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Kakooza v Electoral Commission and Another (Election Petition Appeal 11 of 2007)

Supreme Court · [2008] UGSC 31 · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second election petition appeal from the Court of Appeal, which had dismissed an appeal from the High Court at Masaka in an election petition
Decision
Appeal dismissed with costs to the respondents in the Supreme Court and the courts below

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Holding

The Supreme Court dismissed a second election petition appeal over the Kalungu West parliamentary seat. The Court held that an appellant must prove not only non-compliance with electoral law but that it affected the result in a substantial manner; interference with one ballot box at a single polling station could not vitiate the whole constituency. A majority found that the courts below wrongly excluded the appellant's uncertified Declaration of Results Forms, which were admissible as secondary evidence, but the appellant nonetheless failed to prove the irregularities substantially affected the result. The appeal was dismissed with costs.

Facts

In the 23 February 2006 parliamentary elections for Kalungu West Constituency, Masaka District, Yiga Anthony was declared the winner with 9,411 votes against the appellant's 8,602. The appellant challenged the conduct of the election in Kyamuliibwa sub-county, alleging non-compliance with electoral law, interference with ballot boxes, discrepancies between ballot papers issued and counted, and denial of representation at polling stations. A ballot box at Kalama polling station was found open, and the presiding officer and others were charged with interfering with election materials. The appellant relied on uncertified photocopies of Declaration of Results Forms obtained from the District Registrar, which the Returning Officer had refused to certify, to show discrepancies in the recorded votes. The High Court at Masaka and the Court of Appeal dismissed his petition and appeal, finding the evidence insufficient to prove that any irregularity affected the result in a substantial manner.

Issues

  1. Whether the events in Kyamuliibwa sub-county violated electoral laws and affected the results in a substantial manner.
  2. Whether the first respondent discharged its statutory duty to hear and determine the appellant's written complaint before announcing the results.
  3. Whether the courts below erred in rejecting the uncertified copies of the Declaration of Results Forms as inadmissible evidence.
  4. Whether the courts below erred in rejecting the appellant's affidavit in rejoinder as incompetent for not having been validly sworn.
  5. Whether the Court of Appeal failed in its duty to re-evaluate the evidence on record.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondents in the Supreme Court and in the courts below.

Key headnotes

Electoral Law — Election Petitions — Standard of Proof — Substantial Effect on Result
An appellant challenging an election must prove not only non-compliance with electoral law but also that the non-compliance affected the result in a substantial manner; interference confined to a single ballot box at one polling station, unsupported by credible evidence extending further, cannot vitiate the results of an entire constituency.
Electoral Law — Grounds of Appeal — Pleading — Rule 82(4) of the Rules of the Supreme Court
A memorandum of appeal must set forth concisely and under distinct heads the grounds of objection, specifying the points alleged to have been wrongly decided; a vague and generalized ground of appeal does not comply with this requirement.
Evidence — Public Documents — Declaration of Results Forms — Proof by Uncertified Secondary Evidence
Where the original of a public document is in the possession of the party against whom it is sought to be proved, secondary evidence, including uncertified copies, may be given under sections 64(1)(a) and 65 of the Evidence Act once notice to produce has been given or dispensed with; the contents of a public document need not invariably be proved by a certified copy.
Evidence — Notice to Produce — Dispensation — Section 65 of the Evidence Act
A court may dispense with formal notice to produce where, from the nature of the case, the adverse party must know that production will be required; in an election petition the Electoral Commission, holding electoral records under section 52 of the Parliamentary Elections Act for the resolution of disputes, is on notice that those records may be needed.
Evidence — Affidavits — Annextures — Certification of Public Documents
The liberal rule that the rules of evidence do not apply to affidavit evidence does not extend to annextures to an affidavit; a public document such as a Declaration of Results Form annexed to an affidavit must satisfy the certification requirement of section 73 of the Evidence Act before it can be received as an authentic and valid document.
Civil Procedure — Affidavits — Swearing — Section 6 of the Oaths Act
An affidavit signed by the deponent outside the presence of the commissioner for oaths and forwarded to be commissioned is not validly sworn and is rightly rejected; the deponent must take the oath and sign the affidavit before the commissioner for oaths.
Evidence — Admitted Facts — Scheduling Conference — Section 57 of the Evidence Act
Facts admitted by the parties at a pre-hearing scheduling conference need not be proved, but the court may in its discretion require an admitted fact to be proved otherwise than by the admission, provided it communicates that requirement to the affected party so as to afford an opportunity to furnish proof.

Legislation cited (15)

  • Parliamentary Elections Act 2005 s.47(5)
  • Parliamentary Elections Act 2005 s.47(7)
  • Parliamentary Elections Act 2005 s.50
  • Parliamentary Elections Act 2005 s.52
  • Parliamentary Elections Act 2005 s.76
  • Evidence Act s.57
  • Evidence Act s.62(b)
  • Evidence Act s.64(1)(a)
  • Evidence Act s.65
  • Evidence Act s.73
  • Evidence Act s.75
  • Evidence Act s.76
  • Oaths Act s.6
  • Parliamentary Elections (Election Petitions) Rules 1996 Rule 15
  • Rules of the Supreme Court Rule 82(4)

Cases cited (6)

  • Life Insurance Corporation of India v Panesar (Civil Appeal No. 1 of 1967)
  • Dr Kizza Besigye v Electoral Commission and Museveni Kaguta (Election Petition No. 1 of 2001)
  • Mbayo Jacob Robert v Electoral Commission and Talansya Sinani (Election Petition Appeal No. 07 of 2006)
  • Election Petition Appeal No. 24 of 2006
  • S.C.C No. 7 of 2003
  • Election Petition Appeal No. 1 of 2001
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