Tumwesigye v Arinaitwe and Another (Consolidated Election Appeal No. 31 of 2021)

Court of Appeal · [2022] UGCA 159 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Appeal to the Court of Appeal (first and final appellate court in parliamentary election matters) from dismissal of an election petition by the High Court, consolidated with two applications to strike out the appeal.

Decision

Appeal dismissed; first respondent confirmed as validly elected Member of Parliament for Isingiro West Constituency.

The full judgment

Read the complete, verbatim text of this judgment.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal dismissed the appeal against the High Court's dismissal of an election petition challenging the election of the first respondent as MP for Isingiro West. It first dismissed applications to strike out the appeal, holding the Memorandum of Appeal was filed within time. On the merits, it held that an uncertified Declaration of Results Form remains inadmissible even when annexed to an affidavit; that cancellation of results where votes exceeded registered voters was not non-compliance with electoral law; that proven irregularities did not affect the result in a substantial manner; that violence allegations unsupported by police reports or convictions failed; and that the trial Judge properly exercised his discretion on costs.

Facts

On 14 January 2021, the Electoral Commission organised elections for Member of Parliament for Isingiro West Constituency. The first respondent was declared winner with 7,992 votes against the appellant's 7,795 votes, a difference of 197 votes (the judgment also refers to a 17-vote margin). The appellant's application for a recount in the Chief Magistrate's Court was dismissed. He petitioned the High Court alleging non-compliance with electoral laws affecting the result in a substantial manner, including disputes over an uncertified Declaration of Results Form for Kabuyanda Adventist Church Polling Station, cancellation of results at three polling stations where votes exceeded registered voters, the issuance of two differing return forms, and alleged violence. The High Court dismissed the petition and awarded costs to the respondents. The appellant appealed on 21 grounds, while the respondents applied to strike out the appeal for failure to take essential steps in time.

Issues

Whether the appeal should be struck out for failure to take essential steps within the prescribed time under Rule 82 of the Court of Appeal Rules.
Whether an uncertified Declaration of Results Form is admissible in evidence merely because it was annexed to an affidavit.
Whether the cancellation of results at polling stations where votes cast exceeded registered voters amounted to non-compliance with electoral laws.
Whether the alleged non-compliance and irregularities affected the results of the election in a substantial manner.
Whether allegations of election violence and offences could be proved without a police report or prior criminal conviction.
Whether the trial Judge properly exercised his discretion in awarding costs to the respondents.

Orders

Miscellaneous Applications No. 12 and 15 of 2022 dismissed.
Appeal dismissed.
Judgment and orders of the lower court upheld.
Declaration that the 1st Respondent was validly elected as Member of Parliament for Isingiro West Constituency.
Costs awarded to the Respondents both in the Court of Appeal and the lower court as ordered by the trial Judge.

Key headnotes

Election Appeals — Striking Out — Computation of Time for Filing Memorandum of Appeal

Under Rule 30(b) of the Parliamentary Elections (Interim Provisions) Rules an appeal must be filed within seven days where a written notice of appeal has been given, computed exclusive of the day of the triggering event; the decisive date of filing is the date the Registrar signs and endorses the Memorandum of Appeal as duly lodged.

Public Documents — Declaration of Results Forms — Certification Requirement

A Declaration of Results Form is a public document under section 73 of the Evidence Act and must be certified to be admissible; it is not validated merely by being annexed to an affidavit, and uncertified forms are inadmissible save in the exceptional circumstance where the party proves a written request for certified copies was made and the Electoral Commission failed to supply them.

Non-Compliance — Cancellation of Results Where Votes Exceed Registered Voters

Cancellation of polling station results and return of zero votes to all candidates, where the votes cast exceeded the number of registered voters, is consistent with the principles of impartiality and transparency and does not constitute non-compliance with electoral laws.

Setting Aside Elections — Substantial Effect Test under s.61(a) Parliamentary Elections Act

An election is not set aside on trivial errors or informalities; the petitioner bears the burden of proving on a balance of probabilities, to the satisfaction of the court, that the non-compliance affected the result in a substantial manner.

Election Offences and Violence — Standard of Proof and Proof by Police Report

Allegations of election violence or offences are proved to a high standard within a balance of probabilities; mere complaints lodged at a police post, absent a police report or evidence of conviction, do not amount to proof of commission of an offence, the suspect being presumed innocent until tried and convicted.

Costs — Appellate Interference with Trial Court Discretion

The award of costs is a matter of the trial court's discretion, and an appellate court will only interfere where there is evidence that the trial court failed to follow the principles of awarding costs.

Legislation cited (14)

Constitution of Uganda 1995 Article 68(2),(3),(4)
Parliamentary Elections Act s.47(1)
Parliamentary Elections Act s.45
Parliamentary Elections Act s.61(a)
Evidence Act Cap 6 s.73
Evidence Act Cap 6 s.75
Evidence Act Cap 6 s.76
Evidence Act Cap 6 s.64(1)(a)
Evidence Act Cap 6 s.65
Judicature (Court of Appeal) Rules SI 13-10 r.82
Judicature (Court of Appeal) Rules SI 13-10 r.86(1)
Judicature (Court of Appeal) Rules SI 13-10 r.30
Judicature (Court of Appeal) Rules SI 13-10 r.4(a)
Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.30(b)

Cases cited (15)

Geoffrey Omara v Charles Angiro Gutomoi Abacacon and Another (Election Petition Appeal No. 106 of 2016)
Bakaluba Mukasa Peter and Anor vs. Nalugo Mary Margaret Sekiziyivu
Electoral Commission and Another v Piro Santos (Civil Application No. 022 of 2011)
Muiya v Nyagah and Others [2003] 2 EA 616
Global Capital Save 2004 Ltd and Another v Alice Okiror and Another (Civil Application No. 57 of 2021)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Selle and Another v Associated Motor Boat Company Ltd and Others [1968] EA 123
Kizza Besigye v Museveni Yoweri Kaguta (Election Petition No. 1 of 2001)
Mbaghadi Fredick Nkayi and Another v Nabwiso Frank Wilberforce (Election Petition Appeals No. 14 and 16 of 2011)
John Baptist Kakooza v Electoral Commission and Yiga Anthony (Election Appeal No. 11 of 2007)
Tamale Julius Konde v Ssenkbuge Isaac and Another (Election Petition Appeal No. 75 of 2016)
Ninsiima Boaz Kasirabo and The Electoral Commission v Mpuuga David (Election Petition Appeal No. 55 of 2016)
Gunn v Sharpe [1974] 1 QB 808
Akuguzibwe Lawrence v Muhumuza David, Mulimira Barbra and The Electoral Commission (Election Petition Appeal No. 22 of 2016)
Mashate Magomu Peter v Electoral Commission and Another (Election Petition Appeal No. 0047 of 2016)

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