Sebalu v Njuba (Election Petition Appeal 6 of 2009)

Supreme Court · [2010] UGSC 39 · 2010 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second election petition appeal from a Court of Appeal decision affirming the High Court's dismissal of an election petition

Decision

Appeal dismissed; the Court of Appeal's affirmation of the High Court's dismissal of the election petition stands

The full judgment

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Holding

The Supreme Court dismissed the appeal. Although a non-prescribed declaration of results form was used at one polling station (Kireka 'B' St. Stephen), in non-compliance with section 50 of the Parliamentary Elections Act, the appellant failed to discharge the burden under section 61 of proving, on a balance of probabilities, that the non-compliance affected the result of the entire Kyadondo East constituency election in a substantial manner. The Court applied the substantial-effect principle from the Besigye presidential election petitions. As a second appellate court, it confined itself to whether the Court of Appeal re-evaluated the evidence; it found that it had. New complaints neither pleaded nor argued in the courts below could not be raised on second appeal.

Facts

At the parliamentary general elections of 23 February 2006, the appellant contested the Kyadondo East constituency seat against the first respondent and another candidate. The first respondent was declared the winner with 17,743 votes to the appellant's 17,720, a margin of 23 votes. The appellant petitioned the High Court to nullify the election, but ultimately pressed only a complaint about the Kireka 'B' St. Stephen polling station. There, the presiding officer declared the parliamentary results on a non-prescribed declaration of results form (one intended for the District Woman Member of Parliament, supplied for training). The appellant alleged the announced figures were wrong and that the correct results appeared on a carbon copy of the prescribed form, which he produced. He raised this complaint by a supplementary affidavit filed about six months after the petition. The High Court and the Court of Appeal rejected the appellant's evidence and found the announced results stood. The appellant brought a second appeal to the Supreme Court.

Issues

Whether the Court of Appeal failed to re-appraise the evidence and erred in not annulling the results at Kireka 'B' St. Stephen polling station after finding non-compliance with section 50 of the Parliamentary Elections Act.
Whether the appellant proved that the non-compliance with the Parliamentary Elections Act at one polling station affected the result of the Kyadondo East constituency election in a substantial manner as required by section 61.
Whether the Court of Appeal erred in relying on the non-prescribed declaration form used at Uganda Martyrs Kyaliwajjala polling station, which the appellant said was not in issue at trial.
Whether the Court of Appeal erred in relying on the evidence of Salongo Mukasa Bwabye and the DEMGROUP report.
Whether the Court of Appeal failed to re-evaluate the evidence of the appellant and his polling agent on credibility and demeanour.

Orders

Appeal dismissed.
Costs of the appeal awarded to the respondents in the Supreme Court and in the two courts below.

Key headnotes

Electoral Law — Parliamentary Elections — Setting aside an election — Substantial-effect requirement under section 61

An election will be set aside for non-compliance with the Parliamentary Elections Act only where the petitioner proves, on a balance of probabilities, that the non-compliance affected the result of the election in a substantial manner; non-compliance alone is insufficient.

Electoral Law — Declaration of results — Section 50 of the Parliamentary Elections Act is directory

Section 50 of the Parliamentary Elections Act, which prescribes the procedure for declaration of results forms, is directory rather than mandatory, since it does not prescribe consequences for non-compliance; mere non-compliance with a stage of the procedure does not by itself affect the results.

Appeals — Second appellate court — Scope of review limited to re-evaluation by the first appellate court

The duty of a second appellate court is to determine whether the first appellate court re-evaluated the evidence on record and properly considered the evidence from which the appeal arose; it does not re-hear the evidence afresh.

Appeals — New issues — Matters not pleaded or argued below cannot be raised on a second appeal

A party cannot raise on a second appeal matters that were neither pleaded nor argued and decided in the courts below; the appellate court cannot entertain grounds that were not before the lower courts.

Election petitions — Reports of election observers — Evidential weight

Reports of election observers cannot be taken as gospel truth but may be relied on, especially where corroborated by evidence adduced in the petition; like expert reports, their findings are not binding on the court, which may reach its own conclusions.

Credibility — Demeanour findings — Appellate re-evaluation and effect of delayed evidence

Where evidence of falsification of results is withheld and adduced only months after the petition is filed, this casts doubt on the credibility of the witness; an appellate court may uphold a trial court's demeanour-based credibility findings after re-evaluating the evidence.

Legislation cited (6)

Parliamentary Elections Act (Act 17 of 2005) s.50
Parliamentary Elections Act (Act 17 of 2005) s.61
Parliamentary Elections Act (Act 17 of 2005) ss.47-59
Parliamentary Elections Act (Act 17 of 2005) s.6
Presidential Elections Act (Act 16 of 2005) s.59
Parliamentary Elections (Election Petitions) Rules Rule 6

Cases cited (5)

Besigye Kizza v Museveni Yoweri Kaguta & Electoral Commission (Presidential Election Petition No. 1 of 2001)
Kizza Besigye v Electoral Commission & Yoweri Museveni (Presidential Election Petition No. 1 of 2006)
Kakooza John Baptist v Electoral Commission & Yiga Anthony (Election Petition Appeal No. 11 of 2007)
Kayongo Abasi v Wandyaka (Election Petition No. 27 of 2006)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1992)

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