Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)

Court of Appeal · [2012] UGCA 7 · 2012 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal from a High Court decision allowing an election petition and setting aside the appellant's election as Member of Parliament

Decision

Appeal allowed; High Court judgment set aside, election petition dismissed and appellant declared validly elected Member of Parliament

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal allowed the appeal, holding that oral evidence given on oath under cross-examination remains valid and must be considered even where the witness's affidavit has been rejected; the trial judge erred in disregarding Rev. Fr. Ndanda's viva voce testimony. The court held that section 68(7) of the Parliamentary Elections Act must be interpreted subject to Article 29(1)(c) of the Constitution protecting religious practice, and applies only to fundraising intended to influence voters. The respondent's witnesses gave contradictory accounts and failed to prove, on a balance of probabilities, that the appellant committed an illegal practice. The High Court judgment was set aside and the appellant declared validly elected.

Facts

The Electoral Commission conducted elections for Member of Parliament for Iganga Municipality Constituency on 18 February 2011. The appellant was declared winner with 7,288 votes, ahead of the respondent's 6,652. The respondent petitioned the High Court alleging that the elections were not conducted in compliance with the Constitution and electoral laws, affecting the result substantially. The trial judge allowed the petition on the sole ground that on 13 February 2011, during the campaign period, the appellant committed an illegal practice of fundraising by donating Shs.100,000 towards construction of St. Gonzaga Prisons Chapel. The appellant contended he attended a ground-breaking religious ceremony at his church to receive a blessing and only promised future provision of food for workers, denying any fundraising. The respondent's witnesses, who claimed to have attended, gave contradictory accounts regarding the appellant's donation and statements. The respondent himself did not attend, relying on third-party information.

Issues

Whether the trial judge erred in disregarding the viva voce testimony of Rev. Fr. Ndanda given on oath in court after rejecting his affidavit.
Whether the affidavits relied upon by the trial judge were competent and valid evidence despite alleged procedural defects.
Whether the appellant committed an illegal practice of fundraising under section 68(7) of the Parliamentary Elections Act by attending a church function and making a donation.
Whether section 68(7) of the Parliamentary Elections Act must be read subject to the constitutional right to practise and manifest religion under Article 29(1)(c).

Orders

Appeal allowed.
Judgement of the High Court dated 20 August 2011 set aside and substituted with an order dismissing Election Petition No. 7 of 2011.
Mugema Peter declared validly elected Member of Parliament for Iganga Municipality Constituency.
Costs of the appeal and those in the court below awarded to the appellant.

Key headnotes

Affidavits — Viva Voce Evidence — Validity of Oral Testimony Where Affidavit Rejected

Oral evidence given to a court on oath under the supervision of a presiding judge is valid evidence that the court must consider, notwithstanding that the witness's affidavit on the same matter has been rejected; rejection of an affidavit does not automatically expunge oral testimony elicited in cross-examination.

Affidavits — Commissioning — Personal Appearance Before Commissioner for Oaths

An affidavit deponed to before a commissioner for oaths other than in the deponent's personal presence is not legally commissioned and may be struck off the record under the Commissioners for Oaths (Advocates) Act and the Oaths Act.

Affidavits — Procedural Defects — Substantive Justice

Procedural defects in an affidavit, such as a missing jurat or absent certificate of translation, are mere procedural transgressions that do not prevent a court from administering substantive justice where the substance of the evidence is reliable.

Illegal Practices — Fundraising — Section 68(7) Parliamentary Elections Act

Section 68(7) of the Parliamentary Elections Act prohibits fundraising during campaigns only where a candidate or agent participates, with the candidate's knowledge and consent, for the purpose of influencing voters; the section must be interpreted to avoid absurdity and injustice and is not breached by bona fide participation in genuine religious activity.

Freedom of Religion — Article 29(1)(c) — Interpretation of Statutes

Section 68(7) of the Parliamentary Elections Act must be read subject to Article 29(1)(c) of the Constitution, which protects the freedom to practise and manifest religion, including customary fundraising during worship; acts done in genuine manifestation of faith are constitutionally protected.

Standard of Proof — Balance of Probabilities — Public Importance

In an election petition the burden of proof rests on the petitioner and the standard is proof on a balance of probabilities, but given the public importance of an election petition the facts must be proved to the satisfaction of the court through credible and cogent evidence.

Election Petitions — Partisan Witnesses — Need for Corroboration

A first appellate court re-evaluating evidence in an election petition must caution itself that witnesses tend to be partisan in supporting their candidates, and should test the authenticity of such evidence against independent and neutral corroborating sources.

Legislation cited (14)

Parliamentary Elections Act s.68(7)
Parliamentary Elections Act s.68(8)
Parliamentary Elections Act s.68(9)
Parliamentary Elections Act s.61(1)
Parliamentary Elections Act s.61(3)
Parliamentary Elections (Amendment) Act No. 12 of 2010
Constitution of Uganda Article 29(1)(c)
Constitution of Uganda Article 37
Evidence Act s.58
Commissioners for Oaths (Advocates) Act cap.5 s.5
Oaths Act cap.19 s.6
Commissioners for Oaths Rules Rule 7
Parliamentary Elections (Election Petitions) Rules Rule 15
Rules of the Court of Appeal Rule 29

Cases cited (16)

Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
Mbayo Jacobs v Electoral Commission and Another (Election Petition Appeal No. 7 of 2006)
NELSON VS ATTORNEY GENERAL & ANOTHER [1999] EA 160
Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
Paul Mwiri v Igeme Nathan Nabeta and Others (Court of Appeal No. 6 of 2011)
Blyth Vs Blyth [1966] AC 643
Besigye Kiiza v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2006)
Kakooza John Baptist v Electoral Commission and Anthony Yiga (Election Petition Appeal No. 1 of 2007)
WARNER VS MOSSES, 16 ChD 100
GLOSSOP V HESTON & 1 LOCAL BOARD, 47 LJ Ch.536
Re whiteley, 1891, 1 Ch 559
TOWERFIELD (OWNERS) V WORKINGTON HARBOUR BOARD [1948] 2 ALLER 736
Attorney General v Salvatori Abuki (Constitutional Petition Appeal No. 1 of 1998)
REPUBLIC VS EL MANN [1969] EA 357
Darlington Sakwa and Another v Electoral Commission and Others (Constitutional Petition No. 8 of 2006)

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