THE UNITED REPUBLIC OF TANZANIA OFFICE OF THE SOLICITOR GENERAL FRED TUNGU MPENDAZOE v. THE ATTORNEY GENERAL & 2 OTHERS HIGH COURT OF TANZANIA AT DAR ES SALAAM (JUMA, J.) MISCELLANEOUS CIVIL APPLICATION NO 98 of 2010 Election Petition – Evidence – best evidence rule - Whether evidence other than the prescribed forms can be relied upon to prove a fact. Election petition – Evidence – Misconduct and irregularities - Whether a petitioner must provide evidence beyond a police report to prove misconduct. Election Petition – Nullification of election results – noncompliance as a ground - Whether non-compliance alone can affect the results of an election. Election petition – pleadings – grounds not pleaded - Whether the Court can entertain issues not raised in the pleadings. The petitioner filed an election petition challenging the validity of the parliamentary election results for Segerea Constituency. The petition alleged that the vote tallying, counting, and declaration processes were marred by irregularities and inaccuracies in vote figures. Specifically, the petitioner claimed that the Returning Officer declared the results without including votes from 120 polling stations in Kiwalani Ward and 129 polling stations in Vingunguti Ward. It was argued that these omissions constituted non- compliance with the National Elections Act, Cap 343, and the Directives issued by the National Electoral Commission. The petition was brought under section 108(2)(b) of the Act, which requires proof of two elements: first, that there was non-compliance with the Act, its Regulations, or Directives; and second, that such non-compliance affected the result of the election. All three respondents denied the allegations, asserting that the election was conducted in full compliance with the law and that Dr. Mahanga was duly elected. THE UNITED REPUBLIC OF TANZANIA OFFICE OF THE SOLICITOR GENERAL Upon evaluation, the court held that the petitioner failed to prove both limbs required under section 108(2)(b). The court concluded that there was no sufficient evidence of non-compliance that materially affected the outcome of the election. Held (i) The forms prescribed by the Act and its Regulations constitute the best evidence, and such evidence must be presented to the Court to prove a fact. (ii) A petitioner who alleges misconduct by an election officer must prove the misconduct beyond a reasonable doubt, and mere reporting of the incident to the police is insufficient; probative evidence must be presented. (iii) Where the issue of non-compliance with the provisions of the act is raised, such non-compliance must be shown to have reference to the results of the election (iv) In an election petition, the court cannot take a new issue that is not pleaded. (v) Pleadings serve to inform the parties of the issues in dispute and allow them to prepare for the hearing; introducing new grounds during the hearing creates an element of surprise and is impermissible. Petition Dismissed. Statutory provisions and Laws considered (i) National Elections Act Cap 343. (ii) National Elections (Election Petitions) Rules, GN No. 447 of 2010. (iii) Elections (Presidential and Parliamentary Elections) Regulations, 2010 GN No. 279 of 2010. Cases and authorities relied on by the Court (iv) Manju Salum Msambya vs.· The Attorney General and Kifu Gulamhussein Kifu, Civil Appeal Number 2 of 2002, (v) Lutter Symphorian Nelson v. AG & Ibrahim Said Msabaha [2002] TLR. 419 (vi) Attorney General, Radio Tanzania Dar es Salaam, Azim Suleman Premji v. Dr. Aman Walid Kabourou, Civil Appeal No. 32 and 42 of 1994 at Dar es Salaam. (vii) Choya Anatory Kasazi v. Kashemeza Phares Kabuye and The Attorney General, Misc. Civil Cause No. 10 of 2005 at Biharamulo (Bukoba Registry).