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Simon Peter Kinyera v Electoral Commission and Another (Election Petition Appeal No 3 of 2018)

Court of Appeal · [2020] UGCA 2184 · 2020 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court ruling sustaining a preliminary objection and dismissing an election petition
Decision
Appeal dismissed; trial court's dismissal of the election petition for incompetence upheld

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Holding

The Court of Appeal dismissed the appeal, holding that an election petition under section 60(2)(b) of the Parliamentary Elections Act must be brought by a registered voter supported by at least 500 registered voters, and that conclusive proof of registered-voter status is by production of the voter's card or an extract of the National Voters Register, not a National Identity Card. The burden to prove this status rested on the petitioner and did not shift to the Electoral Commission. The appellant attached only a National ID, and only 69 of the required 500 signatories had voter's cards, so the petition was incompetent. The alleged illegality failed because the interim order had been vacated before nomination.

Facts

The 2nd respondent was elected Member of Parliament for Kibanda North Constituency, Kiryandongo District, unopposed in a repeat election after an earlier nomination was nullified. The appellant, claiming to be a registered voter, petitioned the High Court at Masindi challenging the 2nd respondent's nomination and election, alleging it violated a court order, that the respondent was not a registered voter, and lacked academic qualifications. The respondents raised a preliminary objection that the petitioner and his supporting signatories were not registered voters and so lacked locus standi under section 60(2)(b) of the Parliamentary Elections Act. The appellant's supporting affidavit annexed a National Identity Card rather than a voter's card or extract of the National Voters Register, and only 69 of the required 500 signatories had voter's cards. The trial judge sustained the objection and dismissed the petition with costs. The interim court order said to bar the nomination had in fact been vacated before nomination occurred.

Issues

  1. Whether the trial judge erred in holding that the appellant and his supporting signatories were not registered voters where this was allegedly not pleaded or proved by the respondents.
  2. Whether the burden lay on the petitioner or the respondents to prove registered-voter status and whether the burden shifted.
  3. Whether the petition was competent under section 60(2)(b) of the Parliamentary Elections Act.
  4. Whether the trial judge erred in failing to nullify the nomination and election of the 2nd respondent on grounds of an alleged illegality through violation of an interim court order.

Orders

  • Appeal dismissed with costs.

Key headnotes

Electoral Law — Locus Standi — Standing to Present Election Petition under PEA s.60(2)(b)
An election petition under section 60(2)(b) of the Parliamentary Elections Act may only be presented by a registered voter in the constituency concerned supported by the signatures of not less than 500 voters registered in that constituency.
Evidence — Proof of Registered Voter Status — National ID versus Voters Register
Conclusive proof of being a registered voter is by production of the voter's card or an extract of the National Voters Register showing the person's name; a National Identity Card does not replace or constitute proof of registration on the voters register.
Evidence — Burden of Proof — Election Petitions
The burden of proof in an election petition rests on the petitioner to prove standing and the grounds relied upon, and does not shift to the Electoral Commission merely because it holds custody of the voters register.
Civil Procedure — Preliminary Objections — Pleadings and Supporting Affidavit Evidence
Where a petition is supported by affidavit evidence, a preliminary objection may be determined by considering whether the pleadings disclose a cause of action and whether the supporting affidavit evidence proves the material averments; an averment of standing unsupported by evidence renders the petition incompetent.
Civil Procedure — Stare Decisis — Departure from Court's Own Decisions
The Court of Appeal is bound by its own previous decisions and those of courts of co-ordinate jurisdiction, and may depart only on exceptional grounds, such as conflicting decisions, inconsistency with a superior court, or where a prior decision was given per incuriam.
Electoral Law — Illegality — Disregard of Court Order — Vacated Interim Order
An allegation that a nomination violated a court order cannot succeed where the interim order said to have been breached had been vacated before the nomination occurred, as no illegality was thereby brought to the attention of the court.

Legislation cited (13)

  • Parliamentary Elections Act 2005 s.60(2)(b)
  • Parliamentary Elections Act s.1
  • Parliamentary Elections Act s.61
  • Civil Procedure Rules Order 6 rule 1
  • Civil Procedure Rules Order 6 rule 7
  • Civil Procedure Rules Order 6 rule 29
  • Civil Procedure Rules Order 7 rule 11(a)
  • Civil Procedure Rules Order 7 rule 11(d)
  • Civil Procedure Rules Order 15 rule 2
  • Evidence Act s.106
  • Registration of Persons Act 2015 s.66
  • Electoral Commission Act s.18(1)
  • Judicature (Court of Appeal Rules) Direction S.113-10 rule 30(1)

Cases cited (18)

  • Hon. Otada Sam Amooti Owor v Taban Idi Amin and Electoral Commission (Election Petition Appeal No. 93 of 2016)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Makula International v Cardinal Nsubuga (1982) HCB 11
  • Beatrice Kobusingye v Fiona Nyakana (Civil Appeal No. 5 of 2004)
  • Johnson Mugisha and Others v KCCA (Civil Appeal No. 191 of 2016)
  • Peters v Sunday Post Limited [1958] 1 EA 424
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Auto Garage v Motokov (1971) EA 514
  • Tinyefunza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • AG v Oluoch 1972 EA 392
  • Sullivan v Ali Mohamed Osman (1959) EA 239
  • Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293
  • Odo Tayebwa v Bassajjabalaba Nasser and Electoral Commission (Election Petition Appeal No. 13 of 2011)
  • Matisko Winfred Komuhangi v Babihuga T. Winnie (Election Petition Appeal No. 9 of 2002)
  • Hadikson v Hadikson [1952] 2 ALL ER 567
  • Chuck V Cremer (1 Coop temp Cott 342)
  • Arumadri John Drazu v Etuuka Isaac Joakino (Election Petition Appeal No. 37 of 2016)
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.