Arumadri John Drazu v Etuuka and Another (Election Petition Appeal No. 37 of 2016)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal allowed the appeal, holding that the standard of proof in a parliamentary election petition is proof to the satisfaction of the court on a balance of probabilities under section 61(1) and (3) of the Parliamentary Elections Act, and that the trial judge had not erred on this point. However, applying a purposive approach, the court held that a restraining court order effectively served on the Electoral Commission bound it even though it was not a party to the suit, so the 1st Respondent was validly denominated and was not a lawfully nominated candidate. His inclusion on the ballot and declaration as winner, despite obtaining most votes, were unlawful. The election was set aside and fresh elections ordered.

Outcome

Election of the 1st Respondent set aside; fresh elections ordered for Upper Madi County constituency

Facts

The Appellant and 1st Respondent contested the Upper Madi County parliamentary seat in the 18 February 2016 elections. A court order in Misc. Application No. 60 of 2015 restraining the NRM from declaring a flag bearer was served on the Electoral Commission's Returning Officer for Arua District while the 1st Respondent's nomination was still under verification. The Returning Officer conceded she had nominated him in contravention of the order and sought to denominate him; the Electoral Commission subsequently denominated the 1st Respondent and notified the parties. The 1st Respondent caused dismissal of the head suit and obtained a consequential order for re-nomination, and the High Court froze and postponed the election. On the eve of polling day the Court of Appeal stayed that order, directing that duly nominated candidates be voted for. The 1st Respondent nonetheless appeared on the ballot. On polling day the Electoral Commission publicly notified voters that the 1st Respondent was not a valid candidate, yet after he polled the highest votes it declared him the winner. The Appellant petitioned the High Court, which dismissed the petition, and he appealed.

Issues

1. Whether the trial judge applied the correct standard of proof required in a parliamentary election petition.
2. Whether the 1st Respondent was a validly nominated candidate for the parliamentary election.
3. Whether a court order restraining the NRM from declaring a flag bearer, though served on the Electoral Commission which was not a party to the suit, bound the Electoral Commission.
4. Whether the trial judge properly evaluated the evidence relating to the nomination and denomination of the 1st Respondent.
5. Whether the Electoral Commission lawfully declared the 1st Respondent the winner of the election.

Orders

• The 1st Respondent was not a validly nominated candidate for Upper Madi County constituency.
• The election for Member of Parliament for that constituency, held with the inclusion and participation of the 1st Respondent as a candidate, was done in non-compliance with the electoral laws and the principles governing a free and fair election.
• The judgment and orders of the trial judge are set aside.
• The election of the 1st Respondent as Member of Parliament for Upper Madi County constituency is set aside.
• The Electoral Commission shall conduct fresh elections for Upper Madi County Parliamentary constituency in accordance with section 61(2) of the Parliamentary Elections Act, 2005.
• The Respondents shall pay the Appellant the costs of this appeal and of the petition in the court below.

Rules and key headnotes

Legislation cited (15)

• Parliamentary Elections Act 2005 s.61(1)
• Parliamentary Elections Act 2005 s.61(3)
• Parliamentary Elections Act 2005 s.61(2)
• Parliamentary Elections Act 2005 s.11(2)
• Parliamentary Elections Act 2005 s.13
• Parliamentary Elections Act 2005 s.58
• Parliamentary Elections Act 2005 s.68
• Parliamentary Elections Act 2005 s.72
• Electoral Commission Act s.15
• Electoral Commission Act s.15(2)
• Electoral Commission Act s.15(3)
• Presidential Elections Act 2005 s.59(6)
• Constitution of the Republic of Uganda Article 132(4)
• Rules of the Court of Appeal r.100(3)
• Parliamentary Elections Rules r.36

Cases cited (18)

• Col. Dr. Kizza Besigye v Yoweri Museveni and Another (Election Petition No. 1 of 2001)
• Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
• Odo Tayebwa v Bassajjabalwa Nasser and Another (Election Petition Appeal No. 13 of 2011)
• Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
• Toolit Simon Akecha v Oulanyah Jacob L'Okori and Another (Election Petition Appeal No. 19 of 2011)
• Paul Mwiru v Hon. Igeme Nabeta and 2 Others (Election Petition Appeal No. 6 of 2011)
• Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
• Matsiko Winfred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
• Col. (Rtd) Dr. Besigye Kiiza v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2006)
• Amama Mbabazi v Yoweri Kaguta Museveni and Others (Presidential Election Petition No. 1 of 2016)
• Fredrick Zaabwe v Orient Bank and Others (Civil Appeal No. 4 of 2006)
• Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
• Baxter v Baxter [1950] 2 All ER 458
• Blyth v Blyth [1966] AC 643
• Packer v Packer [1954] P 15
• President of South Africa and Another v Modderklip Boerdery (Pty) Ltd (CCT No. 20 of 2004)
• Hon. Martin Drito v The National Resistance Movement (Miscellaneous Application No. 60 of 2015)

The original judgment as reported. Read the original PDF before relying on any passage.