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Eng. Ibaale Daniel Joseph v Hon. Adbdu Katuntu & Another (Election Appeal No. 41 of 2016)

Court of Appeal · [2017] UGCA 40 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court dismissal of an election petition challenging a parliamentary election result
Decision
Appeal dismissed; 1st respondent confirmed as validly elected Member of Parliament for Bugweri County Constituency

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Holding

The Court of Appeal dismissed an election appeal challenging the dismissal of a parliamentary election petition. The Court held the appellant was not denied a fair hearing, as election litigation is time-bound and he failed to follow proper procedure to introduce further evidence. The impugned statements by the 1st respondent were factual comparisons, not false statements defaming the appellant's character under section 73 of the Parliamentary Elections Act. No recount was warranted absent cogent evidence and proper procedure. A signature qualifies as a mark under section 2 of the Illiterates Protection Act, and untranslated CD evidence was properly excluded. The appeal was dismissed with costs and the 1st respondent declared validly elected.

Facts

The appellant and the 1st respondent contested the parliamentary seat for Bugweri County Constituency at elections held on 18 February 2016. The Electoral Commission declared and gazetted the 1st respondent as the winner. The appellant, dissatisfied, filed Election Petition No. 11 of 2016 in the High Court at Jinja, alleging among other things that the 1st respondent made false defamatory statements at campaign rallies, that votes should be recounted given a small margin and many allegedly invalidated votes, and that procedural irregularities affected the result. The High Court (Mutonyi, J) dismissed the petition with costs. The appellant complained that he was refused an opportunity to reply to 41 affidavits filed by the 1st respondent, that certain affidavits by illiterates were defective, that CD recordings of impugned statements were wrongly excluded for lack of translation, and that a supporting witness was wrongly held not to be Ugandan.

Issues

  1. Whether the trial Judge denied the appellant a fair hearing by refusing to allow him to reply to 41 affidavits filed by the 1st respondent.
  2. Whether the 1st respondent made false statements affecting the appellant's character amounting to an electoral offence under section 73 of the Parliamentary Elections Act.
  3. Whether the trial Judge ought to have ordered a recount of votes.
  4. Whether the trial Judge erred in holding that a witness was not a Ugandan and in exonerating the 1st respondent of offences under sections 23, 73 and 80 of the PEA.
  5. Whether the trial Judge erred in failing to strike out the 1st respondent's supplementary affidavit.
  6. Whether a signature constitutes a mark under section 2 of the Illiterates Protection Act.
  7. Whether the trial Judge rightly excluded untranslated CD recording evidence.

Orders

  • Appeal dismissed.
  • The 1st respondent declared the validly elected Member of Parliament for Bugweri County Constituency.
  • The appellant to pay the costs of the 1st and 2nd respondents of both the appeal and the court below.

Key headnotes

Electoral Law — Election Litigation — Expeditious Determination and Adherence to Timelines
Election litigation is time-bound and a party who fails to follow the set timelines and procedures cannot complain of denial of a fair hearing where the court declines to permit the introduction of further evidence.
Electoral Law — Electoral Offences — False Statements Affecting Character under Section 73 PEA
To establish the offence of making false statements under section 73 of the Parliamentary Elections Act, the petitioner must prove the statement was published, was false, related to the personal character or conduct of the candidate, and was made without belief in its truth; statements of factual comparison that do not lower the candidate's esteem are not defamatory.
Electoral Law — Recount of Votes — Conditions and Procedure under Sections 48, 54, 55 and 63 PEA
A court will only order a recount of votes where there is cogent evidence establishing a prima facie need; a party must follow the prescribed procedure, including raising complaints during counting and applying to the Chief Magistrate's Court, rather than alleging generally that votes were wrongly declared.
Electoral Law — Declaration of Results Forms — Estoppel of Candidate Whose Agent Signs
Where an agent signs a Declaration of Results Form confirming the result at a polling station, the candidate who appointed that agent is estopped from later challenging the contents of the form.
Evidence — Affidavits of Illiterates — Signature as a Mark under Section 2 Illiterates Protection Act
A signature can constitute a mark for the purposes of section 2 of the Illiterates Protection Act, since the essence of an illiterate appending a mark is to confirm authorship or ownership of the document, and an affidavit bearing a signature is not invalid on that ground where the document was read and explained to the deponent.
Evidence — Audio Visual Recordings — Requirement of Transcription and Translation into English
CD or recorded evidence in a language other than English must be transcribed and translated before it can be received, as the language of courts and the recording of evidence is English under the Civil Procedure Act.

Legislation cited (16)

  • Parliamentary Elections Act s.23
  • Parliamentary Elections Act s.48
  • Parliamentary Elections Act s.54
  • Parliamentary Elections Act s.55
  • Parliamentary Elections Act s.63(2)
  • Parliamentary Elections Act s.63(4)
  • Parliamentary Elections Act s.63(5)
  • Parliamentary Elections Act s.73
  • Parliamentary Elections Act s.73(1)
  • Parliamentary Elections Act s.80
  • Illiterates Protection Act Cap 78 s.2
  • Civil Procedure Act s.87
  • Civil Procedure Act s.88
  • Constitution of Uganda Article 28
  • Electronic Transmissions Act s.8
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 30(1)

Cases cited (17)

  • Kamba Saleh Moses v Namuyangu Jennifer (Election Petition Appeal No. 27 of 2011)
  • Kizza Besigye v Yoweri K. Museveni (Presidential Election Petition No. 1 of 2001)
  • Kizza Besigye v Electoral Commission and Museveni (Presidential Election Petition No. 1 of 2006)
  • Wasike Stephen Mugeni v Aggrey Awori Siryoi (Election Petition Appeal No. 5 of 2007)
  • Kasaala Growers Cooperative v Kakooza Jonathan and Another (Civil Application No. 19 of 2010)
  • Seth Shibulo Loongo v Kennedy Mpolobe Shepande (1984) Z.R. 59 (H.C)
  • Fred Badda and Another v Muyada Mutebi (Election Petition Appeal No. 25 of 2006)
  • Amama Mbabazi v Electoral Commission and Another (Election Petition No. 1 of 2016)
  • Keziah Nyeketcho v Electoral Commission and Another (Election Petition No. 11 of 2006)
  • Ngoma Ngime v Electoral Commission and Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
  • Babu Edward Francis v Electoral Commission and Erias Lukwago (Election Petition No. 10 of 2006)
  • Pandya v R [1957] E.A 336
  • Okeno v Republic [1972] E.A 32
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Mugema Peter v Mudhiobole Abed Nasser (Election Petition Appeal No. 30 of 2011)
  • Electoral Commission and Another v Piro Santos (Civil Application No. 22 of 2011)
  • Muiya vs. Nyangah and Others, [2003] 2 EA 616 (C.H.C.K)
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