Wakilii

Nsubuga Jonah V Electoral Commission & Anor. (Kampala HCT-00-CV-EP-0034 of 2011)

High Court · [2011] UGHC 98 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging LCV Chairperson election for Wakiso District under Local Governments Act
Decision
Petition dismissed for failure to comply with substantive law requirements governing evidence and procedure

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Holding

The court dismissed the election petition challenging the LCV Chairperson election for Wakiso District. The petitioner's supporting affidavit consisted almost entirely of inadmissible hearsay evidence from unnamed or unavailable agents who never deposed affidavits. The court severed the hearsay portions and found the remaining parts unsupported and non-compliant with evidence law rules governing admissibility of secondary evidence. Additionally, supplementary affidavits filed after pleadings closed without leave violated procedural rules and natural justice principles. The petition failed to meet the required standard of proof under the Parliamentary Elections Act s.61(3).

Outcome

Petition dismissed for failure to comply with substantive law requirements governing evidence and procedure

Facts

Nsubuga Jonah challenged the election of Bwanika Mathias Lwanga as LCV Chairperson for Wakiso District following elections held on 23 February 2011. The declared results showed Bwanika with 96,372 votes, Nsubuga with 88,005 votes, and Musisi Ddamba with 2,517 votes. The petitioner alleged multiple irregularities including ballot stuffing, tampering with results, voter intimidation, and bribery. At the scheduling conference, parties agreed to proceed on written submissions without calling witnesses for cross-examination. However, the petitioner filed two supplementary affidavits on 21 and 23 June 2011 after pleadings had closed and without leave of court, to which both respondents objected. The petitioner's supporting affidavit relied on information purportedly received from agents, most of whom were unnamed and none of whom deposed supporting affidavits. Photocopies of Declaration of Results Forms were attached without proper notice or compliance with Evidence Act requirements.

Issues

  1. Whether the election of the LCV Chairperson for Wakiso District was conducted in accordance with the laws governing election.
  2. Whether non-compliance, if any, affected the outcome of the elections in a substantial manner.
  3. Whether the 2nd Respondent personally or through his agents, or with his knowledge and approval committed any electoral offences and/or illegal practices.
  4. What are the remedies available to the parties?

Orders

  • Petition dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Pleadings — Filing supplementary affidavits after close of pleadings — Requirement for leave of court
A party cannot file supplementary affidavits introducing fresh evidence after pleadings have closed without first obtaining leave of court. Filing such evidence without leave violates procedural rules and the principles of natural justice by denying the opposite party opportunity to respond.
Hearsay evidence — Admissibility in election petitions — Threshold reliability test
Hearsay evidence is only admissible on a principled basis, the governing principles being the reliability of the evidence and its necessity. Where a deponent claims information from agents who never put in evidence to confirm what is attributed to them, such evidence fails the threshold reliability test and is inadmissible. A good number of sources remaining anonymous greatly diminishes the evidential value.
Affidavit evidence — Personal knowledge requirement — Order 19 rule 3 CPR
Evidence set out in an affidavit should be confined to particular facts within the personal knowledge of the deponent, except where the hearsay exception rule applies. Where facts in issue need to be proved, the evidence of the witness alleged to have witnessed the fact must be called. The failure to adduce such supporting evidence puts the affidavit outside the hearsay exception.
Secondary evidence — Photocopies of documents — Notice requirement under s.65 Evidence Act
Secondary evidence, including photocopies of documents, shall not be given unless the party proposing to give it has previously given notice to the party in whose possession and power the documents are. Failure to comply with this notice requirement under s.65 of the Evidence Act renders photocopies inadmissible regardless of their source.
Election petitions — Standard of proof — Balance of probabilities
Grounds specified in an election petition shall be proved on the balance of probabilities, although the standard is slightly higher than in ordinary civil cases because an election petition is of great importance both to the individual concerned and the nation. Hearsay evidence cannot be relied upon to substantiate allegations as true and does not meet the required standard of proof.
Pleadings — Severance of defective portions — Effect on remaining affidavit
Where parts of an affidavit offend against provisions of Order 19 rule 3 CPR, those parts ought to be severed off without rendering the remaining parts defective or a nullity. However, where the remaining parts themselves fail to comply with statutory requirements of evidence law or are unsupported allegations, the entire affidavit fails and the application or petition it supports must fail.
Election petitions — Compliance with substantive law — Article 126(2)(e) Constitution
Requirements prescribed by electoral law derive from the Constitution and are therefore constitutional as well as substantive. When an Act of Parliament prescribes requirements and a party flouts them, it is not a mere procedural technicality that can be ignored under Article 126(2)(e) Constitution. Failure to comply with such requirements may be fatal to the petition.

Legislation cited (15)

Cases cited (17)

  • Nkambo v Kibirige [1973] EA 102
  • Odd Jobs v Mubia [1970] EA 476
  • Take Me Home Ltd v Apollo Construction [1981] HCB 43
  • Massa v Achen [1978] HCB 297
  • Reiding v Skyline Advertising (U) Ltd [1971] HCB 166
  • Bisuti v Busoga DA [1971] ULR 179
  • Thorp v Holdsworth (1876) 3 CHD 647
  • Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218
  • Samuel Mayanja v Uganda Revenue Authority (Miscellaneous Application No. 17 of 2005)
  • Matsiko Winfred Komuhangi v Babihuga J Winnie (Election Petition Appeal No. 9 of 2002)
  • Runumi Mwesigye Francis v The Returning Officer, Electoral Commission and Adson Kakuru (Election Petition No. 2 of 2002)
  • Kizza Besigye v Yoweri Museveni Kaguta & Electoral Commission (Supreme Court Presidential Election No. 1 of 2006)
  • Prince JDC Mpuga Rukidi v Prince JDC Mpuga Rukidi (SCCA No. 18 of 1994)
  • Kananura Melvin Consultant Engineers v Connie Kabanda (SCCA No. 31 of 1992)
  • Teddy Namazi v Anna Sibo [1986] HCB 508
  • Muzoora Amon RK v NRM & 2 Others (High Court Misc. Cause No. 0201 of 2010)
  • Ssali Godfery v Electoral Commission and Kabaale Sulaiman (Election Petition No. 13 of 2011)

Full judgment

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Nsubuga Jonah V Electoral Commission & Anor. (Kampala HCT-00-CV-EP-0034 of 2011) [2011] UGHC 98 (21 July 2011)
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.