Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal 18 of 2007)

Supreme Court · [2008] UGSC 6 · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from the Court of Appeal, which had upheld the High Court's decision allowing a parliamentary election petition and setting aside the appellant's election.

Decision

Appeal dismissed; the High Court's order setting aside the appellant's election and directing a fresh election stands.

The full judgment

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Holding

The Supreme Court dismissed the appeal. The word "shall" in Section 62 of the Parliamentary Elections Act 2005 and Rule 6(1) of the Election Petitions Rules, requiring service of notice of presentation of a petition, is directory and not mandatory, since neither provision prescribes a sanction for non-service; non-service therefore did not vitiate the proceedings, and Article 126(2)(e) applied. The standard of proof in a parliamentary election petition is the balance of probabilities under Section 61(3), not proof beyond reasonable doubt. The concurrent findings of the trial judge and Court of Appeal on witness credibility, which established bribery, disclosed no erroneous view of the evidence and would not be disturbed.

Facts

At the 23 February 2006 parliamentary elections, the appellant, the respondent and a third candidate contested the Buikwe County South Constituency seat. The appellant obtained 13,690 votes and the respondent 13,026, and the Electoral Commission declared the appellant the winner. The respondent petitioned the High Court at Jinja alleging various electoral offences against the appellant, including bribery. The trial judge dismissed most allegations but found proven two instances of bribery: the appellant giving shs. 250,000 for distribution to voters at Lubbongi on 24 January 2006, and shs. 500,000 at a campaign rally at Kikuusa on 25 January 2006. Findings rested on the credibility of witnesses cross-examined on their affidavits, with the trial judge believing the petitioner's witnesses and finding the appellant a liar. The judge set aside the appellant's election and ordered a fresh election. The Court of Appeal upheld that decision.

Issues

Whether the petition was a nullity for failure to serve notice of presentation of the petition as required by Section 62 of the Parliamentary Elections Act 2005 and Rule 6(1) of the Election Petitions Rules.
Whether the words of Section 62 and Rule 6(1) requiring service of notice are mandatory or merely directory.
Whether the Court of Appeal, as a first appellate court, failed in its duty to properly re-evaluate the evidence on the record.
Whether the respondent proved the allegations of bribery by the appellant, and to what standard of proof.

Orders

Appeal dismissed with costs to the respondent in the Supreme Court and in the two courts below, for one counsel.

Key headnotes

Statutory Interpretation — Mandatory and Directory Provisions — Effect of word "shall" where no sanction prescribed

Where a statutory provision uses the word "shall" but neither the statute nor the rules prescribe any sanction or consequence for non-compliance, the provision is directory and not mandatory, and merely directs what ought to be done.

Electoral Law — Election Petitions — Non-service of notice of presentation of petition — Section 62 PEA and Rule 6(1)

Failure to serve notice of presentation of an election petition within the time prescribed by Section 62 of the Parliamentary Elections Act 2005 and Rule 6(1) of the Election Petitions Rules is a directory irregularity that does not, of itself, render the petition a nullity, particularly where the respondent shows no prejudice and time for service may be extended under Rule 19.

Electoral Law — Election Petitions — Standard of Proof — Balance of probabilities

The standard of proof required to prove an allegation in a parliamentary election petition is proof on the balance of probabilities as prescribed by Section 61(3) of the Parliamentary Elections Act 2005, and not proof beyond reasonable doubt; the reasoning under the Presidential Elections Act, which has no equivalent provision, does not apply.

Evidence — Appellate Review — Concurrent findings on credibility of witnesses

A second appellate court will not interfere with concurrent findings of the trial court and first appellate court on the credibility of witnesses unless satisfied that one or both courts took an erroneous view of the evidence and thereby reached a wrong decision, or that their conclusions cannot be supported in law.

Electoral Law — Electoral Offences — Bribery — Proof of intent to influence voters under Section 68 PEA

Bribery under Section 68 of the Parliamentary Elections Act 2005 is established where a candidate gives money to persons who are voters with the intention of influencing them to vote for him; the recipients' status as voters and the candidate's intent may be inferred from the circumstances of the giving.

Civil Procedure — Preliminary Objections — Late objection on a procedural irregularity

A party who fully participates in the hearing of a petition without raising non-service as a substantial preliminary objection, and who demonstrates no prejudice, cannot later rely on the irregularity to defeat the petition, the matter being curable in the interests of substantive justice under Article 126(2)(e) of the Constitution.

Legislation cited (7)

Parliamentary Elections Act 2005 s.62
Parliamentary Elections Act 2005 s.61(1)
Parliamentary Elections Act 2005 s.61(3)
Parliamentary Elections Act 2005 s.68(1)
Parliamentary Election (Election Petitions) Rules r.6(1)
Parliamentary Election (Election Petitions) Rules r.19(1)
Constitution of Uganda 1995 art.126(2)(e)

Cases cited (2)

Kiiza Besigye v Museveni & Electoral Commission (Presidential Election Petition No. 1 of 2006)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)

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