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Othieno Okoth v Ochai Maximus and Another (Election Petition Appeal No. 70 of 2021)

Court of Appeal · [2022] UGCA 206 · 2022 Appeal Partly Allowed — Matter Remitted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from High Court dismissal of an election petition
Decision
Appeal substantially succeeded; High Court judgment set aside and matter remitted for re-trial before a new judge

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Holding

The Court of Appeal held that gazetting of a Commissioner for Oaths appointment under section 1(3) of the COA Act is directory, not mandatory, so the commissioners were duly appointed. Defective jurats of illiterate deponents were curable. However, the trial Judge wrongly expunged affidavits of 14 witnesses on the basis of differing signatures without first hearing the deponents, breaching the right to a fair hearing, and wrongly excluded the biometric voter machine evidence. Because much of the appellant's evidence was never evaluated, the substantiality test, electoral offence findings and costs order could not stand. The appeal substantially succeeded; the matter was remitted to the High Court for a fresh trial before a new judge.

Facts

The appellant and the first respondent, among others, contested the Member of Parliament seat for West Budama County North Constituency, Tororo District, in elections conducted by the Electoral Commission on 14 October 2021. The first respondent polled 10,981 votes and the appellant 9,856 votes, and the first respondent was declared elected. The appellant petitioned the High Court alleging non-compliance with electoral laws, multiple voting, ballot stuffing, bribery, intimidation and violence by agents of the respondents. The petition proceeded by affidavit evidence. The trial Judge dismissed the petition, having expunged affidavits of 14 of the appellant's witnesses on the ground that their signatures differed from those on their national identity cards, and having excluded biometric voter machine evidence tendered through a witness whose affidavit was struck out. The appellant appealed, contending that the witnesses should have been heard before their evidence was expunged and that material evidence was never evaluated.

Issues

  1. Whether a commission as Commissioner for Oaths takes effect upon signing by the Chief Justice, or only after publication of the appointment in the Gazette under section 1(3) of the Commissioner for Oaths (Advocates) Act.
  2. Whether affidavits of illiterate deponents omitting the commissioner's full name, title and address were incurably defective or curable.
  3. Whether an objection to differing signatures of deponents on affidavits and national identity cards is a point of law that may be raised at submissions, and whether the affected witnesses had to be heard before their affidavits were expunged.
  4. Whether the trial Judge erred in excluding the biometric voter verification machine (BWM) evidence.
  5. Whether the trial Judge properly evaluated the evidence of electoral offences and applied the principles on single witness evidence.
  6. Whether the trial Judge properly applied the substantiality test on non-compliance with electoral laws.
  7. Whether the award of costs against the appellant could stand.

Orders

  • Ground 6 struck out for contravening Rule 86(1) of the Court of Appeal Rules.
  • Grounds 1, 2 and 4 dismissed.
  • Grounds 3(a), 3(b), 3(c), 5, 7, 8, 9 and 11 succeed.
  • Appeal substantially succeeds and is allowed.
  • Judgment of the trial court set aside.
  • Record remitted to the High Court and placed before a new judge for a re-trial on all issues set forth in the petition.
  • Each party to bear their own costs of the appeal.
  • Costs of the court below to abide the outcome of the retrial.

Key headnotes

Mandatory and Directory Provisions — Gazetting of Commissioner for Oaths under COA Act s.1(3)
A commission appointing a practising advocate as a Commissioner for Oaths takes effect upon being signed and stamped by the Chief Justice; the requirement under section 1(3) of the Commissioner for Oaths (Advocates) Act to publish the appointment in the Gazette is directory, not mandatory, since no sanction attaches to non-publication, and failure to gazette does not invalidate documents the commissioner commissions.
Affidavits — Illiterate Deponents — Defective Jurat — Curability under Article 126(2)(e)
Where the jurat of an illiterate deponent's affidavit omits the commissioner's full name, title and address but bears the commissioner's signature and seal and otherwise complies in form with Schedule B of the Oaths Act, the defect is curable under Article 126(2)(e) of the Constitution and does not vitiate the affidavit; the court retains discretion as to the appropriate remedial action.
Preliminary Objections — Distinction Between Points of Law and Questions of Fact
A challenge to the authenticity of a deponent's signature, by comparison with the signature on a national identity card, raises a question of fact requiring investigation or cross-examination, not a pure point of law, and therefore cannot properly be disposed of as a preliminary objection raised for the first time in written submissions.
Fair Hearing — Right to be Heard Before Affidavit Evidence is Expunged
A court may not expunge affidavit evidence on the ground of disputed signatures without first affording the affected deponents an opportunity to be heard; doing so violates the right to a fair hearing under Article 28, which is non-derogable under Article 44(c) of the Constitution.
Comparison of Signatures — Limits of Judicial Power Under Evidence Act ss.45, 66, 72
Although a court may compare contested signatures, it may decline to attach evidential value to a document only upon proof on a preponderance of evidence that the author did not sign it; a person is not legally confined to a single signature, and differing signatures alone, without an investigation, do not render an affidavit valueless.
Appellate Jurisdiction — Re-trial Where First Instance Court Failed to Evaluate Evidence
A first appellate court's mandate under Rule 30(1) of the Court of Appeal Rules is confined to re-appraising evidence already considered by the trial court; where the trial court wrongly excluded essential evidence and never evaluated it, the appellate court cannot itself determine the merits and the proper remedy is to remit the matter for a fresh trial.
Costs — Discretion and Costs Following the Event in Election Petitions
Costs in election litigation are a matter of judicial discretion and ordinarily follow the event, but where the trial court's adverse decision was reached after wrongly excluding evidence and without hearing the case in totality, the consequential order for costs cannot stand and must be set aside.

Legislation cited (43)

  • Commissioner for Oaths (Advocates) Act Cap 5 s.1(1)
  • Commissioner for Oaths (Advocates) Act Cap 5 s.1(2)
  • Commissioner for Oaths (Advocates) Act Cap 5 s.1(3)
  • Commissioner for Oaths (Advocates) Act Cap 5 s.5
  • Commissioner for Oaths (Advocates) Act Cap 5 s.6
  • Oaths Act Cap 19 Schedule B
  • Oaths Act s.8
  • Illiterates Protection Act Cap 78 s.2
  • Illiterates Protection Act s.3
  • Evidence Act s.45
  • Evidence Act s.66
  • Evidence Act s.72
  • Evidence Act s.73(a)(ii)
  • Evidence Act s.78(2)
  • Evidence Act s.79
  • Evidence Act s.133
  • Constitution of Uganda Article 21
  • Constitution of Uganda Article 28
  • Constitution of Uganda Article 28(1)(e)
  • Constitution of Uganda Article 44(c)
  • Constitution of Uganda Article 126(2)(e)
  • Parliamentary Elections Act s.61(3)
  • Parliamentary Elections Act s.68
  • Parliamentary Elections Act s.30(5)(a)
  • Parliamentary Elections Act s.46(1)
  • Parliamentary Elections Act s.48(1)
  • Parliamentary Elections (Interim Provisions) Rules r.8(3)(a)
  • Parliamentary Elections (Interim Provisions) Rules r.15(1)
  • Parliamentary Elections (Interim Provisions) Rules r.27
  • Judicature (Court of Appeal Rules) Directions r.30(1)
  • Judicature (Court of Appeal Rules) Directions r.32(1)
  • Judicature (Court of Appeal Rules) Directions r.86(1)
  • Judicature Act s.11
  • Civil Procedure Act s.27
  • Civil Procedure Rules Order 15 r.3(a)
  • Civil Procedure Rules Order 15 r.5(1)
  • Interpretation Act s.14
  • Interpretation Act s.16
  • Interpretation Act s.17(1)(a)
  • Interpretation Act s.18(1)
  • Interpretation Act s.19(1)
  • Local Government Act s.138(a)
  • Electoral Commission (Adoption and Manner of Use of Technology in the Management of Elections) Regulations S.I. No.2 of 2021

Cases cited (36)

  • Attorney General v Florence Baliraine (Civil Appeal No. 79 of 2003)
  • Fr. Nansensio Begumisa v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Kasala Growers Co-operative Society v Jonathan Kalemera and Another (Civil Appeal No. 19 of 2010)
  • National Forestry Authority v Sam Kiwanuka (Civil Appeal No. 17 of 2010)
  • Prof Syed Huq v Islamic University in Uganda (Civil Appeal No. 47 of 1995)
  • Musiitwa Herbert Mulas v Electoral Commission and Another (Election Petition Appeal No. 5 of 2006)
  • Kampala Capital City Authority v Kabandize and 10 Others (Civil Appeal No. 13 of 2014)
  • R v Soneji and Others [2005] UKHL 49
  • Kiiza Besigye v Y.K. Museveni and Another (Presidential Election Petition No. 1 of 2001)
  • Nabukeera Hussein Hanifa v Kibuule Ronald (Election Petition No. 17 of 2011)
  • Odo Tayebwa v Gordon Kakuuza Arinda and Another (Election Petition No. 5 of 2016)
  • Mugema Peter v Mudiobole Nasser (Election Petition Appeal No. 16 of 2016)
  • Kakooza John Baptist v Yiga Anthony (Election Petition Appeal No. 30 of 2011)
  • Saggu v Road Master Cycles (U) Ltd [2002] 1 EA 258
  • Mbayo and Another v Sinani (Election Petition Appeal No. 7 of 2006)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • NAS Airport Services Ltd v Attorney General of Kenya [1959] EA 53
  • Ndaula Ronald v Hajji Nadduli Abdul (Election Petition Appeal No. 20 of 2006)
  • Hon. Kipoi Tonny Nsubuga v Ronny Waluku Wataka and 2 Others (Election Petition Appeal No. 7 of 2011)
  • Ronny Waluku Wattaka and 2 Others v Kipoi Tonny Nsubuga (Review No. 36 of 2012)
  • Hon. George Patrick Kassaja v Fredrick Ngobi Gume and Another (Election Petition Appeal No. 68 of 2016)
  • Muyanja Simon Lutaaya v Kenneth Lubogo and Another (Election Petition Appeal No. 82 of 2016)
  • Premchandra Shenoi and Another v Maximov Oleg Petrovich (Civil Appeal No. 9 of 2003)
  • Attorney General v Paulo Ssemogerere and Others (Constitutional Application No. 2 of 2004)
  • Hon. Anifa Bangirana Kawooya v National Council of Higher Education (Miscellaneous Application No. 8 of 2003)
  • Karmali Tarmohamed and Another v T.H. Lakhani and Co. [1958] EA 567
  • Amama Mbabazi Vs Yoweri Museveni
  • Rtd. Col. Kiiza Besigye v Yoweri Kaguta Museveni and Another (Presidential Election Petition No. 1 of 2001)
  • Kakooza John Baptist v Electoral Commission and Yiga Anthony (Election Petition Appeal No. 11 of 2007)
  • Kikulukunyu Faisal v Muwanga Kivumbi (Election Petition Appeal No. 44 of 2011)
  • Hon. Mukasa Anthony Harrison v Dr. Bayiga Michael Phillip Lulume (Election Petition Appeal No. 18 of 2007)
  • Patrick Kassaja v Frederick Ngobi Gume and Electoral Commission (Election Petition Appeal No. 68 of 2016)
  • Freda Nanziri Kase Mubanda v Mary Babirye Kabanda and Another (Election Petition Appeal No. 38 of 2016)
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Akuguzibwe v Muhumuza, Mulimira and Electoral Commission (Election Petition Appeal No. 22 of 2016)
  • Atlantic Networks Ltd and Another v Abawah Nigeria Ltd [2016] NGCA 57
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