Wakilii

Galisonga v Katuntu and Another (Election Petition Appeal No. 53 of 2021)

Court of Appeal · [2022] UGCA 157 · 2022 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal to the Court of Appeal from a High Court decision dismissing an election petition
Decision
Appeal substantially dismissed; election of the first respondent upheld; certificate of two counsel 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 where an election is challenged for commission of electoral offences under s.61(1)(c) of the Parliamentary Elections Act, the petitioner need not prove the offences affected the result; but where the complaint is non-compliance under s.61(1)(a), the substantial effect test applies. The appellant failed to adduce cogent evidence proving the alleged offences of violence, undue influence, defacement of posters and false statements against the first respondent. Although the trial judge made minor errors in evaluating overlapping witness evidence and could rely on independent viva voce evidence despite an expunged affidavit, these did not alter the outcome. Post-declaration witness interference cannot ground nullification. The appeal substantially failed; the certificate of two counsel was set aside.

Outcome

Appeal substantially dismissed; election of the first respondent upheld; certificate of two counsel set aside

Facts

The appellant Galisonga Julius contested the 14 January 2021 election for Member of Parliament, Bugweri County. The Electoral Commission declared the first respondent, Katuntu Abdu, winner with 17,813 votes against the appellant's 9,074 votes. The appellant petitioned the High Court alleging non-compliance with electoral laws affecting the result and commission of illegal practices and electoral offences by the first respondent personally and through agents. Alleged offences included interference with electioneering at Idudi, violence resulting in the death of a supporter, undue influence and defacement of campaign posters at Namavundu, and false statements against the appellant's character. Witness accounts of the incidents at Idudi (12 January 2021) and Namavundu (13 December 2020) were contradictory as to whose supporters attacked whom. The High Court found no cogent evidence attributing the offences to the first respondent or showing his knowledge, consent or approval, and dismissed the petition with costs and a certificate of two counsel. The appellant appealed on nine grounds.

Issues

  1. Whether proof of an electoral offence under the Parliamentary Elections Act requires the petitioner to additionally prove that the offence affected or prevented the election of the candidate.
  2. Whether the trial judge erred in relying on viva voce evidence of a witness whose affidavit had been expunged.
  3. Whether the trial judge erred in evaluating contradictory witness evidence regarding events at Idudi and Namavundu.
  4. Whether the alleged irregularities affected the results of the election in a substantial manner.
  5. Whether the court should make a finding on alleged interference with witnesses during the trial and refer counsel for disciplinary proceedings.
  6. Whether the trial judge properly exercised her discretion in awarding a certificate of two counsel.

Orders

  • The appeal substantially fails and is hereby dismissed.
  • The election of Abdu Katuntu as Member of Parliament of Bugweri County is upheld.
  • Since the appeal succeeds only in part, each party shall bear their own costs here and in the court below.

Rules and key headnotes

Electoral Law — Electoral Offences — Proof of Effect on Result Where Offence Alleged Under s.61(1)(c) PEA
Where an election is challenged for commission of an electoral offence under section 61(1)(c) of the Parliamentary Elections Act, the petitioner need not prove that the offence affected the result; but where the same conduct is framed as non-compliance under section 61(1)(a), the substantial effect test must be satisfied.
Electoral Law — Non-compliance — Substantial Effect Test on Election Result
An election of a Member of Parliament will not be nullified for non-compliance under section 61(1)(a) of the Parliamentary Elections Act unless it is proved that the non-compliance affected the result in a substantial manner, which is a question of evidence and not conjecture assessed using quantitative and qualitative tests.
Evidence — Expunged Affidavit — Reliance on Independent Viva Voce Evidence
Where a witness's affidavit is expunged for non-compliance with the Illiterates' Protection Act, the court may still rely on independent viva voce evidence given orally by that witness during cross-examination, provided the oral evidence is not merely a repetition of the expunged affidavit.
Evidence — Standard of Proof — Balance of Probabilities in Election Petitions
The burden of proof in an election petition lies on the petitioner to prove every allegation to the satisfaction of the court on a balance of probabilities, and the evidence must be free from contradictions and corroborated by independent and neutral sources given the tendency of partisan witnesses.
Electoral Law — Witness Interference During Trial — Not a Ground for Nullification
Alleged interference with witnesses during the trial of an election petition is a matter of professional discipline that may attract disciplinary consequences, but it is not a ground for nullification of the election and, absent cogent evidence, the court need not make a finding on it.
Civil Procedure — Costs — Certificate for Two Counsel in Election Petitions
A certificate for two counsel should only be granted where the trial judge gives reasons showing that the case was over-involving or complex; the mere general importance of an election petition is insufficient, and appellate courts will interfere where discretion was exercised on a wrong principle.

Legislation cited (15)

Cases cited (18)

  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Nelson V Attorney General & Anor [1999] EA 160
  • Mukasa Anthony Harris v Bayiga Lulume (Election Petition Appeal No. 18 of 2007)
  • Matsiko Winfred Komuhangi v Babihunga J Winnie (Election Petition No. 9 of 2002)
  • Blyth v Blyth [1966] AC 643
  • Musinguzi Garuga Vs Amama Mbabazi, Election Petition No. HCT-05-CV-EPA-0003 OF 2001
  • Katuntu Abdu v Kirunda Kivejinja (Election Petition No. 7 of 2006)
  • Kisitu Alex Brandson v Electoral Commission (Election Petition Appeal No. 0064 of 2016)
  • Kisule v Greenland Bank in Liquidation (Civil Appeal No. 11 of 2011)
  • Michael Mawanda v Electoral Commission (Election Petition Appeal No. 98 of 2016)
  • Besigye v Museveni (Presidential Election Petition No. 1 of 2001)
  • Mbowe V Eliufo (1967) EA 240
  • Amama Mbabazi v Musinguzi Garuga James (Election Petition Appeal No. 12 of 2002)
  • Hackey & Morger V Simpson [1974] 3 All ER 722
  • Kadama Mwogezaddembe v Gagawala Wambuzi (Election Petition No. 1 of 2001)
  • SDV Transami (U) Ltd V Nsibambi Enterprises (2008) ULR 497 CA
  • Aisha Kabanda Nalule v Lydia Daphine Mirembe (Election Petition Appeal No. 90 of 2016)
  • Akugizibwe Lessence versus Muhumuza David & 2 others

Full judgment

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Galisonga v Katuntu and Another (Election Petition Appeal No. 53 of 2021) [2022] UGCA 157 (2 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.