Semugoma v Uhuru and Another (Election Petition Appeal No. 43 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal held that complaints about a candidate's nomination must be raised with the Electoral Commission under section 15 of the Electoral Commission Act before elections; the appellant, having inspected the nomination papers yet kept silent, was estopped from raising them after the poll. However, the trial judge erred in expunging additional affidavits filed with leave that supported bribery claims already pleaded and in finding the residual evidence insufficient without evaluating it. The appeal partly succeeded. The matter was remitted to the High Court for retrial on all issues save nomination, which was resolved. The award of costs was set aside.

Outcome

Appeal partly allowed; matter remitted to the High Court for retrial on all issues except nomination

Facts

The appellant, the 1st respondent and six other candidates contested the January 2021 election for chairperson of Kampala Central City Division, conducted by the 2nd respondent (Electoral Commission). The 1st respondent was returned as elected with 13,114 votes; the appellant came second with 10,654. The appellant petitioned the High Court alleging the Electoral Commission failed to conduct the election lawfully and that the 1st respondent committed illegal acts including bribery, and challenged defects in the 1st respondent's nomination (forged and insufficient supporting signatures, name variance between Salim Saad Uhuru and Salim Uhuru Nsubuga, and supporters from wrong electoral areas). The 1st respondent raised preliminary objections. The trial judge allowed the objections, expunged 18 additional affidavits as introducing new pleadings, severed paragraphs 23, 37, 38 and 40 as hearsay, found the residual affidavit could not meet the required standard, and struck out the petition with costs. The appellant appealed.

Issues

1. Whether matters regarding the nomination of the 1st respondent could be entertained by the court or ought to have been raised with the Electoral Commission under section 15 of the Electoral Commission Act before elections.
2. Whether the additional affidavits filed by persons not mentioned in the petition amounted to introducing new pleadings and were properly expunged.
3. Whether paragraphs 23, 37, 38 and 40 of the petitioner's affidavit in support were hearsay and whether the residual affidavit could sustain the standard of proof.
4. Whether the trial judge properly struck out the petition at a preliminary stage.
5. Whether the award of costs against the appellant should be interfered with.

Orders

• The petition partly succeeds.
• The matter is remitted to the High Court for retrial on all issues save for the issue of nomination, which has been resolved.
• The order on costs of the lower court is set aside.
• Costs of this appeal and the court below shall abide the outcome of the retrial.

Rules and key headnotes

Legislation cited (19)

• Local Government Act Cap 243 s.111(4)(f)
• Local Government Act Cap 243 s.138
• Local Government Act Cap 243 s.139
• Local Government Act Cap 243 s.172
• Electoral Commission Act s.15
• Parliamentary Elections Act s.61(3)
• Constitution of Uganda Article 61(1)(f)
• Constitution of Uganda Article 64(1)
• Constitution of Uganda Article 139
• Constitution of Uganda Article 126(2)
• Civil Procedure Rules Order 6 Rule 7
• Civil Procedure Rules Order 19 Rule 3
• Civil Procedure Act Cap 71 s.27
• Parliamentary Elections (Interim Provisions) (Election Petitions) Rules Rule 15
• Parliamentary Elections (Interim Provisions) (Election Petitions) Rules Rule 27
• Parliamentary Elections (Interim Provisions) Rules Rule 4(8)
• Parliamentary Elections (Interim Provisions) Rules Rule 17
• Judicature (Court of Appeal Rules) Directions S.I 13-10 Rule 30
• Judicature (Court of Appeal Rules) Directions S.I 13-10 Rule 32

Cases cited (19)

• Kasirye Zimula Fred v Bazigatilawo Kibuuka and Electoral Commission (Election Petition Appeal No. 1 of 2018)
• Akuguzibwe Lawrence v Muhumuza and Others (Election Petition Appeal No. 22 of 2016)
• Bantalib Issa Taligola v Wasungiya Bob Fred and Electoral Commission (Election Petition Appeal No. 11 of 2006)
• Odo Tayebwa v Gordon Kakuuma Arinda and Electoral Commission (Election Petition No. 86 of 2016)
• Makula International v His Eminence Cardinal Nsubuga (Civil Appeal No. 4 of 1981)
• Mutembuli Yusuf v Nagwomu Moses Musamba and Electoral Commission (Election Petition Appeal No. 43 of 2016)
• Chebrot Stephen Chemloko v Soyekwo Kenneth and Electoral Commission (Election Petition Appeal No. 56 of 2016)
• Kiiza Besigye v Yoweri Museveni Kaguta (Presidential Election Petition No. 1 of 2006)
• Acire v. Okumu & EC
• Kadama Mwogezaddembe v Gagawala Wambuzi (Election Petition No. 2 of 2001)
• Baleke Kayira Peter v Electoral Commission and Kakooza Joseph (Election Petition Appeal No. 4 of 2016)
• Robert Kyagulanyi Sentamu v Yoweri Kaguta Museveni and Electoral Commission (Miscellaneous Application No. 1 of 2021)
• Itende Robert v Isabirye Eid (Election Petition Appeal No. 74 of 2016)
• Pandya v R [1957] EA 336
• Coghlan v Cumberland [1898] 1 Ch 704
• Silanie Byanyima v Ngoma Ngime (Revision Application No. 9 of 2001)
• Uganda Journalist Safety Committee and Others v Attorney General (Constitutional Petition No. 7 of 1997)
• Erias Lukwago v Electoral Commission (Miscellaneous Cause No. 113 of 2010)
• Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)

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