Wakilii

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

Court of Appeal · [1998] UGCA 61 · 1998 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated civil appeals from a High Court decision nullifying the election of a women parliamentary representative
Decision
Appeal allowed; nullification of the 3rd appellant's election set aside and the 3rd appellant declared duly elected

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed consolidated appeals against nullification of the election of the Kampala District women representative. It held the appeals were within time once the period for preparing the High Court record was excluded under rule 82(2). Interlocutory orders could be challenged within an appeal against the final decision without separate leave. On the merits, the trial judge misdirected himself: Statute No.4 of 1996 envisaged two registers, and the Electoral College register under rule 4(1) of the Third Schedule need not be vetted against the national voters' register, nor were voters' cards a legal requirement for women representative elections. The election was conducted lawfully, so the nullification was set aside.

Outcome

Appeal allowed; nullification of the 3rd appellant's election set aside and the 3rd appellant declared duly elected

Facts

The Interim Electoral Commission conducted elections for Women Parliamentary representatives on 20 June 1996. In Kampala District, Margaret Zziwa (3rd appellant) and Catherine Naava Nabagesera (respondent) contested the women representative seat, supervised by the Town Clerk as Returning Officer. Zziwa was declared the winner, published in the Uganda Gazette of 28 June 1996. Before publication, the respondent filed an election petition challenging the election on grounds including non-compliance with electoral laws. The trial judge (Tabaro, J) allowed the petition, finding that the elections were conducted contrary to Statute No.4 of 1996 because the Electoral College register had not been incorporated into the national voters' register and voters' cards were not used. He nullified the election. The appellants challenged this, arguing the Statute envisaged two distinct registers and that voters' cards were not a legal requirement for women representative elections conducted via an Electoral College under the Third Schedule.

Issues

  1. Whether the appeals were filed out of time and the court lacked jurisdiction to entertain them.
  2. Whether grounds of appeal against interlocutory orders could be included in an appeal against the final decision in an election petition without separate leave.
  3. Whether the Electoral College register prepared under rule 4(1) of the Third Schedule must be vetted against the national voters' register under section 18 of Statute No.4 of 1996.
  4. Whether a voters' card was a legal requirement in the election of women representatives.
  5. 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 appellants' costs of the appeal here and in the court below.

Rules and key headnotes

Election Petitions — Computation of Time — Exclusion of Period for Preparing Record of Appeal
Where an appellant applies in writing within thirty days for a copy of the High Court proceedings and serves it on the respondent, the time certified by the Registrar as required for preparing and delivering that copy is excluded when computing the time within which to lodge an election petition appeal.
Election Petitions — Appeals — Interlocutory Orders Argued in Appeal Against Final Decision
Grounds of appeal challenging interlocutory orders or decisions made in the course of a hearing may properly be included in an appeal against the final decision, without separate leave, to avoid a multiplicity of appeals.
Plain Meaning Rule — No Reading of Words Into a Clear Statute
Where the words of a statute are clear and unambiguous they must be given their ordinary and natural meaning, and it is wrong to read into an Act words which are not there in the absence of clear necessity.
Women Representative Elections — Electoral College Register — Distinction from National Voters' Register
The Electoral College register prepared under rule 4(1) of the Third Schedule to Statute No.4 of 1996 need not be vetted against, or incorporated into, the national voters' register under section 18; the two registers are distinct and the women representative election is governed by section 37 and the Third Schedule.
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 for the election of women representatives conducted via an Electoral College, where the Commission may devise other means of voter identification under the Third Schedule.
Election Petitions — Standard of Proof — Beyond Reasonable Doubt
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 remains, and the requirement that non-compliance affected results 'in a substantial manner' raises the standard further.

Legislation cited (25)

  • 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
  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 Third Schedule Rule 3
  • Parliamentary Elections (Interim Provisions) Statute No.4 of 1996 Third Schedule Rule 4
  • Parliamentary Elections (Election Petitions) Rules 1996 (S.I. No.27 of 1996) r.19
  • Parliamentary Elections (Election Petitions) Rules 1996 (S.I. No.27 of 1996) r.31
  • Parliamentary Elections (Election Petitions) Rules 1996 (S.I. No.27 of 1996) r.32
  • Parliamentary Elections (Election Petitions) Rules 1996 (S.I. No.27 of 1996) r.36
  • Court of Appeal Rules Directions 1996 (Legal Notice No.11 of 1996) r.81
  • Court of Appeal Rules Directions 1996 (Legal Notice No.11 of 1996) r.82(2)
  • Court of Appeal Rules Directions 1996 (Legal Notice No.11 of 1996) r.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) and (2)
  • Constitution of Uganda Article 78(1)

Cases cited (18)

  • Makula International Ltd vs. His Eminence Cardinal Nsubuga and Another (1982) HCB 11
  • Zziwa v Nabagesera (Miscellaneous Application No. 9 of 1996)
  • 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 v Interim Electoral Commission and 7 Others (Civil Application No. 27 of 1997)
  • 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 Mukidi Mutonje (Civil Appeal No. 29 of 1996)
  • Mbowe v Eliufoo [1967] EA 240
  • Bater v Bater [1950] 2 All ER 458
  • Clement Tibarokora v Returning Officer Rukungiri District and Another (Election Petition No. 1 of 1981)
  • Ilokol v 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 61 (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.