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Nangiro John v The Electoral Commission and Loroti John (Election Petition Appeal No. 26 of 2006)

Court of Appeal · [2007] UGCA 91 · 2007 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court dismissal of an election petition challenging an LCV District Chairperson election
Decision
Appeal allowed; election annulled and fresh elections ordered

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Holding

The Court of Appeal allowed the appeal. It held that once the 2nd respondent's answer and supporting affidavits were struck out for late filing, the petition was unopposed and, under Rule 10(4) and (5) of the Parliamentary Elections (Election Petitions) Rules 1996, had to proceed ex parte against him; allowing him to participate amounted to a mistrial. The Court further held that uncontroverted affidavit evidence proved offences of obstruction of election officers (s.157) and personation (s.153) of the Local Government Act, that the trial judge wrongly rejected affidavits on technicalities contrary to Article 126(2)(e), and that the malpractices affected the result substantially, warranting annulment under s.139.

Facts

On 2 March 2006 elections were held for LCV District Chairperson of Nakapiripirit District. The appellant, Nangiro John, and the 2nd respondent, Loroti John, were candidates. The Electoral Commission declared the 2nd respondent the winner with 13,062 votes against the appellant's 12,267. The appellant petitioned the High Court at Soroti seeking nullification, alleging non-compliance with electoral law and offences by the 2nd respondent and his agents. He supported the petition with 22 affidavits. The 2nd respondent's answer was filed without a supporting affidavit, and the supporting affidavits were filed late; the trial judge struck out the answer but allowed the 2nd respondent's counsel to participate, cross-examine and make submissions. Four key witnesses, who were not cross-examined, deposed that the returning officer was intimidated into cancelling the results of Munyokere Polling Station and that personation and ballot stuffing occurred at Kosike Polling Station. The trial judge dismissed the petition with costs, and the appellant appealed.

Issues

  1. Whether the 2nd respondent had locus to participate at trial after his answer to the petition and supporting affidavits were struck out.
  2. Whether the 1st respondent organised and conducted the LCV election in compliance with electoral law.
  3. Whether illegal malpractices were committed by the 2nd respondent or his agents with his knowledge, consent and approval.
  4. Whether the trial judge properly evaluated the evidence before him.

Orders

  • Appeal allowed.
  • Judgment and orders of the High Court set aside.
  • The LCV election for Nakapiripirit District annulled.
  • Fresh elections to be held.
  • Respondents condemned to pay costs to the appellant in the Court of Appeal and the High Court.

Key headnotes

Election Petitions — Unopposed Petition — Ex Parte Procedure After Striking Out Answer
Where a respondent's answer to an election petition and its supporting affidavits are struck out, the petition is unopposed by that respondent and must, under Rule 10(4) and (5) of the Parliamentary Elections (Election Petitions) Rules 1996, proceed to be heard ex parte against him; permitting that respondent to participate at trial amounts to a mistrial.
Election Petitions — Application of Civil Procedure Rules — Subsidiary to Election Petition Rules
The Civil Procedure Rules apply to election petitions only where the Parliamentary Elections (Election Petitions) Rules 1996 contain no provision for the situation; Order 9 Rule 11 cannot be invoked where the Rules themselves prescribe an ex parte procedure for an unopposed petition.
Affidavit Evidence — Uncontroverted Affidavits — Presumption of Acceptance
Where facts are sworn to in an affidavit and are not denied, rebutted or tested by cross-examination, the presumption is that those facts are accepted.
Election Offences — Obstruction of Election Officers and Personation — Effect on Election Result
Where uncontroverted evidence establishes obstruction of election officers contrary to section 157 and personation contrary to section 153 of the Local Government Act, committed with the candidate's knowledge, consent or approval, and these affect the result in a substantial manner, the court may annul the election under section 139 of the Act.
Affidavit Evidence — Minor Errors — Substantive Justice Without Undue Regard to Technicalities
In an election petition a trial judge should not reject affidavits for minor errors immaterial to the issues; Article 126(2)(e) of the Constitution requires the administration of substantive justice without undue regard to technicalities.
Standard and Burden of Proof — Balance of Probabilities — Substantial Effect Test
The burden of proof on a petitioner in an election petition is on the balance of probabilities, and the test is whether the alleged malpractice affected the result of the election in a substantial manner.

Legislation cited (26)

  • Local Government Act s.157
  • Local Government Act s.153
  • Local Government Act s.139
  • Local Government Act s.142
  • Local Government Act s.154
  • Local Government Act s.155(1)(b)
  • Local Government Act s.130(1)
  • Local Government Act s.128(1)
  • Local Government Act s.147
  • Local Government Act s.126
  • Local Government Act s.123(3)
  • Local Government Act s.132(2)
  • Local Government Act s.133(3)
  • Local Government Act s.136(2)
  • Electoral Commission Act s.12(1)(e)
  • Electoral Commission Act s.30(5)
  • Constitution of Uganda Article 69
  • Constitution of Uganda Article 126(2)(e)
  • Parliamentary Elections (Election Petitions) Rules 1996 Rule 3
  • Parliamentary Elections (Election Petitions) Rules 1996 Rule 9(6)
  • Parliamentary Elections (Election Petitions) Rules 1996 Rule 10(4)
  • Parliamentary Elections (Election Petitions) Rules 1996 Rule 10(5)
  • Parliamentary Elections (Election Petitions) Rules 1996 Rule 17
  • Civil Procedure Rules Order 6 Rule 24
  • Civil Procedure Rules Order 9 Rule 11(1)
  • Civil Procedure Rules Order 9 Rule 11(2)

Cases cited (6)

  • Malisa V Uganda Breweries Ltd [1988-1990] HCB 31
  • Hathisang Premji Patel vs Ramji Jetha Bhai (1947) 14 EACA 23
  • Total Oil Products (EA) Ltd vs Nauto Ltd & Others [1968] EA 611
  • Besweri Lubuye Kibuka v Electoral Commission and Daniel Kikoola (Election Petition Appeal No. 2 of 1999)
  • Batahwa Nyine Samson v Ishonga Ndyanabo Longino (Election Petition Appeal No. 14 of 2002)
  • Miller vs Minister of Pensions [1947] 2 All E.R.372
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