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Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 16 of 2016)

Court of Appeal · [2018] UGCA 259 · 2018 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court judgment nullifying a parliamentary election following an election petition
Decision
Appeal allowed; trial court's nullification set aside and appellant's election as Member of Parliament for Iganga Municipality upheld as valid

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Holding

The Court of Appeal validated the late-filed Record of Appeal, finding the appellant exercised sufficient diligence and could not be blamed for the Registry's delay. On the merits, it held that affidavits not complying with section 3 of the Illiterates Protection Act go to substance and should have been expunged, and that Article 126(2)(e) cannot cure such defects. It held that a party leader is not automatically a candidate's agent absent proof of authorisation, so bribery by Ngobi Yaziid and Waibi Siraji could not be imputed to the appellant. An offertory at a church function was not a bribe. The appeal was allowed and the appellant's election upheld.

Facts

The appellant and the respondent contested the parliamentary election for Iganga Municipality Constituency held on 18 February 2016. The appellant polled more votes, was declared winner by the Electoral Commission and gazetted. The respondent filed an election petition in the High Court at Jinja, which found the appellant had committed illegalities of bribery and giving donations, nullified the election, and declared the respondent validly elected. The trial court relied on 23 affidavits deponed by illiterate witnesses which it acknowledged were not administered in accordance with the Illiterates Protection Act, but nonetheless upheld them. The bribery findings rested partly on the conduct of Ngobi Yaziid, an NRM party chairperson, and Waibi Siraji, alleged to be agents of the appellant, and on a donation of Shs 300,000 given by the appellant at a church cross-over function. The appellant appealed against the nullification, the reliance on the affidavits, the agency findings, and the declaration of the respondent as winner.

Issues

  1. Whether the Record of Appeal filed out of time should be validated or struck out.
  2. Whether the trial Judge erred in relying on the 23 impugned affidavits after finding they were not procured in accordance with the Illiterates Protection Act.
  3. Whether the trial Judge ought to have compared the signatures of the translator.
  4. Whether Ngobi Yaziid was an agent of the appellant such that his acts of bribery could be attributed to the appellant.
  5. Whether the oral evidence of Waibi Siraji, whose affidavit was struck out, could sustain a finding of bribery.
  6. Whether the donation of Shs 300,000 given at a church cross-over function constituted a bribe.
  7. Whether the trial Judge was entitled to declare the respondent the validly elected Member of Parliament.
  8. Whether the grant of a certificate for two counsel was justified.

Orders

  • Appeal allowed.
  • The judgment and orders of the trial court are set aside.
  • The election of Peter Mugema as Member of Parliament for Iganga Municipality is upheld as valid.
  • The award of a certificate of two counsel is reversed.
  • The respondent shall pay the appellant's costs in this Court and in the court below.

Key headnotes

Election Petitions — Record of Appeal — Validation of late filing where Registry caused delay
Where an appellant has applied for and diligently pursued the record of proceedings, time taken by the Registrar in preparing and delivering a certified copy is excluded under Rule 83(2), and the appellant cannot be penalised for delay attributable to the Registry's failure to inform him the record was ready.
Affidavits — Illiterate deponents — Non-compliance with Illiterates Protection Act as matter of substance
Non-compliance with section 3 of the Illiterates Protection Act in preparing an affidavit for an illiterate deponent goes to substance, not mere form, and such defective affidavits should be expunged; Article 126(2)(e) of the Constitution cannot cure the defect.
Affidavits — Preparation distinct from translation under section 3
The 'preparation' of a document for an illiterate and its 'translation' are distinct requirements; compliance with one does not satisfy the other, and an affidavit reflecting only translation without proof of who drafted it at the deponent's instruction is non-compliant.
Signatures — Comparison reserved for handwriting experts
Determining the uniformity or similarity of signatures is the preserve of handwriting experts or persons acquainted with the signature, and a trial judge rightly declines to assume that role.
Agency — Party leader not automatically a candidate's agent
A leader or official of a political party is not necessarily the agent of every candidate of that party; agency is a matter of fact requiring proof of authorisation by the candidate, and corrupt practices of an unauthorised party leader cannot be imputed to the candidate.
Bribery — Religious offertory not a bribe absent proof
A donation given as an offertory during a religious cross-over function, where the rival candidate also contributed, is not a bribe absent proof that it was given for the purpose of influencing voters, and is protected as a manifestation of religious practice under Article 29(1)(o).
Costs — Certificate for two counsel requires justification
A certificate for two counsel will be reversed where the trial judge gives no reason for the grant and the matter prosecuted was not of such complexity as to justify it.

Legislation cited (12)

  • Illiterates Protection Act Cap 78 s.3
  • Oaths Act s.1
  • Interpretation Act s.43
  • Advocates Act s.67
  • Parliamentary Elections Act s.63
  • Parliamentary Elections Act s.68(7)
  • Parliamentary Elections Act s.68(8)
  • Parliamentary Elections (Amendment) Act No. 12 of 2010
  • Constitution of Uganda 1995 Article 126(2)(e)
  • Constitution of Uganda 1995 Article 29(1)(o)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 30(1)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 83(2)

Cases cited (26)

  • Oddo Tayebwa v Bassajjabalaba (Election Petition Appeal No. 13 of 2011)
  • Ticken Francis v Electoral Commission (Election Petition No. 1 of 2012)
  • Ngoma Ngime v Electoral Commission (Election Petition Appeal No. 11 of 2002)
  • Kasaala Growers Cooperative Society v Kakooza Jonathan (Civil Appeal No. 19 of 2010)
  • Goobi Rodney v Christine Nabunya (Civil Appeal No. 4 of 2007)
  • Salaam Musumba v Electoral Commission (Election Petition No. 1 of 2007)
  • Ourom Okiror Sam v Electoral Commission (Election Petition No. 8 of 2011)
  • Halima Nakawungu v EC & Susan Namaganda Election Petition No. of 2011
  • Peter Mugema v Mudhiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Kipoi Tony Nsubuga v Waluku Ronny Tony Wataka (Election Petition Appeal No. 7 of 2011)
  • Uganda v Jackline Uwera Nsenga (Criminal Session Case No. 312 of 2013)
  • Bakaluba Mukasa v Namboze Betty Bakireke (Election Petition Appeal No. 4 of 2009)
  • Bakaluba Mukasa Peter v Nalugo Mary Margaret Sekiziyivu (Election Petition Application No. 24 of 2011)
  • Kasibante Moses v Katongole Singh (Election Petition Application No. 18 of 2012)
  • Andrew Maviri v Jomayi Property Consultants Limited (Civil Application No. 274 of 2014)
  • Sagu v Road Master Cycles Ug Ltd [2002] 1 EA 258
  • Kirya Grace Wanzala v Daudi Migereko (Electoral Reference No. 39 of 2012)
  • Mukasa Anthony Harris v Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Wanume David Katamirike v Uganda Revenue Authority (Civil Application No. 138 of 2010)
  • Fred Bwino Kyakulaga v Badogi Ismail Waguma (Election Petition Application No. 26 of 2016)
  • Kakooza John Baptist v Electoral Commission (Election Petition Appeal No. 11 of 2007)
  • Kiiza Besigye v Electoral Commission (Presidential Election Petition No. 1 of 2006)
  • Commissioner General Uganda Revenue Authority v Meera Investments Ltd (Civil Appeal No. 22 of 2007)
  • Pandya v R [1957] EA 336
  • Okeno v Republic [1972] EA 32
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
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