Dr Fortunatus Lwanyantika Marsha versus Dr William Shija and AG; Misc Civil Cause No 15 of 1995: High Court of Tanzania at Mwanza (Unreported).
- Election Petitions
- Rules of procedure – Whether technicalities should be entertained in election petitions.
- Returning officer – failure to join a returning officer in election petition -whether fatal.
- Amendments – Amendment of election petition -when can the court allow amendments?
- Petition – need to give full facts on any allegation.
- Civil Procedure
- Chamber Summons – Chamber Summons not signed by the Registrar and not sealed –Effect.
- Amendment of pleadings – when can it be made?.
Held:-
(i) In election petitions, technicalities should be avoided unless an irregularity or non-compliance with procedural rules has resulted or is likely to result into miscarriage of justice.
(ii) Where a Chamber Summons is neither signed nor sealed, such defects are generally considered to be incurable and so fatal to a proceeding.
(iii) Failure to join a returning officer is not fatal.
(iv) Under Order 6 Rule 17 of the Civil Procedure Code, amendments can be done at any stage of the proceedings. But such amendments will only be permitted if they are for the purpose of determining the real questions in controversy between the parties and can be male without causing injustice to the other side. But where an intended amendment seeks to introduce new or fresh matters or facts into the pleadings, or which seeks to create an inconsistency in the pleadings, such an intended amendment will not be allowed.
(v) An amendment will also be refused where its object is to circumvent the law of limitation. An amendment should be refused where its effect would be to take away from the defendant a legal right accrued to him by lapse of time or, to put if differently, when such an amendment would prejudice the rights of the other party as existing at the date of such amendment.
(vi) Where an amendment merely clarifies an existing pleading and does not add or alter it, the bar of limitation is not to be considered in allowing it.
(vii) An election petition is, however, construed strictly and unless material facts have already been stated in the petition, the same cannot be allowed to be introduced subsequently ie. after the expiry of the period of limitation for filing a petition in the garb of furnishing particulars.
(viii) The petitioner cannot be allowed to add new grounds or new charges by amending his petition, if a fresh petition on those allegations would on the date of the proposed amendments be time- barred. This applies also to addition of a necessary party or to curing any other defect on account of which the petition is required to be dismissed.
(ix) It is only if the material facts are already stated then more and better particulars can be given later, but if the material facts themselves are wanting in the original petition, they cannot be allowed to be supplied through amendment, as that would amount to making a fresh petition.
(x) There can be no reasonable doubt that the requirement of full particulars is one that has to be complied with, sufficient fullness and clarification so as to enable the opposite party to meet them fairly and they must be such as not to turn the inquiry before the tribunal into a rambling and roving inquisition.
(xi) In the case of allegation of a corrupt practices or undue influence, dates, places and names of those involved should be given.
(xii) If the material particulars are not pleaded, the petition is liable to be rejected for want of cause of action. The function of particulars, on the other hand, is to present as full a picture of the cause of action with such further information of details as may make the opposite party understand the case he will have to meet.
(xiii) Under Order VI Rule 16 of the Civil Procedure Code, the court has power to strike out any pleading which may tend to embarrass the fair trial of the suit. A pleading is embarrassing if it is ambiguous or unintelligible.