Wakilii

Tubo Christine Nakwong v Akello Rose Lilly (Election Petition Appeal No. 80 of 2015)

Court of Appeal · [2017] UGCA 184 · 2017 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court judgment annulling parliamentary election
Decision
Appeal dismissed; High Court order annulling the appellant's election and directing fresh elections upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that while the trial Judge erred in failing to expunge 24 affidavits filed late and without leave of court, this error did not vitiate the trial because those affidavits related only to the assault and intimidation allegations, which were dismissed by the trial Judge. On bribery, the Court found the trial Judge properly evaluated the largely unchallenged affidavit evidence and was justified in concluding that bribery was proved at several locations to the required standard. The Court reaffirmed that even one credible witness can prove a fact and a multiplicity of bribery incidents is not required to annul an election. The appeal was dismissed with costs and the lower court orders annulling the election were upheld.

Outcome

Appeal dismissed; High Court order annulling the appellant's election and directing fresh elections upheld

Facts

During the 18 February 2016 general election, the appellant, the respondent and a third candidate contested the Kaabong District woman Member of Parliament seat. The Electoral Commission returned the appellant as the validly elected member with 19,460 votes against the respondent's 19,344 votes, and the appellant was gazetted on 3 March 2016. The respondent petitioned the High Court at Soroti alleging irregularities, non-compliance with the law and electoral offences including bribery and assault. The respondent obtained leave to file one extra affidavit but filed 24, served on the appellant on 28 May 2016. The trial Judge admitted the 24 affidavits and, after counsel agreed to close pleadings and abandon cross examination, relied on some affidavits. The High Court found bribery proved at several locations, allowed the petition, set aside the election and ordered fresh elections. The appellant appealed.

Issues

  1. Whether the appellant was denied a fair hearing when the trial Judge admitted 24 affidavits filed out of time and relied on some of them.
  2. Whether the trial Judge properly evaluated the evidence and was justified in finding that the offence of bribery had been proved against the appellant.
  3. Whether the trial Judge erred in attributing the conduct of supporters under section 80 of the Parliamentary Elections Act to the appellant.

Orders

  • Ground one partially succeeds to the extent that the trial Judge did not expunge the 24 late affidavits.
  • Ground three dismissed.
  • Ground four dismissed as misconceived.
  • Appeal dismissed with costs.
  • Orders of the lower Court upheld.

Rules and key headnotes

Affidavit Evidence — Affidavits Filed Without Leave — Duty to Expunge
Where affidavits are filed late and without leave of court and a party has not been granted an opportunity to reply to or cross examine on them, a trial court should expunge such affidavits from the record, and reliance on them is an error prejudicial to the affected party.
Procedural Irregularity — When Error Does Not Vitiate Trial
An error in failing to expunge improperly admitted affidavits does not vitiate the whole trial where the affidavits related only to allegations that were ultimately dismissed and therefore had no bearing on the final outcome of the petition.
Bribery — Standard and Sufficiency of Proof
There is no specific number of witnesses required to prove the offence of bribery; even one credible witness can prove the offence, and a multiplicity of bribery incidents is not required to annul an election.
Unchallenged Affidavit Evidence — Effect of Bare Denial
Where affidavit evidence remains unchallenged and uncross-examined, and a rebuttal amounts only to a general denial, the trial court is entitled to believe the unchallenged evidence.
Grounds of Appeal — Issue Resolved Favourably Cannot Found Appeal
An issue resolved in a party's favour at first instance cannot form a ground of that party's appeal and any such ground is misconceived and liable to dismissal.

Legislation cited (5)

Cases cited (6)

  • Hellen Adoa and Electoral Commission v Alice Alaso (Election Petition No. 54 of 2016)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Fr. Narsensio Begumisa and Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Kikulukunya Faisal v Muwanga Kivumbi Mohammed (Election Petition Appeal No. 44 of 2011)
  • Col. Kizza Besigye v Yoweri Kaguta Museveni and Another (Presidential Election Petition No. 1 of 2001)

Full judgment

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Tubo Christine Nakwong v Akello Rose Lilly (Election Petition Appeal No. 80 of 2015) [2017] UGCA 184 (15 June 2017)
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.