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Iddi Isabirye and Another v Electoral Commission and Another [2022] UGCA 371

Court of Appeal · 2022 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated election petition appeals from a High Court decision setting aside a parliamentary election
Decision
Election of the 1st appellant restored; he is declared the duly elected Member of Parliament for Bunya County South Constituency

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Holding

The Court of Appeal allowed the consolidated appeals, holding that the trial Judge failed to properly evaluate the evidence by using an omnibus approach, lumping together the respondent's affidavits without scrutinising each bribery allegation against the appellant's rebuttal and alibi evidence. On fresh evaluation, none of the bribery allegations nor the donation allegation was proved to the required standard. The certificate for two counsel was set aside as granted without sound reasons. The making of wrong returns under s.78(a) targets election officers and is not a ground for setting aside an election under s.61(1)(c). The election of the 1st appellant was restored.

Facts

The respondent, the 1st appellant and others contested for Member of Parliament for Bunya County South Constituency, Mayuge District, in elections conducted by the Electoral Commission on 14 January 2021. The 1st appellant was declared the winner with 19,833 votes against the respondent's 14,364 votes per the Uganda Gazette. The respondent petitioned the High Court at Jinja, alleging the 1st appellant committed bribery at three locations (Waiswa Hussein's home, a Bumwena B campaign rally, and Muwandike Scovia's home) and gave a donation of Ushs. 300,000 to a youth association during campaigns, and that the Electoral Commission made wrong returns since the gazetted results differed from the Return Form. The trial Judge found the allegations proved, set aside the election and ordered fresh elections. The appellants appealed, contending the trial Judge failed to properly evaluate the evidence, particularly the appellant's rebuttal and alibi evidence, and wrongly granted a certificate for two counsel.

Issues

  1. Whether the respondent's notice of grounds for affirming the decision was in substance a disguised cross-appeal and incompetent.
  2. Whether grounds of appeal framed in general terms offended rule 86(1) of the Court of Appeal Rules.
  3. Whether the trial Judge properly evaluated the evidence in finding the 1st appellant committed the electoral offence of bribery.
  4. Whether the trial Judge erred in finding the 1st appellant committed the illegal practice of giving a donation during campaigns.
  5. Whether the trial Judge erred in granting a certificate for two counsel without sound reasons.
  6. Whether the making of wrong returns of an election by the Electoral Commission was a valid basis for setting aside the election.

Orders

  • The 1st appellant's appeal succeeds on grounds 1, 2 and 4 and is allowed with 75% of the costs.
  • The decision and order of the High Court setting aside the election of the 1st appellant is set aside and the 1st appellant is declared the duly elected Member of Parliament for Bunya County South Constituency.
  • Ground 3 of the 1st appellant's appeal is struck out for offending rule 86(1) of the Rules.
  • The 2nd appellant's appeal succeeds only on ground 4 and is allowed with 30% costs.
  • Grounds 1 and 2 of the 2nd appellant's appeal fail.
  • Ground 3 of the 2nd appellant's appeal is struck out for offending rule 86(1) of the Rules.
  • 70% of the costs of the 2nd appellant's appeal is awarded to the respondent.
  • Costs awarded to the respondent against the 2nd appellant are for one counsel only.
  • The respondent's notice of grounds for affirming the decision is expunged for being a disguised cross-appeal.

Key headnotes

Electoral Law — Bribery — Standard and Evaluation of Evidence
In election petitions a trial court must evaluate the evidence on each allegation of bribery separately, subjecting it to high-level scrutiny and weighing the petitioner's evidence against the respondent's rebuttal and alibi evidence; an omnibus consideration that lumps affidavits together without singling out the relevant evidence on each allegation is an improper evaluation.
Electoral Law — Bribery — Proof of Voter Status
An allegation of bribery of voters must be proved by showing that the persons allegedly bribed are registered voters, and conclusive proof of voter status is by evidence of the person's name on the national Voters' Register, not by voter slips or national identification.
Electoral Law — Bribery — Accomplice and Partisan Witness Evidence
Evidence of self-confessed accomplices to the offence of bribery and of partisan witnesses related to a candidate must be treated with caution and requires corroboration by independent evidence before it can safely ground a finding nullifying an election.
Civil Procedure — Pleadings — Distinction Between Pleadings and Evidence
An affidavit in support of a petition is evidence and not a pleading; where supporting evidence deviates from the pleadings, the deviation is not fatal provided the adverse party understood the case against them and had the opportunity to respond without suffering prejudice.
Electoral Law — Wrong Returns — Section 78(a) Not a Ground for Setting Aside Election
The offence of making wrong returns under section 78(a) of the Parliamentary Elections Act is directed at election officers and cannot be a ground for setting aside an election; only an illegal practice or offence committed by a candidate personally or with their knowledge and consent under section 61(1)(c) can set aside an election.
Civil Procedure — Costs — Certificate for Two Counsel
A certificate of costs for more than one counsel under regulation 41 of the Advocates (Remuneration and Taxation of Costs) Rules must be supported by sound reasons such as the complexity, importance or difficulty of the case, assessed on each case's particular nature, and cannot be granted as a matter of course merely because election petitions are important.
Civil Procedure — Court of Appeal Rules — Grounds of Appeal and Notice of Grounds for Affirming
A ground of appeal must under rule 86(1) specify concisely the points alleged to be wrongly decided; a ground stated too generally is liable to be struck out. A notice of grounds for affirming a decision under rule 92 cannot be used to seek variation or reversal of findings the trial court determined against the respondent — that requires a cross-appeal under rule 91.

Legislation cited (24)

  • Parliamentary Elections Act 2005 s.61(1)
  • Parliamentary Elections Act 2005 s.61(1)(c)
  • Parliamentary Elections Act 2005 s.63(4)
  • Parliamentary Elections Act 2005 s.68(1)
  • Parliamentary Elections Act 2005 s.68(2)
  • Parliamentary Elections Act 2005 s.68(7)
  • Parliamentary Elections Act 2005 s.68(8)
  • Parliamentary Elections Act 2005 s.78(a)
  • Parliamentary Elections Act 2005 s.1(1)
  • Judicature Act s.11
  • Evidence Act s.103
  • Evidence Act s.132
  • Evidence Act s.133
  • Electronic Transactions Act 2011 s.8
  • Illiterates Protection Act Cap.78 s.3
  • Oaths Act Cap.19
  • Judicature (Court of Appeal) Rules r.30(1)(a)
  • Judicature (Court of Appeal) Rules r.86(1)
  • Judicature (Court of Appeal) Rules r.91
  • Judicature (Court of Appeal) Rules r.92
  • Advocates (Remuneration and Taxation of Costs) Rules reg.41
  • Constitution of Uganda Article 28(1)
  • Constitution of Uganda Article 44(c)
  • Constitution of Uganda Article 86

Cases cited (42)

  • Akol Hellen Odeke v Okodel Umar (Election Petition Appeal No. 6 of 2020)
  • Akurut Violet Adome v Emorut Simon Peter (Election Petition Appeal No. 40 of 2016)
  • Ssematimba Peter and NCHE v Sekigozi Stephen (Election Petition No. 8 and 10 of 2016)
  • Kasta Hussein Bukenya v Bukenya Balibaseka Gilbert and Another (Election Petition No. 29 of 2011)
  • Kamba Saleh v Namuyangu Jennifer Byakatonda (Election Petition Appeal No. 27 of 2011)
  • Ernest Kiiza v Kabakumba Labwoni Matsiko (Election Petition Appeal No. 44 of 2016)
  • Mujuni Vicent Kyamadidi v Charles Ngabirano and Electoral Commission (Election Petition Appeal No. 84 of 2016)
  • Alfred Tajar v Uganda (Criminal Appeal No. 167 of 1969)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Col. (Rtd) Dr. Besigye Kizza v Museveni Yoweri Kaguta and Another (Election Petition No. 1 of 2001)
  • James Sewaabiri and Another v Uganda (Criminal Appeal No. 5 of 1990)
  • Micheal Mawanda v Electoral Commission and Another (Election Petition Appeal No. 98 of 2016)
  • Mutembuli Yusuf v Nagwomu Musamba Moses and Another (Election Petition Appeal No. 43 of 2016)
  • Kabuusu Moses Wagaba v Lwanga Timothy Mutekanga and Electoral Commission (Election Petition No. 15 of 2011)
  • Apolot Stella Isodo v Amongin Jacqueline (Election Petition Appeal No. 60 of 2016)
  • Pallock House Ltd v Nairobi Wholesalers Ltd (No.2) [1972] EA 172
  • Eddie Kwizera v Attorney General and Another (Constitutional Petition No. 20 of 2018)
  • Betty Muzanira v Winnifred Masiko and 2 Others (Election Petition No. 65 of 2016)
  • Edward Byaruhanga v Daniel Kiwalabye (Civil Appeal No. 2 of 1998)
  • Magara Ramathan v Uganda (Criminal Appeal No. 146 of 2009)
  • Kyagulanyi Ssentamu Robert v Yoweri Kaguta Museveni and 2 Others (Miscellaneous Application No. 4 of 2021)
  • Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Election Petition Appeal No. 4 of 2009)
  • Mbayo Jacob Robert v Electoral Commission and Another (Election Petition Appeal No. 7 of 2006)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Francis Babu v Erias Lukwago (Election Petition No. 10 of 2006)
  • Musinguzi James Garuga v Ainama Mbabazi and Electoral Commission (Election Petition No. 3 of 2001)
  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 16 of 2016)
  • Hon. George Patrick Kasajja v Frederick Ngobi Gume and Electoral Commission (Election Petition Appeal No. 68 of 2016)
  • John Baptist Kakooza v Electoral Commission and Another (Election Petition Appeal No. 11 of 2007)
  • Namboowa Rashida v Bavekuno Mafumu Godfrey Kyeswa and Another (Election Petition Appeal No. 69 of 2016)
  • Betuco (U) Ltd and Another v Barclays Bank of Uganda Ltd and 3 Others (Civil Appeal No. 1 of 2017)
  • Ninsiima Grace v Azairwe Dorothy Nshaija Kabaraitsya and Electoral Commission (Election Petition Appeal No. 5 of 2016)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Jugnauth v Raj Direvium Nagaya Ringadoo [2008] UKPC 50
  • Kikulukubyu Faisal v Miwanga Kivumbi Muhammed (Election Petition Appeal No. 44 of 2011)
  • Paul Mwiru v Igeme Nathan Nabeta Samson and Electoral Commission (Election Petition Appeal No. 6 of 2011)
  • Ben Martin Wanda v The Electoral Commission and Michael Werikhe Kafabusa (Election Petition Appeal No. 81 of 2016)
  • Kasirye v Bazigatirawo and Another [2019] UGCA 457
  • Gaddafi Nassur v Sekabira Denes and Another (Election Petition No. 56 of 2021)
  • Fred Badda v Prof. Muyanda Mutebi (Election Petition Appeal No. 21 of 2007)
  • Odo Teyebwa v Nasser Bassaijabalaba and The Electoral Commission (Election Petition Appeal No. 13 of 2011)
  • Gole Nicholas Davis v Lois Kageni Kiryapawo (Election Petition Appeal No. 19 of 2007)
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