1. IN THE COURTOF APPEALOFTANZANIA
ATARUSHA
(ORAM: KIMARO,J.A.,LUANDA,J.A., And MASSATI,J.A.)
CIVIL APPEALNO 47 OF 2012
GODBLESSJONATHAN LEMA .•..........••.•.•••.....•..••........•..•.•.....APPELLANT
VERSUS
MUSSAHAMIS MKANGA
AGNESSGIDION MOLLEL
HAPPY EMANUELKIVUYO
........................................ RESPON DENTS
(Appeal from the decision of the High Court of Tanzania
At Arusha)
(Rwakibarila , J.)
dated 5th
April, 2012
in
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

2. his opponents from other political parties, inter alia, Dr. Batilda 5alha
Burian of Chama cha 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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3. 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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4. 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
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, ]
t" Petitioner Present
~d petitioner} Mr. Mughwai
Id
Petitioner & Mr. ModestAkida
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5. 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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6. 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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7. "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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8. 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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9. 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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10. 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.
10

11. 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
11

12. 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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13. 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:-
13

14. ''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.
DATED at DAR ES SALAAM this 19th
day of December, 2012
N.P.KIMARO
JUSTICE OF APPEAL
B. M. LUANDA
JUSTICE OF APPEAL
S. A. MASSATI
JUSTICE 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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