MUJUNI JOSEPH KATARAIA v SAMWEL NTAMBALA LUANGISA AND ANOTHER 1986 TLR 53 (CA)

 MUJUNI JOSEPH KATARAIA v SAMWEL NTAMBALA LUANGISA AND ANOTHER 1986 TLR 53 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Mustafa JJA, Omar JJA, Mapigano, Ag JA

E

22nd July, 1987

CIVIL APPEAL 25 OF 1986

Flynote

F Election Petition - Irregularity - Failure to comply with the provisions of a booklet -

However, s.61(c) (iii) of the Elections Act, 1984 complied with - Whether fatal irregularity

Election Petition - Evidence - Failure to call an important witness - Whether necessarily calls for

an adverse inference to be drawn against the party who failed to call the witness G

-Headnote

One of the complaints the appellant raised before the Court of Appeal was that there was an

irregularity arising out of failure of the assistant returning officer to follow the guidelines given

in a booklet titled "Guide to the Presiding Officers on H the Election Procedure". The guide

required the officers to record on the counterfoils of ballot papers three numbers - the

registration centre number, the constituency number and the voter's serial number. The officer

recorded the voter's serial number only and this was in compliance with s.61(c)(iii) of the

Elections Act, 1985. I

1986 TLR p54

MUSTAFA JA

A Another complaint was that the respondent did not call an important witness and asked the

court to draw an adverse inference against the respondent.

Held: (i) The Elections Act requires only that the number of the voter be recorded; B

(ii) in this case the failure to call the witness did not call for any adverse inference to be

drawn against the first respondent.

Case Information

Appeal dismissed.

C Case referred to:

1. Abel Mwanga v Elisaph Lima, C.A. No. 4/82.

D Rutashobya, for the appellant

Kahangwa, for the first respondent

Mrema, for the Attorney-General

[zJDz]Judgment

Mustafa, J.A.: In the Parliamentary election held in the Bukoba Urban constituency in October,

1985, E the 1st respondent herein Samwel Luangisa was the successful candidate. The 1st

respondent won by 370 votes over his opponent Mujuni Kataraia the appellant herein. The 1st

respondent polled 6,846 votes while the appellant polled 6,476 votes. The appellant challenged

the election results in the High Court (Mwalusanya, J.) by way of an election F petition, but his

petition was dismissed with costs in September, 1986, and he is now appealing to this Court.

The Attorney-General has been joined as a second respondent in this appeal.

G In the High Court the appellant had alleged corruption, illegal campaigning and the exercise

of undue influence on the part of the 1st respondent and various acts of non-compliance with

the Elections Act on the part of the election officials. The High Court dealt with all the points

raised in the petition and dismissed all the charges of corruption and illegal H campaign and

acts of undue influence alleged. The High Court held that there were certain acts of noncompliance

on the part of the election officials but concluded that those acts related to a very

small number of voters and did not affect the result of the election.

We will consider the ten grounds of appeal filed by the appellant. Mr. Rutashobya appeared for

the appellant in the appeal I

1986 TLR p55

MUSTAFA JA

A before us, Mr. Kahangwa for the 1st respondent and Mr. Mrema for the Attorney General.

The first ground of appeal alleged that the trial judge had "played a partisan role" at the trial,

presumably in favour of the 1st respondent. This ground can conveniently be taken with

ground 10 of the appeal. In ground 10 the appellant alleged B that the trial judge "had

misdirected himself when he declared that the appellant's counsel has not shown him how the

illegal practices and contravention and non-compliance of the Elections Act 1985 had affected

the results without asking the advocate to clarify on that and it was not proper for the judge to

declare that before he heard the submissions of the C respondent's counsel and wrote his

judgment".

Mr. Rutashobya based that serious allegation of the trial judge being a partisan on the following

ground. After Mr. Lipiki, who at the trial had acted for the appellant, had completed his final

submission to the court, the trial judge made the following observation which was on the record:

D

I wish only to observe that you have not shown how the illegal practices and

contravention or non-compliance of the Election Act has affected the results. As for the illegal

campaigns you have not shown as to how they prevented the majority of the voters from E

electing the candidate of their choice. If you had alluded to those points in your submission you

would have rendered my job easier and helped me a good deal. F

In the judgment itself the trial judge reverted to this matter. He referred to several decided cases

where certain acts of non-compliance had been found not to have affected the results of an

election and therefore could not nullify an election. He continued. G

I have dwelt at length with these preliminary remarks because they are important but

particularly because counsel for the petitioner Mr. Lipiki appears not to have been aware of

these provisions. In his final submission he invited this Court to nullify the election H even if

the contraventions in question did not affect the results of the election....

Mr. Rutashobya submitted that the trial judge had already made up his mind to dismiss the

petition as soon as Mr. Lipiki I had made his final submission. He contended that the trial

judge should,

1986 TLR p56

MUSTAFA JA

A after Mr. Lipiki had finished, have asked Mr. Lipiki "to clarify" on the point about results

being affected. Then Court Mr. Rutashobya said:

My submission is that reading through Mr. Lipiki's arguments at the end of the trial he

had referred to the results being affected by B the illegal practices or non-compliance.

We think that the trial judge made his observation more in sorrow than anything else. He had

expected help from counsel C appearing before him, including Mr. Lipiki, in deciding his case.

It is clear that in law, certain acts of non-compliance, if they do not affect the result of an

election, cannot have the effect of nullifying it. It would seem that Mr. Lipiki was not

conversant with that aspect of the law, as he apparently submitted that any act of noncompliance,

irrespective of whether D it affected the election result, would nullify an election.

If after the observation by the trial judge, Mr. Lipiki had wanted to "clarify" certain matters, he

was at liberty to seek permission from the court to do so. The Court was still in session, and the

trial was still proceeding. Mr. Lipiki did not E seek such permission. In these circumstances it

seems extraordinary to us that Mr. Rutashobya had thought fit to complain in the way he had

done. It was for Mr. Lipiki, if he had wanted to "clarify" matters, to do so. The judge had

indicated to Mr. Lipiki what was wanted.

F In answer to this Court Mr. Rutashobya had stated that Mr. Lipiki, in his final submission,

had referred to the issue about results being affected by illegal practices or non-compliance with

election provisions. We have since read Mr. Lipiki's submission as contained in the record of

appeal and we can find no trace of such reference. Mr. Rutashobya G misled us. He should be

more careful and more responsible in his submissions before a court; or in making a serious

allegation against the trial judge of being a partisan of the 1st respondent, unless he had some

sort of evidence to H substantiate such allegation. Not a shred of evidence was forthcoming

about the trial judge being a partisan. We are aware that Mr. Rutashobya had only been

recently admitted to the Bar, and we will, on this occasion overlook what clearly is irresponsible

and possibly improper conduct on his part. We may not be so lenient in future.

I On ground 2 it was contended that the trial judge had intimidated or threatened P.W.27

Wilbard Yusufu and had erred in

1986 TLR p57

MUSTAFA JA

A rejecting Yusufu's evidence alleging corruption. During his testimony Yusufu alleged that

the 1st respondent gave him Shs. 200 to help in the former's election campaign. When crossexamined

by counsel for the 1st respondent Yusufu stated: "I am sure I can be convicted of

corruption. I did not think it is a bad thing .. I don't know that to receive a bribe B is an

offence".

Mr. Rutashobya purported to file a supplementary record of appeal in terms of Rule 92(1) of the

Court of Appeal Rules. However the record consisted of an affidavit by the appellant and a

photocopy of a newspaper item apparently dated 13.8.86. Counsel for both the respondents

submitted that it was not a supplementary record of appeal and referred to C Rule 89 of the

Rules of the Court of Appeal as to what constituted a record of appeal. The newspaper item

clearly was inadmissible and the affidavit purported to refer to something not in the record of

proceedings. It would seem that what D Mr. Rutashobya wanted was either to challenge the

accuracy of the record or to seek to introduce additional evidence. If he had so wanted he had

certainly adopted the wrong way and method of doing so. The so-called supplementary record

is not admissible and will not be looked at. There is just no evidence to support the allegation

that the trial judge E intimidated and threatened P.W.27 Yusufu.

The trial judge dealt at length with the testimony of P.W.27 Yusufu and the 1st respondent and

his witnesses on the allegation of the bribe of Shs. 200 being given to Yusufu, and concluded that

Yusufu was a liar and could not be believed. F We see no reason to differ from that finding.

Both ground 3 and ground 5 refer to the party held at the 1st respondent's house at Kitendagulo

Village on 6.8.1986. It was common ground that a party was held there on that day. The 1st

respondent's version was that it was a party for G close relatives to welcome him home after an

absence of 2 months in Dar es Salaam where he attended the Budget Session. Only one outsider

P.W.10 Joel, a close friend, was at the party. He said he personally did not invite anybody as he

had arrived only the previous day. He said in evidence: H

1It was for me to bid farewell to my friends and they were congratulating me for having

finished my five-year term safely. It was just a family get together to congratulate me for having

finished my term safely. I

1986 TLR p58

MUSTAFA JA

A The persons who attended ate food and a religious song was sung. There were no speeches

nor was there any campaign during the party. There was a funeral of a neighbour that day and

R.W.20 Lugusha, the District Party Chairman passed by on his way to the funeral and joined the

1st respondent for food. R.W.12 Jones and R.W.19 Jesse B also attended the funeral that day,

but did not join the party.

P.W.11 Salum and P.W.12 Alfonce alleged that they were invited to and attended the party.

They alleged that at the party which was attended by many people R.W.20 Lugusha spoke and

urged 1st respondent to be the candidate for the new Parliament and that was agreed to by

acclamation. He said among those present supporting the 1st respondent was C R.W.19 Jesse.

A number of people signed the 1st respondent's nomination after the 1st respondent had agreed

to stand as a candidate. He said P.W.10 Joel was also at the meeting together with Party and

Government Officials. D Incidentally P.W. 11 alleged that the 1st respondent had invited all

the leaders, players and fans (presumably supporters) of the Balimi Football Club and these

attended the party. P.W.12 was a watchman of Bukoba Town Council.

E The trial judge went into the evidence adduced by the witnesses on both sides in great detail.

He disbelieved both P.W.11 and P.W.12 as to what transpired at the party. He gave his reasons,

a cogent one being that it was highly improbable that the 1st respondent could have invited to a

campaign party all the "fans, players and leaders" of the Balimi F Football Club which formed a

large group and could contain enemies as well as friends, especially as there was undisputed

evidence that there was some friction between the Football Club and the 1st respondent. The

judge also was of the view that if R.W.19 Jesse was at the party as the 1st respondent's supporter

it was difficult to understand why the G appellant did not object to R.W.19 being appointed the

Chairman of the campaign meetings on 2.10.85. The appellant stated that he had no objection to

the appointment of R.W.19 as Chairman, and he did not object on 12.10.85 when the

supervisory delegates were introduced. The judge was satisfied that both P.W.11 and P.W.12

had lied in court. He H preferred the version of the party as given by the 1st respondent and

his witnesses. In fact the evidence of P.W.10 Joel would also support the version given by the

1st respondent.

In our view it was open to the trial judge, after assessing and analysing the evidence, and with

the opportunity of seeing I and hearing the witnesses testifying, to have accepted or rejected

the

1986 TLR p59

MUSTAFA JA

A evidence of P.W.11 and P.W.12. We could not find any misdirection or non-direction in his

assessment of the evidence.

In ground 4 the appellant alleged that the judge had erred in finding that there was no evidence

that non-citizens had B voted and in ignoring evidence which showed that several unregistered

persons were permitted to vote. This ground is totally baseless. The petitioner testified that he

was informed by one Kakwezi that two non-citizens who he named had voted. Kakwezi was

not called to give evidence and the petitioner's evidence was hearsay and inadmissible. Four C

non-citizens attempted to vote and were caught and their voting cards confiscated. Mr.

Rutashobya attempted to argue that because 4 non-citizens were caught trying to vote, that was

evidence that a number of non-citizens must have voted. That is a good instance of turning an

argument on its head!

In ground 6 it was alleged that there was evidence that some people voted at polling stations not

allotted to them, and that some voters were denied their right to vote. The appellant contended

that the trial judge erred in holding that such D non-compliance with the election provisions

did not affect the election result.

It is true that the judge found that 5 voters voted at polling stations not allotted to them, and he

held that since that E misconduct created the same conditions for both candidates, the

contravention did not affect the result of the election. Similarly the judge found that 6 nonregistered

voters had used "floating cards", and thus 6 registered voters had been deprived of

their votes. He similarly held that did not affect the result of the election. Three persons, 2

drivers and a F policeman, were deprived of the right to vote, as they were assigned duties

outside their constituencies on election day. In any event only 14 votes were involved; and in

whatever way one looked at it, considering the majority was 370 votes, that could not have

affected the result of the election. G

Ground 7 was concerned with non-stamping of ballot papers. Only one such instance was

proved and one vote was spoiled in this way. This could not be said to have had any effect on

the election result.

Ground 8 reads: "That the judge improperly dismissed the evidence proving that properly

registered voters were H disqualified to vote".

A number of school boys, about 100, had their registration cards withdrawn. The 1st respondent

had complained to the Assistant Returning Officer P.W.33 Tsere that under age students had

been registered as voters. P.W.33 checked the I admission registers

1986 TLR p60

MUSTAFA JA

A as to the age of the students, and withdrew 100 or so registration cards as he found that

those students were under-age. Three such students testified. P.W.6 Deogratias admitted he

was under-age and 2 others P.W.7 Rebangila and P.W.8 Abdul Razak alleged that they were

then over 18 years and of age. All these 3 witnesses gave evidence of B their age themselves.

No birth certificate was produced nor were parents or relatives called who could testify as to

their dates of birth. In our view both the evidence of age contained in the admission registers

and that given by the students themselves was hearsay. In fact no proper evidence of the

students' age was established. However, the evidence of age C contained in the admission

registers was ante litem, unlike the evidence of age given by the students at the trial. If the

appellant had wanted to establish that the students were improperly deprived of their right to

vote, it was for him to establish that fact. He had failed to do so. At the highest, two students

could perhaps be said to have been so deprived. D That figure could not have affected the

election result.

Ground 9 is concerned with the interpretation of section 61(c)(iii) of the Elections Act 1985.

The appellant alleged that the judge had erred in its interpretation. It reads:

E 61. The voting at an election shall be conducted in the following manner -

(a) ....

F (b) ....

(c) immediately before the presiding officer or polling assistant delivers a ballot

paper to any person -

(i) ....

G (ii) ....

(iii) the number of the voter in the copy of the register of voters or part thereof

shall be marked on the counterfoil ...

H There were some 596 counterfoils of ballot papers which were irregular in that the presiding

officer had recorded only the serial number of the voter instead of recording 3 numbers i.e. the

registration centre number, the constituency number and the voter's serial number. However

the Assistant Returning Officer was positive that the irregularity did not affect the I voting as

the voters voted in the normal way and he was able "to trace where the voters voted in

1986 TLR p61

MUSTAFA JA

A reading the printed number on the counterfoil and then tracing it in the Register of voters as

to where it was allocated and if it voted or not". He established in Court that all the 596 voters

voted in accordance with the law. It was contended on behalf of the appellant that the

irregularity was fatal as it offended the provisions of a booklet, called "Guide B to the Presiding

Officers on the Election Procedure". The trial judge held that the law applicable was the

Elections Act as contained in the provisions of Sec. 61(c)(iii), which provided that what was

necessary was "the number of the voter in the copy of the register of voters, or part thereof shall

be marked on the counterfoil." Mr. Rutashobya contended that the C words "or part thereof"

refer to the register and from there he went on to argue that the number of the voter by itself

was insufficient, and that the registration centre number and the serial number must also be

marked on the counterfoil. We think that Mr. Rutashobya is in error and we agree with the trial

judge that the Elections Act requires only that the D number of the voter be recorded. This

ground of appeal also fails.

That would dispose of all the grounds of appeal preferred by the appellant. However Mr.

Rutashobya also raised an issue not disclosed in the petition of appeal. He referred to an alleged

act of corruption in which one relative of the 1st E respondent by the name of Justina d/o

Patric was involved, in respect of the campaign for the 1st respondent. P.W.5 Oswald had

testified that, as head of a Ngoma group, he was approached by Justina who allegedly gave him

Shs.5,000/= and a gallon of "gongo", an illicit liquor. P.W.5 stated that he met Justina in her

house as he was called F there. He was accompanied by among others, R.W.13 John Kijiko,

R.W.16 Abdul Rwekaza (Secretary of CCM Branch) and R.W.14 Marco Kahwa, treasurer of his

ngoma group. Justina was present and handed Shs.5,000/= to R.W.14 Marco the group treasurer

saying that was given by the 1st respondent for the campaign. P.W.5 was the only G witness

produced by the appellant concerning that alleged incident.

The 1st respondent denied having had anything to do with that alleged act, and called R.W.13

John, R.W.16 Abdul and R.W.14 Marco, who all denied that there was any such meeting or

handing over of money and so on. Justina was not H called.

Mr. Rutashobya has urged before us that the Court must draw an adverse inference from the

failure on the part of the 1st respondent to call Justina, as Justina was a very important witness. I

1986 TLR p62

MUSTAFA JA

A We agree that Justina was an important witness, and we are surprised that she was not

called. However the other three witnesses called to refute the story of P.W.5 Oswald were also

important, as they were alleged by P.W.5 to be with him when the incident took place. Justina

was a relative, while these 3 others were not. We think in this case the 1st B respondent had

adduced credible and sufficient evidence which the judge accepted and believed to rebut the

evidence provided by P.W.5. Each case has to be judged on its own facts, and we are satisfied

that in this case, the failure to call C Justina did not call for any adverse inference to be drawn

against the 1st respondent.

We were referred to an unreported judgment being C.A. No. 4/82 Abel Mwanga v Elisaph Lima,

where because an important and crucial potential witness was not called by Abel Mwanga, the

Court drew an adverse inference against D Mwanga. However the facts in that case were

different. Mwanga in that case denied knowing the person who was not called, and Mwanga's

acquaintance with that person became a matter of prime importance in the course of the trial.

There was sufficient evidence adduced which showed that Mwanga knew that person, and the

onus was on Mwanga to E refute that evidence. His failure to call that person in the

circumstances resulted in the adverse inference being drawn.

In his judgment the trial judge had "assumed" on several occasions. He "assumed" that if, for

instance, the 100 students F were improperly prevented from voting, that number should have

been taken into account, to the prejudice of the 1st respondent. Based on such "assumptions" he

arrived at the figure of 117. He stated, in view of the majority of 370 in favour of the 1st

resplondent, even if the 117 votes were taken into account, that would not have affected the

results.

G Mr. Rutashobya had, not unnaturally, tried to rely on these "assumptions", as if they were

findings of fact. We venture to think that perhaps the trial judge had meant that if he was

wrong on certain issues, then the appellant should have had the advantage of 117 votes, and

even then, the election results would not have been affected. H

The appeal is dismissed with costs.

1986 TLR p63

A