Wakilii

Odo Tayebwa v Gordon Kakuuna Arinda and Another (Election Petition Appeal No. 86 of 2016)

Court of Appeal · [2017] UGCA 188 · 2017 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the dismissal of an election petition by the High Court at Mbarara
Decision
Appeal dismissed and the 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 against dismissal of an election petition. It held that where all parties agreed at scheduling on a timeframe for filing affidavits, a party was estopped from later claiming the affidavits were filed out of time. A trial court has discretion to sever defective portions of affidavits and rely on the proper parts, especially where deponents confirmed contents on cross-examination. Deponents who fail to appear for cross-examination provide evidence of the weakest kind. The bribery and illegal-practice allegations were riddled with contradictions and unproven to the higher standard required in election petitions. Costs were properly awarded to the respondents.

Outcome

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

Facts

Following the parliamentary elections of 18 February 2016 for the Bushenyi-Ishaka Municipality Constituency, the Electoral Commission declared the first respondent, Gordon Kakuuna Arinda, the validly elected Member of Parliament with 6,457 votes (40.53%). The appellant, Odo Tayebwa, came second with 5,334 votes (33.48%). The appellant petitioned the High Court alleging illegal practices and electoral offences, principally numerous instances of bribery of voters and intimidation and violence. The High Court at Mbarara dismissed the petition with costs, finding the allegations largely unproved due to serious contradictions in the petitioner's witnesses' evidence, the unreliability of certain affidavits, and the failure to avail witnesses for cross-examination. The first respondent had filed 57 supporting affidavits after the ten-day period in Rule 8(1), though within a timeframe agreed by all counsel at scheduling. Thirty-five affidavits contained a clause that illiterate deponents had read and understood the affidavits they responded to. The appellant appealed on nine grounds.

Issues

  1. Whether the trial Judge was right in holding that the late filing of 57 affidavits in support of the first respondent's answer did not lead to injustice and could not be struck out.
  2. Whether the trial Judge was right to resolve the petition while relying on 35 affidavits which each contained a falsehood that an illiterate deponent had read and understood the affidavit being responded to.
  3. Whether the trial Judge was right not to rely on affidavits of deponents who had not been availed for cross-examination.
  4. Whether the trial Judge erred in holding that the petitioner had not proved that the first respondent personally or by his agents committed an election offence or illegal practice.
  5. Whether the trial Judge properly evaluated the evidence on non-compliance with the electoral laws and whether such non-compliance affected the results in a substantial manner.
  6. Whether the trial Judge was right to order the petitioner to pay the costs of the petition.

Orders

  • Appeal dismissed.
  • Judgment of the High Court upheld.
  • Appellant to pay the costs of the first and second respondents of the appeal and those in the court below.

Rules and key headnotes

Electoral Law — Filing of Affidavits — Estoppel by Agreed Scheduling Timeframe
Where all parties to an election petition agree at the scheduling conference on a timeframe within which affidavits are to be filed, a party who consented to that timeframe is estopped under section 114 of the Evidence Act from later asserting that affidavits filed within the agreed period were filed out of time, and no leave of court is needed to file within that period.
Electoral Law — Substantive Justice — Late Filing of Affidavits Without Prejudice
A court determining the validity of an act done in breach of a statutory time provision must consider the purpose of the legislation rather than merely whether the provision is mandatory or directory; where late filing of affidavits caused no prejudice, the court may decline to strike them out in order to determine the dispute on its merits under Article 126(2)(e) of the Constitution.
Evidence — Affidavits — Severance of Defective Portions
A court has discretion to sever and reject defective or superfluous parts of an affidavit and to rely on the proper parts together with other evidence, particularly where the deponent, though illiterate, confirmed the contents on cross-examination, so that a drafting error stating an illiterate deponent had read the affidavit does not vitiate the whole affidavit.
Evidence — Affidavits — Failure to Appear for Cross-Examination
The affidavit evidence of a deponent who fails to appear for cross-examination when so required is evidence of the weakest kind on which a court can hardly place any reliance.
Electoral Law — Standard of Proof — Bribery and Illegal Practices
Given the public importance of elections, allegations of electoral offences and illegal practices must be proved to a standard higher than in ordinary civil actions though not beyond reasonable doubt, and serious unexplained contradictions between witnesses to the same alleged event render such evidence unreliable and insufficient to prove bribery.
Evidence — Corroboration — Single Witness in Election Petitions
Evidence in election petitions does not invariably require corroboration, but where the evidence of a single witness is found insufficient on its own the court is entitled to look for independent credible evidence, and the absence of any such supporting evidence justifies finding the allegation unproved.
Electoral Law — Illegal Practice — False Statements About a Candidate
Under section 65 of the Parliamentary Elections Act the burden is on the petitioner to prove that a statement published about a candidate was false, to a standard leaving the court certain of its falsity, and this burden does not shift unless a prima facie case has been made out.

Legislation cited (16)

Cases cited (13)

  • Achieng Sarah Opendi and Electoral Commission v Ochwo Nyakecho Kezia (Election Petition Appeal No. 39 of 2011)
  • Mukasa Anthony Harris v Dr. Bayiga Michael Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Sitenda Sebalu v Sam K. Njuba (Election Appeal No. 26 of 2007)
  • Yowasi Kabiguruka v Samuel Byarufu (Civil Appeal No. 18 of 2008)
  • Col. (Rtd) Dr. Kizza Besigye v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2001)
  • Yona Kanyomozi v Motor Mart (U) Ltd (Civil Application No. 8 of 1989)
  • Muhindo Rehema v Winfred Kiiza and Another (Election Petition Appeal No. 29 of 2011)
  • Paddy Kabagambe and Another v Bwambale Bihande Yokas and Another (Election Petition No. 11 of 2006)
  • Kamba Saleh Moses v Hon. Namuyangu Jennifer (Election Petition Appeal No. 27 of 2011)
  • Masiko Winfred Komuhangi v Babihuga (Election Petition Appeal No. 9 of 2002)
  • Alfred Tajar v Uganda (Criminal Appeal No. 197 of 1969)
  • Aligawesa Philip v Byandala Abraham James and Another (Election Petition Appeal No. 24 of 2011)
  • Presidential Election Petition No. 1 of 2006

Full judgment

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

Odo Tayebwa v Gordon Kakuuna Arinda and Another (Election Petition Appeal No. 86 of 2016) [2017] UGCA 188 (17 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.