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Kassaja v Ngobi Gume and Another (Election Petition Appeal No. 0068 of 2016)

Court of Appeal · [2018] UGCA 260 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court dismissal of an election petition
Decision
Appeal dismissed; 1st respondent confirmed as validly elected Member of Parliament.

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Holding

The Court of Appeal dismissed an appeal against the dismissal of a parliamentary election petition. It held the trial Judge rightly struck out affidavits where deponents' signatures conflicted with their National IDs or their identity was uncertain, as affidavits are the principal evidence in election matters. A contempt of court conviction for which the respondent paid a fine did not amount to a crime involving moral turpitude under s.4(2)(f) of the Parliamentary Elections Act. The appellant failed to prove bribery on a balance of probabilities, relying only on suspicion and uncorroborated accomplice evidence without proof that deponents were registered voters. The election complied with electoral law. Each party was ordered to bear own costs.

Facts

The appellant, George Patrick Kassaja, contested the February 2016 election for Member of Parliament for Bulamoji North West Constituency in Kaliro District against the 1st respondent, Fredrick Ngobi Gume, and two others. The 1st respondent was returned the winner with 10,702 votes against the appellant's 8,951, a margin of 1,751. The appellant petitioned the High Court at Jinja alleging the election violated electoral laws, that the 1st respondent and his agents committed bribery by distributing petroleum jelly and hoes bearing the 1st respondent's portrait and slogan, and that the 1st respondent was unqualified having been convicted of contempt of court, an alleged crime involving moral turpitude. The trial Judge struck out 19 affidavits where deponents' signatures conflicted with their National IDs or identities were uncertain, found no proof of bribery, and dismissed the petition with costs. The appellant appealed.

Issues

  1. Whether the trial Judge erred when he struck out 19 affidavits of the petitioner.
  2. Whether the trial Judge erred when he held that the 1st respondent's nomination complied with the electoral law and that he was not convicted of a crime involving moral turpitude.
  3. Whether the trial Judge erred when he found the 1st respondent not guilty of bribery personally or through his agents with his knowledge, consent or approval.
  4. Whether the trial Judge erred when he found the election was conducted in compliance with electoral law.
  5. Whether the trial Judge erred when he condemned the petitioner to costs.

Orders

  • Appeal dismissed.
  • Decision of the trial court upheld and the 1st respondent confirmed as validly elected Member of Parliament for Bulamoji North West Constituency.
  • Each party to bear their own costs both in this Court and the court below.

Key headnotes

Election Petitions — Affidavit Evidence — Striking Out for Identity Discrepancies
Although courts adopt a liberal approach to affidavit evidence in election matters, they will not condone outright irregularities; an affidavit may be rejected where the deponent's signature conflicts with a National ID indicating inability to sign, or where the named deponent differs from the person signing, leaving the identity of the deponent uncertain.
Qualification — Moral Turpitude — Contempt of Court Conviction
A conviction for contempt of court for which a fine is paid does not amount to a crime involving moral turpitude under s.4(2)(f) of the Parliamentary Elections Act; moral turpitude requires conduct so extreme and heinous as to shock the moral sense of the community.
Bribery — Standard and Burden of Proof — Proof of Registered Voter Status
To establish bribery under s.68 of the Parliamentary Elections Act the petitioner must prove on a balance of probabilities that a gift was given to a registered voter by a candidate or agent with intent to influence the vote; conclusive proof of voter status is the name on the National Voters' Register, not voter slips or National IDs, and mere suspicion or uncorroborated accomplice evidence is insufficient.
Declaration of Results Forms — Estoppel of Candidate
Where an agent signs a Declaration of Results Form, the candidate as appointing authority is estopped from challenging the contents of that form, as the signed form confirms satisfaction with what transpired at the polling station.
Costs — Election Petitions — Judicial Discretion
Costs in election petitions are governed by the court's discretion under s.27 of the Civil Procedure Act and rule 27 of the Parliamentary Elections (Interim Provisions) (Election Petition) Rules; where a petitioner raises serious issues but falls short of proof, the court may order each party to bear their own costs.

Legislation cited (12)

  • Parliamentary Elections Act No. 17 of 2005 s.4(2)(f)
  • Parliamentary Elections Act s.68(1)
  • Parliamentary Elections Act s.46
  • Parliamentary Elections Act s.1
  • Civil Procedure Act Cap 71 s.27
  • Parliamentary Elections (Election Petitions) Rules S.I. 141-2 r.15
  • Parliamentary Elections (Interim Provisions) (Election Petition) Rules S.I. 141-2 r.27
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.30(1)
  • Constitution of Uganda Article 28(12)
  • Penal Code Act s.107
  • Judicature Act s.14(2)(b)
  • Judicature Act s.14(2)(c)

Cases cited (16)

  • Rtd. Col. Dr. Kiiza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2001)
  • Fred Badda & Anor v Prof. Muyanda Mutebi (Election Petition Appeal No. 21 of 2007)
  • Mbayo Jacob Robert v Electoral Commission & Talonsya Sinani (Election Petition Appeal No. 07 of 2006)
  • Muriisa Nicholas v Attorney General & 3 Others (Miscellaneous Cause No. 035 of 2012)
  • Luyimbazi John & Anor v Bazigatirawo Kibuuka Francis Amooti & Electoral Commission (Election Petition Appeal No. 40 of 2011)
  • Mukasa Anthony Harris v Bayiga Lulume (Election Petition Appeal No. 18 of 2007)
  • Odo Tayebwa v Nasser Basajjabalaba (Election Appeal No. 13 of 2011)
  • Kamba Saleh Moses v Namayangu Jennifer (Election Petition Appeal No. 027 of 2011)
  • Bashaija Kazoora John v Electoral Commission & Bitekyerezo Medard (Election Petition No. 4 of 2011)
  • Sarah Bireete v Bernadette Bigirwa & Electoral Commission (Election Petition Appeal No. 13 of 2002)
  • Paul Mwiru v Nathan Igeme Nabeeta & 2 Others (Election Petition Appeal No. 13 of 2002)
  • Pandya v R [1957] EA 336
  • Okeno v Republic [1972] EA 32
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Mugema Peter v Mudhiobole Abed Nasser (Election Petition Appeal No. 30 of 2011)
  • Babu Edward Francis v Electoral Commission & Erias Lukwago (Election Petition No. 10 of 2006)
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