Tibajuka v. Kassano and Attorney General Misc. Civ. Case 11-M-70; 28/6/71: Kisanga Ag. J.

 

Tibajuka v. Kassano and Attorney General Misc. Civ. Case 11-M-70; 28/6/71: Kisanga Ag. J.

The petitioner who had lost the election for a Parliamentary seat for the Kiziba Constituency in West Lake Region wrote to the Registrar of the High Court at Dar es Salaam a document in Swahili which he labeled a petition complaining about the conduct of the elections. The letter was dated 11/11/70. The Registrar respondent by letter instructing the petitioner to prepare grounds of complaint in English, lodge an appeal in the High Court at Mwanza and pay fees there. The letter also stated that the time of limitation was 30 days from the date of the publication of the results in the Official Gazette and that in case of the applicant; time would begin to run from 18/11/70 the date his latter was received at Dar es Salaam. The petitioner then lodged his petition at Mwanza on 17/12/70. The results of the elections having been published I the official Gazette on the 6/11/70 the issue was whether the petition was time barred. It was argued for the applicant that the petition was presented in the first instance in the High Court of Dar es salaam within time on 18/11/70, but that the petitioner had been directed to file an English version of it at Mwanza which he did in the time specified by the direction.

            Held: (1) “….. it would seem that to all intents and purposes that document (the letter of petitioner) is an election petition. It is headed ‘Madai ya uchaguzi mkuu – Petition 1970.’ It is a long document running to five pages …… In those pages the petitioner has on six occasions referred to the document as a petition ……” (2) it is …… apparent that that document (the letter of petitioner to Registrar, High Court of Dar es salaam) was not drawn in the manner prescribed by the Rules. Therefore, the returning of it to the petitioner for amendment was in accordance with the provisions of Rule 7(1) and was therefore sanctioned.” (3) [referring to sub-rule (2) of Rule7] “It would appear on construction of this sub-rule that it is the Court which has power to reject a petition ……. But it would appear that Exhibit ‘A’ (the letter or petitioner to the Registrar, High court of Dar es Salaam) was not in fact returned by the Deputy Registrar …. It would therefore seem that the decision to return Exhibit ‘A’ to the petitioner for amendment

 was taken not by the Deputy Registrar but by the Chief Justice.” (referring to evidence that the Chief Justice had personally directed the Registrar to return the letter to the petitioner.) (4) [referring to the argument that he Registrar could not act under Rule 7 (1) to extend the time to file the petition in Mwanza High Court because to do this would amount to amending the mother Act which would be ultra vires] “I think that Rule 7(1) of the Elections Rules does not conflict with section 130(1) of the Elections Act which sets the limitation period at 30 days after publication of the election result. What that Rule means is that where the petition was, in the first instance filed within 30 days as prescribed by section 130(1) of the mother Act, then the Deputy Registrar may extend the time beyond the 30days limit to enable the petitioner to amend his petition. In this case Exhibit ‘A’ was presented within 30 days as prescribed under the act and the Deputy Registrar was therefore entitled under Ruler 7(1) of the Rules to extend the time during which he petitions should be amended.” (5) “It was contended for both respondents that there were no proceedings at all before the Dar es Salaam Registry which wee, or could have been transferred to the Mwanza Registry. It was further argued that even assuming that Exhibit ‘A’ was a petition such a petition was not properly filed because it was not accompanied by any filing fees and therefore that document had no legal validity whatever (citing Unta Exports Ltd. v. Customs [1970 ] E. A. 648) ………. It would seem that the facts and circumstances of the case cited are distinguishable from those of the instant case ….. the petitioner having  in the first instance presented Exhibit ‘A’ in the Dar es salaam Registry. The Court which gave that order must be deemed to have extended the time for paying the filing fees such as to coincide with the time fixed for presenting the amended petition.” (6) “To my mind the only reasonable inference to be drawn is that the direction given to the petitioner merely asked him to present in the Mwanza Registry an English version of the contents of Exhibit ‘A’ because there is nothing to suggest that the petitioner had fresh or further grounds of complaint other than those contained in Exhibit ‘A’ .” (7) “……….. Where the court transfers proceedings from one Registry to another then any document filed after such transfer shall be filed in the Registry to which the proceedings have been transferred… I am, therefore of the view that the amended petition in this case was properly filed in the Mwanza Registry.” (8) “It is true that when the mended petition was subsequently filed in the Mwanza Registry, the Attorney-General was not made a party then. These Rules (Election Rules) which came into being after that date, however, required that the Attorney-General be made a party to the petition, and acting on the proviso (to Rule280 quoted above the court by its order dated 17.4.71 accordingly. It would seem that provided that the petition was presented before the court within time, the failure to make the Attorney-General a party as required by the Rules was a omission which could be and was effectively Rectified under the proviso Rule 28 by bringing the Attorney-General on the record even after the limitation period had expired.” (9) Objection that petition time barred overruled.