THE COURT OF APPEALS PECCADILOES IN LEMAS JUDGMENT: ANOTHER BACKKDROP LETHARGY IN TANZANIA JURISPRUDENCE.

By Kaunda Paul, It is now barely 28 days since the court of Appeal of Tanzania (the highest court of the land) declared that, Hon Gobless Jonathan Lema to be a justified member of parliament for Arusha constituency after he was earlier unseated by the High Court of Tanzania, Arusha Registry for what was termed uttering uncivil words during campaigning which were calculated to be scandalous and discriminatory. This decision by the highest court of the land caused a blend of hullabaloo and celebration across the country. To some section of the society, they applauded the court of Appeal for creating new precedent that muzzled noninfringed voters to challenge election results, while some section of the rascal, contrarian intellectuals and academicians harrumphed to the court of appeal for not living within her jurisprudence. I hasten to say that, I belong to this triad. From the wording and instrumentality of the reasoning of the court of appeal, one can mutter up with this conclusion: That, the court of appeal is a die hard fanatic of technicalities and it has gloved itself to be the judicial-legislator. It goes without saying that, the court of appeal from the functionalist point of view it is supposed to be the headlight in Tanzania jurisprudence One of the major contention/premise in which the court of appeal rumbled with in Lemas case is the legitimacy/legality of the respondents locus standi. Being lured and convinced by the voiced advocate of the appellant, Mr Tundu Lissu Esq., the court of appeal reasoned out among others that, since the record of proceedings does not show whether the respondents were registered voters pursuant to section 13, 19, 20 and 111(a) of the Election Act read together, the respondents (MUSSA HAMIS MKANGA, AGNES GIDION MOLLEL and HAPPY EMANUEL KIVUYO) had no locus standi to challenge the election results. The Court of Appeal further held that the respondents voting registration certificates are contained in the pleadings which are not part of the evidence. In support of this reasoning, the presiding judges sought refuge from their fellow justices of appeal in the case of
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Sabry Hafidh Khalfan v Zanzibar Telecom Ltd (Zantel), where they held inter alia that 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. To me and from the contrarians point of view, I dont think this reasoning by the Court of Appeal is watertight. Because it would not have made the sun to rise from North and set in the South, instead of its normal cause, if the Court of Appeal would have acted on its own motion (suo motu) to satisfy itself on the legality of the respondents voting registration certificates, hence the locus standi of the respondents. The issue of annextures not being part of the evidence is just what Dr Abdulsalam Ajetunmubi, lecturer in International law at the University of Portsmouth, UK call hair-splitting technicalities defeating the course of justice. The Court of Appeal was supposed to direct itself to the substantive justice of the matter instead of coiling itself to the fogey, comatose and hairsplitting technicalities. The pre-current Chief Justice of Tanzania, Hon Augustine Steven Lawrence Ramadhan (now vice chairman of the Constitution Review Commission and Judge of the African Court on Human and Peoples Rights) after being soothed by the Teleological and living tree principle of Article 107A(2)(e) of the Constitution decided to enact the Court of Appeal rules GN 368 OF 2009 which repealed the defunct rules of 1979. Rule 2 and 4 of the Court of Appeal rules require the court to be flexible in the administration of Justice. On the contrary, majority of the Justices of Appeal have been busy debunking and debauching this prerequisite in the name of the guiding judicial precedents and fogey conservative formalism. Their former High Court colleague, Justice Biron (as he then was) in his usual forceful language had this to say in the case of TAZARA V D.G HALIKANS at page 172 that Iam not overawed by technical rules of procedure nor do regard them as sacrosanct as the laws of the Medes and
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Persians of the old. Iam more concerned with the substantive justice of the case. My approach to technical rules of procedure is that of Sir Newham Worley when he was the President of the then Court of Appeal for East Africa, remarked in one of his judgments that : Rules of procedure are the handmaidens of justice and they should not be used to defeat justice It is not surprising that this reasoning by Justice Biron came to be seconded by another High Court Judge, Buxton David Chipeta (as he then was) in the case of Mohammed A. Semuyu v Sophia Msangi, where he held inter alia that, and it is not proper to apply these rules too strictly. I think courts must appreciate that, it is not everyone who is conversant with the rules of procedure in civil litigation. I would even venture and add that not all lawyers are fully conversant with the rules of civil procedure It is interesting to note here that, Justice Chipeta foresaw this anomaly that veteran lawyers like (Alute Mughwai) are crippled in applying procedural laws which ultimately crippled respondents locus standi. To take a cue from our closest partner in the East African Community, Uganda, her judiciary has never been an orthodox supporter of these fogey technicalities and this stasis was vigorously demonstrated in 1997 in the case of Major General David Tinyefuza v Attorney General, Manyindo DCJ (as he then was) had this to say, the case before us relates to the fundamental rights and freedoms of the individual like the petitioner which are enshrined in and protected by the constitution. In my opinion it would be highly improper to deny him a hearing on technical and procedural grounds. I would even go further and say that even where the respondent objects to the petition as in this case, the matter should proceed to trial on merit unless it does not disclose a cause of actionso the court should administer justice without undue regard to technicalities. It is for the above reason that I cannot uphold Mr. Kabatsis objection It is not surprising that this reasoning by his Lordship Manyindo was echoed aloud by Honorable Lady Justice Constance K. Byamugisha of the court of appeal of Uganda in her paper titled, Administering justice without undue regard to technicalities, where she observed inter alia that, Rules of procedure are supposed to help the court to expedite court business but are not supposed to be ironclad obstacles to all causes of action in all circumstances

Indeed even Judges in UK attach far too little significance to technicalities proceedings.if no injustice or prejudice to the defendants is involved because as Lord Neuberger reasoned in Thorner v Mayor, focusing on technicalities can lead to a degree of strictness inconsistent with the fundamental aims of equity From the foregoing edicts, I can pause a boggling question, How would the appellant (Mr Godbless Lema) be irreparably prejudiced and suffer gross miscarriage of justice if the court of appeal would have entertained the matter on its merits without undue regard to the rules of procedure and the so called Locus standi? Please tell your answer to the wind. Now coming to the second peccadiloe, with due respect to the court of appeal, in this election case, it has made one of the odd interpretation of the common law term, public interest Being eclipsed by the reasoning of their former colleague, Hon K.S.K Lugakingira (as he then was) in the case of Rev Christopher Mtikila vs Attorney General, the court said inter alia that public interest litigation 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 section of the society. The court continued to say that election petitions are not 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 and a voter whose rights were not infringed cannot challenge election results. What an odd construction!!! From Platos concept of Ideal Republic, to Jean Jacques Rousseaus principle of social contract and to the father of democracy Abraham Lincoln, ones mouth would be left ajar to learn that the court of appeal of Tanzania has reasoned that, election petition are not public interest litigation because the relief sought would not benefit the entire society as a whole. To quench out this peccadillo, Lord Denning was at the forefront to provide precedents to common law jurisdictions as he rightly defined public interest in the case of London Artists ltd v Litter, where he said, It is not to be confined within narrow limit. He continued, wherever a matter is such to affect people at large so that they may be legitimately interested in or concerned at what is going on or what may happen to them or others; then it
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is a matter of public interest on which everyone is entitled to make a fair comment So from the cerebral mind, the yardstick of the public interest litigation should be whether a matter is such to affect people at large so that they may be legitimately interested in or concerned at what is going on or what may happen to them. Now, one may be tempted to ask, what else if not election petition/results at any level, that people like the respondents may be legitimately interested in or concerned at what is going on or what may happen to them or others? If this reasoning of the court of appeal is to be read 12,20 or 200 years to come, will it stand the test of time? On this note, Crompton J in Campbell v spottiswoode, remind us that, It is the right of all queen subjects (citizens) to discuss public matters including challenging election results before the court of law irrespective of infringement of their rights( emphasis mine) The Court of Appeal was not supposed to be the judicial-legislator by barring the non-infringed voters to challenge election results. It was supposed to be what the French call ecouter phares (court as the headlight), that is, pursuant to its living spirit of Article 117(3) of the constitution. It is supposed to cling on substantive justice and eschew formalism in the name of deeper understanding. It is my clarion call, the court of appeal should lead by example and not as the Yoruba aptly put it, it is disappointing if you find yesterdays leftover eba and rotten okro soup where you expect to find steaming pounded yam fresh from the mortar and egusi soup Kaunda Paul Young Legal Consultant 0713995209 Paulkaunda92@yahoo.com