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Achieng & Anor v Ayo (Election Petition Appeal No. 59 of 2016)

Court of Appeal · [2017] UGCA 121 · 2017 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated appeals from High Court judgment nullifying a parliamentary election
Decision
Nullification of election set aside; first appellant declared duly elected Woman Member of Parliament for Tororo District

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Holding

The Court of Appeal allowed the appellants' consolidated appeals, holding that the petitioner had failed to prove on a balance of probabilities that election materials arrived late or were tampered with, and that the Returning Officer used original Declaration of Results forms. The Court held that failure by Presiding Officers to sign some DR forms, where candidates' agents signed and the results were uncontested, does not invalidate votes whose voters' will can be ascertained. On re-computation, the first appellant still won by over 1,078 votes. Any non-compliance was minor and did not substantially affect the result. The nullification was erroneous and was set aside; the first appellant was declared duly elected.

Facts

The first appellant and the respondent, with four others, contested the election for Woman Member of Parliament for Tororo District held on 18 February 2016. The first appellant won with 62,215 votes; the respondent was first runner-up with 59,806 votes. The respondent petitioned the High Court alleging non-compliance with electoral laws, including late delivery of Osukuru Sub-county results to the Tally Centre, failure to use original Declaration of Results forms, alteration and omission of votes, bribery and chasing away of agents. The trial Judge nullified the election and ordered fresh elections, ordering the appellants to pay costs. Both appellants appealed; the two appeals were consolidated with consent. The Returning Officer testified that ballot boxes for the Woman MP arrived together with Presidential and directly elected MP boxes before midnight on 18 February 2016, and that he used original DR forms. The respondent's claim that materials were dumped and taken to police was unsupported by evidence.

Issues

  1. Whether the trial Judge erred in concluding that the late arrival of Osukuru Sub-county results at the Tally Centre amounted to non-compliance rendering the results illegitimate.
  2. Whether the trial Judge erred in holding that the Returning Officer did not rely on the original Declaration of Results forms.
  3. Whether the trial Judge erred in concluding that the respondent was denied votes and the first appellant awarded votes through alterations and omissions.
  4. Whether the trial Judge erred in holding that there was non-compliance with the Parliamentary Elections Act which substantially affected the result of the election.
  5. Whether the trial Judge erred in nullifying the election of the first appellant and ordering the appellants to pay costs.
  6. What remedies are available to the parties.

Orders

  • Appeal allowed; the judgment and orders of the High Court are set aside.
  • The 1st appellant is declared the duly elected Woman Member of Parliament for Tororo District.
  • Costs in this Court and the lower Court awarded to the appellants.

Key headnotes

Election Petitions — Burden and Standard of Proof
The burden of proof in an election petition lies on the petitioner, and although the statutory standard is proof on a balance of probabilities, because of the public importance of elections the facts alleged must be proved to the satisfaction of the court by credible and cogent evidence.
Declaration of Results Forms — Failure of Presiding Officers to Sign
Failure by a presiding officer to sign Declaration of Results forms does not per se invalidate the votes cast where the candidates' agents signed the forms without complaint and the voters' will can still be ascertained; such results should be admitted in the tally rather than excluded.
Non-compliance — Substantial Effect on Result
Non-compliance with electoral law does not by itself overturn an election; the non-compliance must be so significant as to substantially affect the result, which the court assesses against the whole election process using both qualitative and quantitative approaches.
Errors and Informalities — Threshold for Nullification
An election is not to be upset for informality or triviality; objections must be substantial and calculated to affect the result, and minor arithmetical or filling errors that do not alter the outcome do not justify nullification.
First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court is duty bound to re-evaluate the evidence adduced at trial and to draw its own inferences on all issues of fact and law.

Legislation cited (9)

  • Parliamentary Elections Act s.51(2)
  • Parliamentary Elements Act s.52
  • Parliamentary Elections Act s.53(1)
  • Parliamentary Elections Act s.61(1)
  • Parliamentary Elections Act s.61(3)
  • Parliamentary Elections Act s.78
  • Electoral Commission Act s.12
  • Constitution of Uganda Article 68(4)
  • Rules of the Court of Appeal r.30(1)

Cases cited (12)

  • Fr. Narcensio Begumisa and Others v Eric Tibebaga (Civil Appeal No. 17 of 2000)
  • Mugema Peter v Mudiobole Abedi Peter (Election Petition Appeal No. 30 of 2011)
  • Mukasa Anthony Harris v 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)
  • Mbaghadi Fredrick Nkayi and Another v Dr. Nabwiso Frank Wilberforce (Election Petition Appeal No. 14 and 16 of 2011)
  • Anifa Kawooya and Electoral Commission v Joy Kabatsi (Election Petition Appeal No. 3 and 4 of 2007)
  • Election Petition No.29 of 2011 Mulindwa ... versus Winifred Kiiza and the Electoral Commission
  • Achieng Sarah Opendi and Another v Ochwo Nyakecho Kezia (Election Petition Appeal No. 39 of 2011)
  • Besigye vs. Museveni (supra)
  • Baxter v Baxter [1950] All ER 458
  • John Baptist Kakooza v The Electoral Commission (supra)
  • Anifa Kawoya Bangirana and Anor. (Supra)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.