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The Electoral Commission v Mwosuko Jacob (Election Petition Appeal No. 66 of 2021)

Court of Appeal · [2022] UGCA 205 · 2022 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court decision nullifying a Local Council III Chairperson election
Decision
Appeal allowed; trial court orders set aside and the declared election results upheld

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Holding

The Court of Appeal allowed the Electoral Commission's appeal, holding that the respondent failed to discharge the burden of proving the existence of election results for the omitted Bunamwera Polling Station. The Declaration of Results Form relied upon was a photocopy admitted only for identification and never certified or formally proved, rendering it inadmissible; the Tally Sheet likewise remained uncertified. Without admissible evidence of the number of voters disenfranchised, there was no basis for the trial court to conclude that the omission substantially affected the result. The court set aside the trial court's orders and upheld the declared results. Ground 5 (affidavits in rejoinder) was struck out as academic.

Facts

The Electoral Commission conducted the election of the LC III Chairperson for Mugiti Sub-county, Budaka District, on 3 February 2021. The sub-county had 11 polling stations. Using results from only 10 stations, the Commission declared Kanene Enoch the winner with 936 votes against the respondent's 876 votes, a margin of 60 votes. Results from Bunamwera Polling Station were not included; the Returning Officer recorded zero for all candidates citing post-voting violence and disruption. The respondent petitioned the High Court alleging that a duly signed Declaration of Results Form existed for Bunamwera and that the omission affected the result substantially. He attached a photocopy of the DR Form and a Tally Sheet to his affidavit. At scheduling, the trial court ruled the DR Form uncertified and admitted it only for identification; the Tally Sheet was admitted subject to certification, which was never obtained. The trial court nullified the election and ordered a fresh poll at Bunamwera. The Commission appealed.

Issues

  1. Whether the respondent discharged the burden of proving the existence of election results for the omitted Bunamwera Polling Station.
  2. Whether the omission of the Bunamwera Polling Station results substantially affected the outcome of the LC III Chairperson election.
  3. Whether the trial judge erred in failing to expunge the respondent's affidavits in rejoinder for contravening statutory provisions.

Orders

  • The appeal is allowed.
  • The orders of the trial court are hereby set aside.
  • The election results for the LC III Chairperson of Mugiti Sub-county in Budaka District as declared by the appellant are upheld.
  • Each party shall bear its own costs in this court and in the court below.

Key headnotes

Election Petitions — Burden of Proof — Proof of Omitted Polling Station Results
A petitioner who alleges that election results from a polling station were wrongly omitted from the final tally bears the burden of proving the existence of those results, and must do so by tendering admissible evidence such as a duly proved Declaration of Results Form.
Documentary Evidence — Public Documents — Certification of Declaration of Results Forms
A Declaration of Results Form is a public document and a party relying on it must have it certified in accordance with sections 75 and 76 of the Evidence Act; an uncertified photocopy admitted only for identification is inadmissible and cannot prove the facts it purports to establish.
Election Petitions — Substantial Effect on Result — Proof of Disenfranchised Voters
To establish that non-compliance affected an election result in a substantial manner, a petitioner must adduce admissible evidence of the number of votes or disenfranchised voters under scrutiny sufficient to show that the winning margin would be reduced so as to put the victory in doubt; speculation as to who benefited is insufficient.
Election Administration — Interruption of Counting — Statutory Procedure
Where counting or tallying of votes is interrupted by riot or violence, the presiding or returning officer must adjourn the process under section 133 of the Local Government Act and notify the relevant authority, rather than simply omitting the affected polling station's results from the final tally.
Costs — Discretion — Narrow Winning Margins in Election Petitions
A court may decline to award costs against either party in an election petition where the winning margin is narrow, so as to encourage aggrieved parties to access the courts to resolve allegations of electoral malpractice without fear of penalty.

Legislation cited (17)

  • Local Government Act Cap 243 s.132
  • Local Government Act Cap 243 s.133
  • Local Government Act Cap 243 s.135
  • Local Government Act Cap 243 s.136
  • Local Government Act Cap 243 s.172
  • Electoral Commission Act s.12(e)
  • Electoral Commission Act s.12(f)
  • Parliamentary Elections Act No. 17 of 2005 s.52
  • Parliamentary Elections Act s.57
  • Evidence Act s.75
  • Evidence Act s.76
  • Constitution Article 1
  • Constitution Article 21
  • Judicature (Court of Appeal) Rules r.30(1)
  • Court of Appeal Rules r.98
  • Parliamentary Elections (Interim Provisions) Rules r.17
  • Civil Procedure Rules Order 8 rule 18

Cases cited (6)

  • Pandya vs R [1957] EA 336
  • National Environmental Management Authority v Solid State Limited (Civil Appeal No. 5 of 2015)
  • Mashate Magomu Peter v Electoral Commission and Sizomu Gershom Rabbi Wambedde (Election Petition Appeal No. 47 of 2016)
  • Akuguzibwe Lawrence v Muhumuza David and Electoral Commission (Election Petition Appeal No. 22 of 2016)
  • Dr. Kiiza Besigye v Yoweri Museveni (Election Petition Appeal No. 1 of 2001)
  • Aisha Kabanda Nalule v Lydia Danhine Mlembe and 2 Others (Election Petition Appeal No. 90 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.