Ninsiima and Another v Mpuuga david (Election Petition Appeal No.55 of 2016)

Court of Appeal · [2017] UGCA 156 · 2017 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal and cross-appeal from High Court judgment nullifying a parliamentary election

Decision

Appeal allowed; nullification of the appellant's election set aside; appellant's election upheld

The full judgment

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Holding

The Court of Appeal allowed the appeal and cross-appeal, holding that the trial Judge erred in evaluating the evidence. The respondent's evidence of armed intimidation, ballot stuffing and multiple voting rested largely on a partisan, uncorroborated witness (PW9) and partisan polling agents, and was not proved to the required standard. Allegations of falsification of declaration of results forms were neither pleaded nor proved, and death certificates and a medical form were inadmissible. Although transparency was compromised at two polling stations and ballot stuffing was shown at Kabukurura (whose results were cancelled), the proven non-compliance did not affect the appellant's substantial winning majority. The nullification of the appellant's election was set aside.

Facts

On 18 February 2016, parliamentary elections were held for Kooki County Constituency, Rakai District. The appellant was returned the winner with 12,672 votes against the respondent's 11,776, a margin of 896 votes. The respondent petitioned the High Court at Masaka alleging non-compliance with electoral law, including the presence of armed men intimidating voters and chasing his polling agents, ballot stuffing, multiple voting, voting beyond the prescribed time without verification using biometric machines, and falsification of declaration of results forms. The trial Judge believed the respondent's witnesses, principally a boda boda rider (PW9) who claimed to have transported armed men to numerous polling stations, found non-compliance affecting the result, nullified the election and ordered fresh elections. The appellant and the Electoral Commission appealed, contending that the trial Judge misevaluated partisan evidence, relied on unpleaded matters and inadmissible evidence including a medical form and death certificates, and failed to apply the qualitative or quantitative test for substantial effect on the result.

Issues

Whether the trial Judge properly evaluated the evidence in concluding that the appellant was not validly elected.
Whether the trial Judge wrongly concluded that there was non-compliance with electoral laws that affected the result of the election in a substantial manner.
Whether the trial Judge relied on matters not pleaded and matters outside the record of proceedings.
Whether the trial Judge disregarded the appellant's evidence and submissions.
Whether the trial Judge relied on inadmissible evidence.

Orders

The appeal succeeds.
The orders of the trial Court nullifying the election of the appellant as the validly elected Member of Parliament for Kooki County Constituency are set aside.
The respondent shall bear the costs of this Appeal and of the lower Court.

Key headnotes

Electoral Law — Election Petitions — Burden and Standard of Proof

In a parliamentary election petition the burden of proof lies on the petitioner to prove the asserted grounds to the satisfaction of the court on a balance of probabilities under section 61 of the Parliamentary Elections Act.

Evidence — Election Petitions — Partisan Witnesses and Need for Corroboration

Evidence of partisan witnesses in election petitions must be treated with particular care as such witnesses tend to exaggerate, and it is safe to rely on such evidence only where independent evidence corroborates it.

Electoral Law — Ballot Stuffing — Definition and Proof

Ballot stuffing under section 76(f) of the Parliamentary Elections Act requires proof that votes cast exceeded the number of voters who physically turned up, and cannot be presumed from mere arithmetic discrepancies or uncorroborated partisan testimony.

Civil Procedure — Pleadings — Findings on Unpleaded Matters

A court may only determine issues raised in the parties' pleadings; making findings on matters such as falsification of results forms that were not pleaded constitutes an error of law.

Evidence — Admissibility — Death Certificates and Medical Records

Death certificates tendered by a person lacking statutory capacity to register a death under section 16 of the Births and Deaths Registration Act are inadmissible, and a medical form not identifying the patient and inconsistent with the witness's account carries no probative weight.

Electoral Law — Non-compliance — Substantial Effect on Result

Under section 61(a) of the Parliamentary Elections Act an election is not set aside for irregularities unless the non-compliance affected the result in a substantial manner; where the winning majority remains wide after adjusting for proved irregularities, the result is not affected.

Legislation cited (9)

Parliamentary Elections Act s.32
Parliamentary Elections Act s.42(1)
Parliamentary Elections Act s.61
Parliamentary Elections Act s.61(a)
Parliamentary Elections Act s.76(f)
Births and Deaths Registration Act s.16
Constitution of the Republic of Uganda
Electoral Commission Act
Judicature (Court of Appeal Rules) Directions Rule 30

Cases cited (10)

Anthony Ngoo and Another v Kitinda Kimaro (Civil Appeal No. 25 of 2012)
Epetait Francis v Dr. Isamat Abraham (Election Petition Appeal No. 12 of 2011)
Kizza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2006)
Rtd. Col. Dr. Kizza Besigye v Yoweri Kaguta Museveni and Another (Presidential Election Petition No. 1 of 2001)
Paul Mwiru v Igeme Nathan Nabeta Samson and 2 Others (Election Petition Appeal No. 6 of 2011)
Toolit Simon Akecha v Oulanya Jacob L'Okori and Another (Election Petition Appeal No. 19 of 2011)
Banco Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
Libyan Arab Bank for Foreign Trade and Development v Adam Vassiliadis (Civil Appeal No. 9 of 1985)
Mbowe v Eliufoo [1967] EA 240
Gunn v Sharpe [1974] 1 QB 808

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.