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| Lema na Lissu |
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 Salha 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 the High Court, Arusha Registry to inform the Director of Election in terms of section 114(1) - (7) of the National Election Act, 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 Principal State 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.
We are of the settled new that since the question of standing is of paramount importance in these proceedings and 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 respondents were 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, J
1st Petitioner Present
2nd petitioner + 3rd Petitioner Mr. Mughwai & Mr. Modest Akida
For the Petitioners: Mr. Mughwai & Modest Akida
1st Respondent: Mr. Kimomogoro, Advocate
2nd Respondent: Mr. VitalisSenior State Attorney
For the 2nd respondent: Mr. Masanja, State Attorney
B/C Olivia
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
Sgd: A.K. Mujulizi
Judge
06/09/2011.
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 :-
"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 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 Evidence Act 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 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 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 Laws Act, 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. Christopher Mtikila V Attorney General [1995] TLR 31 Lugakingira, J (as he was then) observed what a public interest litigation is. He said:-
"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 :-
"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:-
"Locus Standi is a jurisdictional issue. It is a rule of equity that a person cannot maintain a suit or 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.
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:-
"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 dispose of 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.
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