THE REPUBLIC OF UGANDA
IN THE SUPREME OF UGANDA
(CORAM: ODOKI, C.J, TSEKOOKO, MULENGA, KANYEIHAMBA, KATUREEBE, JJ.S.C.)
ELECTION PETITION APPEAL NO. 21 OF 2007
1. FRED BADDA :::::::::::::::::::::::::::: APPELLANTS
2. ELECTORAL COMMISSION
PROF. MUYANDA MUTEBI ::::::::::::::::::::::::::::: RESPONDENT
(An appeal arising from the judgment and orders of the Court of Appeal (Okello, Mpagi Bahigeine and Byamugisha, JJA) dated 21st May, 2007 in Election Petition Appeal No. 25 of 2006)
JUDGMENT OF KANYEIHAMBA, J.S.C
This is a second election petition appeal from the judgment and orders of the Court of Appeal which dismissed the appellant’s appeal against the judgment and orders of the High Court held at Masaka (Maitum, J.)
No. 002 of 2006.
The background to this appeal is as follows:-
Parliamentary elections were held throughout the country on 23rd February 2006. Fred Badda, the first appellant, Professor Muyanda Mutebi the respondent and the one Andrew Kulazikulabe were some of the contestants for the Parliamentary seat for Bujumba country, Karangala District. The Electoral Commission declared the 1st appellant winner with 3,316 votes while the respondent was runner–up with 3,292 of the total votes cast.
Dissatisfied with the results, the respondent petitioned the High Court challenging the results. He joined the 2nd appellant alleging it had failed to conduct the elections in the Constituency in accordance with the law.
The High Court dismissed the petition. The appellants appealed to the Court of Appeal which dismissed the appeal. Hence, this appeal.
Before dealing with the issues raised in this appeal, I am constrained to observe that the record of appeal prepared and filed by counsel for the appellant offends against the rules of this court. The written submissions by counsel also offend against the guidelines issued by the learned Chief Justice regarding the length and format of written submissions under Rule 94 of the rules of this court. For the purposes of understanding and clarity, Rule 82 of the rules provided that;
“A Memorandum of Appeal shall set forth concisely and under distinct head, without arguments or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided and the nature of the order it is proposed to ask the court to make”.
The list of particulars contained in what Counsel call index and their contents immediately reveals non-compliance with those rules. The record of appeal itself is compiled in some seven hundred and sixty nine pages which, in my opinion, goes far beyond the realms of the rules of the court. It is inconceivable that the record of proceedings should also incorporate the number of authorities to be cited in the appeal, contrary to the Chief Justice’s guidelines on written submissions.
The first appellant’s written submission dated and filed in this court on the 23rd January, 2008 contain numerous pages including those which are smuggled in by such phrases as see pages 620, 621, 320 of our record or we adopt the submissions in the lower courts as appear on pages 667 – 685, 761 and 357-432 of the Court of Appeal and High Court respectively. To compound the error, the written submissions incorporate some 13 authorities with many of them reproduced while on others, the record of proceedings is conspicuously silent. There seems to be lack of seriousness and knowledge on the part of some counsel as to how appeals to this court, the highest and final court of appeal in our jurisdiction should be presented. In my opinion, the record of appeal before this court is not intended to contain everything that occurred before and during the proceedings in both the elections, High Court and the Court of Appeal, except in so far as they are pertinently relevant to the issues and grounds framed for the determination of an appeal. For instance, I can see no purpose in including the Uganda Gazette in the record of proceedings since what it contains is not a material particular in this appeal.
A glance at the four grounds of appeal shows quite clearly that the whole appeal hinges on whether or not the appellant committed the electoral offence of bribery. Thus, the grounds of appeal are framed as follows:
1. The Learned Justices of the Court of Appeal failed to properly reevaluate the relevant evidence regarding the alleged bribery and electoral malpractices thereby reaching a wrong decision that the election results were substantially affected.
2. The learned Justices of the Court of Appeal erred in law and fact in holding that the prize of a cow to the runner up team in the Badda cup tournament amounted to a bribe within the meaning of the Parliamentary Election Act 2005.
3. The learned Justices of the Court of Appeal erred in law and fact in holding that the appellant and his agents offered monetary bribes to voters at Lutoboka and Bidico.
4. The learned Justices of the Court of Appeal erred in law and fact in holding that the appellant’s agents indulged in bribery and massive multiple voting which affected the results in a substantial manner.
In my opinion, the only ground in the Court of Appeal which appears to have been relevant was ground 3 in that court which read as follows:
“3. Whether the 1st respondent committed any election offences or illegal practices within the meaning of the PEA either by himself or through other persons with his knowledge or consent or approval”.
It is inattentiveness on the part of counsel to include ground 4 in the Memorandum of appeal stating that the Court of Appeal erred in law and fact in holding that the appellants’ agents indulged in massive multiple voting which affected the results in a substantial manner when the grounds containing that allegation were unanimously dismissed by the learned Justices of Appeal. Thus, in her lead judgment on this matter, Bahigeine – Mpagi, J.A, having considered the appellant’s complaints in grounds 4, 7, 8 and 9 and the respondent’s responses, allowed these grounds in favour of the appellant. It is baffling as to how counsel for the appellant would now again make that issue a ground of appeal in this court. The result of my observations is that, in my opinion, the only issue to be determined by this court is whether or not the appellant committed the electoral offence of bribery. Had counsel for the appellant identified this as the only matter to be determined by this court, a lot of expenses and time would have been spared.
I now come to the matter of bribery and electoral malpractices. It is the appellant’s counsel’s submission that both the High Court and the Court of Appeal erred in law and fact in finding and holding that there had been bribery and electoral malpractices.
The concurrent findings of the High Court and Court of Appeal on the facts were as follows: The learned trial judge said in his findings.
“I am satisfied with the evidence of PG and have taken not of