Kasirye Zzimula Fred v Bazigatirawo Kibuuka Francis Amooti and Another (Election Petition Appeal No. 1 of 2018)

Court of Appeal · [2019] UGCA 357 · 2019 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Election petition appeal from a High Court decision dismissing the petition after a fresh hearing on merits

Decision

Appeal dismissed with costs; High Court dismissal of the election petition upheld

The full judgment

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Holding

The Court of Appeal dismissed the appeal, upholding the High Court's dismissal of the election petition. It held that the 1st respondent secured nomination signatures well above the statutory minimum, that the omission of his name on subsequent attached forms was a mere technicality not affecting validity, and that the nomination forms and attached lists were to be read as one document. The affidavit of Jude Musisi was rightly excluded as hearsay. The appellant waived his right to challenge nomination irregularities by failing to complain to the Electoral Commission before the election. A national identity card alone does not qualify a person as a registered voter; entry on the national voters register is required.

Facts

The appellant and the 1st respondent contested for the position of Chairperson of Mubende District Local Council (V) in the 2016 general elections. The 1st respondent was returned duly elected by the 2nd respondent, the Electoral Commission. The appellant challenged the election in the High Court on a point of law and initially succeeded, but on a prior appeal the Court of Appeal reversed that decision and ordered a fresh hearing on the merits. After a full hearing the High Court found in favour of the 1st respondent and dismissed the petition. The appellant alleged irregularities in the 1st respondent's nomination, including failure to comply with the statutory requirement of fifty registered voters' signatures, omission of the candidate's name on certain attached nomination forms, reliance on a hearsay affidavit, and the assertion that a national identity card proved voter registration.

Issues

Whether the 1st respondent was properly and lawfully nominated under Section 111(3)(g) of the Local Governments Act.
Whether the non-indication of the 1st respondent's name on subsequent attached nomination forms was a mere technicality not affecting the validity of the nomination.
Whether the affidavit of Jude Musisi contained inadmissible hearsay evidence.
Whether the appellant had foreclosed his right to challenge the nomination by failing to complain to the Electoral Commission before the election.
Whether possession of a national identity card qualifies a person as a registered voter.

Orders

This appeal fails and is hereby dismissed with costs.

Key headnotes

Electoral Law — Nomination — Compliance with Statutory Signature Requirement

Where the nomination forms tendered contain signatures of registered voters exceeding the statutory minimum of fifty required under Section 111(3)(g) of the Local Governments Act, a candidate is properly nominated notwithstanding challenges to individual signatories.

Electoral Law — Nomination Forms — Deviation from Prescribed Form as Technicality

Nomination forms and the attached list of names constitute one document to be read and construed together; where the candidate's name appears on the principal form, its omission from subsequent attached forms of the same sub-county is a mere technicality that does not invalidate the nomination.

Evidence — Affidavits in Election Petitions — Hearsay

An affidavit used in an election petition must be confined to facts within the deponent's own personal knowledge; averments based on another person's knowledge constitute hearsay and may be severed, and once severed the remaining averments may be insufficient to sustain a complaint.

Electoral Law — Nomination Disputes — Waiver and Timing of Complaints

A party aggrieved by a nomination irregularity must lodge a complaint with the Electoral Commission under Section 15 of the Electoral Commission Act at the earliest opportunity; failure to do so before the election waives the right and estops the party from raising the irregularity afterwards.

Electoral Law — Registered Voter — Proof by National Voters Register

A national identity card does not, on its own, qualify a person as a registered voter; conclusive proof of registration is the entry of the person's name and data on the National Voters Register.

Statutory Interpretation — Deviation from Prescribed Form — Substance over Form

Under Section 43 of the Interpretation Act, a document purporting to be in a prescribed statutory form is not void by reason of deviation that does not affect its substance or is not calculated to mislead.

Legislation cited (9)

Local Governments Act Cap 243 s.111(3)(g)
Electoral Commission Act Cap 140 s.15
Parliamentary Elections Act 2005 s.15
Parliamentary Elections Act s.1
Parliamentary Elections Act s.11
Evidence Act s.59(a)
Commissioner for Oaths (Advocates) Act s.5
Interpretation Act Cap 3 s.43
Rules of the Court of Appeal r.30(1)(a)

Cases cited (4)

Begumisa and Others v Tibebaaga (Civil Appeal No. 17 of 2002)
Kizza Besigye v Yoweri Kaguta Museveni and Another (Election Petition No. 1 of 2001)
Lanyero Sarah Ochieng v Lanyero Molly (Election Petition Appeal No. 32 of 2011)
Kabuusa Moses Wagaba v Lwanga Timothy (Election Petition Appeal No. 53 of 2011)

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