Lutanywa Jack Odur v Electoral Commission and Another (Election Petition Appeal No. 35 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal held that complaints concerning the validity of a candidate's nomination and academic qualifications are pre-polling matters that must be lodged with the Electoral Commission under section 15 of the Electoral Commissions Act, with a right of appeal to the High Court under Article 64(1) of the Constitution, rather than raised in an election petition under the Parliamentary Elections Act. Although the appellant proved that the Commission's decision was communicated late, he waived his right to challenge the nomination by failing to appeal it and instead contesting the election. Alleged forgery of nomination papers does not amount to an electoral offence relating to voting under section 76(a). The appeal was dismissed with costs.

Outcome

Appeal dismissed with costs; High Court dismissal of the election petition upheld

Facts

The appellant, second respondent and another candidate contested the parliamentary seat for Kibanda South Constituency, Kiryandongo District, in the January 2021 general election. The Electoral Commission declared the second respondent elected with 10,298 votes against the appellant's 8,586. Before the election, the appellant complained to the Commission that the second respondent was improperly nominated because his nomination documents bore differing names without a deed poll, and that he lacked the required academic qualifications. On 30 October 2020 the Commission, relying on a statutory declaration, upheld the returning officer's decision that the second respondent was duly nominated. The appellant contended he only received this decision on 2 February 2021, after the election. Dissatisfied with the election result, he filed an election petition in the High Court alleging improper nomination, lack of qualifications and forged nomination documents. The High Court dismissed the petition, holding the appellant had waived his right to challenge the nomination by not appealing the Commission's decision, and struck out an issue on electoral offences. The appellant appealed.

Issues

1. Whether the trial judge properly evaluated the evidence on when the Electoral Commission communicated its decision on the Second Respondent's nomination to the Appellant.
2. Whether, by failing to appeal the Electoral Commission's decision to the High Court, the Appellant waived his right to challenge the Second Respondent's nomination.
3. Whether complaints regarding the validity of the Second Respondent's nomination papers and academic qualifications should be brought under section 15 of the Electoral Commissions Act or under the Parliamentary Elections Act.
4. Whether alleged forgery of nomination documents amounts to an electoral offence under section 76(a) of the Parliamentary Elections Act.
5. Whether the trial judge erred in striking out the issue on electoral offences and declining to frame an additional issue.
6. Whether the trial judge erred in failing to follow the decision in Wakayima N. Musoke & EC v Kasule Robert Ssebunya.

Orders

• Ground 1(e) and (f) allowed.
• Grounds 2, 3, 4, 5, 6, 7, 8 and 9 disallowed.
• Appeal dismissed.
• Costs awarded to the Respondents.

Rules and key headnotes

Legislation cited (23)

• Parliamentary Elections Act 2005 s.4
• Parliamentary Elections Act 2005 s.11(1)
• Parliamentary Elections Act 2005 s.13(a)
• Parliamentary Elections Act 2005 s.60
• Parliamentary Elections Act 2005 s.61(1)
• Parliamentary Elections Act 2005 s.63(4)
• Parliamentary Elections Act 2005 s.76(a)
• Constitution of Uganda Article 61(1)(f)
• Constitution of Uganda Article 64(1)
• Constitution of Uganda Article 64(4)
• Constitution of Uganda Article 80(1)
• Constitution of Uganda Article 86(1)
• Constitution of Uganda Article 139(1)
• Electoral Commissions Act Cap. 140 s.15(1)
• Electoral Commissions Act Cap. 140 s.15(2)
• Electoral Commissions Act Cap. 140 s.15(3)
• Electoral Commissions Act Cap. 140 s.15(4)
• Evidence Act Cap. 6 s.92
• Evidence Act Cap. 6 s.103
• Civil Procedure Act s.27(1)
• Civil Procedure Rules Order 15 rule 5
• Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 30(1)
• Parliamentary Elections (Interim Provisions) Rules Rule 27

Cases cited (13)

• Banco Arab Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
• Achieng Sarah Opendi & Another v Ochwo Nyakecho Keziah (Election Petition Appeal No. 39 of 2011)
• Father Nasensio Begumisa & Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
• Ochengel & Another v Attorney General (Miscellaneous Cause No. 274 of 2019)
• Nakendo v Mwondha (Civil Appeal No. 9 of 2007)
• J. B. Kakooza v Anthony Yiga (2008) ULR 172
• Massa v Acen (1978) HCB 297
• Uganda Revenue Authority v Rabbo Enterprises (U) Limited (Case No. 12 of 2002)
• Akol Ellen Odeke v Okodel Umar (Election Petition Appeal No. 6 of 2020)
• Col (Rtd) Dr. Besigye Kizza v Museveni Yoweri Kaguta & Another (Election Petition No. 1 of 2001)
• Joy Kabatsi v Anifa Kawooya & Another (Election Petition Appeal No. 25 of 2007)
• Giruli David Livingstone v Mulekwa Herbert & Another (Election Petition Appeal No. 76 of 2016)
• Wakayima N. Musoke & Electoral Commission v Kasule Robert Ssebunya (Election Petition Appeal No. 50 and 102 of 2016)

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