Wakilii

Muyanja Lutaaya v Lubogo & Aor (Election Petition Appeal No. 82 of 2016)

Court of Appeal · [2017] UGCA 64 · 2017 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition appeal from High Court dismissal of a parliamentary election petition
Decision
Appeal dismissed; High Court decision upholding the first respondent's election affirmed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal, holding that a trial judge may, with caution, compare obviously divergent signatures without expert evidence, so the expunging of 23 suspicious affidavits was justified. Affidavits in rejoinder introducing new evidence after pleadings had closed and without leave were properly struck out. The power to summon witnesses under section 64(1)(b) PEA and Rule 15(3) is discretionary and its exercise was not shown to be unjudicious. The judge properly admitted the first respondent's affidavit disclosing sources of information, and there is no legal requirement to attach identity cards. On the merits, the petitioner failed to prove the ingredients of bribery, particularly agency and that recipients were registered voters, on a balance of probabilities.

Outcome

Appeal dismissed; High Court decision upholding the first respondent's election affirmed

Facts

The appellant and the first respondent, together with three others, contested the directly elected Member of Parliament seat for Bulamogi County in Kaliro District at the parliamentary elections held on 18 February 2016. The first respondent was declared winner by the Electoral Commission with 19,179 votes against the appellant's 16,546 votes. The appellant petitioned the High Court, premising his petition principally on allegations of bribery of voters by the first respondent and his alleged agents at numerous villages, including through gifts of iron sheets to a mosque, cement to a church, soap, and money. During the trial, 23 of the appellant's supporting affidavits were expunged because the deponents' signatures varied from those on their attached identity cards, and further affidavits in rejoinder containing the National Voters Register and MTN call logs were struck out as filed late after pleadings closed. The High Court found the remaining evidence uncorroborated and contradictory and dismissed the petition with costs. The appellant appealed.

Issues

  1. Whether the trial Judge erred in expunging the appellant's 23 affidavits on account of variations between deponents' signatures and their identity cards, without expert handwriting evidence.
  2. Whether the trial Judge erred in expunging the appellant's affidavits in rejoinder containing the National Voters Register and MTN call logs filed after pleadings had closed.
  3. Whether the trial Judge erred in refusing to summon the MTN Security Officer as a court witness to verify the call and mobile money logs.
  4. Whether the trial Judge erred in failing to expunge the first respondent's affidavit in support of the answer and affidavits lacking deponent identification.
  5. Whether the trial Judge properly evaluated the evidence of bribery and correctly held that bribery was not proved.

Orders

  • The appeal is dismissed with costs to the respondents.

Rules and key headnotes

Affidavit Evidence — Identity and Integrity of Deponents — Suspicious Signatures
Where a deponent's signature on an affidavit is manifestly at variance with the signature on the identity card attached, the affidavit is rendered suspect and inherently unreliable, and a court may attach no probative value to it in an election petition.
Handwriting — Judicial Comparison Without Expert Evidence
A court may compare signatures and handwriting and decide the matter even without expert evidence, but must exercise great caution; where the differences are obvious to the naked eye, comparison without an expert is permissible.
Election Petitions — Affidavits in Rejoinder After Close of Pleadings
An affidavit in rejoinder filed after the pleadings have been closed and without leave of court, which introduces new evidence the opposing party has no opportunity to answer, is properly struck out.
Election Petitions — Power of Court to Summon Witnesses — Discretion
The power of the court under section 64(1)(b) of the Parliamentary Elections Act and Rule 15(3) to summon or examine any witness is discretionary; the inquiry envisaged in election petitions requires the parties, not the court, to adduce their own evidence, and an appellate court will not interfere unless the discretion was exercised unjudiciously.
Affidavits on Information and Belief — Disclosure of Source
An affidavit may include matters of information and belief provided the source of the information or the ground of belief is disclosed, and there is no legal requirement that a deponent attach an identity card for the affidavit to be valid.
Bribery — Ingredients and Standard of Proof
To establish the illegal practice of bribery the petitioner must prove, on a balance of probabilities to the satisfaction of the court, that a gift was given to a registered voter, that it was given by the candidate or his agent acting with the candidate's authority, knowledge and consent, and that it was intended to influence the voter's vote.

Legislation cited (14)

Cases cited (17)

  • Nasensio Begumisa and 3 Others versus Eric Tibebaga, SCCA
  • Makula International Ltd versus Cardinal Nsubuga Wamala (1982) HCB1
  • Kalazani Charles v Musoke Paul Sebulime (Election Petition No. 17 of 2016)
  • V.R. Kamath vs. Divisional controller AIR 1997 Kant 275
  • Kipoi Tonny Nsubuga v Waluku Wataka and Others (Election Petition Appeal No. 7 of 2011)
  • Lalit Popli v Canara Bank and Others [2003] Insc 99 (1 February 2003)
  • Murari Lal vs. State of Madhya Pradesh (1980) 1 SCC 704
  • Besigye Kiiza v Museveni Yoweri Kaguta (Presidential Election Petition No. 1 of 2001)
  • Ernest Kiiza v Kabakumba Labwoni Matsiko (Election Petition No. 44 of 2016)
  • Esrom William Alenyo v Electoral Commission and Another (Election Petition No. 9 of 2007)
  • Mukasa Anthony Harris v Bayiga Michael Philip Lulume (Election Petition No. 18 of 2007)
  • Amama Mbabazi v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2016)
  • Besigye Kizza v Kaguta Museveni (Presidential Election Petition No. 1 of 2001)
  • Kirunda Kivenjinja Ali v Katuntu Abdu (Election Petition Appeal No. 24 of 2006)
  • Kamba Saleh Moses v Namunyangu Jennifer (Election Petition Appeal No. 27 of 2011)
  • Life Insurance Corporation of India vs. Panesor [1967] EA 614
  • A.N. Phal ... Wide Agencies (1948), 15 EACA.1

Full judgment

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Muyanja Lutaaya v Lubogo & Aor (Election Petition Appeal No. 82 of 2016) [2017] UGCA 64 (22 November 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.