Wakilii

Ntende Robert v Isabirye Iddi (Election Petition Appeal No. 74 of 2016)

Court of Appeal · [2017] UGCA 66 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal (with cross appeal) from High Court judgment nullifying a parliamentary election
Decision
Appeal allowed; High Court decision nullifying the election set aside; appellant declared validly elected Member of Parliament for Bunya South Constituency

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal and dismissed the cross appeal. It held that the trial Judge erred in relying on an unauthenticated photograph and uncorroborated evidence of partisan witnesses to find that the appellant bribed voters with an ambulance, and in finding those witnesses to be registered voters. Merely attaching a National Identity Card does not prove one is a registered voter; conclusive proof is a person's name in the National Voters' Register. The trial Judge lowered the standard of proof and made findings based on conjecture. The affidavits and untranslated audio CD were properly expunged. The appellant was declared validly elected.

Outcome

Appeal allowed; High Court decision nullifying the election set aside; appellant declared validly elected Member of Parliament for Bunya South Constituency

Facts

The Electoral Commission declared Ntende Robert (appellant) the winner of the parliamentary election for Bunya South Constituency, Mayuge District, with 18,789 votes against Isabirye Iddi (respondent), who obtained 18,366 votes. The respondent petitioned the High Court alleging the election was conducted in contravention of the Parliamentary Elections Act, particularly through bribery of voters, including the donation of an ambulance registration number UAA 957Y, repair of boreholes, and donation of a solar panel to a Tufidi organisation. The respondent relied on affidavit evidence of witnesses, a photograph of the alleged ambulance, and an audio recording of a radio talk show. The trial Judge nullified the election and ordered a by-election, but declined to award costs. The appellant appealed, and the respondent cross-appealed on the striking off of certain affidavits and audio CD and the refusal of costs.

Issues

  1. Whether the trial Judge erred in rejecting and striking off some of the respondent's affidavits and an audio CD.
  2. Whether the trial Judge properly evaluated the evidence on allegations of bribery in reaching her decision.
  3. Whether the trial Judge lowered the standard of proof required in an election petition.
  4. Whether the trial Judge erred when she declined to grant costs to the petitioner.
  5. What remedies are available to the parties.

Orders

  • The decision and orders of the trial Judge are hereby set aside.
  • The appellant is the validly elected Member of Parliament for Bunya South Constituency, Mayuge district.
  • The respondent shall bear the costs of this Appeal and in the Court below.

Rules and key headnotes

Electoral Law — Bribery — Proof of Registered Voter Status
A National Identity Card does not by itself prove that a person is a registered voter; conclusive proof of a registered voter is evidence that the person's name appears in the National Voters' Register, and section 66 of the Registration of Persons Act did not replace or dispense with that register.
Electoral Law — Standard of Proof — Balance of Probabilities to the Satisfaction of Court
In parliamentary election petitions the burden of proof lies on the petitioner and the standard is proof on a balance of probabilities to the satisfaction of court; the expression 'proved to the satisfaction of court' connotes an absence of reasonable doubt.
Evidence — Photographic Evidence — Authentication
A photograph relied on to prove an alleged bribe must be authenticated as to its date, place and subject; an undated photograph not shown to depict the impugned item cannot establish the existence or ownership of that item.
Evidence — Partisan Witnesses — Requirement of Corroboration
In election petitions the uncorroborated evidence of partisan witnesses cannot establish allegations of bribery to the required standard, and courts must exercise caution in evaluating the evidence of witnesses who actively participated in the election.
Civil Procedure — Affidavit Evidence — Language and Leave of Court
Section 88 of the Civil Procedure Act is couched in mandatory terms; an affidavit introducing an untranslated audio recording not in English is inadmissible, and affidavits filed after close of pleadings without leave of court may be expunged as prejudicial.
Civil Procedure — Pleadings — Decision on Unpleaded Matters
A court must base its decision on matters pleaded and issues placed before it; a party cannot succeed on a case, such as an allegation of bribery, not pleaded in the petition or supporting affidavit.
Civil Procedure — Costs — Discretion to Deny a Successful Party
Under section 27 of the Civil Procedure Act costs are in the discretion of the court and follow the event, but a successful party may be denied costs for good cause, and an appellate court will not lightly interfere with the trial court's exercise of that discretion.

Legislation cited (12)

Cases cited (23)

  • Hellen Adoa v Alice Alaso (Court of Appeal Election Petition Appeal No. 57 & 54 of 2016)
  • Kikulukunyu Faisal v Muwanga Kivumbi Mohammed (Court of Appeal Election Petition Appeal No. 44 of 2011)
  • Lanyero Sarah Ochieng v Lanyero Molly (Court of Appeal Election Petition Appeal No. 32 of 2011)
  • Kabuusu Moses Wagaba v Lwanga Timothy Mutekanga (Election Petition Appeal No. 53 of 2011)
  • Bakaluba Peter Mukasa v Namboze Betty Bakireke (Election Appeal No. 4 of 2009)
  • Amama Mbabazi v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2016)
  • Kamba Saleh v Namuyangu Jeniffer (Election Petition Appeal No. 27 of 2011)
  • Dr. Wenceslaus Rama Makuza v Madina Nakamya (High Court Miscellaneous Application No. 140 of 2013)
  • Assumpta Sebunya v Kyomukama James (High Court Miscellaneous Cause No. 55 of 2012)
  • Selle v Associated Motor Boat Company Ltd [1968] EA 123
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
  • Rtd. Col. Dr. Kizza Besigye v Yoweri Kaguta Museveni (Supreme Court Presidential Election Petition No. 1 of 2001)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Julius Rwabinumi v Hope Bahimbisomwe (Supreme Court Civil Appeal No. 10 of 2009)
  • MS Fang Min V Belex Tours and Travels Limited, Supreme Court Civil Appeal ... 2013 consolidated with Crane Bank Limited V Belex Tours ... Limited Supreme Court Civil Appeal No. 01 of 2014
  • Attorney General v Paul Ssemwogerere (Constitutional Appeal No. 3 of 2004)
  • UBC v Sinba (K) Ltd (Civil Application No. 12 of 2014)
  • Hon. Otada Sam Amooti Owor v Tabani Idi Amin (Court of Appeal Election Petition Appeal No. 93 of 2016)
  • Blyth v Blyth [1966] AC 643
  • Godfrey Katunda v Betty Atuhairwe Bwesharirwe (High Court Miscellaneous Application No. 185 of 2004)
  • SDV Transami (U) Ltd v Nsibambi Enterprises [2008] ULR 497
  • Mayende Stephen De ... Peter, Court of Appeal Election Application NO.05 of 2011

Full judgment

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Ntende Robert v Isabirye Iddi (Election Petition Appeal No. 74 of 2016) [2017] UGCA 66 (15 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.