Fred Tungu Mpendazoe versus The Attorney General, Dr Milton Makongoro Mahanga and Another; Misc Civil Application No 98 of 2010: High Court of Tanzania at Dar es Salaam (Unreported).
- Election Petition
- Standard and burden of proof -What is the Standard and burden of proof in election petition?
- Non – compliance with the law – Petitioner challenging election results on the ground of non – compliance with the law – what are the attributes?
- Grounds – what are the grounds for overturning the election of a member of parliament?
- Documents – when should one file document / video?
- Evidence of unsealed ballot boxes – Effect
- Disputed votes – how to deal with them?
- Form No 21B – Failure to sign form No 21B – Effect.
- Projection of results – what is the procedure?
- New matters – whether parties can raise new matters?
Held:-
(i) The standard of proof in election petitions is beyond reasonable doubt. The burden is heavy on who assails an election which has been concluded. The petitioner must prove his case beyond reasonable doubt.
(ii) The law under section 108(2) (b) of the Act requires the petitioner who pegs his grounds of complaint on non – compliance with the law to show to the satisfaction of the court two things. First he must satisfy the court that the election was not conducted in accordance with the Act, Regulations and any directives issued under the Act. Secondly, the petitioner must show such non – compliance affected the result of the election.
(iii) An important principle arising from section 108 of the Act is to the effect that the grounds for overturning the election of a member of parliament are not open ended. Grounds should be confirmed to circumstances provided for under section 108 of the Act.
(iv) The burden of proof in election petitions based on section 108 (2) (b) of the Act on the petitioner to prove to the satisfaction of the court that the incidents of non – compliance had occurred and also that the non – compliances effected the results of the election. The burden of proof placed on a petitioner is a heavy one as he has to prove beyond reasonable doubt.
(v) According to Regulation 18 of the Election Petition Rules, parties should file their documents before the first date set for hearing of the petition.
(vi) In case of unsealed or problem of delivery of ballot boxes, the Petitioner must satisfy the Court beyond reasonable doubt that the unsealed ballot boxes amounted to non- compliance with the provisions of the Act and the ballot boxes concerned affected the election results.
(vii) According to section 79 of the Act, a question regarding disputed votes should first be handled by presiding officers at the level of polling stations before the question over any disputed votes is referred for review by the returning officer. It is only after that review by the returning officer when the petitioner can subject the issue of the disputed votes to the High Court.
(viii) Failure to sign form No 21B is not fatal unless it affects the parliamentary results.
(xi) A petitioner should lay the basis of his projected results by lodging with the Registrar of the court a list of polling station election results upon which he intends to base his projections of the results.
(x) Election Petition Rules underscore the mandatory duty of the Petitioner to plead grounds upon which he prays for reliefs in an election Petitioner Court.