This appeal arose from the General Elections which were held throughout Tanzania on 31st October, 2010. In that election, Norbert Joseph Yamsebo was sponsored by the CHADEMA political party to contest for the Sumbawanga Urban Constituency Parliamentary seat. He lost the contest to Mr. Aeshi Hillary of the Chama Cha Mapinduzi (CCM). Dissatisfied with the outcome of the election and the results, Mr. Yamsebo filed an election petition in the High Court of Tanzania at Sumbawanga. The High Court allowed the petition and declared the election of Mr. Aeshi Hillary null and void.
Following the nullification of his election, Mr. Aeshi Hillary and the Attorney General filed two separate appeals to this Court. Mr. Aeshi lodged his Civil Appeal No. 55 of 2012 while the Attorney General filed the Civil Appeal No. 65 of 2012. The Civil Appeal No. 55 of 2012 and Civil Appeal No. 65 of 2012 were consolidated by this Court to become Consolidated Civil Appeals No. 55 of 2012 and No. 65 of 2012. The Consolidated Civil Appeals did not proceed far because this Court, on its own motion found that the record of proceedings in relation to the application for determination of the amount payable as security for costs were missing in the records of the consolidated appeals. As a result, on 3rd October 2012 this Court struck out the two appeals, as consolidated.
Mr. Aeshi Hillary and the Attorney General returned back to the High Court of Tanzania at Sumbawanga to seek an extension of time within which to lodge their Notice of Appeal to this Court. Similarly, the Attorney General, Justus Kaslama and Vistus Kapufi filed their application at the High Court which sought an extension of time to lodge their Notice of Appeal. On 30th November 2012 a fourteen (14) days was granted within which to file Notice of Appeal. The Attorney General, Justus Kaslama and Vistus Kapufi filed their Notice of Appeal on 7th December 2012 and on 10th January, 2013 they lodged Civil Appeal No. 1 of 2013. On the other hand, Mr. Aeshi Hillary lodged his Notice of Appeal on 5th December 2012 and on 21st January 2013 he filed Civil Appeal No. 5 of 2013. The main grounds of appeal related on the finding that the election was not free and fair because of the two chaotic campaign incidents that took place at Kisumba village, and at Mtimbwa village. The second major ground of complaint similarly arises from the decision of the High Court that the Appellant had used money that was corruptly distributed to voters. The third major ground of complaint contended that the trial court erred in fixing the date for the hearing of the petition before the Respondent had deposited security for costs.
The Respondent raised a preliminary objection on two main issues. First, that the Appellants lodged their Notice of Appeal with the Court of Appeal, Sumbawanga Sub-Registry instead of High Court at Sumbawanga thereby infringing rule 83(1) of the Tanzania Court of Appeal Rules, 2009. They also said that the Notice of Appeal which was later served is undated with no indication as to when it was lodged, and the fee of Tshs. 8,000/= for filing of the Notice of Appeal was paid on 8th December 2012 instead of 7th December 2012 when the Notice of Appeal was lodged and this violated rule 119(1) of the Court of Appeal Rules; the Appellants have not paid the Tshs. 15,000/= fee for lodging their appeal contrary to rule 118 read together with item 8(ii) of the 2nd Schedule to the Court of Appeal Rules. The Appellants had not paid the Tshs. 2,000/- as security for costs thereby contravening rule 120(1); and Appellants’ initial appeal to this Court having been struck out, the High Court had no jurisdiction to allow the issuance of a new “Notice of Appeal” to this Court.