Wakilii

Bagala Joyce Ntwatwa v Nabakooba Judith Nalule and Another (Election Petition Appeal No. 68 of 2021)

Court of Appeal · [2022] UGCA 174 · 2022 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal and cross-appeal from High Court decision nullifying a parliamentary election
Decision
Appeal allowed; High Court order annulling the appellant's election set aside; cross-appeal dismissed; appellant retains her seat as Woman MP for Mityana District

Observed later treatment

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Holding

The Court of Appeal allowed the appeal and set aside the High Court's annulment of the appellant's election as Woman MP for Mityana District. The Court held that an objection to a supporting affidavit commissioned by an advocate without a valid practising certificate, kept secret until final submissions, was an abuse of process and estopped the appellant. However, it found the petitioner failed to prove bribery to the required cogent standard: no nexus was established between the alleged agents (Francis Butebi Sembusi and Hon. Zaake, themselves candidates' relations) and the appellant, and the trial judge wrongly shifted the burden to prove a negative. The cross-appeal on substantial effect was dismissed. Each party to bear own costs.

Outcome

Appeal allowed; High Court order annulling the appellant's election set aside; cross-appeal dismissed; appellant retains her seat as Woman MP for Mityana District

Facts

The appellant and the first respondent contested the election for Woman Member of Parliament for Mityana District held on 14 January 2021. The appellant won with 64,639 votes against the first respondent's 48,322, a margin of 16,311 votes. The first respondent petitioned the High Court at Mubende to annul the election, alleging non-compliance with electoral laws and the commission of the illegal practice of bribery by the appellant personally or through her agents with her knowledge, consent or approval. The trial judge found bribery had been established, principally through Francis Butebi Sembusi (father of another candidate, Hon. Zaake), and set the election aside, ordering fresh elections. The judge, however, held the non-compliance did not affect the result in a substantial manner. The appellant appealed the annulment, and the first respondent cross-appealed the substantiality finding. A preliminary issue concerned an affidavit commissioned by an advocate whose practising certificate was allegedly not renewed for 2021, an objection raised only at the submissions stage.

Issues

  1. Whether the petition should be struck out because its supporting affidavit was commissioned by an advocate without a valid practising certificate, where the objection was raised only in final submissions.
  2. Whether section 7(6) of the Parliamentary Elections Act prohibits election officers from giving evidence in election petitions.
  3. Whether affidavits with defective jurats and uncertified voter location slips should be struck out.
  4. Whether the petitioner proved that the appellant committed the electoral offence of bribery through her agents with her knowledge, consent or approval.
  5. Whether any non-compliance with electoral laws affected the result of the election in a substantial manner.

Orders

  • The main Appeal is upheld and the decision of the trial Court annulling the election of the Appellant as Woman Member of Parliament for Mityana District Constituency is set aside.
  • The Cross-Appeal is not proved and stands dismissed.
  • Each party to bear their own costs.

Rules and key headnotes

Election Petitions — Defective Supporting Affidavit — Late Objection as Abuse of Process
An objection that a petition's supporting affidavit was commissioned by an advocate without a valid practising certificate must be raised at the earliest opportunity; where a party with prior knowledge deliberately withholds the objection until final submissions, denying the opponent an opportunity to respond, the objection amounts to an abuse of court process and the party is estopped from raising it.
Election Petitions — Evidence of Election Officers — Section 7(6) Parliamentary Elections Act
Section 7(6) of the Parliamentary Elections Act does not bar election officers from testifying in election petitions; it only prohibits unauthorized disclosure of information obtained in the course of their duties, requiring them to obtain authorization before divulging such information to third parties.
Burden of Proof — Positive versus Negative Assertions
The onus lies on a party to prove a positive assertion and not a negative one; a trial court errs in law where it shifts the burden onto a candidate to disprove that an alleged briber was her agent rather than requiring the petitioner to prove the affirmative nexus.
Bribery — Ingredients and Standard of Proof — Agency
To prove electoral bribery the petitioner must establish by cogent and compelling evidence that a gift was given to a voter, by the candidate or an agent, with intent to induce voting; there must be sufficient nexus between the person giving the bribe and the candidate, proving the agent acted with the candidate's knowledge, consent or approval.
Non-Compliance — Substantial Effect Test — Qualitative and Quantitative Approaches
A petitioner alleging that non-compliance affected the result of an election in a substantial manner must adduce cogent evidence, applying both the quantitative and qualitative tests, showing how the violations would have altered the result; where the winning margin is so large that a substantial reduction still leaves a wide margin, the result cannot be said to be affected.

Legislation cited (17)

Cases cited (21)

  • Paul Mwiru v Igeme Nabeta and Others (Election Petition No. 6 of 2011)
  • Mukaso Harris v Dr. Lulume Bayiga (supra)
  • Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2006)
  • Bater v Bater [1950] 2 All ER 458
  • Sarah Bireete v Bernadette Bigirura (Election Petition Appeal No. 13 of 2002)
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Anor (1982) HCB 11
  • Kamurali Jeremiah v Nathan Byanyima & Electoral Commission (Election Petition No. 2 of 2021)
  • Suubi Kinyamatama Juliet v Ssentongo Robinah Nakasirye (Election Petition Appeal No. 92 of 2016)
  • Pontrilas Investments Ltd Central Bank of Kenya & Anor v Attorney General of Kenya & Anor Ref No. 8 of 2017 EACJ
  • Mutembuli Yusuf v Nagwomu Moses Musamba & Electoral Commission (Election Petition Appeal No. 43 of 2016)
  • Kayanja Vincent De Paul v Rulinda Fabrice Brad & Electoral Commission (Election Petition Appeal No. 30 of 2021)
  • Wanyoto Lydia Mutende v Electoral Commission and Another (Election Petition No. 2 of 2021)
  • Abola David v Oloo Apul case (supra)
  • Ikilor Kevin v Orot Ismael (Election Petition Appeal No. 4 of 2021)
  • Jovelyn Barugahare v Attorney General (Civil Appeal No. 28 of 1993)
  • Ochieng Peter Patrick v Mayende Stephen Dede & Anor (Election Petition No. 15 of 2011)
  • Ernest Kiiza v Kabakumba Labwoni Masiko (Election Petition Appeal No. 44 of 2016)
  • Odo Tayebwa v Arinda Gordon Kasyaba & Electoral Commission (Election Petition Appeal No. 86 of 2016)
  • Oboth Marksons Jacob v Dr. Otiam Otaala Emmanuel (Election Petition No. 1 of 2001)
  • Kizza Besigye v Y.K. Museveni & Anor (Presidential Petition No. 1 of 2001)
  • Freda Nanziri Kase Mubanda v Mary Babirye Kabanda & Electoral Commission (Election Petition Appeal No. 38 of 2016)

Full judgment

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Bagala Joyce Ntwatwa v Nabakooba Judith Nalule and Another (Election Petition Appeal No. 68 of 2021) [2022] UGCA 174 (24 June 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.