Wakilii

Waligo Aisha Nuluyati v Ssekindi Aisha and Another (Election Petition Appeal No.29 of 2016)

Court of Appeal · [2017] UGCA 185 · 2017 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court dismissal of a parliamentary election petition
Decision
Appeal dismissed; election of the 1st respondent as Woman Member of Parliament for Kalungu District upheld

Observed later treatment

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Holding

The Court of Appeal held that the standard of proof in a parliamentary election petition is the balance of probabilities under section 61(3) of the Parliamentary Elections Act, and the trial Judge erred by relying on the higher Kiiza Besigye v Museveni standard applicable only to presidential petitions. It also held that once a petitioner raises doubt about the genuineness of academic qualifications, the evidential burden shifts to the candidate under section 106 of the Evidence Act. Nonetheless, applying the correct lower standard, the appellant failed to prove her case: the 1st respondent held valid qualifications and a Certificate of Equivalence issued in consultation with UNEB, and the bribery allegations were not proved. The appeal was dismissed.

Outcome

Appeal dismissed; election of the 1st respondent as Woman Member of Parliament for Kalungu District upheld

Facts

The 2nd respondent conducted parliamentary elections on 18 February 2016 for the Kalungu District Woman Member of Parliament seat. The 1st respondent was declared winner with 19,884 votes against the appellant's 16,819 votes, and was gazetted on 3 March 2016. The appellant petitioned the High Court to annul the election, alleging the 1st respondent lacked the requisite academic qualifications, uttered false academic documents, lacked a valid Certificate of Equivalence from NCHE, and committed bribery. The 1st respondent's academic documents bore discrepancies in the spelling of her name (Sekindi Isa / Ayisa / Aisha), which she explained by a headmaster's registration error and a school spelling correction. NCHE issued her a fresh Certificate of Equivalence in 2015 after correspondence with UNEB. The bribery allegations concerned gifts of goats, money, basins and soap at a football tournament and a rally. The High Court dismissed the petition, and the appellant appealed.

Issues

  1. Whether the trial Judge erred in law by placing a higher burden and standard of proof on the petitioner than the balance of probabilities required under the Parliamentary Elections Act.
  2. Whether the trial Judge erred in holding that the 1st respondent possessed the minimum academic qualifications for nomination and election as a Member of Parliament.
  3. Whether the trial Judge erred in holding that the National Council for Higher Education duly and lawfully equated the 1st respondent's academic qualifications.
  4. Whether the trial Judge erred in holding that the 1st respondent was not guilty of bribery.
  5. Whether the trial Judge erred in failing to evaluate the evidence properly and thereby reaching a wrong conclusion.

Orders

  • Ground 4 of the appeal (standard of proof) allowed.
  • Grounds 1, 2, 3 and 5 of the appeal dismissed and the decision and orders of the High Court upheld.
  • The appeal dismissed.
  • The 1st and 2nd respondents awarded three-quarters of the costs of the appeal and full costs of the court below.

Rules and key headnotes

Election Petitions — Standard of Proof — Parliamentary v Presidential Elections
The standard of proof in a parliamentary election petition is the balance of probabilities as prescribed by section 61(3) of the Parliamentary Elections Act, and it is wrong to apply the higher standard set in Kiiza Besigye v Museveni, which is confined to presidential election petitions where no statutory standard is prescribed.
Burden of Proof — Shifting Evidential Burden — Facts Especially Within a Person's Knowledge
Where a petitioner adduces evidence that raises a genuine doubt about the authenticity of a candidate's academic qualifications, the evidential burden shifts to the candidate under section 106 of the Evidence Act to prove the qualifications are genuine and belong to her, as those facts are especially within her knowledge.
Qualifications for Parliament — Certificate of Equivalence — Consultation with UNEB
A Certificate of Equivalence issued by the National Council for Higher Education is valid where UNEB has been given a real opportunity to express its views and has responded, even by concurring with NCHE's position; the requirement to consult UNEB does not prevent NCHE from holding its own opinion, and a fresh certificate issued for each election cycle satisfies the law.
Electoral Offences — Bribery — Standard of Proof and Credibility of Witnesses
To set aside an election for bribery under sections 61(1)(c) and 68(1) of the Parliamentary Elections Act, the petitioner must prove to the satisfaction of the court, on a balance of probabilities, that a gift or consideration was given to voters with intent to influence their vote; contradictory and non-cogent evidence will not discharge that burden.
Affidavits — Defective Oath — Section 6 Oaths Act
Affidavits are a nullity where there is no credible evidence that an oath was properly administered, and where the person alleged to have administered the oath differs from the commissioner named on the affidavit, rendering the affidavits fatally defective under section 6 of the Oaths Act.
Appellate Review — Re-appraisal of Evidence — Deference to Trial Judge on Demeanour
A first appellate court must re-appraise the evidence and draw its own inferences, but where a finding turns on the manner and demeanour of witnesses observed by the trial Judge, the appellate court, not having seen the witnesses, should be guided by the trial Judge's impressions absent exceptional circumstances.

Legislation cited (10)

Cases cited (13)

  • Toolit Simon Akecha v Oulanyah Jacob L'Okori (Election Petition Appeal No. 19 of 2011)
  • Kiiza Besigye v Museveni (Presidential Election Petition No. 1 of 2001)
  • Paul Mwiru v Igeme Nathan Nabeta (Election Petition Appeal No. 2 of 2011)
  • Balingira Abdul Nakendo v Patrick Mwondha (Election Petition Appeal No. 10 of 2007)
  • Electoral Commission and 3 Others v Chelimo Nelson Kaprokuto (Election Petition Appeal No. 33 of 2011)
  • Butime Tom v Muhumuza David and Another (Election Petition Appeal No. 11 of 2011)
  • Interfreight Forwarders Ltd v East African Development Bank (Civil Appeal No. 33 of 2011)
  • Rollo & another vs Minister of Town and Country Planning [1947] 2 ALL 488
  • Kirunda Kivejinja v Katuntu Abdul (Election Petition Appeal No. 24 of 2006)
  • Fr. Narsensio Begumisa v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya vs R [1957] EA 33
  • Masiko Winfred Komuhangi v Babihuga Winnie (Election Petition Appeal No. 9 of 2002)

Full judgment

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Waligo Aisha Nuluyati v Ssekindi Aisha and Another (Election Petition Appeal No.29 of 2016) [2017] UGCA 185 (3 April 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.