Wakilii

Sarah Bireete v Bernadette Bigirwa and Another (Election Petition Appeal No. 13 of 2002)

Court of Appeal · [2002] UGCA 33 · 2002 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court dismissal of an election petition challenging parliamentary election results
Decision
Appeal dismissed; High Court decision upholding the election result 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 the High Court's refusal to nullify a parliamentary election. It held that the appellant failed to prove the absence of the first respondent's photograph on the ballot paper affected the result substantially, the large vote margin being relevant. A vote is invalid only where the voter's intention cannot be reasonably ascertained, and section 31(1) is directory, not mandatory, so the mark need not be placed in the candidate's photograph. The trial Judge correctly exercised his discretion in awarding costs to the successful first respondent, who was not party to the irregularity committed solely by the Electoral Commission.

Outcome

Appeal dismissed; High Court decision upholding the election result affirmed

Facts

The appellant and the first respondent contested the Woman Parliamentary seat for Bushenyi District in the June 2001 elections. On polling day the Returning Officer discovered that the first respondent's photograph was missing from the ballot paper and a stranger's photograph appeared in its place, although the first respondent's name was correctly printed. After consultations and radio announcements, voting proceeded. The first respondent obtained 14,530 votes against the appellant's 6,806, with 115 invalid and 14 spoilt votes. The appellant petitioned the High Court at Mbarara to nullify the result, arguing the irregularity affected the outcome. The trial Judge found the irregularity did not substantially affect the result and dismissed the petition with costs to the first respondent. The Electoral Commission admitted the mistake was its own; the first respondent was found not to be party to the irregularity. The appellant appealed on grounds concerning costs and the effect of the wrong photograph on the election outcome.

Issues

  1. Whether the trial Judge erred in awarding costs against the appellant after finding that the second respondent had committed an irregularity.
  2. Whether the absence of the first respondent's photograph on the ballot paper affected the outcome of the election in a substantial manner.
  3. Whether section 31(1) of the Parliamentary Elections Act requiring the authorised mark to be placed in the candidate's picture is mandatory or directory.

Orders

  • Appeal dismissed.
  • Costs of the appeal and of the court below awarded to the first respondent.

Rules and key headnotes

Electoral Law — Setting Aside Election — Substantial Effect of Non-Compliance
An election will only be set aside where the petitioner proves to the satisfaction of the court that non-compliance with the electoral law affected the result of the election in a substantial manner; the effect must be calculated to really influence the result in a significant way.
Electoral Law — Validity of Votes — Ascertainment of Voter Intention
A vote is invalid only where the voter's choice cannot be reasonably ascertained; the authorised mark need not be placed in the candidate's photograph, and section 31(1) of the Parliamentary Elections Act is directory rather than mandatory.
Electoral Law — Vote Margin — Relevance of Numbers in Assessing Effect
In assessing whether an irregularity affected an election result substantially, the court is entitled to have regard to the margin between the votes obtained by the candidates, as numbers are an important indicator of whether the complaining party would have won absent the irregularity.
Civil Procedure — Costs — Discretion to Deprive Successful Party
Costs follow the event and a successful litigant should not be deprived of costs except for good cause connected with the case; an appellate court will not interfere with the trial court's exercise of discretion as to costs unless it was exercised unjudicially or on wrong principles.

Legislation cited (8)

  • Civil Procedure Act s.27
  • Parliamentary Elections Act (Act 8/2001) s.2(1)
  • Parliamentary Elections Act (Act 8/2001) s.31(5)(b)(1)
  • Parliamentary Elections Act (Act 8/2001) s.61
  • Parliamentary Elections Act (Act 8/2001) s.62(1)
  • Parliamentary Elections (Election Petition) Rules 1996 (S.I. No. 27/96) rule 27
  • Parliamentary Elections (District Women's Representative Regulations) 2001
  • Presidential Elections Act (Act 17/2000)

Cases cited (6)

  • Donald Campbell v Pollak [1927] AC 732
  • [1969] E.A. at page 8
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Besigye v Museveni (Election Petition No. 1 of 2001)
  • Morgan v Simpson [1974] 3 All ER 722
  • Hackney (supra)

Full judgment

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

Sarah Bireete v Bernadette Bigirwa and Another (Election Petition Appeal No. 13 of 2002) [2002] UGCA 33 (20 August 2002)
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.