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Kwoba v Ssebugwawo (Election Petition Appeal No. 108 of 2016)

Court of Appeal · [2019] UGCA 2 · 2019 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal from the High Court's decision on a local government council election petition
Decision
Appeal succeeded only on part one of ground one; otherwise dismissed and the first appellate court's judgment declaring the respondent validly elected upheld

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Holding

The Court held that the Parliamentary Elections Act and its Rules do not apply to local government council election petitions, since section 172 of the Local Governments Act permits only the Electoral Commission to apply parliamentary and presidential elections law. However, the applicable standard of proof under section 139 of the Local Governments Act—proof to the satisfaction of the court—is identical to that under the Parliamentary Elections Act, so the appellate Judge's misapplication did not affect the result. The evidence of an accomplice (Luyombya) required independent corroboration, and bribery was not proved because no agency relationship with the respondent was established. The appeal succeeded only on part one of ground one and was otherwise dismissed.

Facts

The appellant and seven others, including the respondent, contested for the directly elected Councilor seat for Kazo-Angola Parish, Kawempe North Constituency, Kampala District, in the 2 March 2016 local government elections. The Electoral Commission declared the respondent the winner with 1,193 votes against the appellant's 585 votes. The appellant petitioned the Chief Magistrates' Court of Nabweru, alleging voter bribery, and judgment was entered in his favour declaring the respondent invalidly elected. The respondent appealed to the High Court, which set aside the magistrate's decision and declared the respondent validly elected. The appellant appealed to the Court of Appeal. The central factual allegation was that one Mulumba Mathius, said to be the respondent's brother and agent, gave a voter (Luyombya) UGX 10,000 to vote for the respondent, and that the respondent gave cement and money to others. The respondent denied that Mulumba was his agent or acted with his knowledge.

Issues

  1. Whether the Parliamentary Elections Act and Rules apply to local government council election petitions, and whether the appellate Judge applied the correct standard of proof.
  2. Whether the trial Chief Magistrate erred in relying on unchallenged affidavit evidence and whether such evidence required corroboration.
  3. Whether the offence of voter bribery was proved to the required standard against the respondent.
  4. Whether the first appellate court properly re-evaluated the evidence on record.

Orders

  • The Judgment of the first appellate Court is upheld.
  • The respondent was validly elected as Councilor for Kazo-Angola Parish, Kawempe North Constituency, Kawempe Division, Kampala District.
  • Costs of this appeal and those in the lower courts are awarded to the respondent.
  • Costs of Miscellaneous Application No. 16 of 2017 and Election Petition Application No. 18 of 2017 shall be borne by each party.

Key headnotes

Electoral Law — Local Government Council Election Petitions — Inapplicability of Parliamentary Elections Act
The Parliamentary Elections Act and Rules made thereunder do not apply to local government council election petitions, because section 172 of the Local Governments Act permits only the Electoral Commission to apply the Presidential and Parliamentary Elections Acts in the conduct of elections, not the trial of petitions arising from them.
Electoral Law — Standard of Proof — Proof to the Satisfaction of the Court
The standard of proof in election petitions—proof to the satisfaction of the court on a balance of probabilities—is the same whether the contest is presidential, parliamentary or local government, because all such elections are of critical importance to the welfare of the people and their democratic governance.
Evidence — Accomplice Evidence — Need for Corroboration
Where the only evidence of bribery comes from a person who willingly participated in the alleged bribe transaction, that person is an accomplice whose evidence must be treated with caution and requires independent corroboration before it can found a finding of an illegal practice.
Electoral Law — Bribery — Elements and Proof of Agency
To prove voter bribery a petitioner must establish that a gift was given to a voter, by a candidate or the candidate's agent, with intent to influence the recipient's vote; absent proof of an agency relationship and the candidate's knowledge or consent, the offence is not established.
Civil Procedure — Second Appeal — Scope of Re-evaluation of Evidence
A second appellate court will not re-evaluate the evidence as the first appellate court is bound to do, and will only interfere with concurrent findings of fact where the lower courts were wrong or applied wrong principles of law.
Civil Procedure — Extension of Time — Mistake of Counsel and Sufficient Cause
Where an applicant has exercised due diligence in prosecuting an appeal, the inadvertence of counsel in personal conduct of the case who was indisposed may constitute sufficient cause to extend time and validate late service of the record of appeal under rule 5 of the Judicature (Court of Appeal Rules) Directions.

Legislation cited (14)

  • Local Governments Act s.139
  • Local Governments Act s.143(1)
  • Local Governments Act s.138
  • Local Governments Act s.147(1)
  • Local Governments Act s.172
  • Parliamentary Elections Act s.61(1)
  • Parliamentary Elections Act s.61(3)
  • Parliamentary Elections Act s.61(4)
  • Presidential Elections Act s.59(6)
  • Evidence Act s.101
  • Evidence Act s.2
  • Parliamentary Elections (Interim Provisions) Rules rule 2
  • Judicature (Court of Appeal Rules) Directions rule 83(2) & (3)
  • Judicature (Court of Appeal Rules) Directions rule 5

Cases cited (13)

  • Peter Odok W'oceng v Markly Vicent Ojidid & 4 Ors (Election Petition Application No. 29 of 2011)
  • Makatu Augustus v Weswa David & Anor (Election Petition Appeal No. 73 of 2016)
  • Dr. Kiiza Besigye v Y.K Museveni and Electoral Commission (Presidential Election Petition No. 1 of 2001)
  • Mudiobole Abed Nasser v Mugema Peter & Anor (Election Petition No. 7 of 2011)
  • Milly Masembe v Sugar Corporation & Anor (Civil Appeal No. 1 of 2000)
  • Kakooza Godfrey v Uganda (Criminal Appeal No. 3 of 2008)
  • Mukasa Harris v Dr. Bayiga Michael Lulume (Election Petition Appeal No. 18 of 2007)
  • Blyth v Blyth [1966] AC 643
  • Achieng Sarah Opendi v Ochwo Nyakecho Kezia (Election Petition Appeal No. 39 of 2011)
  • Paul Mwiru v Igeme Nathan Nabeta Samson & Electoral Commission & Anor (Election Petition Appeal No. 6 of 2011)
  • Bakaluba Peter Mukasa v Nambooze Betty Bakileke (Election Petition Appeal No. 4 of 2009)
  • Fred Badda v Prof. Muyanda Mutebi (Election Petition Appeal No. 21 of 2007)
  • Jugnauth v Ringadoo [2008] UKPC 50
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.