Wakilii

Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Election Petition Appeal No. 04 of 2009)

Supreme Court · [2010] UGSC 44 · 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 nullification of a parliamentary election by the High Court
Decision
Appeal dismissed; nullification of the appellant's election to Parliament upheld

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Cited — treatment unverified cited in 3 (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 a second appeal against the nullification of a parliamentary election. Although the Court of Appeal had wrongly failed to make findings on the fair-trial ground, the omission was not fatal: the appellant had fair notice of the bribery case from the petition and supporting affidavits, answered it fully, and never objected to the pleadings or sought particulars at trial, so the absence of bribery particulars in the petitioner's own affidavit was a non-prejudicial irregularity excused by Article 126(2)(e). On the evidence, the trial judge properly found proven acts of bribery sufficient under section 68(1) to annul the election; the Court of Appeal's inadequate articulation of its re-evaluation did not vitiate the concurrent findings.

Facts

The appellant, respondent and a third contestant ran for the Mukono North Constituency parliamentary seat in the election of 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 for malpractices, including bribery. The petition alleged illegal practices contrary to section 68(1) of the Parliamentary Elections Act, but the petitioner's own supporting affidavit gave no particulars of bribery; particulars appeared in affidavits of her witnesses. The appellant filed answers and numerous rebuttal affidavits, gave oral evidence, and cross-examined witnesses, but never objected to the pleadings or sought particulars or more time at trial. Evidence showed the appellant gave money to voters at Nakumbo village and offered Shs.150,000 to Walusubi/Walusimbi village residents to repair boreholes in exchange for votes. The Court of Appeal upheld the trial judge by majority. The appellant's further appeal to the Supreme Court followed.

Issues

  1. Whether the Court of Appeal erred in failing to make a finding on whether the appellant was denied the right to a fair trial by reason of non-disclosure of specific particulars of alleged bribery.
  2. Whether the failure to set out particulars of bribery in the petitioner's own supporting affidavit denied the appellant a fair hearing.
  3. Whether the majority Justices of the Court of Appeal failed in their duty as a first appellate court to re-appraise the evidence and thereby reached wrong conclusions.

Orders

  • Appeal dismissed with costs in the Supreme Court and in the courts below.
  • Decisions of the lower courts upheld.

Key headnotes

Pleadings — Election Petitions — Particulars Omitted from Supporting Affidavit — Whether Fatal
Where particulars of an illegal practice are omitted from the petitioner's own affidavit but supplied in supporting affidavits of witnesses filed with the petition, and the respondent has fair notice of the case and answers it without objecting or seeking particulars, the irregularity does not vitiate the petition.
Fair Hearing — Article 28(1) — Non-Derogable Right — When Procedural Irregularity Amounts to Denial
A procedural irregularity in pleadings denies the right to a fair hearing under Article 28 only where it deprives a party of fair notice of the case to be met and causes a failure of justice; an irregularity answered without prejudice does not breach the right.
Technicalities — Article 126(2)(e) — Substantive Justice Over Technicality
By Article 126(2)(e) of the Constitution, a case determined after a full trial will not be defeated by a technical pleading defect that caused no prejudice, particularly where the complaining party did not raise it before final submissions.
First Appellate Court — Duty to Re-evaluate Evidence — No Set Format
A first appellate court must scrutinise and make its own assessment of the evidence, but there is no set format for doing so and it need not write a judgment resembling the trial court's; it may interfere with findings of fact only if satisfied the trial judge was wrong.
Second Appeal — Limited Scope of Re-evaluation by Second Appellate Court
On a second appeal the court does not ordinarily re-evaluate evidence afresh but decides whether the first appellate court correctly applied the principles governing re-evaluation; it may itself re-appraise the evidence where satisfied the first appellate court did not properly do so.
Bribery — Section 68 Parliamentary Elections Act — Gratification to a Group of Voters
Bribery under section 68 of the Parliamentary Elections Act is not confined to inducement of an individual voter; money or gratification given for the common benefit of a village to induce its voters to vote for a candidate constitutes bribery.
Annulment — Section 61(1)(c) — Single Proven Illegal Practice Sufficient
Proof to the satisfaction of the court of a single illegal practice committed by the candidate personally or with his knowledge, consent or approval is sufficient under section 61(1)(c) of the Parliamentary Elections Act to set aside the election.

Legislation cited (14)

  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.44
  • Constitution of Uganda 1995 art.126(2)(e)
  • Parliamentary Elections Act 2005 s.61(1)(c)
  • Parliamentary Elections Act 2005 s.68(1)
  • 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
  • Court of Appeal Rules r.30(1)
  • Electoral Commission Act Cap. 140

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
  • GANDY -Vs- CASPAR AIR CHARTER LIMITED
  • 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 Henry v Uganda [1997] LLR 72
  • Pandya v Republic [1957] EA 336
  • Kairu v Uganda [1978] HCB 123
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.