Wakilii

Omari Assini v Electoral Commission and Another (Election Petition Appeal 1 of 2023)

High Court · [2024] UGHCCD 159 · 2024 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrates Court of Makindye election petition dismissal
Decision
2nd respondent's election set aside; appellant declared validly elected Councillor for Makindye East II Electoral Area

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the 2nd respondent was not validly nominated because he provided false information under oath on his nomination papers regarding his educational qualifications, specifically claiming to hold a Uganda Certificate of Education from Kisugu High School in 2010 when evidence showed he did not sit for UCE examinations at that school. Held further that the 2nd respondent committed an illegal practice by issuing bursary recommendations during the election period to induce voters. Appeal allowed; the 2nd respondent's election set aside and the appellant declared the validly elected Councillor for Makindye East II Electoral Area.

Outcome

2nd respondent's election set aside; appellant declared validly elected Councillor for Makindye East II Electoral Area

Facts

The appellant and 2nd respondent were candidates in elections held on 25 January 2021 for Directly Elected City/District Councillor for Makindye East II Electoral Area. The Returning Officer declared the 2nd respondent the winner with 3,602 votes, later corrected to 3,672 votes. The appellant claimed he won with 2,277 votes (later corrected to 2,286) while the 2nd respondent obtained only 1,753 votes. The appellant filed an election petition alleging falsification of results, electoral offences, and invalid nomination of the 2nd respondent. The Chief Magistrates Court dismissed the petition. The appellant appealed on twelve grounds challenging procedural irregularities, the trial court's handling of issues, reliance on abandoned affidavits, findings on electoral compliance and offences, and the validity of the 2nd respondent's nomination. Evidence showed the 2nd respondent issued bursary recommendation letters during the election period and provided false information about his educational qualifications on his nomination papers under oath.

Issues

  1. Whether the trial Chief Magistrate erred in allowing the 2nd respondent to proceed with his case after failing to comply with court orders requiring payment of security for costs before filing an answer to the petition.
  2. Whether the trial Chief Magistrate erred in framing and determining issues different from those agreed in the Joint Scheduling Memorandum without affording parties a right to be heard.
  3. Whether the trial Chief Magistrate erred in considering affidavits that had been abandoned by the 2nd respondent.
  4. Whether non-compliance with electoral laws and irregularities in transmission and gazetting of results affected the election outcome in a substantial manner.
  5. Whether the 2nd respondent committed electoral offences or illegal practices by issuing bursary recommendations during the election period.
  6. Whether the 2nd respondent was validly nominated as a candidate given allegations of a false seconder and false statements under oath regarding educational qualifications.
  7. What remedies are available where a candidate's nomination is found to be invalid.

Orders

  • Appeal allowed.
  • Judgment and orders of the trial Chief Magistrate set aside.
  • The 2nd respondent's nomination declared invalid for providing false information under oath.
  • The appellant declared the validly elected Councillor for Makindye East II Electoral Area.
  • Costs of the appeal and in the court below awarded to the appellant against the 2nd respondent.
  • As between the appellant and 1st respondent, each party to bear its own costs.

Rules and key headnotes

Electoral Law — Nomination of Candidates — False Statements Under Oath — Effect on Validity of Nomination
Where a candidate provides false information under oath on nomination papers regarding educational qualifications, such false statements render the nomination invalid and the candidate's election liable to be set aside, as the requirement to provide information under oath is a fundamental safeguard to ensure accurate information is provided to the electorate.
Electoral Law — Electoral Offences — Bribery — Inducement Through Bursaries During Election Period
The issuance of bursary recommendations by a candidate during an election period, even where a bursary scheme existed previously, constitutes an illegal practice amounting to bribery where the act is calculated to induce voters or influence their voting decisions, as the temporal proximity to elections transforms a charitable act into electoral inducement.
Electoral Law — Election Petitions — Remedies — Declaration of Runner-Up as Winner Upon Disqualification
Where a returned candidate's nomination is found to be invalid and the candidate is disqualified, the runner-up who obtained the second highest number of votes is entitled to be declared the validly elected candidate, as the disqualified candidate should never have been on the ballot and their removal from the contest leaves the runner-up at the top of the list of validly nominated candidates.
Civil Procedure — Issues for Determination — Court's Power to Frame Issues — Duty to Afford Parties Right to be Heard
While a trial court has power under Order 15 of the Civil Procedure Rules to frame issues for determination, it must afford parties an opportunity to be heard on any new or modified issues before determining them, as the right to be heard on issues that may adversely affect a party is a fundamental principle of fair hearing guaranteed by Articles 28 and 44 of the Constitution.
Electoral Law — Election Petitions — Pleadings — Affidavit in Rejoinder as Dual Purpose Document
An affidavit in rejoinder in election petition proceedings serves a dual purpose as both a pleading and affidavit evidence, and may properly introduce new grounds of challenge where those grounds go to the validity of the election, as election disputes involve public interest in ensuring properly qualified candidates hold office and technical pleading rules should not shield invalid elections from scrutiny.
Evidence — Witness Affidavits — Abandonment of Witnesses — Effect on Evidential Record
Where a party indicates they will not call certain witnesses whose affidavits were filed, those affidavits are deemed abandoned and expunged from the record, and it is an error for a court to make reference to such abandoned affidavits or to suggest they remain evidence in the case.
Civil Procedure — Procedural Irregularities — Waiver — Miscarriage of Justice
A party who does not timeously object to procedural irregularities during trial is deemed to have waived the right to complain on appeal unless they demonstrate that the irregularity resulted in a miscarriage of justice, as courts exist to decide matters on their merits rather than to enforce discipline through technicalities.

Legislation cited (7)

Cases cited (16)

  • Pandya v R [1957] EA 336
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Father Nanensio Begumisa and 3 Others v Eric Tibebaga (SCCA No. 17 of 2004)
  • Kifamunte Henry v Uganda (SCCA No. 10 of 1997)
  • Crown Beverages Ltd v Stanbic Bank (MA No. 18 of 2005)
  • Okello Johnson v Lalam Angella (HCCA No. 12 of 2019)
  • Republic v High Court, FTD 2, Ex parte: Ghana Lotto Operators Association (National Lottery Authority Interested Party) [2009] 24 MLRG 36 SC
  • Ogundele v Agiri (2009) 18 NWLR (pt1173) (pt 1290) p. 219
  • Badda and Another v Mutebi (CACA No. 25 of 2006)
  • Kanwar Lal Gupta v Amar Nath Chawla [1975] SCC 3 646
  • Wakayima N Musoke and Electoral Commission v Kasule Robert Ssebunya (EPA No. 50 and 102 of 2016)
  • Hon Tumuramye Genensio v Tayebwa Herbert Musasizi & Electoral Commission
  • Kagyerero Ronald v Muwuma Milton Kalulu and Another (EP No. 17 of 2005)
  • Ajay Maken v Adesh Kumar Gupta, 2012 (12) SCALE 173; [2013] 3 SCC 489
  • Chandra Bhan v Ramesh Kumar, AIR 1998 P & H 262
  • Genensio Tumuramye vs Herbert Musasizi Tayebwa

Full judgment

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

Omari Assini v Electoral Commission and Another (Election Petition Appeal 1 of 2023) [2024] UGHCCD 159 (4 October 2024)
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.