IN THE COURT OF APPEAL OF TANZANIA

ATARUSHA

(CORAM: MJASIRI, J.A., MUSSA, J.A., And JUMA, J.A.)

CIVIL APPEAL NO. 129 OF 2016

ONESMO NANGOLE ........................................................ APPELLANT
VERSUS
DR. STERVEN LEMOMO KIRUSWA .......•..........••...•.••••••• RESPONDENT
(Appeal from the Judgment and Decree of the High Court of
Tanzania at Arusha)
(Mwangesi, J.)

dated the 29th day of June, 2016

in
Misc. Civil Cause No. 36 of 2015

RULING OF THE COURT

13th & 24th October, 2016

MUSSA, J.A.:

In the general elections that were held on the 25th day of October,

2015 the appellant and the respondent, among others, contested the

parliamentary seat for Longido constituency in Arusha Region. The appellant

and the respondent contested the election as, respectively, candidates of

Chama cha Demokrasia na Maendeleo (CHADEMA) and Chama cha

Mapinduzi (CCM). The other contestants in the race were, namely, Julius

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Parteyie Syokino and Lucas Yohana Oleng'iria who vied for the seat as

candidates of Alliance for Change and Transparency (ACT) and Civil United

Front (CUF), respectively.

At the end of the exercise, election results were pronounced by the

returning officer according to which appellant polled 20,076 votes; the

respondent 19,352 votes; the CUF candidate 307 votes and; the ACT

candidate 253 votes. The appellant was, therefore, declared the winner with

a majority of 724 votes over his nearest rival, the respondent.

Dissatisfied, the respondent petitioned the High Court and sought to

avoid the elections results upon a variety of points of grievance pertaining

to indecent statements allegedly made by the appellant during the election

campaigns which were calculated to obtain advantage over the respondent;

the late opening of some of the polling stations; illegal voting by non-citizens;

illegal practice or intimidation by the appellant and/or his agents and; chaotic

instances at the tallying room as well as the slotting of improper forms during

the tallying process. In the petition, the appellant was impleaded as the first

respondent, whereas the Attorney General and the Returning Officer for the

constituency were captioned as the second and third respondents,

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respectively. Thus, with a hindsight of the grounds of grievance, at the

outset of the hearing, the following issues were agreed by the parties and

formulated by the trial Court: -

1. Whether in the campaign rallies held during the

parliamentary election campaigns for the constituency of
Longido in the year 201~ the first respondent by himself
or through his agents did make some statements
calculated to obtain advantage over the petitioner on the
basis of Kiswahili language and Maasai cultural and social
attitudes on the dates, time and at places, named under
paragraph 8 of the petition;
2. Whether there were people eligible for voting who did not
vote at the polling stations of Orpukel, Engosokwan,
Loosoito, Naadare, King'una and Sakon because the
polling stations were opened late by the election presiding
officers. And if the answer to the second issue above is
in the affirmative, then whether the consequence thereof
was in the detriment of the petitioner;
3. Whether the presiding officers and militiamen stationed
at the polling stations of Ngereyani, Eleng'ata, Dapash
and Kamwanga did influence the electorate to vote for the
candidate sponsored by CHADEMA political party;

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4. Whether the first respondent did instigate
Chaos/altercation in the tallying room at Longido tallying
cente0 when the exercise was in progress;
5. If the answer in the fourth issue above is in the
affirmative, whether as a result of the chaos/altercation
the Returning Office0 who happens to be the third
respondent, did order the petitioner and his agents as well
as the other candidates, with their agents, to get out of
the tallying room;
6. Whether some of the figures of the results of the polling
stations appearing in forms 218 when compared to the
figures contained in the spreadsheet, which were later
transferred in form 248 are fictitious;
7. Whether the motor vehicles which have been listed under
paragraph 9 (ixJ (b)1 (c)1 ( e) and (f) of the petition
which were alleged to belong to avid supporters of
CHADEMA political party, were used by the third
respondent to transport ballot boxes from the polling
stations to the tallying center at Longido;
8. Whether the motor vehicles which have been listed under
paragraph 9 (ix) (hJ (i) and (j) which are said to be
owned by avid supporters of CHADEMA political party,
were used to perform the task of escorting ballot boxes
from the polling stations to the tallying center at Longido;

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 9. Whether there were any Kenyan Nationals who did vote
at the polling stations of Namanga/ Kima Kouwa and
Kamwanga in the parliamentary general election of
Tanzania which was held in the year 201~·
10. Whether the anomalies and/or irregularities which have
been pointed out in the issues named above/ if
established, did affect the parliamentary results for the
constituency of Longido/
11. To what reliefs each of the parties to this petition are
entitled.

At the hearing, the trial Court adopted two modes of receiving

evidence. The first mode involved the conventional method of receiving

evidence through the direct oral testimony of a witness followed by his/her

cross-examination by the adversary party. In the second mode, the court

received the evidence of a witness through his/her sworn/affirmed affidavit

which was followed by cross-examination of the witness by the adversary

party. It is noteworthy that the latter mode is a wavebrain of National

Elections (Election Petitions) (Amendment) Rules, 2012 which is comprised

in Government Notice No 106 of 2012.

Thus, more particularly, the respondent gave his testimony through

the conventional method but the rest of his twenty seven (27) witnesses

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gave affidavital evidence. In addition the respondent produced upon

evidence several documentary exhibits, a flash drive, three still pictures and

a cellular phone. For their part, all the three respondents and their

witnesses, including the appellant, gave testimony through affidavits. The

appellant featured nine (9) witnesses to support his account, whereas the

Attorney general and the Returning Officer countered the petition through

the affidavital testimonies of four witnesses.

In the course of the trial, the respondent abandoned issue No. 3 and,

perhaps, it is worth appraising at this stage that in its final deliberations, the

trial Court answered issues Nos. 1, 2, 7, 8 and 9 in the negative. Conversely,

the court answered issues Nos. 4, 5 and 6 affirmatively and, on account of

the positive findings on those issues, the presiding Judge enumerated the

established irregularities thus;

"Firsl that there was chaos in the tallying room which did
move the Returning officer to require the candidates and
their agents to get out of the tallying room. Secondly, that
the tallying exercise of the votes in the tallying room was
made in the absence of the petitioner and agents for no
apparent reasons.

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 Thir~ that the declaration of the first respondent to be

the winner for the parliamentary election for the

constituency of Longido was made by the Returning
officer in the absence of the petitioner after he had been
requested to get out of the tallying room.

Fourth/ that there were irregularities occasioned in the

course of posting the results from forms 218 into the
spreadsheet which was used as the working program and
ultimately in form 248.

Fifth/ that the whereabouts of the original forms 218 for

the polling stations of Kwenia/ Elang'ata Engopito/
Irimanya and Lumbwa Madukani was not made known
and instead thereof there were slotted in other forms in
the process of tallying the votes. "

In the upshot, the trial court concluded thus:-

"When it comes to the question of chaos/ conclusion of

taking votes and declaring the winner in the absence of a
candidate for no justifiable reason as well a slotting
improper forms in the tallying process cannot be said to
have been occasioned by human error. To the contrary I
consider the act of slotting in improper forms 218 in the
tallying process to have been aimed at cheating the result
and thereby diverting the choices of the electorate .....

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 To that end, I answer the tenth issue in the affirmative
that the irregularities which were occasioned in the
election at issue at the tallying room, to be precise, did
fundamentally affect the result of the election. As a
result,. I hereby nullify the election which was held in
October, 2015 for the constituency of Longido and direct
that a by-election be conducted to enable the electorate
to freely and fairly exercise their right of electing a
representative of their choice. "

In the end result, the trial court issued a certificate to that effect to

the Director of the National Election Commission in terms of section 113 (1)

of the National Election Act, Chapter 343 of the Revised Edition 2015 (NEA).

The appellant is aggrieved and has lodged a memorandum of appeal which

is comprised of six points of grievance, namely:-

1. That the learned trial judge erred in law in

failing to decide whether what transpired in
the tallying room amounted to chaos or was
merely a squabble as he put it
2. That the learned trial judge erred in law in
failing to hold that the respondent deliberately
and willfully absented himself, from the
tallying room during the declaration of the
results.

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3. That the learned trial judge erred on the facts
in holding that the "circumstance at the
tallying room in the matter at hand was
clearly not friendly so as to give results
which did indeed reflect the wishes and
real conscience of the electorate of
Longido constituency."
4. That the learned trial judge grossly
misdirected himself in describing "as other
(five) irregularities" matters which he
ultimately held to be mere circumstances that
led the Returning Officer (RW13} to declare
the results in the absence of the respondent
and his agents.
5. That the learned trial judge erred in law in
failing to draw an adverse inference on the
respondent's refusal to state the outcome of
the tallying done by his team using form 218
from all 175 polling stations.
6. That the learned trial judge erred in law in
holding that the irregularities that happened
at the tallying room did fundamentally affect
the result of the election even after holding
that the appellant defeated the respondent by
a margin of 397 of the undisputed votes.

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 At the foot of the memorandum of appeal, the appellant proposes to

ask the Court to allow the appeal in its entirety and set aside the judgment

and decree of the trial court and substitute for it the following orders:-

"( a) A declaration that the appellant was lawfully and

validly elected as Member of Parliament for the
Longido constituency in the 2015 General
Elections;
(b) An order condemning the respondent to costs of
the appeal and the trial in the High Court, and;
(c) The cancellation of the High Court's order
directing the issuance of the certificate to the
Director of Elections informing him of the
nullification of the Parliamentary Election for
Longido Constituency in terms of section 113 (1)
of the National Elections Acl Cap. 343 R.£
2015.,,

For his part, the respondent initially greeted the memorandum of

appeal with a Notice of cross-appeal whose details we need not recite on

account of what we will shortly unfold. Incidentally, the Notice of cross-

appeal was objected to by the appellant for being belatedly served on him.

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In addition, the respondent enjoined a Notice of preliminary objection which

goes thus:-

"TAKE NOTICE that on the hearing of this appeal, the

above-named respondent will raise a preliminary point of
law to the effect that the Appeal is incompetent and ought
to be struck out with costs in that although the L7d and
Jd Respondents in the Petition were served with the
Notice of appeal they have not been impleaded in the
appeal without the Appellant having sought for and given
directions as to whether they should be impleaded or
not."

At the hearing before us, the appellant was represented by Messrs

Method Kimomogoro and John Materu, learned Advocates, whereas the

respondent had the services of three learned Advocates, namely, Dr.

Masumbuko Lamwai, Mr. Daudi Haraka and Mr. Edmund Ngemela. We

impressed upon the learned counsels to argue both the preliminary points of

objection and the appeal and that our decision will be comprised in the final

judgment depending on the outcome of the raised preliminary points of

objection. As it turned out, Dr. Lamwai readily conceded to the appellant's

preliminary point of objection with respect to the Notice of Cross-appeal and,

accordingly, the same was struck out for incompetence.

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 Coming to the preliminary point of objection raised by his client, Dr.

Lamwai reminded us that in the petition which was presented before the trial

court, the appellant herein, the Attorney General and the Returning Officer

for Longido constituency were impleaded as respondents. The impleading

of the Attorney General and the Returning Officer, he submitted, was

necessitated by the provisions of Rule 6 of the National Elections (Election

Petitions) Rules, 2010 (the Election Petition Rules) which stipulates:-

"6 - (1) Except for a petition presented by the

Attorney General, in every petition the Attorney General
shall be made a party thereto as the respondent.

(2) Where a petition alleges any misconduct or

contravention of any provisions of any written law by the
successful candidate or by any person acting for or on
behalf of the successful candidate, the successful
candidate shall be made a party to the petition in addition
to the Attorney General.

(3) Where a petition alleges any misconduct or

contravention of any provisions of the Act or any written
law by the election officer, such election officer shall be
made a party to the petition in addition to the Attorney
General.

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 (4) N/A .. ...... .

The learned counsel for the respondent then strenuously contended

that much as the appellant presently seeks to deplore the manner in which

the election was conducted, both the Attorney General and the Returning

Officer are necessary parties who should have been impleaded in the

memorandum and record of appeal. Dr. Lamwai further submitted that the

grounds of appeal relate to the irregularities that were committed by the

Returning Officer and, in that regard, both the Attorney General and the

Returning Officer will be directly affected by the outcome of the appeal. To

that extent, he submitted, they ought to have been impleaded as necessary

parties before any adverse order is made against them. In sum, Dr. Lamwai

urged that without impleading the Attorney General and the Returning

Officer, the appeal, as it stands, is incomplete and rendered incompetent.

He prayed that the same be struck out with costs.

In reply, Mr. Kimomogoro, contended that the preliminary point of

objection is baseless much as Rule 6 of the Election Petitions Rules only

governs petitions lodged before the High Court. There is no corresponding

requirement, he said, with respect to election appeals before this Court. The

learned counsel for the appellant submitted that all what was required of the

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appellant was to serve copies of the Notice of Appeal on all persons who

seemed to him to be directly affected by the appeal in terms of Rule 84 (1)

of the Tanzania Court of Appeal Rules, 2009 (the Rules). According to Mr.

Kimomogoro the appellant actually served a Notice of Appeal on both the

Attorney General and the Returning Officer on the terms of Rule 84 (1) of

the Rules; just as they also served them with a memorandum and record of

appeal in terms of Rule 97 (2) of the Rules. To that end, counsel for the

appellant contended, the appellant complied with all the requirements

comprised in the Rules and that the preliminary point of objection should be

overruled with costs.

In a brief rejoinder, Dr. Lamwai reiterated his position that it is not

enough to only serve the Attorney General and the Returning Officer with

the memorandum and the record of appeal; rather, both of them should

have been impleaded and joined as necessary parties to enable the Court to

give an effectual decision.

Having heard the rival learned arguments on the preliminary point of

objection, we are sincerely grateful for the lucid submissions from both

counsels. To begin with, we wish to express at once that, from the findings

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of the trial court, the nullification of the election results almost entirely arose

from irregularities which were allegedly occasioned by the Returning Officer.

Likewise, the mainstay of the memorandum of appeal is to fault the findings

of the trial judge with respect to what happened in the tallying room, his

findings on the other irregularities which were allegedly occasioned by the

returning officer and the subsequent pronouncement of the election result

by the Returning Officer which the judge found was done in the absence of

the respondent for no justifiable cause. The findings of the trial court, so to

speak, almost invariably relate to the mishandling of the tallying procedure

by the Returning Officer.

It is, however noteworthy that, in his testimony during the trial, the

Returning Officer refuted the claim of there being any chaos in the tallying

room just as he denied the detail about ordering the candidates and their

agents out of the tallying room. Incidentally, we further note, his account

was fervently defended by the Attorney General. To say the least, if we

were to deliberate this appeal, certainly, we would be called to decide this

detail and the alleged irregularities one way or the other and, perhaps, if

need be, adversely to both the Attorney General and the Returning Officer.

It is beyond question that whatever finding we arrive at would impact on the

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Returning Officer and, indeed, the Attorney General in his capacity as

custodian of the legal affairs of the government. Thus, if we were to

deliberate the appeal in their absence, the Court would lend itself in the

mischief of condemning both the Attorney General and the Returning Officer

without affording them the opportunity of being heard. That the appellant

was minded to serve them with the Notice of appeal as well as the

memorandum and record of appeal is, to us, clear indication that he was

aware that the Attorney General and the Returning Officer are likely to be

affected by the outcome of the appeal.

As we have hinted upon, if we decided to deliberate this appeal in their

absence, we will offend the audi alteram partem rule of natural justice. In

this regard, we pay full homage to obtain guidance from the unreported

Civil Appeal No. 45 of 2000 - Mbeya - Rukwa Auto Parts and Transport

Ltd Vs. Jestina George Mwakyoma where it was observed:-

"In this country, natural justice is not merely a principle

of common law; it has become a fundamental
constitutional right. Article 13 (6) (a) includes the right
to be heard amongst the attributes of the equality before
the law and stipulates in part;

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 (a) Wakati haki na wajibu wa mtu yeyote
vinahitaji kufanyiwa uamuzi na mahakama au
chombo kinginecho kinachohusika, basi mtu huyo
atakuwa na haki ya kupewa fursa ya kusikilizwa
kikamilifu. "

In yet another unreported Civil Application No. 33 of 2002 - Abbas

Sherally and Another Vs. Abdul Fazalboy, the Court went further and

observed:-

"The right of a party to be heard before adverse action or

decision is taken against such party has been stated and
emphasized by the courts in numerous decisions. That
right is so basic that a decision which is arrived at in
violation of it will be nullified, even if the same decision
would have been reached had the party been heard,
because the violation is considered to be a breach of
natural justice. "

Thus, consistent with the constitutional right to be heard as well as

settled law, we are of the firm view that, in the circumstances of this case,

it will be in the best interests of justice if both the Attorney General and the

Returning Officer are impleaded and joined as necessary parties to the

appeal before any deliberations are taken by the Court, adverse or

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otherwise. We take this as a matter of serious concern, more particularly,

since the mishandling of the electoral process by an election officer, if

established, could lead to far reaching consequences. In, for instance, the

unreported High Court Civil Application No. 98 of 2010 - Fred Mpendazoe

Vs. The Attorney General and Two others, which was referred to us by

Mr. Kimomogoro, it was observed as follows:-

"The law, through sections 89A, 898 and 89C of the Act
takes a very serious view against misconduct committed
by election officers. Section 89C defines these election
officers as including the Regional Election Coordinator,
Returning Officer, AROs-Ward, AROs-Constituency,
Presiding Officer and Polling Assistant. If proved to the
satisfaction of this court, misconduct like tampering with
election results forms can lead to certification to the
Attorney General that an election officer concerned has
mishandled an electoral process within the meaning
ascribed by section 89A (2) and (3) ofthe Act ... Similarly
section 898 leaves the Government with an option to
recover any loss, costs or damages it incurred as a result
of misconduct by an election officer. "

Granted that the Rules do not have a corresponding requirement of

the like of Rule 6 of the Election Petition Rules: But, we are constrained to

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give a direction under Rule 4 (2) (a) to the effect that, in a situation such as

the present, where the nullification of the results of an election arose from

irregularities or non-compliances allegedly occasioned by an election officer,

an appellant is implicitly obliged to implead and join as necessary parties

both the Attorney General and the Returning Officer. The direction, in our

view, will be in accord with, and would translate into practical terms the

constitutional right to be heard.

We are, however, not persuaded by Dr. Lamwai's urge that the non-

joinder of the Attorney General and the Returning Officer in the matter

presently before us has the effect of rendering the appeal incompetent. We

cannot read any incompetence in the appeal and, accordingly, we refrain

from accepting the urge and, instead, we give leave and allow the appellant

to amend the Notice of Appeal as well as the memorandum and record of

appeal in terms of Rule 111 of the Rules so as to implead and join as

necessary parties, both the Attorney General and the Retuning Officer. The

amended version of the documents should be lodged within twenty one days

(21) from the date of the delivery of this Ruling .

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 To this end, the preliminary point of objection partly succeeds and fails.

Costs to abide by the result in the main cause and, having ordered an

amendment, needless to have to belabor on the merits of the appeal. In the

meantime, the hearing of the appeal is adjourned to a date to be fixed.

Order accordingly.

DATED at ARUSHA this 2Qth day of October, 2016.

S. MJASIRI
JUSTICE OF APPEAL

K. M. MUSSA
JUSTICE OF APPEAL

I. H. JUMA
JUSTICE OF APPEAL

I certify that this is a true COPY.. of the original.

-==t \== : '\)i\'\f0

J. R. KAHYO~
:0

REGISTRAR
COURT OF APPEAL
),.. .

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