Wakilii

Nabeta and Another v Mwiru Paul (Election Petition Appeals No. 045 and 046 of 2016)

Court of Appeal · [2018] UGCA 257 · 2018 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from High Court decision nullifying a parliamentary election
Decision
Election nullified; seat declared vacant and fresh elections ordered for Jinja East Constituency

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal upheld the High Court's nullification of the 1st appellant's election, finding that the declaration of results form relied on at tallying (PW3 Exhibit 4) was falsified, the tamper proof envelope was opened in breach of section 53(1) of the Parliamentary Elections Act by a person other than the returning officer, and the ballot box seals had been altered, compromising its contents. However, the Court disagreed with the trial Judge's declaration of the respondent as the validly elected candidate, holding that the tainted results could not be used to ascertain the true outcome. The appeal was partly allowed: the seat was declared vacant and fresh elections ordered, with costs to the respondent.

Facts

The 1st appellant and the respondent contested the parliamentary election for Jinja Municipality East Constituency on 18 February 2016. The 1st appellant was declared winner and gazetted by the Electoral Commission. At the Danida (A-D) community polling station, two conflicting declaration of results forms emerged: PW3 Exhibit 4 (in the tamper proof envelope) recorded 507 votes for the 1st appellant and 226 for the respondent, while PW3 Exhibit 3, retrieved by the respondent's supervisor and later exhibited by police, recorded 226 for the respondent and 187 for the 1st appellant. The respondent objected at tallying, but the returning officer referred the complaint to the Commission's legal department and announced the 1st appellant winner. The tamper proof envelope was opened by a sub county supervisor rather than the returning officer, and the ballot box seals differed across witnesses. A handwriting expert reported the agents' signatures on PW3 Exhibit 4 were forged. The High Court nullified the election and declared the respondent the winner, prompting this appeal.

Issues

  1. Whether the 1st appellant was validly elected as Member of Parliament for Jinja East Constituency.
  2. Whether a relative of a candidate is automatically an incredible witness or has a conflict of interest when serving as a presiding officer.
  3. Whether the tamper proof envelope for Danida (A-D) polling station was opened in accordance with section 53 of the Parliamentary Elections Act.
  4. Whether the contents of the ballot box had been compromised by alteration of the seals.
  5. Whether a handwriting expert's report tendered through affidavit could be relied on without the author testifying.
  6. Whether the trial Judge was entitled to rely on facts raised in rejoinder said to be inconsistent with earlier pleadings.
  7. Whether the court could declare the respondent the validly elected candidate or whether the seat should be declared vacant.

Orders

  • The seat for directly elected Member of Parliament for Jinja East Constituency is vacant.
  • The 2nd appellant is ordered to hold fresh elections for Member of Parliament for Jinja East Constituency.
  • The respondent is entitled to costs of this appeal and in the High Court.

Key headnotes

Electoral Law — Credibility of Witnesses — Relative of Candidate Serving as Electoral Officer
A relative of a candidate is not automatically an incredible or partisan witness, nor does serving as an electoral officer while related to a candidate inherently create a conflict of interest; the evidence of such a person is to be assessed on its own value.
Proof of Relationship — Opinion Evidence — Evidence Act s.48
Where a court must form an opinion as to the relationship between persons, mere appearance of a person in a funeral memento calendar is not conclusive proof of relationship; the court should consider opinion evidence of a person with special means of knowledge under section 48 of the Evidence Act.
Tallying Procedure — Opening of Tamper Proof Envelope — Parliamentary Elections Act s.53(1)
Section 53(1) of the Parliamentary Elections Act requires the returning officer personally to open the envelopes containing declaration of results forms in the presence of candidates or their agents; opening by another person such as a sub county supervisor is a breach of the law affecting the integrity of the contents.
Ballot Box Integrity — Altered Seals — Reliability of Contents
Where the serial numbers of seals on a ballot box are altered or differ between parties without satisfactory explanation, the contents of the ballot box cannot be considered reliable and reliance on them is defeated.
Electoral Law — Expert Evidence by Affidavit — Handwriting Report
In election petitions evidence is presented by affidavit; a handwriting expert's report tendered through affidavit may be relied upon, and the opposing party bears the burden of rebutting it by affidavit or by summoning the author for cross examination.
Pleadings — Departure in Rejoinder — Test for New Case
Restating the same factual issue in different words in a rejoinder does not amount to a departure from pleadings or introduction of a new case where the opposing party had fair notice of the case to be met.
Remedy — Nullification and Declaration of Winner — Tainted Results
Where the integrity of polling results is so tainted by non-compliance and irregularities that the true outcome cannot be ascertained, a court should not declare a rival candidate validly elected but should declare the seat vacant and order fresh elections.

Legislation cited (15)

  • Parliamentary Elections Act s.27
  • Parliamentary Elections Act s.28
  • Parliamentary Elections Act s.47(4)
  • Parliamentary Elections Act s.47(5)
  • Parliamentary Elections Act s.50
  • Parliamentary Elections Act s.53
  • Parliamentary Elections Act s.53(1)
  • Parliamentary Elections Act s.58
  • Parliamentary Elections Act s.59
  • Parliamentary Elections Act s.60
  • Parliamentary Elections Act s.61
  • Parliamentary Elections Act s.63(6)(b)(i)
  • Constitution of Uganda Article 68(4)
  • Evidence Act s.48
  • Judicature (Court of Appeal Rules) Directions Rule 30

Cases cited (5)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Selle and Another v Associated Motor Boat Company Ltd [1968] EA 123
  • Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Election Petition Appeal No. 4 of 2009)
  • Gandy v Caspar Air Charter Ltd (1956) 23 EACA 139
  • Uganda Breweries Ltd v Uganda Railways Corporation [2002] 2 EA 634
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.