IN THE COURTOFAPPEALOFTANZANIAATARUSHA

(ORAM: KIMARO,J.A.,LUANDA,J.A., And MASSATI,J.A.)

CIVIL APPEALNO47 OF 2012

GODBLESSJONATHAN LEMA .•..........••.•.•••.....•..••........•..•.•.....APPELLANT

VERSUS

MUSSAHAMIS MKANGAAGNESSGIDION MOLLELHAPPYEMANUELKIVUYO

........................................ RESPON DENTS

(Appeal from the decision of the High Court of TanzaniaAt Arusha)

(Rwakibarila , J.)

dated 5th April, 2012in

Miscellaneous Civil Case No. 13 of 2010

JUDGMENT OF THE COURT

4TH & 2pt December, 2012

LUANDA, JA:

In October, 2010 our country witnessed yet another multiparty General

Election. In Arusha constituency, Mr. Godbless Jonathan Lema

(henceforth the appellant) of Chama cha Demokrasia na Maendeleo

(henceforth CHADEMA) emerged a victor after he scooped 56,196 against

his opponents from other political parties, inter alia, Dr. Batilda 5alha

Burian of Chamacha Mapinduzi (hence forth CCM)who got 37,460.

The above named respondents who according to the petition were

referred as registered voters and who were members of the CCM were

dissatisfied with the results. So, they filed an election petition in the High

Court of Tanzania at Arusha to challenge the same and prayed that the

results be nullified.

Their main ground of complaint raised in the petition is that the

appellant uttered uncivil words during the campaign of which their total

sum were scandalous and discriminatory with a view to exploiting religion,

sex and residence differences, as a result of which the electors refrained

from voting for Dr. Burian. The respondent's case had fourteen witnesses

including the petitioners; whereas the appellant's case had four inclusive

the appellant. The Hon Attorney General who was joined as a necessary

party did not call any witness.

After hearing the parties and submissions made by their respect

learned counsel, the trial learned judge found out that the appellant had

committed some of the acts complained of. He accordingly avoided the

election with costs to the respondents and directed the District Registrar of

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the High Court, Arusha Registry to inform the Director of Election in terms

of section 114(1) - (7) of the National ElectionAct, Cap. 343 RE.2002 (the

Act) so that sanction be imposed upon the appellant like disqualification

from voting at an election. The appellant was aggrieved, hence this

appeal.

In this appeal, Mr. Alute Mughwai and Mr. Moldest Akida learned

counsel who also appeared in the High Court, advocated for the

respondents; whereas Mr. Method Kimomogoro and Mr. Tundu Lissu

learned counsel who also represented the appellant in the High Court

appeared for the appellant. The Hon Attorney Generalwas represented by

Mr. Timon vitalls learned PrincipalState Attorney who also appeared in the

High Court.

The appellant has raised eighteen grounds in his memorandum of

appeal. However having carefully read the record of appeal with the

memorandum of appeal we propose and indeed we find it proper to

resolve first the issue of standing of the respondents in bringing this

petition as the issue did not come out very clearly. This is because the

question of standing is fundamental in instituting any action in a court of

law.

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We are of the settled new that since the question of standing is of

paramount importance in these proceedingsand this being the first appeal

and it being a point of law, we are of the firm view that we are entitled to

go through the record and make a finding as to whether the petitioners

had the locus standi to institute the petition. This question was raised in

the trial court by both Mr. Vitalis and Mr. Kimomogoro as a preliminary

objection. In answer Mr. Alute relied on 5.111(1) (a) of the Act that the

respondentswere registered voters.

Paragraph2 of the petition reads.

2. The petitioners are registered voters and

were entitled to vote at the election to which this

petition relates. Copiesof their voter's cards are

annexed hereto and marked ''A(l-J)'' collectively.

It is true that Mr. Alute annexed the cards. Indeed Mr. Alute

attempted to establish, that the respondents were registered voters. This

is what transpired in court:-

Date 06/09/2011

Coram:A. K. Mujulizi, ]

t" Petitioner Present

~d petitioner} Mr. Mughwai

Id Petitioner & Mr. ModestAkida

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For the Petitioners: Mr. Mughwai &

Modest Akida

i" Respondent: Mr. Kimomogoro,

Advocate

;rd Respondent: Mr. VitalisSenior State

Attorney

For the ;rd respondent: Mr. Masanja, State

Attorney

8/COlivia

Mr. Mnghwai, Advocate

Presents the original voters cards of the

petitioners.

1. Mr. MussaHamisi Mkanga

- Shule ya Msingi Sombetini 8 Na 13/892558

dated 19/02/2005

2. Agnes Gidion Mollel Ofisi ya Kata 8-11307593

dated 22/03/2005

3. Happy Emmanuel Kivuyo Ofisi ya Mtendaji

Kata C No. 13248332 dated 20/02/2005

Order: Received for verification and are hereby

returned to the holders respectively

SgQ: A.K. Mujulizi

Judge

06/09/2011.

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Unfortunately those cards were not received in evidence. Mujulizi, J

was satisfied on the strength of that presentation that the respondents

were registered voters and in terms of section 111(1)(a) of the Act and the

decision of the High Court in William Bakari & Another V Chediel

Yohane Mgonja & The Attorney General in Mise. Civil Cause No. 84 of

1980 which decision was based on section 126(a) of the repealed Election

Act, 1970 which is pari materia with section 111(1)(a) of the Act, overruled

the objection. In Mgonja case the High Court held that once it is

established that a petitioner is a registered voter then he has the right to

petition and challenge the election results. In other words a registered

voter has an absolute right to bring an election petition even where his

rights as a voter were not violated in any way.

But in our case there is no evidence on the record to indicate that the

respondents were registered voters. The record contains annextures. It is

trite law that annextures are not evidence for the court of law to act and

rely upon.

In Sabry Hafidhi Khalfan V Zanzibar Telecom Ltd (Zantel)

Zanzibar Civil Appeal No. 47 of 2009 (unreported) the Court said :-

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"We wish to point out that annextures attached along

with either the plaint or written statement of defence

are not evidence. Probably it is worth mentioning at this

juncture to say the purpose of annexing documents in

the pleadings. The whole purpose of annexing

documents either to the plaint or to the written

statement of defence is to enable the other party to the

suit to know the case he is going to face. The idea

behind is to do away with surprises. But annextures are

not evidence".

So, what are contained or annexed in the petition should not be treated as

evidence.

Having stated the position of annextures attached along with pleadings,

but in law who is a registered voter. The answer is provided under

sections 13, 19 and 20 of the Act read together. A registered voter is any

Tanzanian Citizen who is 18 years and above and who is not disqualified in

any way. Upon an application of such person for registration and satisfying

the Returning officer or any other officer duly assigned to register in a

particular area, the said officer shall issue a certificate of registration to

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such person. That person after having been so registered and issued with

a certificate becomes a registered voter. So, in law a certificate of

registration duly issued by the aforesaid officer is evidence of a registered

voter. So the certificate of registration is prima facie evidence that the

bearer thereof is a registered voter.

In our case, we have shown that Mr. Alute attempted to establish that

the respondents were registered voters by presenting their certificates to

the trial judge. In the first place, the record does not indicate as to why

Mr. Alute himself "presented" the certificate to the trial judge. Second,

even the procedure of "presenting" the certificates is contrary to the well

known procedure of tendering documents in courts. Ordinarily such

evidence must come direct and tendered by the owner of such document.

We wish to point out that generally speaking the EvidenceAct is intended

to provide guidance on how and what evidence can be taken in judicial

proceedings in order to prevent or at least minimize the chances of a

miscarriage of justice. Without following the basic safeguards in the law of

evidence, a trial court can easily deteriorate into a Kangaroo Court (See

Herman Henjewele VR Criminal Appeal No. 164/2005 CAT

(unreported). Furthermore, the record does not show the appellant to

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have been given opportunity to say something in connection with the

"presentation" of the certificates in question as per the well established

practice. To crown it all the same were returned to Mr. Alute on the same

day. So, then they are not part and parcel of the record, notwithstanding

the manner in which they were presented. In view of the legal flaws

shown above, we are of the settled mind that there is no evidence on the

record to show that the respondents were registered voters for purpose of

section 111(1) (a) of the Act.

Assuming for argument sake that the respondents were registered

voters, did they have locus standi to petition and challenge the election

basing on the alleged uncivil words the appellant is said to have uttered

during the campaign period.?

We have shown above that Mr. Alute supported the finding of

Mujulizi, J based on the decision of Mgonja case. On the other hand

Mr. Vitalis, Mr. Kimomogoro and Mr. Tundu Lissu strongly opposed the

finding of High Court. They are saying that is not the law. The law is that

since this is not a public interest litigation brought under Article 26(2) of

the Constitution, then the well established rule of locus standi that one has

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to show his rights or interests to have been interfered with and the injury

suffered must be shown. So a voter has no right to petition and challenge

the election results where his rights were not infringed.

Section 111(1) (a) of the Act reads:-

111(1) An election petition may be presented by one or

more of the following persons, namely-:

(a) a person who lawfully voted or had a right

to vote at the election to which the election

petition relates.

First, we wish to state categorically that the rule of locus standi is

governed by common law. The rule is applicable in our courts by virtue of

section 2(3) of the current Judicature and Application of LawsAct, Cap 358

RE 2002 subject to modification to suit the local conditions (See Lujuna

Shubi Ballonzi, Senior V Registered Trustees of Chama cha

Mapinduzi [1996] TLR 203). Currently the rule in Tanzania has been

extended to cater for matters of public interest under Article 26(2) of the

Constitution then a citizen of this country has locus standi to sue for the

benefit of the society. And the test whether a litigation is of public interest

depends on the nature of the relief sought and its effect. In Rev.

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Christopher Mtikila V Attorney General [1995J TLR 31 Lugakingira, J

(as he was then) observed what a public interest litigation is. He said:-

II In matters of public interest litigation this court

will not deny standing to a genuine and bona fide

litigant even where he has no personal interest in

the matter."

He went on the say :-

II It is not the type of litigation which meant to

satisfy the curiosity of the people, but it is a

litigation which is instituted with a desire that the

court would be able to give effective relief to the

whole or a section of the society. "

In common law in order for one to succeed in an action, he must not only

establish that his rights or interests were interfered with but must also

show the injury he had suffered above the rest.

In The Attorney General v The Malawi Congress Party and

another, Civil Appeal No. 22 of 1996, the Malawian Supreme Court of

Appeal provided the test for locus standi. It said:-

II Locus Standi is a jurisdictional issue. It is a rule

of equity that a person cannot maintain a suit or

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action unless he has an interest in the subject of

lt; that is to say unless he stands in a sufficient

close relation to it so as to give a right which

requires prosecution or infringement of which he

brings the action"

In our case the issue for consideration and decision is whether or not a

registered voter under section 111(1)(a) of the Act has an absolute right to

challenge the election result even where his rights were not infringed. We

have given a deep thought to the matter. First, we wish to point out that

election petitions are not in our view public interest litigation though they

are matters of great public importance. This is because the relief sought

would not benefit the entire society as a whole. Second the petition was

not brought under Article 26(2) of the Constitution which permits any

person to bring a public interest litigation. The Article provides:-

26(2) Every person is entitled, subject to the

procedure provided for by the law, to institute

proceedings for the protection of the constitution

and legality.

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Since an election petition is not a public interest litigation we do not read

the section to have done away with the rule of locus standi. We think in

our view, section 111(1)(a) of the Act give rights to registered voter whose

rights to vote have been interfered with or violated. In case violation

effects the candidate it is for the candidate to challenge the election

because his rights were violated. To give the section a broader

interpretation that he has an absolute right to petition even where his

rights were not interfered with is to defeat the well established principle of

law of locus standi and indeed it does not sound well. We are not

prepared to do so. We entirely agree with Mr. Vitalis, Mr. Kimogomoro and

Mr. Lissu on the issue of standing of a registered voter. In view of the

above finding we are of the settled mind that Mgonja Case was wrongly

decided on the question of locus standi. This is because we don't think

that the legislature intended to say for example any voter irrespective of

the place where he had registered and voted can challenge any election

results in any constituency in the country. That is absurd. The statute

must be construed to make it effective and workable.

In Grey v Pearson(1857) 6 HLC61 it was held:-

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''If the grammatical construction leads to some

absurdity or some repugnance or inconsistency

with the rest of the instrument, it may be

departed from so as to avoid absurdity and

inconsistency."

Having taken this view, we are of the settled mind that the respondents

had no locus standi in the election petition they filed in the High Court.

That alone is enough to disposeof the appeal. We find the appeal to have

merit. The appeal succeeds and we set aside the judgment, decree and

order of the High Court. We declare the appellant Member of Parliament

for Arusha constituency. We allow the appeal with costs to the appellant

and we certify costs to two counsel.

DATED at DAR ES SALAAM this 19th day of December, 2012

N.P.KIMAROJUSTICE OF APPEAL

B. M. LUANDAJUSTICE OF APPEAL

S. A. MASSATIJUSTICE OF APPEAL

I certify that this is a true copy of the origin.

=.>:··:-::-'"'o:~:~':~\. E.Y. MKWIZU,0· 'DE",~UTYREGISTRAR

° \ ° ° CO~RT OF APPEAL

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