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Nabadda Ritah v Nantaba Idah Erios (Election Petition Appeal No. 22 of 2021)

Court of Appeal · [2022] UGCA 162 · 2022 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from the High Court's dismissal of an election petition on preliminary objection
Decision
Lower court ruling and orders set aside; matter remitted to the High Court for a retrial

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Holding

The Court of Appeal held that whether an election petition by a registered voter is supported by the requisite 500 signatures of registered voters, and whether the certificate of translation violated the Protection of Illiterates Act, are matters requiring evidence that cannot be disposed of on preliminary objection. Following Mukisa Biscuit and Crane Bank, a preliminary objection raises a pure point of law assuming pleaded facts true and cannot be sustained where additional evidence is needed. Determining such evidential matters without a hearing occasioned a miscarriage of justice and violated the right to a fair hearing, amounting to a mistrial. The appeal was allowed, the lower court ruling set aside, and a retrial ordered.

Facts

Following the 14 January 2021 national elections, the respondent was declared the validly elected Woman Member of Parliament for Kayunga District and gazetted on 17 February 2021. The appellant, a registered voter, was dissatisfied and filed Election Petition No. 04 of 2021. At scheduling, the respondent's counsel raised two preliminary objections: that the petition was not supported by the signatures of 500 registered voters in Kayunga District as required by section 60(2)(b) of the Parliamentary Elections Act, and that the petitioner's certificate of translation offended the Protection of Illiterates Act. The appellant had filed two lists of supporters, including a typed list of 559 names with NIN card numbers, villages and voter numbers. On 10 September 2021 the High Court upheld both objections and dismissed the petition with costs, prompting this appeal on grounds that the objections required evidence and could not be resolved without a hearing.

Issues

  1. Whether the preliminary objection that the petition lacked the requisite 500 signatures could be determined without leading evidence.
  2. Whether the trial Judge erred in determining matters of evidence by way of preliminary objection without subjecting the petition to a hearing.
  3. Whether the petition was supported by the requisite 500 signatures of registered voters in the constituency.
  4. Whether the certificate of translation offended the Protection of Illiterates Act.

Orders

  • The Appeal is allowed.
  • The lower court should conduct a retrial.
  • Each party bears its own costs both in this court and in the lower court.

Key headnotes

Civil Procedure — Preliminary Objections — Pure Point of Law Requiring No Evidence
A preliminary objection raises a pure point of law argued on the assumption that the facts pleaded by the other side are correct; it cannot be raised where any fact has to be ascertained or where additional evidence is required to resolve the matter.
Electoral Law — Standing of Registered Voter — Requisite 500 Signatures as Matter of Evidence
Whether an election petition filed by a registered voter is supported by the requisite 500 signatures of registered voters in the constituency under section 60(2)(b) of the Parliamentary Elections Act requires evidence and cannot be conclusively determined on preliminary objection without subjecting the petition to a hearing.
Electoral Law — Locus Standi — Jurisdictional Nature
Locus standi in an election petition is created by statute and affects the jurisdiction of the court; it may be raised at any stage of the proceedings or on appeal, and where a petitioner lacks standing the court lacks jurisdiction to determine the action.
Human Rights — Fair Hearing — Determination of Evidential Matters Without Trial
Determining matters of evidence by way of preliminary objection without a hearing at which evidence is adduced violates the non-derogable right to a fair hearing and amounts to a mistrial.

Legislation cited (18)

  • Parliamentary Elections Act 2005 (as amended) s.60(2)(b)
  • Parliamentary Elections Act 2005 (as amended) s.61(1)
  • Parliamentary Elections Act 2005 (as amended) s.61(3)
  • Parliamentary Elections Act 2005 (as amended) s.64(1)(b)
  • Parliamentary Elections Act 2005 (as amended) s.64(3)
  • Parliamentary Elections (Interim Provisions) (Election Petitions) Rules r.3
  • Parliamentary Elections (Interim Provisions) (Election Petitions) Rules r.4(4)
  • Parliamentary Elections (Interim Provisions) (Election Petitions) Rules r.4(8)
  • Parliamentary Elections (Interim Provisions) (Election Petitions) Rules r.15(1)
  • Parliamentary Elections (Interim Provisions) (Election Petitions) Rules r.15(3)
  • Parliamentary Elections (Interim Provisions) (Election Petitions) Rules r.17
  • Civil Procedure Rules Order 6 r.28
  • Civil Procedure Rules Order 6 r.29
  • Civil Procedure Rules Order 7 r.14
  • Interpretation Act s.43
  • Protection of Illiterates Act s.3
  • Electoral Commission Act s.18
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.30(1)(a)

Cases cited (12)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Kizza Besigye v Yoweri K. Museveni and Another (Election Petition No. 1 of 2001)
  • Mukisa Biscuits manufacturing Co. Ltd v. West End Distributors Ltd (1996) 1 E.A 696
  • Crane Bank Limited v Sudhir Ruparelia and Meera Investments Limited (Civil Appeal No. 252 of 2019)
  • Kipoi Tonny Nsubuga v Ronny Waluku Wataka and 2 Others (Election Petition Appeal No. 07 of 2011)
  • Simon Peter Kinyera v Electoral Commission and Taban Idi Amin (Civil Appeal No. 003 of 2018)
  • Namulu and Another v. Kizito Sserwanga (Election Appeal 2016/62) [2017]
  • Mageni Geofrey v Ouma Adea George and Electoral Commission (Election Petition No. 15 of 2011)
  • Otada Sam Awori v Taban Idi Amin and Electoral Commission (Election Petition Appeal No. 93 of 2016)
  • Namukyu Dionizia Cissy and Another v Martin Kizito Sserwanga (Civil Appeal No. 62 of 2016)
  • Akuguzibwe Lawrence v Muhumuza David and 2 Others (Election Petition Appeal No. 22 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.