Wakilii

Onama Obbo v Kasolo Okello and Another (Election Petition Appeal 55 of 2021)

Court of Appeal · [2022] UGCA 319 · 2022 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court dismissal of a local council election petition
Decision
Appeal dismissed; High Court decision confirming the First Respondent's election upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that section 7(6) of the Parliamentary Elections Act, requiring authority before disclosure, does not apply to local council election supervisors and cannot exclude state officials' evidence assisting the court; the trial judge therefore wrongly expunged the Ochwo and Wahibira affidavits. However, failure to cross-examine witnesses leaves contested matters unproven, not merely unchallenged, and the burden of proof lay on the appellant. Uncertified Declaration of Results Forms were rightly disregarded absent proof that certified copies were sought and denied. As the successful grounds did not affect the outcome, the appeal was dismissed with costs.

Outcome

Appeal dismissed; High Court decision confirming the First Respondent's election upheld

Facts

The appellant, first respondent and another candidate contested the Local Council III chairperson position for Kirewa sub-county in Tororo District in elections held on 3 February 2021. The Electoral Commission declared the first respondent elected with 1,398 votes against the appellant's 2,187 votes as runner-up. The appellant filed an election petition alleging that at Pamangode polling station voting was fraught with irregularities, including the first respondent's supposed wife issuing pre-ticked ballot papers, pre-signing of the Declaration of Results Form and multiple voting, and that the presiding officer was improperly replaced. He contended these irregularities substantially affected the result and required the entire Kirewa result to be set aside. The respondents denied the allegations. The trial court expunged supporting affidavits, found no proof of the alleged marriage or officer substitution, held the affidavit evidence unchallenged because witnesses were not cross-examined, and dismissed the petition with costs. The appellant appealed.

Issues

  1. Whether the trial judge wrongly expunged the affidavits of John Ochwo and Robert Wahibira in support of the petition.
  2. Whether an election supervisor for a local council election needed authority under section 7(6) of the Parliamentary Elections Act before deponing an affidavit.
  3. Whether failure to cross-examine the respondents' witnesses meant that affidavit evidence stood unchallenged.
  4. Whether Suzan Were was the First Respondent's wife and engaged in electoral malpractice at Pamangode polling station.
  5. Whether the presiding officer at Pamangode polling station was replaced on polling day.
  6. Whether the trial judge wrongly disregarded uncertified Declaration of Results Forms adduced by the petitioner.
  7. Whether the election was conducted in compliance with the electoral laws.

Orders

  • Ground 10 struck out for offending section 86(1) of the Court of Appeal Rules.
  • Grounds 1, 2, 3 and 7 allowed.
  • Grounds 4, 5, 6, 8 and 9 dismissed.
  • Appeal dismissed with costs to the Respondents in this Court and the court below.

Rules and key headnotes

Electoral Law — Statutory Interpretation — Application of Parliamentary Elections Act to Local Council Elections
Section 7(6) of the Parliamentary Elections Act, which requires election officers to obtain authority before revealing certain matters, has no equivalent under the Local Government Act; construed in light of Article 128(3) of the Constitution it cannot operate to exclude evidence by state officials that supports the court's function, and cannot be applied to a local council election supervisor's affidavit.
Evidence — Affidavits — Effect of Failure to Cross-Examine on Contested Averments
Failure to cross-examine a witness who has filed a contradicting affidavit does not leave the matters in contention unchallenged, but it may leave them unproven; the party bearing the burden of proof must clarify contradictory allegations through cross-examination or risk failing to discharge that burden.
Evidence — Illiterate Deponents — Retraction of Affidavits and Cross-Examination
Where a party alleges that a deponent was coerced or manipulated into signing an affidavit, the proper course is to subject that deponent to cross-examination to test the veracity of the claim; a court should not expunge an earlier affidavit merely on the basis of a subsequent contradicting affidavit that is itself grounded in an illegality.
Evidence — Public Documents — Admissibility of Uncertified Declaration of Results Forms
Uncertified copies of Declaration of Results Forms, being public documents, are only admissible as secondary evidence where a party proves it sought but was denied certified copies by the responsible officer; absent such proof the court is entitled to disregard uncertified forms.
Family Law — Proof of Marriage — Requirement of Certificate or Witnesses to Solemnisation
A certificate of marriage is conclusive proof of a civil marriage; a party alleging a subsisting marriage must prove it either by production of a marriage certificate or by witnesses to its solemnisation, failing which no marriage is established.
Electoral Law — Appellate Review — Duty of First Appellate Court in Election Petition Appeals
A first appellate court in an election petition appeal is enjoined to subject the evidence, including affidavit evidence, to a fresh and exhaustive re-appraisal and reach its own conclusions, save that the trial court's impressions of witness demeanour are inapplicable to affidavit evidence.

Legislation cited (23)

Cases cited (10)

  • Banco Arabe Espanol v Bank of Uganda, Civil Appeal No. ... of 1998 (Supreme Court)
  • Achieng Sarah Opendi & Another v Ochwo Nyakecho Keziah (Election Petition Appeal No. 39 of 2011)
  • Father Nasensio Begumitsa & Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Nanziri Kase Mubanda v Mary Babirye (Election Petition Appeal No. 39 of 2010)
  • Re: Quartz Hill & Co. Ex parte Young 1882 Ch.D 642
  • Clarke v Law (1)
  • Brendon Alex Kintu v Electoral Commission & Another (Election Petition Appeal No. 64 of 2016)
  • John Baptist Kakooza v Electoral Commission & Another (Election Petition Appeal No. 11 of 2007)
  • Stephen Chemoiko Chebrot v Kenneth Sovekwo & Another (Election Petition Appeal No. 56 of 2016)
  • Yusuf Mutembuli v Moses Musamba Nagwomu & Another (Election Petition Appeal No. 43 of 2016)

Full judgment

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Onama Obbo v Kasolo Okello and Another (Election Petition Appeal 55 of 2021) [2022] UGCA 319 (1 June 2022)
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.