Ngowi v. The Returning Officer. Moshi and Lucy Lameck Misc. Civ. cause 9-A-70; 22/6/71; Bramble J. and Kwikima Ag. J.

Ngowi v. The Returning Officer. Moshi and Lucy Lameck Misc. Civ. cause 9-A-70; 22/6/71; Bramble J. and Kwikima Ag. J.

            The petitioner, being the unsuccessful candidate for the Moshi Constituency in the parliamentary general elections of 1970 sought to have the election declared void because of certain irregularities and contraventions of the Elections Act 1970. He alleged: (a) that without proper and justifiable grounds there was held election for the second time in 12 polling stations contrary to rules and regulations and without giving the voters proper notification of the change of date; (b) that four ballot boxes had no seals and two others had their seals tempered with c/s 73(2); (c) that 58 boxes did not have proper accompanying envelopes and eleven had no envelopes; and some other administrative irregularities. The petitioner relied on s. 123(3) (c) of the Election act which permits an election to be declared void on the ground of; “non-compliance with the provisions of this act relating to elections, if it appears that the elections was not conducted in accordance with the principles laid down in such provisions and that such non-compliance affected the result of election.”

                        Held: (1) “In U. Ofera v. Returning Officer and Banya [1961] E. A. 455 Sir. A. McKisack, C. J. expressed doubts as to what is meant by “in accordance with the principles laid down”, which phrase occurs in the corresponding section 46 of the Legislative Council (Election) Ordinance of Uganda which is identical with the section quoted above. The section seems to follow section 12(2) of the Representative of the Peoples act 1948 in England which says: - [their Lordships then set out the provisions of the section and continued]….. As pointed out in the Ofera case the law did not specify any principles laid down” should be interpreted as meaning “Substantially in accordance with the Law.” As to non compliance affecting the result of election we are guided by the dictum of Kennedy, J. in the Islington West Case (1901) 17 T. L. R. 210 that:- “An election ought not to be held void by reason of transgressions of the law without any corrupt motive by the returning officer or his subordinates in the conduct of the election where the court is satisfied that the election was, notwithstanding those transgressions, an election was really and in substance conducted under the existing election law, and that he result of the election, that is, the success of the candidate over the other was not and could not have been affected by those transgression.” (2) (Using those guidelines) “The first point is whether an election was really and in substance conducted under the existing laws in Moshi Constituency. There were 176 polling stations in the Constituency. At its highest the petitioner’s case was that thee were twelve stations where the fullest opportunity was not given to voters to cast their votes either through the non-provision of facilities or opening and closing outside the declared hours; that there was a breach of the law in adjourning or fixing a date for the voting at some or other of these twelve stations to a date other than that declared as Election Day. The petitioner did not show what proportion of the electorate was affected, but from the evidence, as it is, it will be safe to conclude that the election was substantially conducted according to law ……… we have to consider the election in the whole Constituency and whether any particular reach of the Laws substantially affected it in that it touched a large proportion or a majority of the electorate and as a consequence the result was affected ……. The majority in this case was 2792; there was no proof of the number of registered voters in the stations questioned and we cannot say that the result was affected having regard to the large majority.” (3) Petition dismissed.