Sentamu Betty v Nayebare and Another (Election Petition Appeal No. 14 of 2023)

Court of Appeal · [2024] UGCA 365 · 2024 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal in a parliamentary election petition, from the High Court's dismissal of the petition on retrial

Decision

Appeal dismissed; High Court decision upheld and the first respondent declared validly elected as Woman Member of Parliament for Gomba District

The full judgment

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Holding

The Court of Appeal dismissed a second appeal in a parliamentary election petition. It held that arguments raised outside the memorandum of appeal could not be entertained (Rule 102(a)), and that grounds four and six offended Rule 66(2) for being argumentative and were struck out. A signature may be a person's name owned up to, so discrepancies with National ID cards did not invalidate the affidavits. Declaration of Results Forms are public documents requiring certification under sections 73, 75 and 76 of the Evidence Act; uncertified copies are inadmissible and cannot be validated by annexure to an affidavit. The appellant failed to serve proper notice to produce or exhaust remedies under Order 10 Rule 14, so secondary evidence was unavailable.

Facts

Sentamu Betty and Nayebare Sylvia contested the Woman Member of Parliament seat for Gomba District at the election held on 14 January 2021. The Electoral Commission declared Nayebare validly elected, having polled 30,253 votes against the appellant's 22,657. The appellant petitioned the High Court at Mpigi challenging the election. The petition was first dismissed on preliminary objections, but on appeal (EPA 11 of 2021) the matter was remitted for retrial before a different judge upon payment of residual filing fees. On retrial, the trial judge expunged certain witness affidavits and struck out uncertified Declaration of Results Forms annexed to the petition as inadmissible public documents, and dismissed the petition. The appellant's lawyers had written to the Electoral Commission requesting Declaration Forms for Kyayi and Kifampa Sub-Counties; the Commission averred an assessment of fees was made but never paid. Dissatisfied, the appellant brought this second appeal.

Issues

Whether the appellant's submissions under grounds one and two could be entertained where they raised matters not set out in the memorandum of appeal.
Whether the witnesses' affidavits were properly admitted despite discrepancies between their signatures and their National Identity Cards.
Whether grounds four and six should be struck out for offending Rule 66(2) by being argumentative and not concise.
Whether the trial judge erred in striking out the uncertified Declaration of Results Forms as inadmissible.
Whether the appellant established circumstances permitting reliance on uncertified public documents under sections 64 and 65 of the Evidence Act.

Orders

The decision and orders of the High Court are upheld.
The appeal is dismissed.
It is declared that the first respondent was validly elected as Woman Member of Parliament for Gomba District.
Costs of the appeal in this Court and in the Court below awarded to the respondents.

Key headnotes

Appeals — Memorandum of Appeal — Matters not pleaded in grounds cannot be argued

An appellate court will not entertain submissions raising matters that are neither set out in, nor implicit from, the grounds listed in the memorandum of appeal, as parties are bound by their pleadings and Rule 102(a) bars argument on grounds not so included.

Appeals — Memorandum of Appeal — Concise grounds — Argumentative grounds struck out

A ground of appeal that is argumentative and not concisely framed offends Rule 66(2) of the Court of Appeal Rules and is liable to be struck out.

Affidavits — Signatures — Discrepancy with National Identity Card

A signature may be a person's name or mark written to show ownership of a document; no law requires a witness to use the same signature as that on a National Identity Card, so a discrepancy does not by itself render the affidavit unreliable where the deponent owns up to the document.

Public Documents — Declaration of Results Forms — Certification required

Declaration of Results Forms are public documents under section 73 of the Evidence Act and must be certified under sections 75 and 76 to be admissible; uncertified copies are inadmissible and are not validated by being annexed to an affidavit or obtained from the respondent.

Secondary Evidence — Notice to Produce — Conditions under sections 64 and 65 Evidence Act

Secondary evidence of a public document under section 64(1)(a) of the Evidence Act may be given only where a reasonable notice to produce, as required by section 65, has been served on the party in possession of the original; absent such notice and exhaustion of remedies, uncertified copies cannot be relied upon.

Election Petitions — Burden and Standard of Proof

In a parliamentary election petition the burden lies on the petitioner to prove, by cogent and credible evidence on a balance of probabilities (though higher than in ordinary civil cases), that irregularities or non-compliance with electoral law occurred and affected the result in a substantial manner.

Legislation cited (17)

Parliamentary Elections Act No. 17 of 2005 s.66(3)
Parliamentary Elections Act No. 17 of 2005 s.61(3)
Parliamentary Elections Act No. 17 of 2005 s.62(3)
Parliamentary Elections Act No. 17 of 2005 s.62
Electoral Commission Act Cap. 140
Constitution of the Republic of Uganda 1995
Illiterates Protection Act Cap. 78 s.3
Evidence Act Cap. 6 s.64(1)(a)
Evidence Act Cap. 6 s.65
Evidence Act Cap. 6 s.73
Evidence Act Cap. 6 s.75
Evidence Act Cap. 6 s.76
Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 30(1)
Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 66(2)
Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 102(a)
Parliamentary Elections (Interim Provisions) Rules SI 141-2 Rule 5(3)
Civil Procedure Rules Order 10 Rule 14

Cases cited (18)

Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
Paul Mwiru v Igeme Nabeta and Others (Election Petition No. 06 of 2011)
Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 09 of 2006)
Mukasa Harris v Dr. Lulume Bayiga
Hater v Hater [1950] 2 All ER 458
Sarah Bireete and Another v Bernadette Bigirwa and Electoral Commission (Election Petition Appeal No. 13 of 2002)
Kasaala Growers Co-operative Society v Kakooza Jonathan and Another (Civil Appeal No. 19 of 2010)
Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] UGSC 2
HAM Enterprises Ltd and 2 Others v Diamond Trust Bank (U) Ltd and Another (Civil Appeal No. 13 of 2021)
Muhereza Bosco and Katureebe Boaz v Uganda (Criminal Appeal No. 066 of 2011)
Sitenda Sebalu v Sam K. Njuba and Another (Election Petition Appeal No. 26 of 2007)
Tamale Julius Konde v Ssenkubuge Isaac and Another (Election Petition Appeal No. 75 of 2016)
John Baptist Kakooza v Electoral Commission and Yiga Anthony (Election Petition Appeal No. 11 of 2007)
Ssenkubuge Isaac v Tamale Julius Konde (Election Petition No. 1 of 2019)
Besigye Vs. Museveni & Anor (2006)
Mbabazi Vs. Museveni & others (2016)
Tumwesigye Anthony v Arinaitwe Rauben and Another (Consolidated Election Petition No. 31 of 2021)
Sentamu Betty v Nayebare (Election Petition Appeal No. 11 of 2021)

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