Wakilii

Bakaluba Peter Mukasa v Namboze Betty Bakireke (Election Petition Appeal 4 of 2009)

Supreme Court · [2010] UGSC 1 · 2010 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision upholding the High Court's nullification of a parliamentary election on an election petition
Decision
Appeal dismissed; the nullification of the appellant's election to Parliament was upheld

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Cited — treatment unverified cited in 4 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed the second appeal against the nullification of the appellant's parliamentary election. The omission of bribery particulars from the petitioner's own affidavit was a curable irregularity, not a denial of fair hearing, because the appellant had fair notice through the supporting affidavits, answered the case, cross-examined witnesses and testified; raising the objection only in final submissions was an afterthought. Procedural rules are handmaidens of justice and Article 126(2)(e) requires substantive justice without undue regard to technicalities. Although the Court of Appeal did not demonstrate its re-evaluation of the evidence, the Supreme Court re-appraised it and agreed with the trial judge's bribery findings; proof of one act of bribery by the candidate suffices to nullify under sections 68(1) and 61(1)(c).

Facts

The appellant, respondent and a third candidate contested the Mukono North Constituency parliamentary election held on 23 February 2006. The Electoral Commission declared the appellant the winner with 22,680 votes against the respondent's 22,232. The respondent petitioned the High Court, which annulled the election after finding it had been marred by electoral malpractices, including bribery. The petition alleged illegal practices contrary to section 68(1) of the Parliamentary Elections Act, but the particulars of bribery were not set out in the petitioner's own supporting affidavit; they appeared in the affidavits of her witnesses, who named villages such as Nakumbo and Walusubi where the appellant or his agents allegedly distributed money to induce voters. The appellant filed affidavits in rebuttal, testified and cross-examined the respondent's witnesses, but did not object to the petition's competence or seek further particulars or more time during the trial, raising the fair-trial point only in final submissions. The Court of Appeal upheld the High Court by a two-to-one majority, prompting the second appeal.

Issues

  1. Whether the majority of the Court of Appeal erred in failing to make a finding on whether the appellant was denied a fair trial by reason of non-disclosure of the particulars of alleged bribery.
  2. Whether there was in fact a denial of the appellant's right to a fair hearing where the particulars of bribery were not set out in the petitioner's own supporting affidavit but in the affidavits of her witnesses.
  3. Whether the majority of the Court of Appeal failed in its duty as a first appellate court to re-appraise the evidence and thereby arrived at wrong conclusions.

Orders

  • Appeal dismissed.
  • Decisions of the lower courts upheld.
  • Costs of the appeal awarded to the respondent in the Supreme Court and in the courts below.

Key headnotes

Civil Procedure — Pleadings — Effect of irregularity or departure where opposite party has fair notice
Where a party has fair notice of the case it must answer, does answer it and adduces evidence accordingly, and suffers no injustice, an irregularity in or departure from pleadings will not be permitted to frustrate the determination of the case.
Constitutional Law — Fair hearing (arts 28 and 44) — Procedural rules as handmaidens of justice
The right to a fair hearing under Articles 28 and 44 of the Constitution is fundamental and non-derogable, but the procedural rules that secure it are handmaidens of justice and not ends in themselves; failure to comply strictly with a rule of pleading does not, without resulting prejudice, amount to a denial of fair hearing.
Electoral Law — Election petitions — Particulars supplied through witnesses' supporting affidavits
Particulars of the offences alleged in an election petition need not be confined to the petitioner's own affidavit; where the petitioner states that she relies on the affidavits of witnesses who deponed to the particulars, those affidavits are incorporated in support of the petition and satisfy the requirements of the Election Petitions Rules.
Civil Procedure — Issues — Unpleaded issue tried without objection
An issue not pleaded but framed and tried with the agreement of the parties and without objection may be decided by the court.
Civil Procedure — Appeals — Duty of first appellate court to re-evaluate evidence
A first appellate court must scrutinise and re-evaluate the evidence on record and reach its own conclusions; although there is no set format for doing so, the record should show that the court itself addressed and assessed the important aspects of the evidence rather than merely adopting counsel's submissions and the trial court's conclusions.
Civil Procedure — Appeals — Powers of a second appellate court to re-evaluate evidence
A second appellate court will not ordinarily re-evaluate the evidence like a first appellate court, but may do so in the clearest of cases where it is satisfied that the first appellate court failed to discharge its duty to re-appraise the evidence.
Electoral Law — Bribery (s.68 PEA) — Inducement of a group of voters; sufficiency of one proven act to nullify
Bribery under section 68 of the Parliamentary Elections Act is not confined to the inducement of an individual voter; money given to a group or village to induce its voters to vote for a candidate constitutes bribery, the amount being immaterial, and proof of a single illegal practice committed by the candidate personally or with his knowledge, consent or approval is sufficient to nullify the election under section 61(1)(c).

Legislation cited (15)

  • Constitution of the Republic of Uganda 1995 art.28(1)
  • Constitution of the Republic of Uganda 1995 art.44
  • Constitution of the Republic of Uganda 1995 art.126(2)(e)
  • Parliamentary Elections Act 2005 s.68(1)
  • Parliamentary Elections Act 2005 s.61(1)(c)
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 r.3
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 r.4(2)
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 r.4(8)
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 r.8(5)
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 r.8(6)
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 r.15
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 r.19
  • Parliamentary Elections (Election Petitions) Rules SI 141-2 r.30(1)
  • Electoral Commission Act Cap. 140
  • Civil Procedure Rules

Cases cited (14)

  • Interfreight Forwarders (U) Ltd v East African Development Bank [1990-1994] EA 117
  • Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218
  • Castelino v Rodrigues [1972] EA 232
  • Sagamull v Galstaun [1930] AIR PC 205
  • Railways Corporation v East African Road Services Ltd [1975] EA 128
  • Uganda Breweries Ltd v Uganda Railways Corporation [2002] 2 EA 634
  • Ratilal Gordhanbhai Patel v Lalji Makanji [1957] EA 314
  • Nelson v Attorney General & Another [1999] 2 EA 160
  • Sembuya v Allports Services Uganda Ltd [1999] LLR 109 (SCU)
  • ODONGO AND ANOTHER -Vs- BONGE
  • Kifamunte v Uganda [1997] LLR 72
  • Pandya v Republic [1957] EA
  • Kairu v Uganda [1978] HCB 123
  • GANDY -Vs- CASPAR AIR CHARTER LIMITED
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