Musoke v Kyabagu and Another (Election Petition Appeal No. 67 of 2016)

Court of Appeal · [2017] UGCA 174 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Election petition appeal from High Court judgment setting aside an LCV Chairperson election and ordering a fresh election

Decision

Appeal dismissed; High Court order setting aside the election and ordering a fresh election upheld

The full judgment

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Holding

The Court of Appeal dismissed an appeal challenging the trial Judge's refusal to declare the appellant the validly elected LCV Chairperson. The trial Judge, having set aside the election and ordered fresh elections under section 142(3)(c) of the Local Governments Act, exercised a permissible judicial discretion among the options available under section 142(3). The Court held that the appellant's own DR Forms were uncertified public documents and could not, under the Evidence Act, prove the result needed to declare him winner. Article 126(2)(e) of the Constitution on substantive justice could not be invoked to defeat a major legal requirement, namely certification of public documents. The trial Judge's decision was upheld with costs.

Facts

The appellant and the 1st respondent were among eight contestants in the LCV Chairperson elections for Kalungu District held on 24 February 2016. The Electoral Commission declared and gazetted the 1st respondent as the elected Chairperson. The appellant petitioned the High Court, which found that the Returning Officer had mismanaged the tallying process by introducing illegal DR Forms benefiting the 1st respondent at four polling stations. The trial Judge found the Electoral Commission's DR Forms for the four contested stations were forgeries, based on differences in serial numbers, paper texture and watermark security marks, while the remaining 151 stations were uncontested. The trial Judge set aside the election and ordered a fresh election, but declined to declare the appellant the winner because the appellant's own DR Forms were uncertified public documents that could not, under the Evidence Act, prove the result. The appellant appealed, seeking to be declared the validly elected candidate under section 142(3)(b) of the Local Governments Act.

Issues

Whether the trial Judge misconstrued the law by failing to declare the appellant the duly elected candidate under section 142(3)(b) of the Local Governments Act after finding that the appellant had won the election.
Whether uncertified DR Forms could be relied upon to declare the appellant the validly elected candidate.
Whether Article 126(2)(e) of the Constitution could override the requirement of certification of public documents.

Orders

Appeal dismissed with costs to the respondents.
The lower court judgment and the orders therein are upheld.

Key headnotes

Electoral Law — Election Petitions — Remedies under section 142(3) Local Governments Act — Judicial discretion to set aside election or declare another candidate

Section 142(3) of the Local Governments Act presents a trial Judge hearing an election petition with several options, including setting aside the election and ordering a new one; choosing among these is an exercise of judicial discretion and a Judge cannot be faulted for selecting a viable lawful option.

Evidence — Public Documents — DR Forms — Requirement of certification under sections 75 and 76 of the Evidence Act

DR Forms are public documents and a party wishing to rely on them in court must have them certified under sections 75 and 76 of the Evidence Act; without certification such documents cannot prove the fact they are tendered to establish.

Constitutional Law — Article 126(2)(e) — Substantive justice without undue regard to technicalities — Limits

Article 126(2)(e) of the Constitution addresses unnecessary reliance on technicalities and cannot be invoked to defeat a major requirement of the law, such as the certification of public documents.

Civil Procedure — Appellate Interference — Exercise of judicial discretion by trial court

An appellate court will not interfere with a trial Judge's exercise of discretion unless the discretion was exercised on a wrong principle, the Judge misdirected himself or acted on or failed to consider relevant matters, resulting in injustice.

Legislation cited (11)

Local Governments Act, Cap 243 s.142(3)(b)
Local Governments Act, Cap 243 s.142(3)
Constitution of Uganda Article 126(2)(e)
Evidence Act, Cap 6 s.63
Evidence Act, Cap 6 s.64(1)
Evidence Act, Cap 6 s.65
Evidence Act, Cap 6 s.75
Evidence Act, Cap 6 s.76
Parliamentary Elections Act s.61(1)
Parliamentary Elections Act s.61(3)
Rules of the Court of Appeal Rule 30(1)(a)

Cases cited (11)

Tolit Simon Aketcha v Oulanyah Jacob and Electoral Commission (Election Petition Appeal No. 19 of 2011)
Hellen Adoa and Electoral Commission v Alice Alaso (Election Petition Appeal No. 7 and 54 of 2016)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Bank of Uganda v Banco Arabe Espanol (Civil Appeal No. 8 of 1998)
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 Mwiru v Hon. Igeme Nathan Nabeta and Two Others (Election Petition Appeal No. 6 of 2011)
Kakooza John Baptist v Electoral Commission and Anthony Yiga (Election Petition Appeal No. 11 of 2007)
Mutamboh Matthew v Mayusi Yusuf (Election Petition Appeal No. 45 of 2011)
Ssekandi Zebron v Uganda (Criminal Appeal No. 28 of 2010)
Mbogo and Another v Shah [1968] EA 93

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