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Otada Sam Amooti Owor v Tabani Idi Amin and Another (Election Petition Appeal No.93 of 2016)

Court of Appeal · [2017] UGCA 177 · 2017 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from High Court dismissal of an election petition
Decision
Election of the 1st respondent set aside; Electoral Commission ordered to conduct fresh elections for Kibanda North Constituency

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Holding

The Court of Appeal allowed the appeal in part. It held that the 1st respondent was not a registered voter because his nomination name (Taban Idi Amin) did not match the name on the National Voters' Register (Idi Taban Amin Tampo), and he had not lawfully changed his name under section 36 of the Registration of Persons Act, the requirements of which are mandatory and not curable as a technicality under Article 126(2)(e). He therefore did not qualify for election under Article 80 of the Constitution and section 61(1)(d) of the PEA. The Court upheld the trial Judge on expunging affidavits sworn by strangers to the petition and found bribery and intimidation allegations unproved. The election was set aside and fresh elections ordered.

Facts

On 18 February 2016, the appellant, the 1st respondent and another contested the parliamentary seat for Kibanda North Constituency, Kiryandongo District. The Electoral Commission declared the 1st respondent winner with 24,658 votes against the appellant's 161 votes. The 1st respondent was nominated under the name Taban Idi Amin, which appeared on his academic documents. However, the National Voters' Register and his National ID bore the name Idi Taban Amin Tampo, and his passport bore Idi Taban Amin. The appellant petitioned challenging the 1st respondent's qualification, arguing he was not a registered voter under the nomination name, and alleged illegal practices including bribery, intimidation, distribution of refreshments and ballot stuffing. The 1st respondent claimed he was one and the same person and that he adopted the name Tampo for political popularity. He did not adduce evidence of a lawful change of name under section 36 of the Registration of Persons Act. The High Court dismissed the petition; the appellant appealed.

Issues

  1. Whether the trial Judge erred in finding that the 1st respondent was qualified for nomination and election as a Member of Parliament.
  2. Whether the trial Judge erred in expunging the affidavits in rejoinder of various deponents.
  3. Whether the trial Judge erred in declining to summon Laker Polline as a witness, thereby occasioning a miscarriage of justice.
  4. Whether the trial Judge erred in failing to properly evaluate the evidence, leading to the holding that the respondents did not commit any electoral offence or illegal practices.

Orders

  • The election of the 1st respondent is set aside for noncompliance with electoral laws.
  • The 2nd respondent is ordered to conduct fresh elections for the directly elected Member of Parliament for Kibanda North Constituency, Kiryandongo District.
  • The respondents shall pay half of the costs of this Appeal and the petition in the High Court.

Key headnotes

Electoral Law — Qualification for Election — Registered Voter Requirement
A candidate whose nomination name does not appear on the National Voters' Register is not a registered voter under section 1 of the Parliamentary Elections Act and does not qualify for nomination or election as a Member of Parliament under Article 80 of the Constitution and section 4(1) of the Act.
Statutory Interpretation — Mandatory versus Directory Provisions — Change of Name
The word 'shall' in section 36 of the Registration of Persons Act, governing the procedure for lawful change of name, is mandatory and not directory; failure to comply renders any purported change of name of no legal consequence.
Constitutional Law — Article 126(2)(e) — Technicalities versus Substantive Law
The requirement to follow the statutory procedure for change of name is a matter of substantive law and cannot be dispensed with as a mere technicality under Article 126(2)(e) of the Constitution, since substantive justice must be administered subject to the law.
Civil Procedure — Affidavits in Rejoinder — Standing of Deponents
Only a person who swore an affidavit in support of the petition may swear an affidavit in rejoinder; a stranger who did not initially depone cannot file an affidavit in rejoinder, as a rejoinder serves only to clarify matters raised in the affidavit in reply.
Evidence — Illiterates Protection Act — Certificate of Translation
An affidavit deponed by an illiterate person that lacks the certification required under the Illiterates Protection Act is inadmissible, as the protective provisions of the Act are couched in mandatory terms.
Electoral Law — Bribery and Illegal Practices — Standard of Proof
Allegations of bribery and other illegal practices in election petitions must be proved to the satisfaction of the court on a balance of probabilities, slightly higher than in ordinary civil cases; uncorroborated or untested partisan affidavit evidence is insufficient to discharge this burden.

Legislation cited (27)

  • Constitution of Uganda Article 80(1)
  • Constitution of Uganda Article 61
  • Constitution of Uganda Article 86(1)
  • Constitution of Uganda Article 126(2)(e)
  • Parliamentary Elections Act 2005 s.1
  • Parliamentary Elections Act 2005 s.4(1)
  • Parliamentary Elections Act 2005 s.12(2)(b)
  • Parliamentary Elections Act 2005 s.14(3)
  • Parliamentary Elections Act 2005 s.15
  • Parliamentary Elections Act 2005 s.20
  • Parliamentary Elections Act 2005 s.61(1)
  • Parliamentary Elections Act 2005 s.61(3)
  • Parliamentary Elections Act 2005 s.62
  • Parliamentary Elections Act 2005 s.63(6)(a)
  • Parliamentary Elections Act 2005 s.64
  • Parliamentary Elections Act 2005 s.68(1)
  • Parliamentary Elections Act 2005 s.68(3)
  • Registration of Persons Act 2015 s.36
  • Registration of Persons Act 2015 s.66
  • Registration of Births and Deaths Act Cap 309 s.12
  • Electoral Commissions Act Cap 140 s.18(1)
  • Illiterates Protection Act Cap 78 s.1(b)
  • Illiterates Protection Act Cap 78 s.2
  • Illiterates Protection Act Cap 78 s.3
  • Parliamentary Elections (Election Petitions) Rules r.6(1)
  • Parliamentary Elections (Election Petitions) Rules r.15(4)
  • Rules of the Court of Appeal r.30

Cases cited (18)

  • Serunjogi James Mukiibi v Lule Umar Mawiya (Election Petition Appeal No. 15 of 2006)
  • Serunjogi James Mukiibi v Lule Umar Mawiya (Election Petition Appeal No. 6 of 2007)
  • Mukundane Vincent & Ahaisibwe Gordians v The Electoral Commission and Melichiadis Kazwengye (Election Petition No. 4 of 2010)
  • Tinka Noreen v Bigirwenkya M. Beatrice & Electoral Commission (Election Civil Appeal Petition No. 7 of 2011)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 1 of 1997)
  • Sitenda Sebalu v Sam K. Njuba and The Electoral Commission (Election Petition Appeal No. 26 of 2007)
  • Howard v Bodington (1877) 2 PD 203
  • Fredrick J.K. Zaabwe V Orient Bank Ltd SCCA
  • Mutembuli Yusuf v Nagwamu Moses Musamba & The Electoral Commission (Election Petition No. 13 of 2016)
  • Ajanta Enterprises V Bimla Charan Chatterjee and Anor, Rajasthan High Court 1987 (2) WLN 172
  • Kasaala Growers Co-operative Society v Kakooza & Another (Civil Appeal No. 19 of 2010)
  • Ngoma Ngime v Electoral Commission & Hon. Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
  • Blyth v Blyth [1966] AC 643
  • Masiko Winnie Komuhangi v Babihuga Winnie (Election Petition Appeal No. 9 of 2002)
  • Col. (Rtd) Dr. Kizza Besigye v Yoweri Kaguta Museveni (Election Petition No. 1 of 2001)
  • Sarah Opendi Ochieng v Ochwo Nyaketcho Kezlah (Election Petition Appeal No. 39 of 2011)
  • Kamba Saleh Moses v Hon. Namuyangu Jennifer (Election Appeal No. 27 of 2011)
  • Odo Tayebwa v Bassajjabalaba Nasser & Electoral Commission (Election Petition Appeal No. 13 of 2011)
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