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Nabeta & Anor v Mwiru (Election Petition Appeals Nos.0045 And 0046 of 2016)

Court of Appeal · [2018] UGCA 2 · 2018 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court decision nullifying a parliamentary election in an election petition
Decision
Election nullified; seat declared vacant and fresh elections ordered, but the High Court's declaration of the respondent as validly elected was set aside

Observed later treatment

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Holding

The Court of Appeal agreed with the High Court that the 1st appellant was not validly elected. It held that a relative of a candidate is not automatically an incredible witness or in conflict of interest, and that section 48 of the Evidence Act required more than a memento calendar to prove relationship. However, it upheld findings that the tamper proof envelope was opened contrary to section 53(1) of the Parliamentary Elections Act (by someone other than the returning officer), that the ballot box seals had been tampered with, and that DR Form PW3 Exhibit 4 was falsified. Non-compliance substantially affected the results. The court disagreed with declaring the petitioner elected, instead declaring the seat vacant and ordering fresh elections.

Outcome

Election nullified; seat declared vacant and fresh elections ordered, but the High Court's declaration of the respondent as validly elected was set aside

Facts

The 1st appellant and the respondent contested the parliamentary election for Jinja Municipality East Constituency held on 18 February 2016. The 1st appellant was declared winner and gazetted by the Electoral Commission. The dispute centred on the Danida (A-D) community polling station. Two conflicting Declaration of Results (DR) forms existed: PW3 Exhibit 4 (used by the returning officer, giving the 1st appellant 507 votes) and PW3 Exhibit 3 (recovered from the respondent's supervisor, giving 226 votes to the respondent and 187 to the 1st appellant). The tamper proof envelope was opened at the tally centre by a sub county supervisor, Sandra Arwaho, rather than the returning officer. Ballot box seals bore different serial numbers as testified by different parties. A handwriting expert reported that agents' signatures on PW3 Exhibit 4 were forged. Evidence indicated about 25 registered voters did not vote, making the 740 total in PW3 Exhibit 4 implausible against related presidential and Woman MP totals. The respondent's complaint at tallying was referred to the Commission's legal department rather than resolved.

Issues

  1. Whether the 1st appellant was validly elected Member of Parliament for Jinja East Constituency.
  2. Whether a relative of an electoral candidate can serve as a presiding officer and be a credible witness.
  3. Whether the tamper proof envelope was opened in accordance with the law.
  4. Whether the contents of the ballot box had been compromised by tampering with the seals.
  5. Whether the returning officer properly addressed the complaint raised by the respondent at tallying.
  6. Whether the trial Judge was entitled to rely on facts raised in the affidavit in rejoinder alleged to be inconsistent with earlier pleadings.
  7. Whether, having nullified the election, the court could declare the petitioner the validly elected candidate.

Orders

  • The seat for directly elected Member of Parliament for Jinja East Constituency is vacant.
  • The 2nd appellant is ordered to hold fresh elections for Member of Parliament for Jinja East Constituency.
  • The respondent is entitled to costs of this appeal and in the High Court.

Rules and key headnotes

Electoral Law — Election Officers — Relative of Candidate as Presiding Officer
A relative of an electoral candidate is not disqualified from serving as an electoral officer, and such relationship does not automatically render the person's evidence incredible or establish a conflict of interest.
Evidence — Proof of Relationship — Section 48 Evidence Act
Where a court must form an opinion on the existence of a relationship between persons, it must consider the opinion of a person with special means of knowledge under section 48 of the Evidence Act, and cannot treat a mere memento calendar as conclusive proof of relationship.
Electoral Law — Tallying — Opening of Tamper Proof Envelope
Under section 53(1) of the Parliamentary Elections Act the returning officer, not a subordinate, must personally open the tamper proof envelopes in the presence of candidates or their agents; opening by another person contravenes the law and affects the integrity of the results.
Electoral Law — Integrity of Results — Tampered Ballot Box Seals
Where the seals on a ballot box are alleged to have been altered and different seal serial numbers are presented by different parties without satisfactory explanation, the contents of the ballot box cannot be considered reliable for verifying declaration of results forms.
Electoral Law — Returning Officer — Complaints at Tallying
The Parliamentary Elections Act does not empower a returning officer to resolve a complaint challenging the authenticity of a declaration of results form raised at the tallying stage; such complaints are addressed to the Commission and ultimately by petition to court.
Civil Procedure — Pleadings — Departure in Affidavit in Rejoinder
Use of different words in an affidavit in rejoinder to express matters already embedded in the pleadings does not constitute a departure from pleadings where the opposing party had fair notice of the case to meet and no failure of justice results.
Electoral Law — Remedies — Nullification versus Declaration of Winner
Where irregularities have tainted the integrity of results at a polling station, the court cannot rely on those results to declare another candidate the winner; the appropriate remedy is to declare the seat vacant and order fresh elections.

Legislation cited (15)

Cases cited (5)

Full judgment

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Nabeta & Anor v Mwiru (Election Petition Appeals Nos.0045 And 0046 of 2016) [2018] UGCA 2 (12 January 2018)
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.