The third allegation is that "the first respondent throughout the period of the official campaign wrongfully induced the electorate by making false and/or exaggerated claims that he had been instrumental in getting His Excellency the President of the United Republic to revoke leases of nine farms previously owned by public and private companies and to regrant those farms to people living within the constituency". And the fourth allegation is that "the first respondent in reference to the farms referred to above corruptly promised that if re-elected he would see to it that the farms were E reallocated to individuals living within the constituency." Four corresponding issues were framed and recorded by the court and basically the question posed in each issue was whether the first respondent had actually made such claims and promises.

According to the evidence adduced by the appellant himself, the first respondent made F such claims and promises at three campaign rallies, namely at Makuyuni Oljoro and at Olasiti on 20.10.85, and at Karangai Maweni on 23.10.85. The appellant alleged that at Mbuyuni the first respondent, at the beginning of his speech, made reference to the Oljoro dispensary and to nine farms situated at Oljoro that were previously held by public and private companies and whose rights or leases had been revoked by the President. He stated that the first respondent told the gathering that he had looked for 220,000/- for the completion of the dispensary and that he and his colleagues had seen the President and prompted him to revoke the leases, and that he promised that the nine H farms would be regranted to some of the residents of Oljoro. The testimony of his witness P.W.10 Edward Msangi was similar except that he did not mention the President in regard to the nine farms.

The first respondent denied the allegations. He stated that the only occasion when he talked about the dispensary was when he was answering a question from the audience. He had been asked what he had done, A as a Member of Parliament, to have the construction of the dispensary completed. He said that his answer was that there were plans to have the construction completed. He denied that he went further to say that he had obtained a sum of shs. 220,000/- for that project. D.W. 21 Saidi Tillya, the Chairman of Oljoro, gave evidence on his side, lending him support.

The appellant alleged that the first respondent made similar remarks about the dispensary and the nine farms at the Olasiti rally. He called P.W.9 Azizi Abdallah who backed him C up. But like P.W.10 Edward Msangi's, the evidence of P.W.9 was silent on the role the President had played in making the nine farms available to the residents of Oljoro.

The first respondent's version was different. He told the court that the only occasion on which he made mention of the nine farms at that rally was when he was again responding to a question about a certain list of landless people that had been forwarded to the District Headquarters. He recalled telling the crowd that the Government had agreed, upon certain conditions being satisfied, to revoke the leases in respect of those nine farms and that upon the satisfaction of the conditions the farms would be apportioned to those listed. He denied that he mentioned the sum of 220,000/- in connection with the dispensary. Again D.W. 21 Saidi Tillya, who attended that meeting, gave evidence that substantially supported the version of the first respondent.

The campaign meeting at Karangai Maweni was held on 23.10.85. If we go by the evidence of the appellant and his witness P.W. 12 David Urassa, there, as at Mbuyuni and Olasiti, the first respondent disclosed to the rally, in the course of his main address, that he had secured a sum of Shs. 100,000/= for the construction of a cattle dip and a clinic, and that he asked the crowd to re-elect him so that he may complete the projects he had started. He produced P.W. 14 Msee Kipanga whose testimony was parallel except that he did not mention a cattle dip.

The first respondent admitted that he said something about a cattle dip at that rally, but denied having said anything about a clinic, pointing out that there was already one at that place. He said that he had been asked a question by one person relating to the project of converting a certain trench into a cattle dip, which project still remained on the drawing board. He said that was the occasion he referred to the sum of shs. 100,000/= I that had been allocated to the project by the appropriate district authorities. His account found support in the testimony of D.W.9 william Moringe, whose power of recollection  favourably impressed the trial judge.

The first respondent also tendered the minutes of the review meetings, exhibit D.15 in answer to the allegations levelled against him. These were minutes of the meetings of the District Political Committee of the Party that were held almost every morning during the period of the official campaign. As is now well-known, the District Political Committee of the Party is the organ that is legally charged with the organization and conduct of the election campaign. Ordinarily meetings of that committee are held on a daily basis during the period of campaign to discuss the business of the campaign in the constituency and review what has taken place. In the discharge of these functions the Committee listens to any misgivings, grievances and comments of any of those who are officially concerned, including the two candidates. This, incidentally, is one of the distinct features that characterize the Tanzanian Parliamentary electoral process.

It is to be observed again that the campaign meetings at Mbuyuni and Olasiti took place on 20.10.85. According to exhibit D.15, whose accuracy was not challenged, there was such a review meeting on 21.10.85 in the morning. Nothing was said by the appellant about the false and/or exaggerated claims and promised which the first respondent allegedly made at those two rallies. It is to be observed also, as the trial judge did, that the Karangai rally was held on 23.10.85 as was the rally at a place called Makiba. Now in the review meeting that was held in the morning of 24.10.85 the appellant did not, likewise, raise any complaint in respect of the Karangai rally, though he is on record as having raised a complaint of that nature in regard to the rally at Makiba, which complaint, however, was not a subject of any of the particulars set forth in the petition.

The learned judge reviewed and appraised the evidence. In his vantage position the judge was not satisfied by the veracity of the witnesses called by the appellant. He noticed some discrepancies in their evidence. He pointed out, for instance, that with regard to the Mbuyuni and Olasiti rallies, P.W.9 Azizi Abdallah and P.W.10 Edward Msangi had, unlike the appellant, not mentioned the President. The judge considered D.W. 21 Saidi Tillya to be a reliable witness. And with regard to the Karangai rally, the judge preferred the version of the first respondent which as observed found support in the evidence of D.W 9 William Moringe. The judge also adverted to exhibit D.15 and I then took the view that the absence of any complaint in those minutes about what was allegedly spoken by the first respondent at  those rallies cast a real reasonable doubt in the case of the appellant.

The judge concluded by saying, in effect, that statements like "I have seen the President in connection with the nine farms at Oljoro and the President has in consequence revoked the leases in respect of those farms and the farms will be granted to the residents of the area... were not objectionable and did not in the least offend the provision of section 97(a) of the Elections Act, 1985, as it was a true statement and not made with any intention to induce any voter to vote and so on. The gravamen of the appeal in regard to the alleged illegal campaigns at the rallies is against the learned judge's finding on the credibility of the witnesses. Indeed, Mr. Mahatane has put in the forefront of his argument the submission that the judge erred in disbelieving the witnesses called by the appellant generally, and that the reasons given by the judge for doing so were bad. He has argued that if the words attributed to the first respondent by the appellant and his witnesses are true, then they constituted illegal campaigns and practices on the part of the first respondent and that they sufficed to void E the election under section 97(a) and 108 (3)(a) of the Elections Act, 1985.

In fact Mr. Lobulu had taken a preliminary point in the High Court before the hearing started. He submitted at some length that the allegations in questions were what he described as "innocuous" and that they did not afford the appellant a reasonable ground of complaint under the Election Act. Mr. Mlawa who, as shown, represented the Attorney General expressed a similar view. The judge was not persuaded and in his ruling dated 3.4.86 he stated that he was not prepared at that stage to say that the acts complained of were harmless.

We have considered the judgment of the High Court. In principle we are unable to fault the decision of the learned judge. The judge believed the evidence produced by the first respondent. Some of the reasons that he gave for believing that evidence seem to us to H be sound. The failure by P.W. 9 Azizi Abdallah and P.W.10 Edward Msangi to make any reference to the President in respect of what the first respondent had told the meetings at Mbuyuni and Olasiti about the nine farms was clearly a material detracting circumstances. We are disposed to think that a statement to such meetings and at such I places to the effect that the President had at the instance of a candidate revoked the leases of the farms is doubtless the kind of statement that would have made a great impact and impression in the mind of any attentive listener. It is not the sort of thing which would have been easily forgotten. Land appears to have been an exciting subject. The appellant himself told the court that the problem of scarcity of land in that area was a vexing one and of long-standing. As stated earlier, the appellant did not complain to the Committee at the review meetings and the absence of any complaint by the appellant in exhibit D.15 also detracted from the credence of the appellant's case.

We have had a look at section 97(a) of the Election Act. We share the view of the learned judge that all that the first respondent said at the three rallies, as recounted by the first respondent and his witnesses, was fair and square and did not offend the provision of that section. We have also had a look at section 51(A) of that Act, which enjoins the organizers of the election campaign to accord a fair and equal opportunity to each of the candidates. We are unable to read into the terms of that sub-section any allusion to a requirement that a candidate should not address the rallies about his real achievements. We put the questions: What is an election campaign all about. Is it not true that the whole object of such a campaign is to enable the electorate to intelligibly assess and rate the competence of the candidates? And can it be sensibly denied the past performance or non-performance is one of the usual and vital factors that the ordinary voter would invariably take into consideration in such an exercise?

Before we leave this part of the appeal we will say a few words in regard to Mr. Lobulu's submission about the pleadings. We are unable to agree with Mr. Lobulu's contention that the pleadings in respect of those allegations should have been struck out at the beginning. As we have already pointed out, a preliminary point was taken in that regard before the start of the hearing. It is elementary that at that stage the judge could only look at the pleadings in the petition and nothing else. In principle he had to decide the point on the footing that the allegations of the appellant in the petition were true in manner and form. The appellant used the words "corruptly" or "wrongfully" in those pleadings and we feel H that he thereby sufficiently disclosed causes of complaint. In our view, therefore, the judge was right in overruling the preliminary objection.

But that is not to say that the petition is perfect in every respect. As we have had occasion to remark at the hearing of this appeal, the petition can, in form, hardly lay claim to elegance, and it could have been better drafted and should have contained details of the campaign meetings in which the words were spoken as well as the dates on which those meetings took place.

We turn to the allegations of the illegal campaigns and corrupt practices committed by the first respondent in his office. The allegations were that "the first respondent throughout the period between the dissolution of the National Assembly in the month of July and the polling day used the office normally used by the Member of Parliament for the constituency as a base for conducting illegal campaigns and corrupt practices by distributing and/or purportedly selling scarce commodities to prospective voters. The first respondent, apparently ex abundanti cautela, denied the allegations in a Written Answer (there is no requirement at law to file such an Answer), stating that during the period in question he occasionally visited that office to collect mail and "for like bonafide D pursuits" and that he disclosed the same to the appropriate authorities. The point, which apparently remains unresolved and which is not the concern of the court, is whether a former Member of Parliament canmuse the office that had been allocated to him during the tenure of office after Parliament has been dissolved.

The principal witnesses for the appellant were P.W.2 Ataiwa Luka, P.W.4 Afrael E Reuben Kaaya, P.W.5 Edward Mbise and P.W.6 Akyoo Joseph Anael. All these resided at a place called Kingori and that might mean something. The learned judge felt that it was unsafe to act on the evidence of these witnesses and he stated his reasons. What may be observed straightaway is that none of the witnesses claimed to have obtained such goods from the first respondent without giving adequate money value in exchange. P.W.2 Ataiwa testified that he bought 10 iron sheets and 5 ridges from the first respondent for a sum of Shs.1,700/=, the transaction taking place in the office in question, which was situated in the District Party Building, at the beginning of October, 1985. That was after he had given an undertaking to campaign for the first respondent. Ataiwa was a complete stranger to the first respondent and he said that the transaction took about five minutes. By his own repeated and explicit admission, Ataiwa would not H hesitate to tell a lie when it suits him. 

The testimony of P.w.4 Afrael showed that he called at the office of the firstrespondent in mid-October, 1985, upon being informed by Ataiwa of the availability of the iron sheets at that office. He found the first respondent in there and he told him that he was in I need of iron sheets. The first respondent replied and said that he could sell the iron sheets to him if and when he procured five people each A prepared to buy 10 sheets and to campaign for him. He went back to Kingori and looked for the five people. He only succeeded to get one, that is P.W.5 Edward. The two went to see the first respondent in his office. According to them, the first respondent refused to sell the sheets to them, telling Afrael that he had not fully met his condition.

The trial judge found the accounts of A frael and Edward contradictory on the point whether there was any further talking in that office after the first respondent had declined to sell the sheets to the two men. What also happened is that under cross examination Afrael mis described the location of the District Party Building and the judge was apparently left in serious doubt as to whether Afrael had ever visited that place. And the judge took into consideration the testimony of D.W.16 Isaac Mathias to the effect that round that time P.W.5 Edward was undergoing treatment in the hospital after sustaining a leg fracture.

The other witness, i .e P.W.6. Akyoo, told the court that he bought 16 iron sheets and 4 ridges from the first respondent in the latter's office in early October 1985. He claimed that he paid a price of Shs. 2,500/=. Like P.W.4 Afrael, this witness did not come off E well under cross-examination. His story that the sheets he purchased were meant for roofing his wattle house that had been daubed long before he bought the sheets made little sense to the learned judge. The judge remarked in the following lines:

The court takes judicial notice of the fact that a house daubed with mud unless roofed would have by October 1985 been so badly damaged by rains in this part of the world that no person in his proper frame of mind would do that P.W.6 allegedly did. P.W.6 did not even thatch the alleged house with grass and wanted this court to believe that he did what he asserted. The first respondent denied that he had sold any iron sheets to any of the witnesses.

Indeed, he denied ever meeting any of them before. The judge found for him. The question that arises on this appeal is whether the learned judge was wrong in his refusal to accept the evidence of the four witnesses called by the appellant. The issue involved was a factual one and as a matter of elementary principle we have to make due allowance for the fact that the judge had seen and heard the witnesses while we have not. Obviously P.W.2 Ataiwa was an unreliable witness. What fell from his own mouth portrayed him as an unprincipled character. There were conflicts and inconsistencies in the evidence of P.W.4 Afrael and P.W.5 Edward. The court was asked to believe the story that the first respondent, who readily sold some sheets to two complete strangers, P.W.2 Ataiwa and P.W.6 Akyoo, without attaching any condition, would almost at the same period put a condition on the sale of the same kind of goods to P.W.4 Afrael. The learned judge was entitled to reject the evidence of these witnesses and he did so.

As pointed out already, the petition charged the first respondent with corruptly distributing and/or purportedly selling scarce goods between July, 1985 and polling day i.e 27.10.85. The first respondent admitted that during that period he had helped certain people by procuring iron sheets and ridges from M/S GALCO of Dar es Salaam which, we are given to understand, is a subsidiary of M/s Aluminium Africa Ltd. It seemed that iron sheets were very difficult to come by and the appellant's help was needed. He said that he had the goods conveyed to Moshi by rail and that he subsequently handed over the same to certain individuals whom he named. That took place in October, E 1985. He happened to be a Director of the Tanzania Railways Corporation and by reasons of such office, he said, the goods were transported free of charge. He was candid enough to disclose that was the first time for him to do such a thing.

The lot he brought from GALCO went to D.W.3 Esther Melami, a widow of his personal friend who had paid GALCO for them in February, 1985, D.W.6 Helena Francis, his niece who was also a widow, who had paid for them in October, 1984; D.W.8 John Lyimo an acquaintance, who had paid for them in July, 1985, and D.W.18 G Amina Laizer, a sickly woman, who had paid for them in May, 1985. Some of these people had been looking for the goods since 1983 or 1984. The first respondent also forthrightly admitted that he had the sheets of D.W.3 Esther and D.W.6 Helena delivered to their homes free. Oral and documentary evidence that was adduced by H those four people supported the first respondent's testimony.

The first respondent's evidence went on to show that in August, 1985 he procured 90 ridges for the Sura Lutheran Church and had them sent free to Arusha from Dar es Salaam by a lorry belonging to M/s Tanzania Dairies Ltd. of which company he was also I a Director. The ridges had been purchased by the Church months back and they were collected from his office by the clergyman D.W.2 Isaac A Mbise who, incidentally, refused to take the oath in the witnesses-box, citing the Biblical Second Commandment.

There was no evidence that the first respondent ever solicited for votes at the time he was handing over the sheets in question. And there was clear evidence that all those people who received the sheets and the ridges from or through the first respondent had actually paid the manufacturers M/S GALCO the price for the goods. The learned judge appreciated the fact that those individuals and the Sura Lutheran Church derived some benefit by way of service rendered by the first respondent and the waiver of the freight charges. He took the view, however, that the services were gratuitous and he found no evidence that the first respondent's conduct was calculated to induce those beneficiaries to vote for him at the election. In reaching that finding the judge took into consideration the fact that the first respondent had agreed to help them long before Parliament was dissolved, the fact that some of them were related to him and the fact that he enjoyed the privilege of transporting his goods free by virtue of being a Director of the Railway Corporation and the Tanzania Dairies.

The learned judge was referred to the observation of this court in the case of Chrisant Majiyatanga Mzindakaya v Gilbert Louis Ngua, civil Appeal No. 22/81 (unreported), that there is nothing objectionable in a Member of Parliament assisting his constituents in their social development. We are satisfied, as was the learned judge, that the services the first respondent rendered constituted valuable consideration within the meaning of paragraphs (a) and (f) of section 97 of the Election Act. However the vital question is whether the first respondent was actuated by corrupt or illegal motive, namely a desire to induce those beneficiaries to vote for him at the election. This point was forcefully canvassed before the High Court and the learned judge went into the matter at considerable length in his judgment. The judge was satisfied that there was no corrupt or illegal motive.

Mr. Mahatane has submitted that a corrupt motive was inferable from the circumstances H that attended the procurement and the deliveries of the goods. The question is whether that inference is irresistible. Mr. Mahatane has laid some stress on the fact that the free transport was unsolicited and the fact that the deliveries almost coincided with I the beginning of the official election campaign. There is some force in that argument. We are of the view that the judge had considered all the relevant factors and circumstances relating to this matter and that he was justified in arriving at the conclusion he did. It was possible to infer a corrupt motive, as Mr. Mahatane contended, but we are far from being persuaded that the circumstances pointed irresistibly and inevitably to a corrupt motive. Indeed the circumstances, in the context of the situation, were equally, if not more, consistent with innocence.

Understandably we were not addressed on the issue of disenfranchisement. We have read the evidence pertaining to this point and we may briefly say this. We entirely agree with the finding of the trial judge that only 60 people were unable to exercise their right to vote, on account of the shortage of ballot papers at Olkungwedo and Ambaroni polling stations. This did not affect the results of the election, given the margin of victory.

For the reasons we have stated above, this appeal is dismissed with costs.

Appeal dismissed.

1987 TLR p59