Omara Yuventine v Ariko Johnny De West (Election Petition Appeal 4 of 2023)

Court of Appeal · [2024] UGCA 34 · 2024 Appeal Dismissed; Cross Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal to the Court of Appeal from a High Court (Soroti) decision in a local government election petition, with a cross appeal by the respondent.

Decision

Appeal dismissed and cross appeal allowed; appellant ordered to vacate the LC V Chairperson seat and the respondent declared the duly elected Chairperson of Abim District.

The full judgment

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Holding

The Court of Appeal held that where the Electoral Commission fails to determine a pre-polling complaint about a candidate's nomination, the aggrieved candidate may raise those issues in a post-election petition under sections 138 and 139 of the Local Governments Act, which the High Court has jurisdiction to hear, and is not obliged first to seek mandamus. The appellant, a serving UPDF officer, had not obtained valid discharge from the Commissions Board before nomination and was therefore not qualified. The appeal was dismissed. The cross appeal was allowed: because the only other candidate's nomination was invalid, the respondent was the sole validly nominated candidate and was declared the duly elected LC5 Chairperson of Abim District, despite the appellant's large vote margin.

Facts

Omara Yuventine (NRM) and Ariko Johnny De West (independent) contested the LC5 Chairperson seat of Abim District. Before the poll, the respondent and another voter lodged complaints with the Electoral Commission that Omara was still a serving UPDF officer at the rank of Captain and had not resigned, contravening the Constitution and electoral laws. The EC did not convene a quorate meeting, record minutes, or render a communicated decision on the complaints. The election proceeded on 20 January 2021; Omara won with 14,417 votes against the respondent's 4,809 and was gazetted. The respondent petitioned the Soroti High Court, which set aside the election and ordered fresh elections, finding Omara unqualified and the EC in breach of duty. Omara's proof of discharge comprised a certificate of service lacking the particulars required by regulation 31(3) and unsigned by the issuing officer, plus an unsigned internal UPDF memorandum; he continued drawing salary for July to September 2020 and gave conflicting discharge dates. The Service Personnel Particulars Report recorded his army end date as 6 October 2020.

Issues

Whether the High Court had jurisdiction to entertain an election petition raising pre-polling complaints concerning the appellant's nomination under sections 138 and 139 of the Local Governments Act.
Whether the Electoral Commission rendered a lawful decision on the pre-polling complaints against the appellant's nomination.
Whether the appellant had been validly discharged from the UPDF before his nomination and was therefore qualified to be nominated as a candidate.
Whether documentary evidence admitted at the trial without objection could be challenged for admissibility for the first time on appeal.
Whether, the appellant's nomination being invalid, the trial Judge ought to have declared the respondent the validly elected and unopposed candidate.

Orders

The appeal is dismissed.
The cross appeal is allowed.
Omara Yuventine, the appellant/respondent in cross appeal, is ordered to vacate the seat of LC V Chairperson of Abim District, if he has not yet done so.
Ariko Johnny De West, the respondent/cross appellant, is declared the winner of the election for LC V Chairperson of Abim District, to take office with effect from the date of the Judgment.
The Electoral Commission and the Speaker of Abim District are notified that Omara Yuventine ceases to be Chairperson with effect from the date of the Judgment.
The appellant/respondent in cross appeal shall pay the respondent/cross appellant the costs of the appeal, the cross appeal, and the costs in the court below.

Key headnotes

Electoral Law — Electoral Commission — Duty to determine pre-polling complaints

Where the Electoral Commission receives a complaint regarding any aspect of the electoral process, it must examine the complaint in a properly constituted meeting that achieves a quorum, record minutes, and render a decision communicated to the parties; an internal memorandum not arising from such a meeting and not signed off by the Chairperson or Secretary does not constitute a decision of the Commission.

Electoral Law — Jurisdiction — Post-election petition raising undetermined pre-polling complaints

Where the Electoral Commission neglects or fails to render a decision on a pre-polling complaint, the aggrieved candidate is deprived of the statutory remedy of appeal to the High Court, and the issues raised in the complaint may be litigated as grounds in a post-election petition under sections 138(1) and 139(d) of the Local Governments Act, which the High Court has jurisdiction to hear at first instance.

Electoral Law — Remedies — No obligation to seek mandamus before petitioning

A candidate aggrieved by the Electoral Commission's failure to determine a pre-polling complaint is not required to apply for a writ of mandamus to compel the Commission before filing an election petition, as no electoral law imposes such a requirement and there is no guarantee such an application would be heard before the election date.

Constitutional Law — Armed forces and politics — Formal discharge of a serving UPDF officer

A serving member of the UPDF who wishes to seek political office must first obtain formal discharge, whether by resignation or early retirement, from the proper authority, the UPDF Commissions Board acting through a quorate meeting with recorded minutes and communicated to the officer; a certificate of service deficient under regulation 31(3) and unsigned by the issuing officer does not establish such discharge.

Electoral Law — Qualification of candidates — Effect of invalid discharge from the UPDF

A candidate who was not validly discharged from the UPDF at the time of his nomination is not qualified for nomination, and his election is liable to be set aside under section 139(d) of the Local Governments Act.

Evidence — Admissibility — Objection raised for the first time on appeal

Documentary evidence admitted at trial during the scheduling conference without objection cannot be challenged on the ground of inadmissibility for the first time on appeal; any irregularity in its presentation is cured by its uncontested admission at trial.

Electoral Law — Relief — Declaration of the remaining validly nominated candidate as elected

Where the only other candidate's nomination was invalid, the remaining validly nominated candidate would have been unopposed, and under section 142(5)(b) of the Local Governments Act the court may declare that candidate duly elected; the invalidly nominated candidate's wide margin of victory cannot sanitise his illegal participation.

Legislation cited (28)

Local Governments Act s.138
Local Governments Act s.139(d)
Local Governments Act s.142(5)(b)
Local Governments Act s.116(5)
Local Governments Act s.163(1)
Electoral Commission Act s.15
Electoral Commission Act s.8
Electoral Commission Act s.20
Electoral Commission Act s.22
Constitution of Uganda Article 1
Constitution of Uganda Article 61(1)(f)
Constitution of Uganda Article 64(1)
Constitution of Uganda Article 208(2)
UPDF Act s.66
UPDF Act s.99
UPDF Act s.20
UPDF Act s.22
Political Parties and Organisations Act 2005 s.16
Political Parties and Organisations Act 2005 s.4(4)
Parliamentary Elections Act 2005 s.4(4)(a)
Parliamentary Elections Act s.63(6)(b)
UPDF (Conditions of Service) (Officers) Regulations reg.31(3)
UPDF (Conditions of Service) (Officers) Regulations reg.28(1)
UPDF (Conditions of Service) (Officers) Regulations reg.4
UPDF (Conditions of Service) (Officers) Regulations reg.5(6)
UPDF (Discharge) Regulations reg.2
Judicature Act s.11
Judicature (Court of Appeal Rules) Directions r.30(1)

Cases cited (16)

Fr. Narsensio Begumisa v Eric Tibebaga (Civil Appeal No. 17 of 2002)
Kasirye Zzimula Fred v Bazigatirawo Kibuuka Francis Amooti (Election Petition Appeal No. 1 of 2018)
Komakech Christopher & EC v Odongo Otto (Consolidated Election Petition No. 2 of 2006 and No. 6 of 2006)
Okabe Patrick v Opio Joseph & EC (Election Petition Appeal No. 47 of 2016)
Ariko Johnny De West v Omara Yuventine & Anor (Election Petition Appeal No. 41 of 2021)
Tumwebaze Kenneth v EC & Mugabe Robert (Miscellaneous Cause No. 396 of 2020)
Attorney General v Major General David Tinyenfuza (Constitutional Appeal No. 1 of 1997)
Major General David Tinyenfuza v Attorney General (Constitutional Petition No. 1 of 1996)
Bwino Fred Kyakulaga & Anor v Bodogi Ismail Waguma (Election Petition No. 15 and 20 of 2016)
Okeyoh Peter v Abbot George Ouma (Election Petition Appeal No. 4 of 2011)
Kasibbo Joshua v Mbogo Kezekia & EC (Election Petition No. 4 of 2011)
Kalemba Christopher & EC v Lubega Drake Francis (Election Petition Appeal No. 32 of 2016)
Wakayima Musoke Nsereko & EC v Sebunya Robert (Election Petition Appeal No. 50 & 102 of 2016)
Komakech Christopher v Otto Edward Makmot & EC (Election Petition No. 6 of 2016)
Amama Mbabazi v Yoweri Kaguta Museveni & 2 Ors (Election Petition No. 1 of 2016)
R v Cumming, Ex parte Hall (1887) 19 QBD 13

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