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Apolot Stella Isodo v Amongin Jacquiline (Election Petition Appeal No. 60 of 2016)

Court of Appeal · [2018] UGCA 18 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court dismissal of an election petition
Decision
Appeal dismissed; election of the respondent as Woman Member of Parliament for Ngora District upheld

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Holding

The Court of Appeal dismissed an appeal against the High Court's upholding of the respondent's election as Woman MP for Ngora District. On a fresh reappraisal of evidence, the Court held the appellant failed to prove allegations of bribery through hoes, money, a boat, iron sheets and jerseys by cogent, credible and independent evidence. The distribution of hoes and iron sheets was shown to have occurred outside the campaign period under a NAADS government programme. The burden of proof in election petitions rests on the petitioner and does not shift to the respondent; total denial is a complete defence. The trial Judge applied the correct standard of proof. Each ground of appeal failed.

Facts

The appellant and respondent contested the election for Woman Member of Parliament for Ngora District held on 18 February 2016. The respondent polled 24,539 votes against the appellant's 19,766 and was declared the winner. The appellant petitioned the High Court alleging the respondent, personally or through agents, committed bribery contrary to section 68 of the Parliamentary Elections Act by distributing hand hoes at various locations, donating UGX 700,000 and a saucepan at Kabakuli Pentecostal Church, donating iron sheets at Atapar Catholic Church and Oteteen Primary School, donating a boat at Atapar-Agule and Kopege villages, and donating football jerseys to Oteteen FC. The respondent denied the allegations, contending the hoes and iron sheets were distributed under a NAADS government programme between September and November 2015, before the campaign period, and that the boat was donated in September 2015. The High Court dismissed the petition, finding the evidence lacked credibility and that distributions fell outside the campaign period. The appellant appealed.

Issues

  1. Whether the trial Judge failed to properly evaluate the evidence of bribery using hoes, money, a boat, iron sheets and jerseys.
  2. Whether the respondent committed acts of bribery during the gazetted campaign period.
  3. Whether the trial Judge set a standard of proof higher than that provided by law.
  4. Whether the trial Judge erred in his treatment of the respondent's bare denial and in denying the appellant's counsel opportunity to cross-examine certain witnesses.

Orders

  • The appeal fails.
  • The judgment and orders of the lower Court are upheld.
  • The appellant shall bear 50% of the costs of the appeal in this Court and the Court below.

Key headnotes

Election Petitions — Burden of Proof — Petitioner's Onus
In an election petition the burden of proof lies on the petitioner and never shifts to the respondent; the petitioner must adduce cogent evidence to prove the allegations and cannot rely on the weakness of the respondent's case.
Election Petitions — Standard of Proof
The standard of proof in a parliamentary election petition under section 61(3) of the Parliamentary Elections Act is to the satisfaction of the court on a balance of probabilities, slightly higher than the ordinary civil standard but short of proof beyond reasonable doubt.
Election Offences — Bribery — Ingredients
The offence of election bribery under section 68(1) of the Parliamentary Elections Act requires proof that a gift was given to a voter, that the gift was given by a candidate or his agent, and that it was given with the intention of inducing the voter to vote, and must be proved by unequivocal evidence rather than mere suspicion.
Affidavit Evidence — Failure to Submit for Cross-Examination — Weight
Where a deponent is not produced for cross-examination, the affidavit, though technically admissible, carries little weight as there is no means of testing the truth of its contents.
Election Petitions — Partisan Evidence — Need for Independent Corroboration
Because election petitions are highly partisan and supporters may go to any length to establish adverse claims, courts must look for cogent, independent and credible evidence to corroborate a petitioner's allegations before finding them proved.
Election Offences — Donations During Campaign Period — Timing
Distribution of items under a government programme that occurs before the gazetted campaign period does not constitute bribery or a prohibited donation under section 68 of the Parliamentary Elections Act.
Pleadings and Defence — Total Denial as Complete Defence
A total denial of allegations is a complete defence in itself, and a trial court need not make a specific finding on a respondent's denial where the petitioner has failed to discharge the burden of proof.

Legislation cited (5)

  • Parliamentary Elections Act 2005 s.68(1)
  • Parliamentary Elections Act 2005 s.68(4)
  • Parliamentary Elections Act 2005 s.68(7)
  • Parliamentary Elections Act 2005 s.68(8)
  • Parliamentary Elections Act 2005 s.61(3)

Cases cited (9)

  • Michael Mawanda v Electoral Commission and Andrew Marshal (Election Petition Appeal No. 98 of 2016)
  • Odo Tayebwa v Nasser Basajabalaba and Another (Election Appeal No. 13 of 2001)
  • H.B Haina & Associates Inc (1978) 28 CBR
  • Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
  • Col. (Rtd) Dr. Besigye Kizza v Museveni Yoweri Kaguta & Another (Election Petition No. 1 of 2001)
  • Kikulukubyu Faisal v Muwanga Kivumbi Muhammed (Election Petition Appeal No. 44 of 2011)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Lulume (Supreme Court Election Petition Appeal No. 18 of 2007)
  • Kabuusu Moses Wagabo v Lwaiga Timothy Mutekanga & Electoral Commission (Election Petition No. 15 of 2011)
  • Rtd Col. Dr. Kizza Besigye v Electoral Commission (Presidential Election Petition No. 1 of 2006)
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.