Wakilii

Ssenkubuge v Tamale (Election Petition No. 1 of 2019)

Court of Appeal · [2020] UGCA 2021 · 2020 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court judgment allowing an election petition and setting aside a Local Government Council election
Decision
Appeal allowed; petition dismissed and the High Court orders setting aside the election were set aside, restoring the appellant's election

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Holding

The Court of Appeal, re-evaluating the evidence as a first appellate court, found that although the trial Judge correctly held there was non-compliance with electoral laws by presiding officers, she erred in finding the non-compliance affected the result in a substantial manner. She had relied on an unsupported figure of 27 polling stations when there were in fact 65, of which only 6 were compromised. Applying the 'substantial manner' test from Besigye v Museveni, the Court held that compromising about one-eighth of polling stations, where the winner would still prevail by 257 votes, did not substantially affect the result. The petitioner also failed to prove the pleaded collusion. The appeal was allowed and the petition dismissed.

Facts

On 8 March 2016 the Electoral Commission conducted Local Government Council elections for Chairperson, Bweyogerere Division, Kira Municipality, Wakiso District. The appellant was declared winner with 2188 votes; the respondent came third with 1873 votes. The respondent petitioned the High Court alleging that the EC failed to conduct a free and fair election and that the appellant colluded with EC officials to forge and falsify results at eight contested polling stations, affecting the result in a substantial manner. The trial Judge found that presiding officers issued different sets of results and that results were altered when recording on DR forms, and that the returning officer entered wrong results. She found non-compliance affecting the result substantially, allowed the petition, set aside the election and ordered a by-election. The appellant appealed, contending the trial Judge mis-evaluated evidence, used an erroneous figure of 27 polling stations, applied the wrong standard, and decided a different question from the pleaded collusion claim.

Issues

  1. Whether the trial Judge erred in treating inconsistencies and contradictions in the petitioner's evidence as minor.
  2. Whether the trial Judge properly evaluated the evidence or relied on speculation, surmise and conjecture in finding non-compliance with electoral laws.
  3. Whether the trial Judge applied the correct standard of proof and correctly found that the non-compliance affected the result in a substantial manner.
  4. Whether the trial Judge erred by relying on the petitioner's evidence in isolation from that of the appellant and the Electoral Commission.
  5. Whether the trial Judge erred by deciding on an issue (wrong entries by the EC) different from the pleaded case of collusion.

Orders

  • Appeal allowed on ground 3, ground 5, and partly on ground 2.
  • Appeal dismissed on ground 1, ground 4, and partly on ground 2.
  • Petition dismissed.
  • Orders of the High Court in Election Petition No. 30 of 2016 set aside.
  • Respondent to pay two thirds of the costs of the appeal.

Key headnotes

Electoral Law — Setting Aside Election — 'Substantial Manner' Test for Effect of Non-Compliance
Non-compliance with electoral laws will only justify nullification of an election where there is cogent evidence that the effect was calculated to really influence the result in a substantial manner, assessed by evaluating the whole electoral process; compromising a small fraction of polling stations where the winner would still prevail does not meet this threshold.
Electoral Law — Nullification — Disenfranchisement of Uncontested Polling Stations
Cancelling the results of a few compromised polling stations where the results of the remaining stations are unchallenged amounts to disenfranchising the voters at those uncontested stations and weighs against nullification of the election.
Evidence — Standard of Proof in Election Petitions
The standard of proof in election petitions is on a balance of probabilities, higher than in an ordinary civil suit but not as high as proof beyond reasonable doubt; allegations of forgery require proof beyond a balance of probabilities though not beyond reasonable doubt.
Evidence — Partisan and Expert Witnesses — Need for Independent Corroboration
Where evidence in an election petition is given by a partisan witness, including a lone expert called by one party, a court may decline to rely on it in the absence of independent corroborating evidence.
Civil Procedure — Pleadings — Court Must Decide the Pleaded Case
A court errs where it answers a question different from the one pleaded; where collusion is pleaded but unproven, a finding faulting officials for wrong entries does not establish the pleaded collusion.
Civil Procedure — First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court has the power and duty to re-evaluate the evidence before the trial court, subject it to fresh scrutiny and arrive at its own conclusion, while giving allowance for the trial court's advantage of observing witnesses' demeanour.

Legislation cited (7)

  • Electoral Commission Act Cap 140
  • Parliamentary Elections Act No. 17 of 2005 s.61(3)
  • Local Governments Act Cap 243 s.150(1)(a)
  • Local Governments Act Cap 243 s.136(1)(d)
  • Constitution of Uganda Article 126(2)(e)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.30(1)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.4(a)

Cases cited (8)

  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Toolit Simon Aketcha v Oulanya Jacob (Election Petition Appeal No. 19 of 2011)
  • Rt. Col. Dr. Kizza Besigye v Electoral Commission (Presidential Election Petition No. 1 of 2006)
  • Kamba Saleh Moses v Namuyangu Jennifer (Election Petition Appeal No. 27 of 2011)
  • Achieng Sarah Opendi & Electoral Commission v Ayo Jacinta (Election Petition Appeal No. 59 of 2016)
  • Akugizibwe Lawrence v Muhumuza David & 2 Others (Election Petition Appeal No. 22 of 2016)
  • Rtd. Col. Kiiza Besigye v Museveni Yoweri Kaguta & Another (Election Petition No. 1 of 2001)
  • Kakooza John Baptist v Electoral Commission and Yiga Anthony (Election Petition Appeal No. 11 of 2007)
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.