Hon. Sitenda Sebalu v. Hon. Sam K.Njuba & Anor (Election Petition Appeal 6 of 2009)

Supreme Court · [2010] UGSC 18 · 2010 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second election petition appeal from the Court of Appeal, which had upheld the High Court's dismissal of the petition

Decision

Appeal dismissed; the decisions of the High Court and Court of Appeal upholding the election result stand

The full judgment

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Holding

The Supreme Court dismissed the second election petition appeal. Although a non-prescribed declaration-of-results form was used at one of 127 polling stations in Kyadondo East Constituency, the appellant failed to discharge his burden under section 61 of the Parliamentary Elections Act of proving that the non-compliance affected the result of the entire election in a substantial manner. Applying the principles in the Besigye presidential petitions, an election is not annulled for every irregularity unless substantial failure of justice or effect on the result is shown. As a second appellate court, the Court confirmed the Court of Appeal had properly re-evaluated the evidence, including the credibility findings against the appellant and his agent.

Facts

At the 23 February 2006 parliamentary general elections for Kyadondo East Constituency, Wakiso District, the Electoral Commission declared the first respondent the winner with 17,743 votes against the appellant's 17,720 votes, a margin of 23 votes. The appellant sought a recount before the Chief Magistrate, then petitioned the High Court to nullify the election. His central complaint was that at the Kireka 'B' St. Stephen polling station the presiding officer declared the results on a non-prescribed declaration-of-results form (a District Woman MP form provided for training), rather than the prescribed form, and that the announced figures were wrong. He relied on a carbon copy of DR Form No. 18168 showing different figures, supported by his polling agent. The complaint about that station was first raised about six months after the petition was filed. The High Court and Court of Appeal rejected the appellant's evidence and found the non-compliance had not affected the overall result.

Issues

Whether the Court of Appeal failed to re-appraise the evidence and ought to have annulled the results at the Kireka 'B' St. Stephen polling station after finding non-compliance with section 50 of the Parliamentary Elections Act.
Whether the non-compliance with the declaration-of-results requirements affected the result of the election in Kyadondo East Constituency in a substantial manner under section 61 of the Parliamentary Elections Act.
Whether the Court of Appeal erred in relying on the use of a non-prescribed declaration form at Uganda Martyrs Kyaliwajjala polling station, an issue said not to have been raised at trial.
Whether the Court of Appeal erred in relying on the evidence of Salongo 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 and of the courts below awarded to the respondents.

Key headnotes

Electoral Law — Setting Aside an Election — Substantial Effect Requirement under Parliamentary Elections Act s.61

An election of a Member of Parliament will only be set aside where the petitioner proves that non-compliance with the Act both failed to conduct the election in accordance with the prescribed principles and affected the result of the election in a substantial manner; non-compliance at a single polling station, without proof of substantial effect on the overall result, is insufficient.

Electoral Law — Irregularities — Disregard of Errors Absent Substantial Failure of Justice

Courts are enjoined to disregard irregularities or errors in the conduct of an election unless they have caused a substantial failure of justice; the fundamental consideration is whether the will of the people has been affected.

Statutory Interpretation — Directory Provisions — Declaration of Results Forms under Parliamentary Elections Act s.50

Section 50 of the Parliamentary Elections Act, which prescribes the procedure for declaration of results forms, prescribes no consequence for non-compliance and is directory rather than mandatory; mere non-compliance with a step in the procedure does not by itself affect the results.

Evidence — Election Observer Reports — Probative Value

Reports of election observers cannot be taken as gospel truth but may be relied upon, especially where corroborated by evidence adduced in the petition; like expert opinions they are not binding on the court, which retains power to reach its own conclusion on all the evidence.

Civil Procedure — Second Appeals — Duty of a Second Appellate Court

A second appellate court does not re-evaluate the evidence afresh; its duty is to determine whether the first appellate court re-evaluated the evidence on record and properly considered the evidence from which the appeal arose, and it cannot entertain matters not pleaded, argued or decided below.

Legislation cited (5)

Parliamentary Elections Act 2005 s.50
Parliamentary Elections Act 2005 s.61
Parliamentary Elections Act 2005 ss.47-59
Presidential Elections Act 2005 s.59
Parliamentary Elections (Election Petitions) Rules r.6

Cases cited (5)

Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Presidential Election Petition No. 1 of 2001)
Kizza Besigye v Electoral Commission and Yoweri Museveni (Presidential Election Petition No. 1 of 2006)
Kakooza John Baptist v Electoral Commission and 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 1997)

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