Wakilii

Bwino Fred Kyakulaga & Another v Badogi Ismail Waguma (Election Petition Appeal 15 of 2016; Election Petition Appeal 20 of 2016)

Court of Appeal · [2017] UGCA 44 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated election petition appeal from High Court decision setting aside a parliamentary election
Decision
Appeal allowed; the 1st appellant's election as Member of Parliament for Kigulu North Constituency restored and the order for fresh elections set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that although there was proven non-compliance with electoral laws at three polling stations (Nawangaiza Catholic Church, Malobi Primary School and Nawangaiza P/S N-Z), the non-compliance did not affect the result in a substantial manner because the 1st appellant's winning margin of 2,149 votes remained wide even after deducting the affected votes. The Court held that failure by agents to sign Declaration of Results Forms does not itself invalidate results, that a court may compare signatures without a handwriting expert where sample documents exist, and that the burden of proving appointment of polling agents lay on the petitioner. The appeal was allowed and the trial Court's nullification order set aside.

Outcome

Appeal allowed; the 1st appellant's election as Member of Parliament for Kigulu North Constituency restored and the order for fresh elections set aside

Facts

In the 18 February 2016 parliamentary general elections, the 1st appellant contested the Kigulu North Constituency seat, Iganga District, against the respondent and six others. The Electoral Commission declared the 1st appellant winner with 17,800 votes against the respondent's 15,651 votes, a margin of 2,149 votes. The respondent petitioned the High Court at Jinja alleging non-compliance with electoral laws, chiefly relating to Declaration of Results Forms in Nawandala sub county. Allegations included unsigned DR Forms, denial of opportunity to sign, forged signatures, signing of forms at 4:00pm, mis-packaging of forms between polling stations, false propaganda, ballot stuffing and multiple voting. The trial Judge found substantial non-compliance, set aside the election and ordered a by-election. Both appellants appealed and the appeals were consolidated. On re-evaluation, the Court found non-compliance proven at only three polling stations, involving a combined vote difference of 1,075 votes, insufficient to overturn the 2,149-vote winning margin.

Issues

  1. Whether the trial Judge failed to properly evaluate the evidence and wrongly concluded that there was non-compliance with the electoral laws.
  2. Whether such non-compliance, if any, affected the results of the election in a substantial manner.
  3. Whether affidavits allegedly offending the Illiterates Protection Act and Oaths Act were valid evidence.
  4. Whether the burden of proving appointment of polling agents rested on the petitioner.
  5. Whether a court may compare signatures to determine forgery without a handwriting expert.

Orders

  • Appeal allowed.
  • The orders of the trial Court nullifying the election of the 1st appellant as validly elected Member of Parliament for Kigulu North Constituency and ordering fresh elections are set aside.
  • Each party to meet their own costs here and in the court below.

Rules and key headnotes

Electoral Law — Declaration of Results Forms — Effect of Failure by Agents to Sign
The failure or refusal of a candidate or agent to sign a Declaration of Results Form does not by itself invalidate the results announced, particularly where the results recorded on the form are not disputed as inaccurate.
Electoral Law — Substantial Effect Test — Winning Margin
An election is not set aside merely because irregularities occurred; the petitioner must prove the non-compliance affected the result in a substantial manner, and where the winning margin remains wide even after deducting affected votes, the result is not substantially affected.
Evidence — Comparison of Signatures — Whether Handwriting Expert Required
A court may compare a questioned signature with genuine sample signatures on record and determine whether they differ without engaging a handwriting expert, but ought not conclude that a signature is forged where no sample signature or comparison document exists on the record.
Electoral Law — Polling Agents — Burden of Proving Appointment
The burden of proving that a candidate appointed a particular polling agent rests on the candidate, notwithstanding that appointment letters are addressed to presiding officers.
Evidence — Affidavits — Illiterates Protection Act and Liberal Approach
Courts adopt a liberal approach to defective affidavits in election petitions under article 126 of the Constitution; irregular positioning of a translator's certificate is a matter of form rather than substance, and the Illiterates Protection Act protects illiterates and cannot be used as a sword against them.
Civil Procedure — Appeals — New Points Not Raised at Trial
An appellate court re-evaluating evidence can only evaluate matters on which the parties were heard at trial and upon which the trial court based its decision; a point not raised at trial and not constituting a separate ground of appeal cannot be entertained.

Legislation cited (11)

Cases cited (11)

  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Rt. Col. Dr. Kizza Besigye v Yoweri Kaguta Museveni and Another (Presidential Election Petition No. 1 of 2001)
  • Selle & Another Vs Associated Motor Boat Company Anor [1968] EA 123
  • Paul Mwiru v Hon. Igeme Nathan Nabeta Samson and 2 Others (Election Petition Appeal No. 6 of 2011)
  • Ngoma Ngime v Electoral Commission and Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
  • Kasaala Growers Co-operative Society v Kakooza Jonathan and Another (Civil Application No. 19 of 2010)
  • Mujuni Vincent Kyamadidi v Charles Ngabirano and Electoral Commission (Election Petition No. 5 of 2016)
  • Mbaghadi Fredrick Nkayi and Electoral Commission v Dr. Nabwiso Frank Wilberforce (Election Petition Appeal No. 14 and No. 16 of 2011)
  • Nadimo Versus Independent Electoral and Boundaries Commission & Others [2014] 1 FA 355
  • Mbowe Versus Eliuffo (1967) EA 240
  • Gunn Versus Sharpe (1974)1 QB 808

Full judgment

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

Bwino Fred Kyakulaga & Another Vs Badogi Ismail Waguma (Election Petition Appeal 15 of 2016; Election Petition Appeal 20 of 2016) [2017] UGCA 44 (1 November 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.