Sulaiman v Onega (Election Petition Appeal No. 1 of 2021)

Court of Appeal · [2021] UGCA 116 · 2021 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal from High Court decision allowing an election petition that annulled the appellant's election as Member of Parliament

Decision

Appeal allowed; High Court judgment annulling the election set aside; appellant declared duly elected Member of Parliament for Nebbi Municipality

The full judgment

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Holding

The Court of Appeal allowed the appeal, holding that the trial judge erred in finding the appellant unqualified for Parliament on the basis that he used different names during his academic career. The court held that failure to execute a deed poll or statutory declaration does not nullify academic qualifications or change a person's identity; identity is a question of fact provable by other evidence. A Makerere University transcript bearing the appellant's photograph resolved the doubt as to identity. On the standard of proof, the court held that section 61(3) of the Parliamentary Elections Act expressly fixes the standard at the balance of probabilities, and statutory language overrides contrary case law. The election annulment and orders of the High Court were set aside.

Facts

The respondent petitioned the High Court seeking a declaration that the appellant was not qualified for election as Member of Parliament for Nebbi Municipality, alleging that the academic documents presented at nomination did not belong to him. The respondent contended the appellant sat his primary leaving examinations in 1984 under the name Okethwengu Achim, while the UCE, UACE, diploma and degree certificates bore the names Hashim Sulaiman/Suleiman, allegedly belonging to a different person. The appellant maintained he had always used the name Hashim Sulaiman, which he adopted from his father Suleiman Pithua, and that all academic documents were his. The High Court found that the inconsistencies in the names used by the appellant were grave and that, absent a statutory declaration or deed poll explaining that the names referred to one person, he lacked the minimum formal education of advanced level standard required by Article 80(1)(c) of the Constitution. The court directed fresh elections. A Makerere University diploma transcript bore the appellant's photograph in the name Hashim Sulaiman. The appellant appealed.

Issues

Whether the trial judge properly evaluated the evidence regarding the appellant's academic qualifications.
Whether the appellant's use of different names during his academic life meant he lacked the requisite minimum formal education of advanced level standard.
Whether a deed poll or statutory declaration was legally required to establish that the appellant was the person named in the academic certificates.
Whether the standard of proof in a parliamentary election petition is the balance of probabilities or a higher standard.
Whether the annulment of the appellant's election was justified.

Orders

Grounds 1 and 2 of the appeal allowed.
Appeal allowed.
Judgment and orders of the High Court set aside.
Appellant declared duly elected as Member of Parliament for Nebbi Municipality for the 2016 general elections.
Costs awarded to the appellant in this court and in the court below.

Key headnotes

Electoral Law — Qualification of Candidates — Proof of Academic Qualifications and Identity

Failure to execute a deed poll or statutory declaration does not nullify a person's academic qualifications or change their identity; whether the person presenting academic documents is the person named therein is a question of fact provable by any relevant evidence.

Electoral Law — Change of Name — Births and Deaths Registration Act

The law does not forbid the change of names, and the registration formalities under the Births and Deaths Registration Act exist to amend the register to reflect assumed names; using different names in different academic papers does not change a person's identity but only raises a question of fact as to whether the same person is named.

Electoral Law — Standard of Proof — Section 61(3) Parliamentary Elections Act

The standard of proof for setting aside a parliamentary election is fixed by statute at the balance of probabilities under section 61(3) of the Parliamentary Elections Act; the phrase 'to the satisfaction of the court' in section 61(1) cannot be read to impose a higher standard, and case law suggesting otherwise cannot override the express statutory provision.

Evidence — Burden of Proof — Election Petitions

In an election petition the burden of proof lies on the petitioner; once a candidate produces academic documents in answer to allegations, the burden shifts back to the petitioner to prove the documents do not belong to the candidate.

Civil Procedure — First Appeal — Duty to Reappraise Evidence

On a first appeal from the High Court's exercise of original jurisdiction, the appellate court has a duty to reappraise the evidence by subjecting it to fresh scrutiny and reaching its own conclusions on the issues arising.

Legislation cited (15)

Constitution of the Republic of Uganda art.80(1)(c)
Parliamentary Elections Act (17 of 2005) s.61(1)
Parliamentary Elections Act (17 of 2005) s.61(3)
Parliamentary Elections Act (17 of 2005) s.63(4)
Parliamentary Elections Act (17 of 2005) s.66
Evidence Act Cap 6 s.101
Evidence Act Cap 6 s.102
Births and Deaths Registration Act Cap 309 s.6
Births and Deaths Registration Act Cap 309 s.7
Births and Deaths Registration Act Cap 309 s.8
Births and Deaths Registration Act Cap 309 s.12
Births and Deaths Registration Act Cap 309 s.13
Judicature Act s.14(1)
Judicature Act s.14(2)
Registration of Persons Act 2015

Cases cited (6)

Dr Kizito Deo Lukyamuzi v Kasamba Mathias and Another (Election Petition No. 3 of 2011)
Kizza Besigye v Museveni Yoweri Kaguta and Another (Election Petition No. 1 of 2001)
Birekeraawo Mathias Nsubuga v Muyanja Mbabaali (Election Petition No. 6 of 2011)
Masiko Winfred Komuhangi v Babihunga J Winnie (Election Petition Appeal No. 9 of 2002)
Blyth v Blyth [1966] AC 643
Arumadri John Drazu v Etuka Isaac Joakino & Electoral Commission (Election Appeal No. 37 of 2016)

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