Wakilii

The Returning Officer Kampala and 2 Others v Nabagesera (CIVIL APPEAL NO.39 2007)

Court of Appeal · [1998] UGCA 60 · 1998 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated appeals from High Court decision nullifying an election petition
Decision
Appeal allowed; nullification of the 3rd appellant's election set aside and she was declared duly elected women representative for Kampala District.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the consolidated appeals against the nullification of a women representative election. It held that Statute No.4 of 1996 established two distinct voters' registers: the national voters' register under section 18 and a separate Electoral College register under rule 4(1) of the third schedule, which need not be vetted against the national register. Voters' cards issued under section 26 applied only to the national register and were not a legal requirement for women representative elections. The trial judge misconstrued the statute. The court also held that grounds against interlocutory orders may be argued on appeal from a final decision, and that the standard of proof in election petitions is proof beyond reasonable doubt.

Outcome

Appeal allowed; nullification of the 3rd appellant's election set aside and she was declared duly elected women representative for Kampala District.

Facts

The Interim Electoral Commission conducted elections for Women Parliamentary representatives on 20 June 1996. In Kampala District, the 3rd appellant Margaret Zziwa and the respondent Catherine Naava Nabagesera contested the Women representative seat. The Town Clerk supervised the elections as Returning Officer, and Zziwa was declared winner, gazetted on 28 June 1996. The respondent filed an election petition in the High Court challenging the election on grounds of non-compliance with electoral laws. The trial judge (Tabaro, J) allowed the petition, holding that the 1st and 2nd appellants had not conducted the elections in accordance with the Statute — principally that only one voters' register was permissible and that the Electoral College register should have been incorporated into the national voters' register, and that voters' cards were a legal requirement. He nullified the election and declared the seat vacant. The appellants appealed. The central dispute concerned the interpretation of sections 18 and 37 of Statute No.4 of 1996 and rules 3 and 4 of the third schedule governing women representative elections.

Issues

  1. Whether the appeals were filed out of time and thus incompetent, depriving the court of jurisdiction.
  2. Whether grounds of appeal against interlocutory orders could be included in an appeal against the final decision on an election petition.
  3. Whether the Statute envisaged one or two voters' registers for the election of women parliamentary representatives.
  4. Whether the Electoral College register had to be vetted against or incorporated into the national voters' register.
  5. Whether a voter's card was a legal requirement in the election of women representatives.
  6. What is the standard of proof in election petitions under section 91 of Statute No.4 of 1996.

Orders

  • The order of the lower court nullifying the elections of the 3rd appellant is set aside.
  • The 3rd appellant was duly elected women representative for Kampala District.
  • The respondent is to pay the appellant's costs of the appeal here and in the court below.

Rules and key headnotes

Election Appeals — Computation of Time — Exclusion of Time for Preparation of Record
Where an application for a copy of High Court proceedings is made in writing within thirty days of the decision, served on the respondent with proof retained, the time certified by the Registrar as taken to prepare and deliver that copy is excluded when computing the period within which to lodge an election appeal.
Interlocutory Orders — Right to Challenge on Appeal from Final Decision
Grounds of appeal relating to interlocutory orders made in the course of a hearing may be included in and argued on an appeal against the final decision on an election petition, without the need for separate appeals or prior leave.
Women Representative Elections — Two Voters' Registers under Statute No.4 of 1996
Statute No.4 of 1996 envisages two distinct voters' registers: the national voters' register under section 18 and the Electoral College register prepared under rule 4(1) of the third schedule; the latter need not be vetted against or incorporated into the national voters' register.
Women Representative Elections — Voters' Cards Not a Legal Requirement
Voters' cards issued under section 26 relate only to the national voters' register; they are not a legal requirement in the election of women representatives, where the Commission may devise other means of voter identification under rule 3 of the third schedule.
Literal Rule — Plain and Unambiguous Words
Where the words of a statute are clear and unambiguous they must be given their ordinary and natural meaning irrespective of the consequences, and a court may not read into an Act words which are not there.
Election Petitions — Standard of Proof
The grounds for setting aside the election of a successful parliamentary candidate under section 91 of Statute No.4 of 1996 must be proved beyond reasonable doubt, since the court cannot be satisfied where a reasonable doubt exists.
Illegality — Court Cannot Sanction What Is Illegal
A court of law cannot sanction what is illegal, and an illegality once brought to its attention overrides all questions of pleadings; however, this principle is inapplicable where no illegality in fact exists, such as where appeals are properly within time.

Legislation cited (27)

  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 s.12
  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 s.18
  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 s.26
  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 s.37
  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 s.58(3)
  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 s.63(1)
  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 s.90
  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 s.91
  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 s.96(1)
  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 s.3
  • Parliamentary Elections (Election Petitions) Rules 1996 (S.I. No.27 of 1996) rule 31
  • Parliamentary Elections (Election Petitions) Rules 1996 (S.I. No.27 of 1996) rule 32
  • Parliamentary Elections (Election Petitions) Rules 1996 (S.I. No.27 of 1996) rule 19
  • Parliamentary Elections (Election Petitions) Rules 1996 (S.I. No.27 of 1996) rule 24
  • Parliamentary Elections (Election Petitions) Rules 1996 (S.I. No.27 of 1996) rule 36
  • Court of Appeal Rules Directions 1996 (Legal Notice No.11 of 1996) rule 81
  • Court of Appeal Rules Directions 1996 (Legal Notice No.11 of 1996) rule 82(2)
  • Court of Appeal Rules Directions 1996 (Legal Notice No.11 of 1996) rule 82(3)
  • Court of Appeal Rules Directions 1996 (Legal Notice No.11 of 1996) rule 101(b)
  • Civil Procedure Act s.78
  • Civil Procedure Act s.101
  • Civil Procedure Rules O.42
  • Civil Procedure Rules O.16 r.10
  • Judicature Statute No.13 of 1996 s.12
  • Constitution of Uganda Article 59(1)
  • Constitution of Uganda Article 59(2)
  • Constitution of Uganda Article 78(1)

Cases cited (18)

  • Makula International Ltd vs. His Eminence Cardinal Nsubuga and Another (1982) HCB 11
  • Zziwa vs Nabagesera Misc application No.9/96 (CA) (unreported)
  • Noble Builders (U) Ltd v Sietco (Civil Appeal No. 31 of 1995)
  • Ude v NIC and Another (Civil Appeal No. 28 of 1995)
  • Margaret Zziwa v Catherine Naava Nabagesera (Civil Appeal No. 34 of 1996)
  • Jeninah Ntabgoba v Kwera Stella Ngirabakunzi (Civil Appeal No. 41 of 1997)
  • Edward Kamana Wesonga vs Interim Electoral Commission and 7 others - Civil Application No.27 of [year] - CA (unreported)
  • J. Hannington Wasswa and others v Maria Ochola and 3 others (Civil Appeal No. 5 of 1995)
  • Registered Trustees of Kampala Institute v DAPCB (Civil Appeal No. 21 of 1993)
  • Samuel W. Muyonga v Muldi Mutonje (Civil Appeal No. 29 of 1996)
  • Mbowe v Eliufoo [1967] E.A. 240
  • Bater v Bater [1950] 2 All E.R. 458
  • Clement Tibarokora vs. the Returning Officer, Rukungiri District and Anor (unreported) Election Petition No. 1 of 1981
  • Z.C Ilokol vs Returning Officer and William Naburi Election Petition No. 1 Of 1996
  • Alisemerera Babiiha Jane Vs. Returning Officer Bundibugyo and Hon. Bikorwenda Ida Election Petition No. MFA 1 of 1996
  • Odetto Henry John vs Okedo O'Max Election Petition NO. NP 1 of 1996
  • Adam Vassiliadis v Libyan Arab (U) Bank for Foreign Trade and Development Ltd (Civil Appeal No. 10 of 1990)
  • Zaitune Kawuma v George Mwa Lurum (Civil Application No. 3 of 1996)

Full judgment

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The Returning Officer Kampala and 2 Others v Nabagesera (CIVIL APPEAL NO.39 2007) [1998] UGCA 60 (13 February 1998)
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.