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Musisi Kibugujju v Nasser and Another (Election Petition Appeal No. 18 of 2021)

Court of Appeal · [2022] UGCA 171 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from High Court dismissal of an election petition challenging the return of an elected Division Mayor
Decision
Appeal dismissed; High Court dismissal of the election petition upheld

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Holding

The Court of Appeal held that the trial Judge erred in finding that the appellant was a different person from the nominated candidate, since identity is a question of fact and the burden lay on the respondent to prove otherwise; the appellant's National ID linked him to the nomination papers. It also held that proof of fraud in the technical sense is not required to set aside a local government election under section 139 of the Local Governments Act. However, the supporting affidavits were rightly struck out for inconsistent signatures, and the petitioner's affidavit was invalid for failure to comply with the Oaths Act. As the petition was thereby deprived of evidence, the appeal substantially failed and was dismissed with costs.

Facts

The 1st respondent won the election for Mayor of Jinja South Division with 6,910 votes against the appellant's 4,973 votes, as published by the Electoral Commission in April 2021. The appellant petitioned the High Court to set aside the election, alleging the Electoral Commission failed to ascertain and declare correct results at several polling stations, and that he was entitled to be declared winner. The respondents denied the claims, asserting the election was free and fair and that any non-compliance did not affect the result substantially. At trial, the Judge struck out the 40 affidavits supporting the petition for irregularities in signatures, jurat and sources of information, finding the petition thereby deprived of evidence. He also found the petitioner's affidavit invalid, held that fraud was not properly pleaded, and that the nominated candidate ('Musisi Kibugujju Badman') differed from the appellant. The petition was dismissed with costs, prompting this appeal.

Issues

  1. Whether the person who was nominated and contested the election was a different person from the appellant who filed the petition.
  2. Whether failure to plead and prove fraud affected the competence and validity of the petition.
  3. Whether the trial Judge properly struck out the supporting affidavits on grounds of inconsistent signatures and failure to disclose sources of information.
  4. Whether the appellant's petition was accompanied by a valid petitioner's affidavit.
  5. Whether the trial Judge properly evaluated the evidence and found the 1st respondent validly elected.
  6. Whether the trial Judge handled the matter with bias.
  7. Whether the trial Judge erred in awarding costs to the respondents.

Orders

  • Ground 8 succeeds.
  • Ground 3 succeeds.
  • Grounds 4, 5, 6 and 7 fail.
  • Grounds 1 and 2 fail.
  • Ground 9 fails.
  • Ground 10 fails.
  • Appeal substantially fails and is dismissed with costs to the respondents.

Key headnotes

Election Petitions — Locus Standi — Identity of Petitioner as Question of Fact
The identity of a candidate is a question of fact, and a party who alleges that the person before the court is wrongly assuming the identity of another bears the burden of proving it with evidence beyond a mere discrepancy in names.
Local Government Elections — Grounds for Setting Aside — Section 139 Local Governments Act
Proof of fraud in the technical legal sense is not a requirement for setting aside a local government election; a petitioner need only prove one of the grounds enumerated under section 139 of the Local Governments Act, such as non-compliance affecting the result substantially.
Pleadings — Fraud — Distinction Between Competence and Merits
Whether a party has sufficiently pleaded and proved its case is a matter touching the merits to be determined during evaluation of evidence, not as a preliminary objection on competence.
Affidavit Evidence — Inconsistent Signatures — Power of Court to Compare Without Expert
Where the signature on a deponent's affidavit differs from signatures on other documents belonging to the same person, the affidavit's credibility is impaired and it may be struck out; a court may compare signatures without expert evidence provided it exercises caution, and the burden of proving multiple signatures lies on the deponent.
Affidavit Evidence — Commissioning Before Commissioner for Oaths — Validity
An affidavit must be made before a Commissioner for Oaths who administers the oath and witnesses signing; an affidavit signed without the deponent appearing before the commissioner contravenes the Oaths Act and the Commissioners for Oaths Act and is invalid.
First Appeal — Duty to Re-evaluate Evidence
A first appellate court is duty-bound to reappraise the evidence, reconsider the materials before the trial judge, and make up its own mind while carefully weighing the judgment appealed from.

Legislation cited (15)

  • Local Governments Act, Cap. 243 s.138(4)
  • Local Governments Act, Cap. 243 s.139
  • Electoral Commission Act, Cap. 140
  • Constitution of Uganda 1995 art.61
  • Constitution of Uganda 1995 art.62
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.44
  • Civil Procedure Rules S.I 71-1 Order 19 Rule 3(1)
  • Civil Procedure Rules S.I 71-1 Order 6 Rule 3
  • Civil Procedure Act, Cap. 71 s.27
  • Oaths Act, Cap. 19 s.6
  • Commissioners for Oaths Act, Cap. 5 s.5
  • Registration of Persons Act 2015 s.36
  • Parliamentary Elections Act 2005 s.1(1)
  • Judicature (Court of Appeal Rules) Directions, S.I 13-10 Rule 30(1)(a)

Cases cited (23)

  • Odo v Tayebwa and Another (Election Petition Appeal No. 13 of 2011)
  • Mbayo Robert v Electoral Commission and Another (Election Petition Appeal No. 7 of 2006)
  • Saggu vs. Roadmaster Cycles (U) Ltd [2002] EA 25
  • Nabukeera v Kibuule Ronald and Another (Election Petition Appeal No. 17 of 2011)
  • R v. Sheppard [2002] 1 SCR 869
  • Flanery vs. Halifax Estate Agencies Ltd [2000] 1 ALLER 373
  • GM Combined (U) Ltd v AK Detergents Ltd and 4 Others (Civil Appeal No. 7 of 1998)
  • Muyanja Simon Lutaaya v Kenneth Lubogo and Another (Election Petition Appeal No. 82 of 2016)
  • Besigye vs. Museveni and Others [2001-2005] HCB 4
  • Otada Sam Amooti Owor v Tabani Idi Amin and Another (Election Petition Appeal No. 93 of 2016)
  • Wakayima Musoke v Kasule Sebunya (Election Petition Appeal No. 60 of 2016)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Okello Charles Engola and Another v Ayena Odongo (Election Petition Appeal No. 26 of 2016)
  • Uganda Journalists Safety Committee and Others v Bahemuka and Another (Constitutional Petition No. 7 of 1997)
  • Chemoiko v Soyekwo and Another (Election Petition Appeal No. 56 of 2015)
  • Kasirye v Bazigatirawo (Election Petition No. 8 of 2016)
  • Pacific Summit Hotel Ltd v DFCU Bank Ltd (Civil Suit No. 9 of 2013)
  • Premchand vs. Quarry Services Ltd [1969] EA 514
  • Eseza Namirembe vs. Musa Kizito (1972) ULR 88
  • Mutembuli v Nagwomu and Another (Election Petition Appeal No. 43 of 2014)
  • Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
  • Kipoi Tonny v Ronny Waluku Wataka and 2 Others (Election Petition Appeal No. 7 of 2011)
  • Kakooza John Baptist v Electoral Commission and Another (Election Petition Appeal No. 11 of 2007)
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