Wakilii

Masaba Ivan v Wambedee Seth Kizangi Massa and Another (Election Petition Appeal No.58 of 2021)

Court of Appeal · [2022] UGCA 372 · 2022 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from the dismissal of a parliamentary election petition by the High Court at Mbale
Decision
Appeal dismissed; election of the first respondent as Member of Parliament upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal against the dismissal of a parliamentary election petition. It held that the standard of proof under s.61 of the Parliamentary Elections Act is proof on a balance of probabilities, and that the trial Judge had applied it correctly notwithstanding a reference to the Besigye presidential petition. The court upheld the rejection of an affidavit in rejoinder and uncertified voters register filed out of time without leave. It found the appellant had not proved, to the satisfaction of court, allegations of violence, pre-ticking, ballot stuffing, multiple voting or falsification of results, the supporting evidence being inconsistent and uncertified. The election of the first respondent was upheld.

Outcome

Appeal dismissed; election of the first respondent as Member of Parliament upheld

Facts

The appellant, Masaba Ivan, and the first respondent contested the position of Member of Parliament for Northern Division Constituency, Mbale City, in the election held on 14 January 2021. The Electoral Commission declared the first respondent elected with 9,854 votes against the appellant's 9,413 votes, a margin of 441 votes. The appellant petitioned the High Court at Mbale to set aside the election, alleging non-compliance with electoral laws, illegal practices and offences, particularly at Makosi Trading Centre Polling Station, where he alleged pre-ticking of ballots, ballot stuffing, multiple voting, violence, disenfranchisement of voters, voting in the names of deceased persons and falsification of the Declaration of Results Form showing a 100% voter turnout. The trial Judge found the petitioner had not adduced credible evidence to support his allegations and dismissed the petition with costs. The appellant appealed, challenging the standard of proof applied, the rejection of his affidavit in rejoinder and an uncertified voters register, and the findings on irregularities and falsification.

Issues

  1. Whether the trial Judge applied a standard of proof higher than that required in parliamentary election petitions.
  2. Whether the trial Judge erred in refusing to admit the appellant's affidavit in rejoinder filed out of time without leave of court and the uncertified voters register.
  3. Whether there were irregularities, violence, pre-ticking of ballots, multiple voting, falsification of results and illegal practices at Makosi Trading Centre Polling Station attributable to the first respondent.
  4. Whether the Declaration of Results Form for Makosi Trading Centre Polling Station was falsified and whether there was a genuine 100% voter turnout justifying expunging those results.

Orders

  • Appeal dismissed.
  • The orders of the trial Court upholding the election of the first respondent as the validly elected Member of Parliament for Northern Division Constituency, Mbale City are upheld.
  • The appellant shall bear the costs of the appeal and in the court below.

Rules and key headnotes

Electoral Law — Parliamentary Election Petitions — Standard of Proof
In a parliamentary election petition the burden of proof lies on the petitioner and the standard of proof under section 61(3) of the Parliamentary Elections Act is proof on a balance of probabilities; the phrase 'to the satisfaction of the court' in section 61(1) is complementary to and not higher than that standard, and the higher standard discussed in presidential election petitions is inapplicable.
Civil Procedure — Affidavits — Filing Out of Time Without Leave
An affidavit filed out of time and without leave of court, after pleadings have closed, cannot be admitted in evidence, and a court is entitled to reject an affidavit in rejoinder that is argumentative and introduces new matters.
Evidence — Documentary Evidence — Certification of Public Documents
Documents such as a voters register, voter identification cards and death certificates tendered in an election petition must be certified, and where they are uncertified and the authors do not swear affidavits verifying their contents, the documents are unreliable and may be rejected under section 75 of the Evidence Act.
Electoral Law — Allegations of Electoral Violence — Need for Independent Corroboration
Where allegations of electoral violence are made in an election petition, it is imperative to look for independent evidence to corroborate those allegations, and inconsistent or uncorroborated evidence will not prove violence to the satisfaction of the court.
Electoral Law — Declaration of Results Forms — Effect of Agent's Failure to Sign
The failure of a candidate's polling agent to sign a Declaration of Results Form does not nullify the results of an election, and the mere fact that a polling station registers a 100% voter turnout does not by itself prove multiple voting or ballot stuffing absent proof to the satisfaction of the court.
Electoral Law — Proof of Registered Voter — Methods
Proof that a person is a registered voter in an election petition is by production of a voter's card or an extract of the National Voters Register showing the voter's registration; mere assertion that a person was a registered voter who did not vote is insufficient.

Legislation cited (11)

Cases cited (16)

  • Col. Rtd. Dr. Kizza Besigye v Museveni Yoweri Kaguta and Another (Presidential Election Petition No. 1 of 2001)
  • Matsiko Winfred Komuhangi v Winnie J Babihuga (Election Petition Appeal No. 9 of 2002)
  • Betty Muzanira Bamukisa v Matsiko Winnifred Kyomuhangi and 2 Others (Election Petition Appeal No. 65 of 2016)
  • Kirya Grace Wanzala v Nelson Lufafa and Another (Election Petition Appeal No. 104 of 2016)
  • Tubo Christine v Akello Rose (Election Appeal No. 80 of 2016)
  • Paul Mwiru v Igeme Nathan Nabeta Samson and 2 Others (Election Petition No. 6 of 2011)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Arumadri John Drazu v Etuuka Isaac Joackino and the Electoral Commission (Election Petition Appeal No. 37 of 2016)
  • Toolit Simon Akecha v Oulanyah Jacob L'okori and Another (Election Petition Appeal No. 19 of 2011)
  • Karokora Katono Zedekiya v The Electoral Commission and Kagonyera Mondo (Election Petition No. 2 of 2001)
  • Ocen Peter and Electoral Commission v Ebil Fred (Election Petition Appeal No. 83 of 2016)
  • Mugema Peter v Mudiobole Abed (Election Petition Appeal No. 30 of 2011)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Ninsiima Boaz Kasiraho and Electoral Commission v Mpunga David (Election Petition Appeal No. 56 of 2016)
  • Mufuni Vincent Kyamadidi v Charles Ngabirano and the Electoral Commission (Election Petition Appeal No. 84 of 2016)
  • Simon Peter Kinyera v The Electoral Commission and Taban Idi Amin (Election Petition Appeal No. 3 of 2018)

Full judgment

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Masaba Ivan v Wambedee Seth Kizangi Massa and Another (Election Petition Appeal No.58 of 2021) [2022] UGCA 372 (21 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.