Wakilii

Owori Christestom Bonny v Okongo Micheal and Electoral Commission (Election Petition Appeal 25 of 2021)

Court of Appeal · [2022] UGCA 320 · 2022 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court dismissal of an election petition seeking annulment of an LCIII Chairperson election
Decision
Election of 1st respondent set aside; seat declared vacant; fresh elections ordered for the entire Sere Sub-County

Observed later treatment

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Holding

The Court of Appeal held that a document admitted by consent at scheduling is deemed authentic and must be evaluated by the trial court; the trial Judge erred in disregarding the handwriting report merely because its author did not testify. Re-evaluating the evidence, the Court found the unrebutted handwriting report proved the appellant's polling agents' signatures on the Declaration of Results Forms were forged, corroborating his account of non-compliance (multiple voting, pre-ticking of ballots, unregistered voters) which substantially affected results given the 23-vote margin. The Court declined to declare the appellant winner or order a recount, but set aside the 1st respondent's election and ordered fresh elections for the entire sub-county.

Outcome

Election of 1st respondent set aside; seat declared vacant; fresh elections ordered for the entire Sere Sub-County

Facts

The appellant and the 1st respondent contested the LCIII Chairperson election for Sere Sub-County in Tororo District. The 1st respondent was declared winner with 799 votes against the appellant's 776, a margin of 23 votes. The appellant petitioned the High Court to annul the election, alleging non-compliance at one of six polling stations, Sere Primary School Polling Station, including multiple voting, ineligible persons voting, violence by the 1st respondent's supporters, ballot stuffing and pre-ticking of ballots in the 1st respondent's favour. He further alleged his polling agents refused to sign the Declaration of Results Forms in protest and their signatures were forged, and that his true tally of 60 votes was falsified to 06. He relied on a handwriting expert report, admitted by consent at scheduling, showing the agents' signatures were forged. The respondents denied all allegations and asserted the elections were peaceful and lawful. The High Court dismissed the petition, declining to rely on the handwriting report because its author did not testify, and finding the appellant's witnesses exaggerated.

Issues

  1. Whether the trial Judge erred in failing to rely on and evaluate a handwriting report admitted as an agreed document during scheduling because its author was not called as a witness.
  2. Whether the trial Judge properly evaluated the appellant's evidence of non-compliance with electoral laws.
  3. Whether the incidents of non-compliance affected the election results in a substantial manner.
  4. What remedy is appropriate where non-compliance at one polling station affects the results of the whole constituency.

Orders

  • Appeal allowed.
  • Judgment and decree of the High Court set aside.
  • Election of the 1st respondent as LCIII Chairperson for Sere Sub-County in Tororo District set aside.
  • The position of LCIII Chairman for Sere Sub-County in Tororo District declared vacant.
  • The Electoral Commission ordered to conduct fresh elections for LCIII Chairperson for Sere Sub-County as soon as possible.
  • Costs of the appeal and in the court below granted to the appellant.

Rules and key headnotes

Documentary Evidence — Documents Admitted by Consent at Scheduling — Authenticity versus Truth of Contents
A document admitted by agreement of the parties during scheduling is deemed authentic and must be considered by the trial court in evaluating evidence; authenticity relates to whether the document is what it claims to be, not whether its contents are correct, and the court retains discretion whether to believe those contents.
Documentary Evidence — Expert Report Admitted by Consent — Author Need Not Testify
Where a handwriting expert report is admitted in evidence by consent of the parties at scheduling, it is an error for the court to disregard it solely on the ground that its author was not called as a witness; such a report must be evaluated along with the rest of the evidence.
Election Petitions — Affidavit Evidence — Effect of Failure to Cross-Examine Partisan Witnesses
In election petitions, failure to cross-examine a witness on his or her affidavit does not automatically result in acceptance of the averments; because of the highly partisan nature of election disputes, affidavit evidence must be weighed against all other evidence and corroboration should be sought before it is relied upon.
Election Petitions — Non-Compliance at One Polling Station Affecting Whole Constituency
Where incidents of non-compliance with electoral laws occur at only one or a few polling stations but substantially affect the results of the entire constituency, the court's only option under section 142(3)(c) of the Local Governments Act is to order fresh elections for the entire electoral area; it has no power to order elections at only the affected polling station.
Election Petitions — Remedies — When to Declare Runner-Up Winner or Order Recount
A court will not declare a losing candidate winner absent sufficient proof that the candidate actually obtained more votes, and will decline to order a recount where it is not confident the ballot boxes have not been tampered with.

Legislation cited (8)

Cases cited (15)

  • Administrator General v Bwanika James and 9 Others (Civil Appeal No. 7 of 2003)
  • Chebrot Stephen Chemoiko v Soyekwo Kenneth and Another (Election Petition Appeal No. 56 of 2016)
  • Mwithali vs. M'itombi [1986-1989] EA 389
  • Rebecca Balwanga Balwana v Electoral Commission and 2 Others (Electoral Petition No. 0047 of 2011)
  • Mbaghadi Fredrick Nkayi and Another v Nabwiso Frank (Election Petition Appeal Nos. 14 and 16 of 2011)
  • Winnie Byanyima v Ngoma Ngime (Civil Revision No. 9 of 2001)
  • Apea Moses v Uganda (Criminal Appeal No. 0653 of 2015)
  • John Tiborugaba Kasangaki and Another v Rajeev Jain and 3 Others (Civil Appeal No. 69 of 2013)
  • Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
  • Attorney General vs. Baranga [1976] HCB 45
  • Mawanda and Another vs. Kobil (U) Ltd [2013] UGComC 167
  • Kato v Uganda (Criminal Appeal No. 25 of 2000)
  • Besigye v Museveni (Presidential Election Petition No. 1 of 2001)
  • Makatu v Weswa and Another (Election Petition Appeal No. 73 of 2016)
  • Edward Byaruhanga Katumba v Electoral Commission and Another (Election Petition Appeal No. 17 of 2002)

Full judgment

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

Owori Christestom Bonny v Okongo Micheal and Electoral Commission (Election Petition Appeal 25 of 2021) [2022] UGCA 320 (19 May 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.