Wakilii

Akugizibwe Lawrence v Muhumuza David and Another (Election Petition Appeal No. 22 of 2016)

Court of Appeal · [2017] UGCA 187 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal to the Court of Appeal from a High Court judgment annulling a parliamentary election, with a cross-appeal by the respondents
Decision
Appeal allowed, High Court decision set aside, and the appellant confirmed as the duly elected Member of Parliament; cross-appeal dismissed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal and dismissed the cross-appeal. It held that the trial Judge committed a fatal error by relying on evidence attributed to a non-existent witness, breaching the impartiality required by Article 28 of the Constitution. Article 68(3), which concerns a candidate's presence at polling stations, was not violated because tallying occurs at the returning officer's centre, not the polling station. The petitioner failed to prove voters were denied the right to vote. Non-compliance found at only two of ninety-one polling stations, largely caused by the Electoral Commission, did not affect the results in a substantial manner. The High Court decision was set aside and the appellant confirmed as the elected Member of Parliament.

Outcome

Appeal allowed, High Court decision set aside, and the appellant confirmed as the duly elected Member of Parliament; cross-appeal dismissed.

Facts

The appellant and the first respondent contested the parliamentary election for Mwenge County North Constituency, Kyenjojo District, held on 18 February 2016. The Electoral Commission gazetted the appellant as winner with 19,144 votes against the first respondent's 18,426, a margin of 718 votes. The first respondent petitioned the High Court, which on 24 June 2016 allowed the petition, set aside the appellant's election, and ordered a fresh election, with costs against the respondents. The appellant appealed. The trial Judge had found non-compliance at two of ninety-one polling stations (Kitega and Kagoma), including alleged ballot stuffing, denial of the right to vote to four persons, and a violation of Article 68(3). She relied on evidence attributed to "Ategeka Wilson," who was not a witness in the case. A tally sheet was among the agreed documents, and the first respondent admitted receiving a copy from the Returning Officer. A system breakdown had interrupted printing and transmission of results after tallying at polling stations was complete.

Issues

  1. Whether affidavits filed in support of an election petition after expiry of the time to file the petition were properly filed and admissible.
  2. Whether the trial Judge erred in holding there was no tally sheet as evidence that tallying was completed.
  3. Whether Article 68(3) of the Constitution, concerning a candidate's presence at polling stations, was violated by the manner of tallying.
  4. Whether the trial Judge misdirected herself on the burden of proof regarding voters allegedly denied the right to vote.
  5. Whether the trial Judge erred in relying on the evidence of a non-existent witness (Ategeka Wilson).
  6. Whether the non-compliance found at two of ninety-one polling stations affected the results of the election in a substantial manner.
  7. Whether, on the cross-appeal, the respondent should have been declared the winner and awarded costs.

Orders

  • Appeal allowed.
  • Cross-Appeal dismissed.
  • The decision and orders of the lower Court set aside.
  • The appellant confirmed as the duly elected Member of Parliament for Mwenge County North Constituency, Kyenjojo District.
  • Each party to bear their own costs.

Rules and key headnotes

Election Petitions — Judicial Impartiality — Reliance on Non-existent Witness
A trial court's reliance on evidence attributed to a witness who does not exist and swore no affidavit is a fatal error that offends the impartiality required by Article 28 of the Constitution, which is non-derogable under Article 44(c).
Constitution Article 68(3) — Candidate's Presence at Polling Stations vs Tally Centre
Article 68(3) of the Constitution entitles a candidate or agent to be present during voting, counting and ascertaining of results at a polling station; it does not extend to tallying, which occurs at the returning officer's centre, so events at the tally centre cannot constitute a violation of Article 68(3).
Election Petitions — Filing of Affidavits After Expiry of Petition Time
It is sufficient compliance with the law for a petitioner to file, within the statutory thirty days, the petition together with an accompanying affidavit; additional evidential affidavits may be filed thereafter, as the law does not require all affidavits relied upon to be filed within the restricted time.
Election Petitions — Burden of Proof — Denial of Right to Vote
The burden of proof lies on the petitioner to prove that named persons were registered voters present and ready to vote but denied that right; possession of a National Identity Card alone does not prove that the holder is an eligible registered voter or that he did or did not vote.
Election Petitions — Substantial Effect Test — Non-compliance
Non-compliance found at only two out of ninety-one polling stations, particularly where largely caused by the Electoral Commission and not tested against the qualitative and quantitative tests, does not justify nullifying an election; the objection must be substantial and calculated to affect the result.
Costs — Election Litigation — Discretion
In election litigation of national importance, courts should carefully consider costs so as not to unjustifiably deter aggrieved parties from seeking redress, and where non-compliance is largely caused by the Electoral Commission each party may be ordered to bear their own costs.

Legislation cited (16)

Cases cited (16)

  • Ngoma Ngime v The Electoral Commission and Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
  • Makula International Ltd v His Eminence Cardinal Emmanuel Nsubuga & Anor [1982] HCB 11
  • Brian Kaggwa v Peter Muramira (Civil Appeal No. 26 of 2009)
  • Osuana v the State (2101 LPELR/ CA/OW/ 150/ 2009
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R [1957] EA 336
  • Bogere Moses and Another v. Uganda, Supreme Court Criminal Appeal No. 1 of
  • Mugema Peter v Mudiabole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Col. (Rtd) Dr. Kizza Besigye v Yoweri Kaguta Museveni & Anor (Presidential Election Petition No. 1 of 2001)
  • Matsiko Winfred Kyomuhangi v J. Babihuga (Election Petition No. 9 of 2002)
  • Nangiro John v Loroti (Election Petition Appeal No. 26 of 2006)
  • Amama Mbabazi v Yoweri Kaguta Museveni and 2 Others (Election Petition No. 1 of 2016)
  • Col. (Rtd) Dr. Kizza Besigye v Yoweri Kaguta Museveni and the Electoral Commission (Presidential Election Petition No. 1 of 2001)
  • Borough of Hackney Vs Reed [1874] XXXI L.J. 69
  • Paul Semwogerere and Anor v Attorney General (Civil Application No. 5 of 2001)
  • Kadama Mwogezaddembe v Gagawala Wambuzi (Election Petition No. 2 of 2001)

Full judgment

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Akugizibwe Lawrence v Muhumuza David and Another (Election Petition Appeal No. 22 of 2016) [2017] UGCA 187 (23 January 2017)
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.