HON. B.P. MRAMBA v LEONS S. NGALAI AND THE ATTORNEY GENERAL 1986 TLR 182 (CA)

HON. B.P. MRAMBA v LEONS S. NGALAI AND THE ATTORNEY GENERAL 1986 TLR 182 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Mustafa JJA, Kisanga JJA

B

6th November, 1986.

CIVIL APPEAL 16 OF 1986

Flynote

Civil Practice and Procedure - Pleadings - Further and better particulars - Whether

the further and better particulars ordered to be furnished were matters of fact or

evidence.

-Headnote

C This matter was before the Court of Appeal for a decision on a preliminary matter.

At the stage of pleadings in an election petition between the appellant and the

respondent the High Court ordered that further and better particulars be furnished

relating to dates and places of alleged illegal campaigns, the precise character of such

campaigns and the alleged D other enticements and corrupt practices. It was argued

in the Court of Appeal whether or not such further and better particulars were

matters of fact or of evidence.

E Held: (i) The further and better particulars ordered by the High Court were not

matters of evidence but matters of fact;

(ii) the particulars were necessary to substantiate the relevant allegations made

in the petition.

Case Information

F Order accordingly.

Cases referred to:

1. Humphries & Co. v The Taylor Drug Co; 39 Ch.D. 693.

2. Zierenberg v Labouchere [1893] 2Q.B. 183.

G 3. Marriot v Chamberlain 17 QBD 154.

M.A. Lakha & Maruma, for the appellant

Mkate, for the respondent

Chenge, for the Attorney-General

[zJDz]Judgment

H Nyalali, C. J. : This is an appeal in a preliminary matter concerning an election

petition pending in the High Court at Arusha in Miscellaneous Civil Cause No. 89 of

1985. The Appellant is one Honourable B.P. Mramba, who is the first Respondent in

the petition pending in the High Court. There are two respondents in this appeal, I

that is, one Leons S. Ngalai, who is

1986 TLR p183

NYALALI CJ, MUSTAFA JJA, KISANGA JJA

A the Petitioner in the case in the High Court, and the Attorney-General, who is

joined as the Second Respondent in the High Court. Before the petition came up for

hearing in the High Court, the first respondent to the petition, who is the present

appellant, applied for the petition to be "struck out as scandalous or tending to

prejudice, embarrass or delay the fair trial of the petition", and asked for costs for the

application. The learned trial judge, the late Maganga, J., in his ruling B agreed to

strike out three grounds in the petition as he was of the view that two of the grounds

were repetitive of other grounds and the third was superfluous. Furthermore he

directed under the provisions of Rule 27(2) of the Elections C (Election Petition)

Rules, 1971 read together with Order 6 Rule 4 of the Civil Procedure Code, 1966

further and better particulars to be given by the petitioner within 14 days. Finally, he

ordered each party to bear his costs. The petitioner complied with the Court's

directions. The first respondent to the petition was however not fully satisfied with

the D outcome of his application, and he sought and obtained leave of the High

Court to appeal to this Court under the provisions of Section 4(1)(c) of the Appellate

Jurisdiction Act, 1979.

The appellant is represented by Mr. Lakha and Maruma learned Advocates, whereas

Mr. Mkatte, learned Advocate E from Mkono & Company, Advocates, has been

briefed to represent the first respondent in the appeal, apparently on behalf of Shayo

Jonathan & Company, Advocates, Mr. Chenge, learned Principal State Attorney,

appeared for the Attorney-General, who is the second respondent in this appeal. F

The petition originally filed in the High Court contains seven grounds of complaint

enumerated in paragraphs 4(1) to 4(7) of the petition. These read as follows:

4. The Petitioner seeks to nullify the election of the first respondent as

the Member of Parliament for the Rombo Constituency on the following grounds,

among others to be argued at the hearing: G

(1) That the first respondent by himself and by agents conducted

secret campaigns before and during the period designated for the official campaign or

purposes of the elections; H

(2) That influential clergymen and priests within the Constituency

campaigned for the first respondent before and during the official campaign in

Churches; I

1986 TLR p184

NYALALI CJ, MUSTAFA JJA, KISANGA JJA

A (3) That the Petitioner was not accorded a fair and equal

opportunity on expounding on the party Manifesto at meetings held in the

Constituency for purposes of the campaign;

(4) That the official campaign meetings were disrupted by

supporters of the first respondent so much so that the B Petitioner could not

expound the Manifesto to potential voters who attended campaign meetings;

(5) Organisers of the official campaign did not take appropriate

measures to stop supporters of the first respondent from disrupting campaign

meetings; C

(6) That the first respondent, before and during campaign meetings,

corruptly made promises, paid money and promised other enticements to potential

voters;

(7) That the first respondent committed certain acts of corruption

before and during the official election campaign. D

It is grounds 4(3), 4(5) and 4(7) that were ordered struck out by the High Court as a

result of the Appellant's preliminary application. With regard to grounds 4(1), 4(2)

and 4(6), the court ordered particulars to be given concerning the period E during

which the alleged illegal campaigns or corrupt practices occurred. It ordered further

that particulars be given concerning the location of the Churches where the illegal

campaigns stated in ground 4(2) took place; and also the location where the official

campaigns were disrupted as alleged in ground 4(4). F

In his Memorandum of Appeal, the appellant lists various grounds of complaint

against the decision of the High Court as follows:

G 1. With regard to ground 4(1) of the Petition the learned High Court

Judge erred in law in failing to order that particulars ought to have been given of:

H (a) The agents who are alleged to have conducted secret campaigns;

(b) The places where secret campaigns were carried out;

(c) The dates on which the secret campaigns were carried out

during the official campaign;

I (d) The precise character of the secret campaigns of which

complaint is made.

1986 TLR p185

NYALALI CJ, MUSTAFA JJA, KISANGA JJA

A 2. In respect of ground 4(2) of the Petition the learned High Court Judge

ought to have ordered particulars to be furnished of

(a) The exact names and addresses of the clergymen;

B (b) The dates on which they conducted campaigns whether on

before or during the official campaign;

(c) The precise character of the secret campaign.

3. With regard to ground 4(6) of the Petition the learned Judge erred in

law in that he failed to order particulars of: C

(a) The dates on which corruption was committed;

(b) Precise character of corruption on each occasion;

(c) The exact promises that were made and to whom;

(d) The amount of money that was paid; D

(e) The other enticements promised.

4. The learned High Court Judge erred in law in holding that each party

should bear its own costs.

E Mr. Mkatte, learned Advocate, has resisted this move mainly on the basis that the

particulars sought in this appeal are matters of evidence and not of facts. He has

further submitted that the giving of these particulars will result in the disclosure of

witnesses whom the appellant could approach and interfere Fwith.

Mr. Chenge for Attorney-General informed this Court that although the Attorney-

General appeared as the 2nd respondent in this appeal, he was fully supporting the

stand taken by the appellant for purposes of this appeal.

G The main issue in this appeal is whether the particulars sought by the appellant

ought to have been ordered by the High Court to be given in the petition.

The legal position concerning the giving of particulars of allegations made in an

election petition case is stated under Order 6 Rules 4 and 5 of the Civil Procedure

Code, 1966 which apply to election petition cases by virtue of the provisions of H

Rule 26 of the Elections (Election Petitions) Rules, 1971. Since Order 6 Rules 4 and 5

are exact reproductions of corresponding provisions of the Indian Civil Procedure

Code, 1908, the commentaries to the Indian Code as well as the decisions by

competent Indian Courts are undoubtedly of great value and assistance to us here in

understanding I

1986 TLR p186

NYALALI CJ, MUSTAFA JJA, KISANGA JJA

A the relevant provisions of our Civil Procedure Code. Similar values attach to

English authorities, since in the final analysis, the Indian Civil Procedure Code, 1908,

was an application of English law to the sub-continent of India.

Under Order 6 Rule 4 of our Civil Procedure Code, it is mandatory to state in the

pleading the particulars necessary to B substantiate any allegation. Under Rule 5,

further and better particulars may be ordered by the court, subject to terms, such as

costs, as may appear just.

In the Commentary to the corresponding Rule 4 of Order 6 of the Indian Civil

Procedure Code, 1908, in Sarkar's Civil C Procedure Code, Eigth Edition, Vol. I, it is

stated, "The object of this rule is to furnish the opposite party with such particulars

regarding the suit as are necessary to enable him to find out what case he has to meet.

It is but right and proper that each party should have any and every particular that

will enable him to know his opponent's case and D prepare himself accordingly, but

he is not entitled to have any information as to the evidence by which they are

intended to be proved..."

Furthermore, the Commentary cites the English case of Humphries & Co. v The

Taylor Drug Co. 39 Ch. D. 693, 695 E where it was stated, "The courts have

uniformly endeavoured to prevent the plaintiff, or the defendant, as the case may be,

from prying into the brief of his opponent or finding out which is to be the evidence

which is to be produced at the trial. On the other hand the Courts have uniformly

said that the plaintiff or the defendant is entitled to be told any and F every

particular which will enable him prepare his case for the trial, so that he may not be

taken by surprise".

Two More English decisions, that is in the case of Zierenberg v Labourchere (1893)

2Q.B. 183: and Marriot v Chamberlain, 17 QBD.154 are cited in support of the

proposition that names of witnesses have to be given if the names G constitute

material facts.

Looking at these authorities, it is apparent that the basis for the rule requiring the

giving of particulars necessary to substantiate allegations made in pleadings is the

need to ensure a fair and expeditious trial. As stated in Halsbury's Laws H of

England, 4th Edition, Vol 36, paragraph 38, "The function of particulars is to carry

into operation the overriding principle that the litigation between the parties, and

particularly the trial, should be conducted fairly, openly and without surprises, and

incidentally to reduce costs".

I The first question which arises is whether the particulars sought are matters of

evidence rather than of facts. It is clear that

1986 TLR p187

NYALALI CJ, MUSTAFA JJA, KISANGA JJA

A the appellant seeks to know, firstly, the names of persons who it is alleged illegally

campaigned for the appellant; secondly, the places and dates where the illegal

campaigns occurred; thirdly the precise character of such illegal campaigns; fourthly,

the dates, character and the amount of money involved in the corrupt practices

allegedly committed B in connection with the election campaign; and finally, the

specific enticements, promises and promises as alleged in the petition.

Obviously the identity of the persons allegedly involved in the illegal campaigns will

have to be established by evidence adduced at the trial. Such identity therefore is not

the same thing as the evidence needed to prove it, but is a fact to be C proved. The

same thing can be said about the places and dates in question, the precise character of

the illegal campaigns, the precise character of the alleged corrupt practices, the

amount of money corruptly paid and the exact corrupt promises and other enticement

allegedly promised. The finding therefore on this question must be that the

particulars sought by the D appellant are not matters of evidence but matters of fact.

The next question that arises is whether these particulars are necessary to substantiate

the relevant allegations made in the petition. With regard to the names of the alleged

agents, Mr. Mkatte conceded that not all the appellant's agents are E implicated in

the illegal campaigns. That being the position, it is only fair that the appellant be

informed who among his many agents are implicated, so that he does not undergo

unnecessary trouble in preparing his defence. The same can be F said about the

unnamed clergymen. As to the location of the alleged illegal campaigns, it is

undisputed that the entire electioneering covered a very wide area in Rombo

Constituency. The petitioner does not allege that all the election campaigns were

illegal. That being the position, it is only fair that the appellant be informed which of

these campaigns are G the subject of the complaints and this can be done by

specifying the places and dates of the illegal campaigns.

As to the exact character of the alleged illegal campaigns, this is obviously a material

or necessary particular, because the H illegality is determined to a large extent by

the nature of the act or conduct complained of. It is not every act or conduct which

constitutes an illegal campaign. So, it is only fair that the appellant should know the

exact character of the alleged illegal campaigns.

In my considered view, the reasons supporting the requirement to specify the dates,

places and character of the alleged I illegal

1986 TLR p188

NYALALI CJ, MUSTAFA JJA, KISANGA JJA

A campaigns, also apply to the requirement to specify the dates and character of the

corrupt practices, promises and enticements mentioned in ground 4(6) of the petition.

It is clear therefore that the High Court ought to have ordered the particulars now

sought by the appellant to be given. B Under section 3(2) of the Appellate

Jurisdiction Act, 1979, this court has, "in addition to any other power, authority and

jurisdiction conferred by this Act, ... the power, authority and jurisdiction vested in

the court from which the appeal is brought". It is proper that this Court orders the

particulars sought by the appellant be given in the petition within a period C to be

fixed by the court. But before doing so, there is the question of costs in the High

Court.

As already mentioned, the High Court directed each party to bear his costs. The

appellant is aggrieved by that decision. Mr. Lakha has submitted that an order for

costs ought to have been made in the appellant's favor, since practically half of D the

grounds were struck off as prayed by the appellant. With due respect to Mr. Lakha,

there is a misconception on his part. One has only to recall the reasons given by

Maganga, J. to realize what I mean. The learned Judge struck off grounds 4(3), 4(5)

and 4(7) for being repetitive or superfluous. In other words, these grounds were

sufficiently covered E in other grounds which were not struck off. Clearly the

appellant did not succeed in getting anything which he had sought in his application.

The appellant has no ground to complain against the order as to costs. But since he

has substantially succeeded on the other matters of this appeal he shall have his costs

in this Court which shall have to be F taxed.

Since my learned brothers Mustafa, J.A. and Kisanga, J.A. agree with me on the

outcome of this appeal, it is hereby directed the appeal be allowed with costs and the

particulars sought by the appellant be given in the petition within fourteen days from

today. G

Appeal allowed.

H Kisanga, J.A. : The background to this appeal and the issue for determination have

been set out in the judgment of my Lord Chief Justice which I have had the advantage

of reading in draft, and so I need not repeat them here.

I agree that the names of the agents who allegedly conducted secret campaigns for the

appellant are matters of fact which I ought to be disclosed at the pleadings stage so as

to enable the appellant

1986 TLR p189

NYALALI CJ, MUSTAFA JJA, KISANGA JJA

A to know his opponent's case, and to prepare his defence accordingly. If the names

of such agents are withheld and are disclosed only at the trial, this would tend to take

the appellant by surprise. It might lead to, among other things, the appellant seeking

adjournment in order to prepare possible defences such as alibi. That would certainly

hamper a fair and expeditious trial. Mr. Mkatte's contention that disclosure of the

names of such agents at the pleadings stage would B or might lead to the appellant

interfering with those agents does not seem to hold much water. It would appear that

if the appellant is minded to interfere with the agents as alleged, he could do so

whether such agents are disclosed at the C pleadings stage or only subsequently;

more so especially because the said agents are his own. In such circumstances

perhaps it is best to take the view that the appellant will consider himself a person of

sufficient integrity who would not allow himself to engage in that kind of thing.

D Likewise, I agree that the dates and places of the alleged illegal campaigns, the

precise character of such campaigns and the alleged other enticements and corrupt

promises are matters of fact which ought to have been ordered by way of further

particulars. In this respect it is pertinent to note that the learned Advocate for the

second respondent, the Attorney-General, unhesitatingly conceded to this view. In

these circumstances, I accordingly agree with the proposed E order by the learned

Chief Justice for further particulars.

On the issue of costs, I also agree with the order, proposed by the Chief Justice and

the reasons assigned thereto, that the order of the High Court that each party bears

his own costs of the application should not be disturbed, but that the F appellant

shall have his costs of this appeal.

Order accordingly.

G Mustafa, J.A. : I have had the opportunity of reading the judgment prepared by the

Chief Justice in draft and I agree with it. I will only say a few words.

There are no precise rules concerning what particulars are to be furnished to the

other party but the general principle is clear. It is that only material facts constituting

a party's case, not the evidence in support thereof, are given. And if H names and

dates and other matters form part of such material facts, then such particulars would

be ordered. What particulars should be ordered would depend on the facts of each

case. As I have said, the principle is clear, but its I application can often be quite

difficult.

1986 TLr p190

A In this case I am satisfied that the particulars asked for by the appellant are

necessary for the fair conduct of his case and to prevent him from being taken by

surprise. I concur in the order proposed by the Chief Justice.

Order accordingly. B

1986 TLR p190

C