Namugula v Kasande and Another (Election Petition Appeal 4 of 2017)

Court of Appeal · [2018] UGCA 264 · 2018 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal from High Court decision in an election petition appeal arising from a Chief Magistrate's dismissal of a local government election petition

Decision

Appeal succeeded on the court fees ground and the lower courts' dismissal orders were set aside, but the Court re-evaluated the evidence and confirmed the first respondent as the validly elected District Woman Councilor

The full judgment

Read the complete, verbatim text of this judgment.

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Holding

The Court of Appeal held that the Parliamentary and Presidential Elections Acts do not apply to assessment of court fees in local government election petitions; the Judicature (Court Fees) Rules apply, and the petitioner had paid fees as assessed. Non-payment of fees is not an automatic ground for striking out; under s.97 Civil Procedure Act a court may allow deficient fees to be made up. The trial Magistrate and High Court erred. Invoking s.11 of the Judicature Act, the Court re-evaluated the evidence itself, finding the tallying was lawful and the first respondent won by 148 votes. The appeal succeeded on the fees ground, but the first respondent's election was confirmed.

Facts

The appellant and the first respondent contested the District Woman Councilor election for Mijwala Sub-County and Sembabule Town Council, Sembabule District, held on 24 February 2016 and organised by the Electoral Commission. The first respondent was declared the winner and gazetted. The appellant filed an election petition in the Chief Magistrate's Court, which was dismissed on a preliminary objection that fees had not been fully paid, raised late at submissions stage. Her High Court appeal was dismissed. On the merits, the appellant alleged that results were altered at Kisonko Muslim Primary School and Soweto Mijwala polling stations, adding 100 votes at each in the first respondent's favour. The respondents conceded minor mistakes in the final tally but maintained these did not affect the outcome. Tallying from all 31 polling stations showed the first respondent polled 3551 votes against the appellant's 3403.

Issues

Whether the appellate Judge erred in holding there was no petition to entertain due to failure to pay the prescribed court fees.
Whether the appellate Judge erred in declining to re-evaluate the evidence on the basis that the petition was incompetent.
Which law governs assessment and payment of court fees in local government election petitions.
Whether the declared election results for the Woman Councilor seat were validly tallied in accordance with the law.
Who of the two candidates validly won the election.

Orders

This appeal succeeds on ground one as sufficient fees had been paid; the order of the Chief Magistrate dismissing the Election Petition is set aside.
The decision of the High Court dismissing the first appeal is set aside.
The first respondent Kasande Jolly obtained the highest number of valid votes during the elections of 24 February 2016 and her election as District Woman Councilor for Mijwala Sub-county and Sembabule Town Council, Sembabule District is confirmed.
Each party bears its own costs at the trial Court, High Court and the Court of Appeal.

Key headnotes

Electoral Law — Local Government Election Petitions — Applicable Law for Court Fees

The Parliamentary Elections Act and Presidential Elections Act do not apply to the assessment or payment of court fees for election petitions concerning local government elections; the Judicature (Court Fees) Rules apply where the Local Governments Act provides no specific fee rules.

Civil Procedure — Court Fees — Effect of Non-payment or Deficiency

Non-payment of court fees is not an automatic ground for striking out a petition; under section 97 of the Civil Procedure Act a court may, in its discretion, at any stage allow the deficient fees to be made up, whereupon the document has the same force as if the fee had been paid in the first instance.

Civil Procedure — Second Appeals — Duty Where First Appellate Court Fails to Re-evaluate Evidence

Where the first appellate court fails in its duty to re-evaluate the evidence and reach its own conclusions, the second appellate court may, under section 11 of the Judicature Act, exercise the powers of the trial court to re-evaluate the evidence and finally determine the matter, particularly where strict election timelines make remittal inappropriate.

Electoral Law — Burden of Proof — Validity of Tally

In an election petition the burden of proof rests on the petitioner to establish each allegation to the satisfaction of the court; minor conceded errors in tallying that do not substantially affect the outcome do not invalidate a declared result.

Legislation cited (7)

Local Governments Act s.172
Local Governments Act s.136(1)
Civil Procedure Act s.97
Judicature Act s.11
Judicature (Court Fees) Rules S.I 13-1 Rule 48(1)(d)
Parliamentary Elections Act s.47(6)
Rules of the Court of Appeal Rule 32(2)

Cases cited (9)

Wanyama Gilbert Markmot v Hissa Albert and Electoral Commission (Election Petition Appeal No. 99 of 2016)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
Ndawula Ronald v Hajji Naduli Abdul (Election Petition No. 20 of 2006)
Babihuga Winnie v Matsiko Winfred (Election Petition Application No. 14 of 2002)
R vs Hassan Bin Said [1942] 9 EACA 62
Pandya Vs R (1957) EA 336
Mpairwe Beatrice v Nyendwoha Bigirwa Norah (Election Petition Appeal No. 18 of 2011)
Ngoma-Ngime v Electoral Commission and Winnie Byanyima (Election Petition Appeal No. 11 of 2002)

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.