Wakilii

Mulindwa v Lugudde (Election Petition Appeal Miscellaneous Application 3 of 2016)

Court of Appeal · [2017] UGCA 178 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application in the Court of Appeal for leave to adduce additional evidence on an election petition appeal from the High Court
Decision
Application allowed; applicant granted leave to adduce additional evidence by affidavit within 10 days

Observed later treatment

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Holding

The Court of Appeal considered the principles governing admission of additional evidence on appeal, drawing on Rule 30 of the Court of Appeal Rules and authorities including Attorney General v Ssemogerere. It held that additional evidence may be admitted only in exceptional circumstances where the evidence was unavailable despite due diligence, is relevant and credible, and could influence the result. Given the short two-day trial of the election petition, the documentary nature of the evidence emanating from academic institutions, the grave allegations of fraud and forgery, and the constitutional principles of natural justice, the Court granted leave to adduce additional evidence by affidavit within ten days, with costs to abide the outcome of the appeal.

Outcome

Application allowed; applicant granted leave to adduce additional evidence by affidavit within 10 days

Facts

The applicant won the February 2016 parliamentary election for Lugazi Municipality. The respondent challenged his election in the High Court, which nullified the election on the ground that the applicant lacked the minimum academic qualifications to contest for Member of Parliament, and made findings touching on fraud and forgery of academic documents. The applicant appealed and applied for leave to adduce additional evidence on appeal. He asserted that his Makerere University transcript contained errors as to the years of study which the University had corrected after judgment, and that he had obtained verification of his PLE results, entry forms, nomination papers and other documents from institutions such as the Uganda National Examinations Board and the Electoral Commission. He contended this evidence could not have been obtained within the two-day trial. The respondent objected, arguing the applicant had long known his qualifications were queried, exercised no diligence, and only sought new evidence after losing.

Issues

  1. Whether the applicant's proposed additional evidence is admissible on appeal.
  2. Whether the applicant should be granted leave to adduce fresh evidence and, if so, in what format.
  3. What remedies are available to the parties.

Orders

  • The applicant/appellant is granted leave to adduce additional evidence to be relied upon during the hearing of Election Petition Appeal No. 14 of 2016.
  • The additional evidence shall be by affidavit and where Court deems it appropriate, the deponents shall be made available for cross-examination by the Respondent and/or by the Court.
  • The affidavit evidence shall be filed in Court within 10 days from the date hereof.
  • The costs of the Application to abide the outcome of the appeal.

Rules and key headnotes

Additional Evidence on Appeal — Exceptional Circumstances — Discretion Under Court of Appeal Rules r.30
An appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances: where the evidence was not within the party's knowledge or could not have been produced at trial despite due diligence, it is relevant and credible, it would probably influence the result though need not be decisive, proof of the evidence is attached, and the application is brought without undue delay.
Additional Evidence on Appeal — Diligence — Documentary Evidence from Institutions
Where the additional evidence sought to be adduced consists mainly of documents emanating from established institutions and bears directly on the real issue in controversy, and the earlier trial was heard within a very short period, the court may allow such evidence to be investigated where it may have some influence on the decision in the appeal.
Natural Justice — Fair Hearing — Non-Derogable Right Under Article 44(c)
The right to a fair hearing under Article 28 of the Constitution is non-derogable under Article 44(c); where grave allegations of fraud and forgery are decided against a party who claims not to have been heard on them, this consideration supports allowing additional evidence in the interest of justice.

Legislation cited (16)

Cases cited (5)

  • Anifa Bangirana Kawooya v National Council for Higher Education (Miscellaneous Application No. 8 of 2013)
  • Ladd v Marshall [1954] 1 WLR 1489
  • Anthony Kanyike v Electoral Commission and Others (Civil Application No. 13 of 2006)
  • American Express International Banking Corporation v Atulkumar Sumant B. Patel [1987] HCB 35
  • Attorney General v Paul K. Ssemogerere and Others (Constitutional Application No. 2 of 2004)

Full judgment

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

Mulindwa v Lugudde (Election Petition Appeal Miscellaneous Application 3 of 2016) [2017] UGCA 178 (18 May 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.