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Bantalib Taligola v Electoral Commission and Another (Election Petition Appeal No. 48 of 2021)

Court of Appeal · [2022] UGCA 164 · 2022 Appeal Partly Allowed — Election Nullified AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court dismissal of a parliamentary election petition
Decision
Election of respondent no.2 nullified and a bye-election ordered for Gogonyo County, Pallisa District

Observed later treatment

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Holding

The Court of Appeal partly allowed the appeal, holding that section 61(1)(a) of the Parliamentary Elections Act does not require a petitioner to prove that excess votes belonged to him; the correct test is whether the non-compliance affected the result in a substantial manner. Given a winning margin of only 66 votes and unexplained excess votes (including 108 at one polling station), the result was gravely in doubt. The trial judge erred in refusing to consider uncertified original DR Forms alleging falsification. However, bribery was not proved as voters' registration was not established. The election was nullified and a bye-election ordered.

Outcome

Election of respondent no.2 nullified and a bye-election ordered for Gogonyo County, Pallisa District

Facts

The appellant, respondent no.2 and others contested the parliamentary seat for Gogonyo County, Pallisa District in the general elections held on 14 January 2021. The Electoral Commission declared respondent no.2 the validly elected Member of Parliament with 6,280 votes against the appellant's 6,214 votes, a margin of 66 votes. The appellant filed an election petition at Mbale High Court challenging the outcome, which was dismissed. Evidence showed excess and unaccounted-for votes at several polling stations, including 108 unexplained excess votes at one station, which the returning officer (RW1) could not explain. There was also a discrepancy in the Declaration of Results Form for Katukei Fellowship Church polling station: original copies given to agents showed the appellant scored 171 votes while a certified copy showed 71 votes, a difference of 100 votes. The appellant also alleged bribery, canvassing for votes at polling stations and respondent no.2 moving with an armed policeman on polling day.

Issues

  1. Whether a petitioner must prove that excess or stray votes belonged to him in order to set aside an election under the Parliamentary Elections Act.
  2. Whether the excess votes and discrepancies in the Declaration of Results Forms affected the result of the election in a substantial manner.
  3. Whether uncertified original Declaration of Results Forms adduced by the petitioner ought to have been considered where the results were alleged to have been falsified.
  4. Whether the illegal practices of bribery, canvassing for votes and moving with armed personnel were proved to the satisfaction of the court.
  5. Whether affidavits commissioned by an advocate whose appointment as commissioner for oaths was not gazetted should be nullified when the objection was raised after trial.

Orders

  • Appeal allowed in part.
  • The judgment and orders of the High Court are set aside.
  • The election of Orone Derrick, respondent no.2, as Member of Parliament for Gogonyo County, Pallisa District is nullified.
  • The Electoral Commission is directed to hold a bye-election for Gogonyo County, Pallisa District in accordance with the law.
  • The respondents shall jointly and severally pay the appellant 3/4 of the costs on appeal and costs in the court below.

Rules and key headnotes

Electoral Law — Setting Aside Election — Excess Votes — Burden of Proof
Section 61(1)(a) of the Parliamentary Elections Act does not require a petitioner to prove that excess or stray votes belonged to him; the petitioner need only prove that the non-compliance affected the result of the election in a substantial manner.
Electoral Law — Substantial Effect Test — Narrow Winning Margin
Where the margin of victory is smaller than the number of unexplained excess votes recorded at polling stations, such non-compliance affects the result of the election in a substantial manner, both qualitatively and quantitatively, and casts the whole result gravely in doubt.
Evidence — Declaration of Results Forms — Admissibility of Uncertified Documents
Where a petitioner alleges falsification of results by the Electoral Commission, uncertified original Declaration of Results Forms should be admitted and evaluated as an exceptional circumstance, since it defeats logic to require certified copies from the very party accused of altering the results.
Evidence — Evidential Burden — Contradictory Official Documents
Where two inconsistent Declaration of Results Forms bearing the same presiding officer's signature emerge for one polling station, an evidential burden shifts to the Electoral Commission to explain the discrepancy; presenting a certified copy without explanation is insufficient.
Electoral Law — Illegal Practice of Bribery — Proof of Voter Registration
To prove the illegal practice of bribery under section 68(1) of the Parliamentary Elections Act, the petitioner must establish that the person bribed was a registered voter by production of the National Voters' Register; failure to produce the register is fatal to the allegation.
Evidence — Affidavit Evidence — Duty to Evaluate
Affidavit evidence and sworn testimony of a petitioner's witnesses constitute evidence, not mere assertions, and a trial court must evaluate it alongside the respondent's evidence to determine which version is credible rather than dismissing it outright.
Civil Procedure — Illegality — Timing of Objection in Election Petitions
The principle that a court cannot sanction an illegality does not assist a party who raises the illegality by letter after the hearing has closed; election petitions are time-sensitive special proceedings requiring utmost diligence, and a matter not put before the trial court cannot be introduced without seeking a rehearing.

Legislation cited (29)

Cases cited (40)

Full judgment

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Bantalib Taligola v Electoral Commission and Another (Election Petition Appeal No. 48 of 2021) [2022] UGCA 164 (6 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.