Wakilii

Mujungu v Tumwine and Another (Election Application No. 39 of 2022)

Court of Appeal · [2022] UGCA 112 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional evidence on appeal in an election petition appeal
Decision
Application for leave to adduce additional evidence dismissed with costs.

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Holding

The Court dismissed an application for leave to adduce additional evidence in an election petition appeal. Applying the settled principles in Kawooya and Ssemwogerere, the Court held that additional evidence on appeal is admitted only in exceptional circumstances where, after due diligence, the evidence could not have been produced at trial. The applicant had passed up an earlier opportunity to challenge the nomination form before the Electoral Commission under section 15 of the Parliamentary Elections Act, had not raised the issue in her pleadings, obtained the NIRA court order only after judgment, and had access to other standard signature documents. The Court found no sufficient cause or exceptional circumstances and declined to exercise its discretion.

Outcome

Application for leave to adduce additional evidence dismissed with costs.

Facts

The applicant and the first respondent contested the January 2021 parliamentary election for Woman Representative of Ntoroko District, which the first respondent won. The applicant's election petition challenging the result was dismissed by the High Court in October 2021. On appeal, the applicant sought to adduce additional evidence: a handwriting expert's report and NIRA documents said to show that the true signatories on the first respondent's nomination form were persons whose names had been crossed out. The applicant had written to NIRA on 24 February 2021 requesting biodata and signatures but received no response before trial. A court order compelling NIRA to release the data was obtained from Nansana Chief Magistrate's Court only in March 2022, after judgment. The forensic report was dated 14 March 2022. The applicant argued her former counsel let her down and that the evidence would influence the appeal's outcome.

Issues

  1. Whether the applicant satisfied the legal test for admission of additional evidence on appeal, namely sufficient reason and exceptional circumstances including due diligence.
  2. Whether the proposed forensic and NIRA evidence could not, with due diligence, have been obtained and produced at trial.

Orders

  • Application dismissed with costs.

Rules and key headnotes

Appeals — Additional Evidence on Appeal — Exceptional Circumstances and Due Diligence
An appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, including that the evidence, after the exercise of due diligence, could not have been produced at trial; is relevant and credible; would probably influence the result; is proved by affidavit; and is sought without undue delay.
Appeals — Additional Evidence — Discretion Not Automatic
The grant of an order to take additional evidence on appeal under Rule 30 of the Court of Appeal Rules is not automatic but a matter of judicial discretion exercised for sufficient reason and on established principles.
Nominations — Pre-polling Complaint Mechanism — Section 15
Where a candidate had an earlier opportunity to challenge an opponent's nomination papers before the Electoral Commission but failed to do so, a court may decline to exercise its discretion to allow evidence on the same grievance to be raised later without explanation for the lapse.
Mistake of Counsel — Applicant's Own Conduct
The doctrine that mistake of counsel should not be visited upon the client is weakened where the applicant acted personally, such as writing directly for information without copying in her lawyers.

Legislation cited (9)

Cases cited (5)

  • Kanyike v Electoral Commission and 2 Others (Civil Application No. 13 of 2006)
  • Electoral Commission v Ssekikubo (Civil Application No. 14 of 2009)
  • Omunyokol Johnson v Attorney General (Civil Appeal No. 71 of 2010)
  • Kawooya v National Council for Higher Education (Miscellaneous Application No. 8 of 2013)
  • Attorney General v Paulo Ssemwogerere and Others (Constitutional Appeal No. 2 of 2004)

Full judgment

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

Mujungu v Tumwine and Another (Election Application No. 39 of 2022) [2022] UGCA 112 (4 April 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.