Wakilii

Attan Okia Moses and Another v Ariko Herbert Edmund Okworo (Election Petition Nos. 7 and 10 of 2021)

Court of Appeal · [2022] UGCA 154 · 2022 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First and last appeal from High Court decision nullifying a parliamentary election petition
Decision
Appeal partly allowed on costs; nullification of election upheld and fresh elections ordered in a legally constituted constituency

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal, sitting as a first and last appellate court, upheld the High Court's nullification of the Soroti City East Constituency parliamentary election. The removal of Aloet and Opilyai parishes from the constituency contrary to Parliament's gazetted composition was illegal, rendering the election void ab initio under the Macfoy principle. Disenfranchisement of 5,233 voters affected the narrow result substantially. The petition was competent and did not require constitutional interpretation. However, the Court allowed the appeal in part on costs, holding the trial Judge erred in condemning the appellants (who acted under a court order) in costs. Fresh elections were ordered and each party to bear own costs.

Outcome

Appeal partly allowed on costs; nullification of election upheld and fresh elections ordered in a legally constituted constituency

Facts

The 1st appellant and the respondent were candidates for Member of Parliament for Soroti City East Constituency in the election held on 14 January 2021. The 1st appellant won with 7,606 votes (48.94%) against the respondent's 7,167 votes (46.12%). The respondent challenged the election on the ground that the two parishes of Opilyai and Aloet, gazetted on 13 November 2020 as part of Soroti City East Constituency, were removed and placed in Soroti City West Constituency for polling day. This left the affected voters unable to vote for their intended candidates. The respondent claimed the election was conducted in an illegally and unconstitutionally constituted constituency. The Electoral Commission had relied on a High Court order in HCCS No. 29 of 2020, but that order was later reviewed and set aside in MA No. 3 of 2021. The High Court at Soroti nullified the election. Both the 1st appellant and the Electoral Commission appealed.

Issues

  1. Whether the reconstitution of constituency boundaries by removing the parishes of Aloet and Opilyai from Soroti City East Constituency was done illegally.
  2. Whether the trial Judge erred in applying the court order in HCMA No. 3 of 2021.
  3. Whether the trial Judge erred in finding that no valid election was conducted in Soroti City East Constituency.
  4. Whether the trial Judge erred in finding that 5,233 registered voters in Aloet and Opilyai were disenfranchised.
  5. Whether the trial Judge erred in finding non-compliance with electoral laws that affected the result in a substantial manner.
  6. Whether the trial Judge erred in condemning the appellants in costs.
  7. Whether the High Court in Civil Suit No. 29 of 2020 and MA No. 3 of 2021 lacked original jurisdiction.
  8. Whether the trial Judge erred in holding that the Respondent's petition was competent.

Orders

  • Appeal partly succeeds on the issue of award of costs.
  • The appeal fails on all other grounds of appeal.
  • The Judgment, Decree and orders entered against the Appellants, save for the award of costs, are confirmed and upheld.
  • Fresh elections for the position of directly elected Member of Parliament for Soroti City East constituency be conducted by the 2nd Appellant in a legally constituted constituency.
  • The order of award of costs is set aside and substituted with an order that each party to the petition bears its own costs.
  • Each party shall bear its own costs of this appeal.

Rules and key headnotes

Electoral Law — Constituency Boundaries — Alteration Contrary to Gazetted Composition
An election conducted in a constituency whose boundaries have been altered contrary to the composition approved by Parliament and published in the Gazette is conducted in an illegally constituted constituency and is void ab initio.
Electoral Law — Void Acts — Application of the Macfoy Principle
Where the act founding an election is null and void, every proceeding founded on it, including the election and computation of results, is also void and collapses automatically.
Civil Procedure — Illegality — Duty of Court to Address Illegality Once Raised
An illegality once brought to the attention of the court overrides all matters of pleading and the court is duty bound to consider it.
Electoral Law — Disenfranchisement — Substantial Effect on Result
Where voters are denied the opportunity to cast their votes and the disenfranchised number exceeds the winning margin, the non-compliance with electoral laws affects the result of the election in a substantial manner.
Civil Procedure — Costs — Costs Not Punitive; Party Acting Under Court Order
Costs are not intended to punish an unsuccessful litigant but to enable the successful litigant recover reasonable expenses; it is unfair to condemn in costs a party who acted in compliance with a valid court order.
Constitutional Law — Constitutional Reference — Mere Mention of Constitutional Subject Matter
A mere mention of the subject matter of a petition does not render it a matter for constitutional interpretation requiring a constitutional reference.

Legislation cited (14)

Cases cited (11)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Father Nasensio Begumisa and 3 Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Paul Mwiru v Igeme Nabeta and Others (Election Petition Appeal No. 6 of 2011)
  • Mukasa Harris v Dr Lulume Bayiga (supra)
  • Macfoy v United Africa Co Ltd [1961] 3 All ER 1169
  • Eddie Kwizera v Attorney General (Constitutional Petition No. 20 of 2018)
  • Chebrot Stephen v Kenneth and Electoral Commission (Election Petition No. 12 of 2016)
  • Rtd Dr Kiiza Besigye v Kaguta Museveni and Another (Election Petition No. 1 of 2001)
  • Osotraco Limited v Attorney General (Civil Suit No. 1380 of 1986)
  • Campbell v Pollock [1927] AC 732

Full judgment

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

Attan Okia Moses and Another v Ariko Herbert Edmund Okworo (Election Petition Nos. 7 and 10 of 2021) [2022] UGCA 154 (24 May 2022)
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.