THE REPUBLIC OF UGANDA

IN THE SUPREME OF UGANDA

AT MENGO

(CORAM: ODOKI, C.J., TSEKOOKO, MULENGA, KANYEIHAMBA, KATUREEBE, JJ.S.C.)

ELECTION PETITION APPEAL NO. 11 OF 2007

BETWEEN

KAKOOZA JOHN BAPTIST :::::::::::::::::::::::::::: APPELLANT

AND

1. ELECTORAL COMMISSION

2. YIGA ANTHONY ::::::::::::::::::: RESPONDENTS

(An appeal arising from the judgment and orders of the Court of Appeal at Kampala (Okello, Engwau and Byamugisha, JJA) dated 19^th January, 2007 in Election Petition Appeal No. 16 of 2006)

JUDGMENT OF KANYEIHAMBA, J.S.C

________________________________________________

This is a second election petition appeal from the Court of Appeal which dismissed the appellant’s appeal against the judgment and orders of the High Court at Masaka (Mugamba, J) dated the 22^nd September, 2006 in election petition No. 006 of 2006.

The background and facts of the appeal may be summarized as follows:

In the Parliamentary elections that were held throughout the country on the 23^rd February 2006, the appellant, the second respondent and three other candidates contested for the parliamentary seat of Kalungu Constituency in the Masaka District. The second respondent was declared the successful candidate with 9,411 votes and the appellant was declared the runner up with 8,602 votes. The appellant was dissatisfied with the declared results and particularly those from the sub-county of Kyamuliibwa. He alleged that the elections in that sub-county were conducted contrary to the provisions of the Constitution, the Electoral Commission Act and the Parliamentary Elections Act. He claimed that non-compliance with these laws affected the outcome of the elections in Kyamuliibwa in a substantial manner. He further claimed that the total number of ballot papers counted at the end of the polling exercise did not tally with the number of the ballot papers received from the Electoral Commission at the beginning of the same election exercise. He alleged that there was non compliance with the principles of freedom and fairness in the election exercise and that the declaration of the results was tainted with fraud, intrigue and bad faith on the part of both respondents. He also alleged that he was denied representation at the polling stations during voting, counting of votes and at the declaration of the results.

The appellant subsequently petitioned the High Court at Masaka seeking an order to nullify the election of the second respondent. The respondents denied all the allegations listed in the petition and on hearing all the parties on the issues agreed between them as requiring determination, the High Court dismissed the petition. The appellant’s appeal to the Court of Appeal was dismissed. Hence this appeal.

The Kalungu West Constituency consists of two sub-counties, namely, Kalungu and Kyamuliibwa. In the High Court, it was common ground between the parties that elections in Kalungu had been conducted properly and the results as declared from there were acceptable to both appellant and respondents. In relation to the conduct of elections, voting and declaration of results in Kyamuliibwa, the following issues were framed for determination by the court:

1. Whether there was any non-compliance with the relevant laws and the principles laid therein.

2. If so whether such non-compliance affected the results in a substantial manner.

3. Whether any illegal or any offence was committed in connection with the said election by the second respondent personally or by any other person with his knowledge and consent or approval.

4. What remedies would be available to the parties?

Mugamba, J. heard the petition and answered all the agreed issues in the negative, holding that none had been proved to the satisfaction of the court.

The Memorandum of Appeal in this court contains 5 grounds of appeal framed as follows;

1. The learned Justices of Appeal erred in law and fact when they failed to hold that the events of Kyamuliibwa sub-county violated electoral laws and affected the results in a substantial manner.

2. The learned Justices of Appeal erred in law and fact when they failed to find that the 1^st respondent did not discharge its statutory duty to hear and determine the appellant’s written complaint before announcing the results.

3. The learned Justices of Appeal erred in law and fact when they rejected the evidence of the DR forms.

4. The learned Justices of Appeal erred in law and fact in holding that the Appellant’s Affidavit in rejoinder was incompetent.

5. The learned Justices of Appeal erred in law when they failed in their duty to reevaluate the evidence on record.

At the hearing of the petition, it was common ground again that the results from Kalungu sub-county with 38 polling stations were not in dispute. The appeal would therefore be confined to the conduct, voting and declaration of the results in respect of the Kyamuliibwa sub-county with 23 polling stations.

Counsel for the parties filed written submissions in support of and against the appeal. On ground 1 and for the appellant, Messrs. Ambrose Tebyasa and Company Advocates, contend that the Court of Appeal erred in both law and fact in failing to hold that the events during and after elections in Kyamuliibwa sub-county violated the provisions of the Uganda electoral laws. Counsel relied on the affidavits of the appellant himself, of Joseph Kakande, Rashida Nanzira, Grace Nalumaga, Andrew Kagwa Bbuye and Robert Bballe. Counsel contend that the High Court and the Court of Appeal ignored the clear evidence that ballot boxes in Kyamuliibwa sub-county had been interfered with. This is the evidence that the said affidavits contain. Counsel further contend that the declaration of the results in Kyamuliibwa sub-county had been delayed considerably because of the misconduct of the elections and the rigging of the results as had been observed in the sub-county and as exemplified by the testimony of the deponents of the affidavits already referred to. Interference with the election exercise had been detected by witnesses who believed that there had been foul play in the election exercise and the declaration of results. Counsel contend further that following the breaches of the electoral laws, the presiding officer for Kalama polling station, David Nyombi and his assistant Nagirinya were arrested and charged together with one Karim Sendi for opening ballot boxes and interfering with election materials, contrary to Section 76 of the Parliamentary Election Act. Counsel criticised the Court of Appeal for dismissing the affidavits and other evidence in support of the appellant as unreliable or insufficient. Counsel contend that the findings by the courts below was against the weight of evidence which was overwhelming.

On ground 1, Counsel for the respondents opposed the submissions in support of the appellant’s case. Counsel supported the findings and decisions of both the High Court and the Court of Appeal. According to Counsel’s view, the appellant failed to justify his contentions by credible evidence. Counsel contended that the record shows that results were declared at all polling stations in the Constituency and the report of poll watchers and the candidate’s agents confirm this state of affairs.

Counsel, conceded that one ballot box at Kalama polling station which was delivered to the Kyamuliibwa sub-county was found open. However, Counsel contended that no evidence had been presented to prove that either the actual results in that box or in any other in the whole Constituency had been interfered with or altered. The officials concerned gave a satisfactory explanation as to why that single ballot box had been found open and the courts below accepted the explanation. Counsel submitted that the appellant had failed to prove that either foul play had occurred or that any acts of the respondents or their appointed agents had in anyway violated the electoral laws or altered the results in anyway or in a substantial manner. The affidavits of Wamala J.B, Nyombi, Karim Ssendi and of independent witness Rutebemberwa all confirm that whereas only one box had been opened, there is no evidence as to who, when and where that box was opened, let alone any evidence that the votes in it had been tampered with. Counsel further contended that results from a polling station for purposes of declaring a result are not those contained in a polling box but the ones already counted and certified in a separate DR Form, sealed in an envelope at the polling station and dealt with under Section 50(1)(c) of the Parliamentary Elections Act.

Counsel contend that the appellant had failed to produce any witnesses including his agents who could suggest or show that the contents of that single polling box had been interfered with. Counsel further contend that the evidence contained in the appellant’s witnesses’ affidavits is based on speculation and was intended to please the appellant and not satisfy the court. In consequence, Counsel contend that the courts below were right not to rely on it and to dismiss the petition.

I am constrained to observe that ground 1 of this appeal is a vague and generalized ground in so far as it requires this court to fault the Court of Appeal for failing to hold that the events at Kyamuliibwa sub-county violated electoral laws and affected the results in a substantial manner which begs the question – what events? The rules of this court on what grounds of appeal must contain are clear. Rule 82(1) provides as follows:

“A Memorandum of Appeal shall set forth concisely and under distinct heads without argument 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 which it is proposed to ask the court to make”.

Be that as it may, in so far as the conduct of the elections, the counting of votes and declaration of the results in Kyamuliibwa sub-county are concerned, I am satisfied that the learned trial Judge and the Justices of Appeal adequately considered the appellant’s complaints about the same, and resolved them correctly. Thus, in his lead judgment, Okello, J.A., as he then, was having examined the evidence and the witnesses’ testimony in detail, concluded:

“It is interesting to note that none of these eye witnesses vouched for any change of the results from a particular figure to another in favour of the second respondent. Only Messrs Joseph Kakande and Robert Bbaale alluded to the fact that there were other open ballot boxes in another room within the sub-county headquarters. There was really no credible evidence to support this claim. The credibility of this claim was further weakened when Bbaale stated that it was dark then as there were no electric lights. In that poor lighting condition, visibility was obviously poor. Without other supporting evidence regarding the presence of other open ballot boxes in another room, it was not safe to believe the claim of those two witnesses. I therefore do not fault the trial judge for describing the evidence of the eye witnesses as cosmetic. Their evidence did not address the issue of the change of the results in favour of the second respondent as alleged”

It is worth noting that with the declared results in the constituency, the difference in votes obtained by the respondent, the eventual winner and the appellant, one of the losers, is over 800 votes. At the polling station where the appellant claims irregularities, annexture B16 to his affidavit reveals the following: The valid votes allegedly cast at that polling station were 231. The rejected votes were 5. The total votes accounted for at this particular polling station were 236.

However, the annexture further reveals that the total number of ballot papers issued at the station was 234, an extra 2 ballot papers. The information is apparently obtained from one of the forms signed by the returning officer. It is on these figures that 2^nd respondent was declared elected. Subsequently, the appellant submits that this discrepancy itself is an example of fraud. The appellant gives other examples but none of them indicate clearly whether the results were altered or indeed fraud was committed by anyone. I am therefore not persuaded by counsel for the appellant that the learned Justices of Appeal erred in law or fact or that they failed to reevaluate the evidence of events at Kyamuliibwa in order to discover that these events constituted gross irregularities which were enough to vitiate the results for the whole sub-county.

There is the evidence of a single box at Kalama polling station which was found open. This irregularity was fully explained by credible witnesses as never intended to alter the cast votes for any of the candidates. I agree with the concurrent findings of the learned trial Judge and the Justices of Appeal that that evidence alone cannot vitiate the election results of the whole constituency.

However, it must be said that tampering with sealed electoral boxes after the votes have been cast and counted is a serious offence and ought to be condemned. Nevertheless, to vitiate the results, the appellant needs to prove that the phenomenon he complains of had extended beyond one polling station and affected more than one ballot box or was of such nature as to affect the results substantially in the constituency. In my opinion, the appellant has failed to do so. Therefore ground 1 of this appeal ought to fail. In my view, the disposal of this ground disposes of ground 2. In any event, I agree with counsel for the respondent that the contents of ground 2 of this appeal did not come up for adjudication nor were they canvassed in the High Court. Lastly, the failure of ground 1 necessarily exonerates the first respondent. I do not find it necessary to consider ground 2.

On ground 3, it is the appellant’s contention that the learned Justices of Appeal erred in law when they confirmed the decision of the learned trial judge rejecting the evidence of the DRForms. He contends that copies of the DRForms consisting both of those obtained by his agents and those supplied by the Returning Officer were annexed to the affidavit of the appellant and the copied forms together with appellant’s affidavit were admitted at the scheduling conference in the High Court by consent of both parties. It is contended on behalf of the appellant that the annexed copies of the DRForms show clearly that there were discrepancies and irregularities relating to the voting and declaration of results in the constituency which were brought to the attention of the lower courts which should have been sufficient to vitiate the results in the constituency.

Counsel for the appellant contends that since these forms were not challenged, they should have been accepted by the High Court and the Court of Appeal as containing the truth. Counsel contends that some of the witnesses of the respondents admit to the truth of what is contained in and the nature of these forms even though they claim they had been too busy to sign them. It is further contended that whereas the respondents relied on them to declare and accept the results those forms contained, the appellant was refused to rely on them to prove his case because it is said they were uncertified contrary to the provisions of the Evidence Act and yet the same court had held in the case of Abdu Katuntu v. Kirunda Kivejinja, Election Petition Appeal No. 24 of 2006 that the Evidence Act does not apply to affidavit evidence. Counsel for the appellant contended that this case was similar to that in Life Insurance Corporation of India v.Panesar, Civil Appeal No. 1 of 1967 where it was said that:

“Unless otherwise provided for by a written law, the rules of evidence do not apply to affidavit. There being no such written law, the best evidence rule does not apply to affidavit.”

Counsel for the appellant submitted in the alternative that even if there was such a law, Section 64(1)(a) of the Evidence Act should apply to the effect that since the originals of DRForms are in possession of the first respondent who is a party against whom they were sought from and who refuses to produce them, they should be held as proved against that party. Counsel cited the decision in Bwanika & 9 Others v. The Administrator General, S.C.C No. 7 of 2003 in which it was held that documents which are admitted in a scheduling conference will thereafter become part of the record and it is only their content that can be challenged. Counsel also cited Amama Mbabazi v. Garuga Musinguzi, Court of Appeal, Election Petition Appeal No. 1 of 2001 in which the Court of Appeal invalidated an affidavit for lack of signature.

For the Respondents, Counsel supported the decisions of the courts below. He contended that those courts were correct to hold that the DRForms were defective and there was no evidence to support their validation. Counsel contended that the DRForms were not only defective on the face of the record but their copies presented to court were uncertified. Counsel further contended that the Justices of Appeal were correct to rely on the provisions of the Evidence Act. DRForms are public documents which need to be authenticated by a relevant officer. Counsel contends further that the claim for the appellant that he asked for the supply of certified copies of the DRForms, which were denied to him, entitles him to rely on the uncertified copies. However, counsel for the respondents contends that that is not the correct position as it is not supported by any evidence. Counsel submits that in the absence of such certification, the use of such forms in court cannot be justified. Counsel distinguished the case of Life Insurance Corporation of India v. Panesar (supra) by showing that the rule in that case is distinguishable because it was dealing with an interlocutory matter as opposed to a substantive issue as in this appeal.

The opinion expressed in Life Insurance Corporation of India

V Panesar (supra) is that:

“Unless otherwise provided for by a written law, the rules of evidence do not apply to affidavit. There being no such written law, the best evidence rule does not apply to affidavit.”

In my opinion therefore, rules that apply to affidavit evidence do not necessarily apply to annextures to those affidavits. The reason for this view is that the affidavit contains the facts to which the deponent swears to be true because he or she has personal knowledge of them. This cannot always be true of annextures to affidavits. A non-certified DRForm cannot be validated by the mere fact that it is annexed to an affidavit. A DRForm is a public document within the meaning of section 73(a) (ii) of the Evidence Act. It requires certification if it is to be presented as an authentic and valid document in evidence. Consequently, I agree with Okello, J.A. where in his lead judgment he opines that Rule 15 of the Parliamentary Elections (Election Petitions) Rules, 1996, does not prohibit or indeed conflict with section 76 of the Evidence Act which provides that the contents of public documents or parts thereof are to be proved by certified copies. I also agree with the learned Justice of Appeal when he opines that the appellant could have provided the uncertified copies of the DRForms if he had given notice to the Electoral Commission to produce copies of all the declaration forms from the sub-county but it failed to do so. There is no evidence that the appellant had given such notice to the Electoral Commission nor applied through court for the Electoral Commission to produce at the trial the DRForms for all the polling stations in Kyamuliibwa sub-county.

In my opinion therefore, the courts below cannot be faulted for holding that the uncertified copies of DRForms annexed to the affidavit of the appellant were inadmissible as evidence.

On the contention that the returning officer or his agents failed to sign declaration forms, I agree with counsel for the appellant that it is a statutory requirement for the presiding officer at an election polling station to sign the DRForms and to fulfil all the requirements contained in Section 50 of the Parliamentary Elections Act, 2005. However, I do not agree that it is obligatory that each candidate or his or her election agent must first be supplied with or receive a copy of every declaration form before all the results are declared and validated. In my view, the election results should be declared immediately after the count and the signature of the DRForms by the returning officer and other relevant persons in accordance with the relevant laws. I am not persuaded that the Court of Appeal erred in relation to the issues raised in ground 3. It therefore ought to be dismissed.

On ground 4, the substance of the appellant’s submissions is that the courts below erred in both law and fact when they rejected the appellant’s affidavit in rejoinder. In the Court of Appeal, the complaint was contained in ground 4 of the appeal where the appellant claimed that;

“The learned trial Judge erred by misdirecting himself on the law of the affidavit, striking out a competently sworn affidavit in rejoinder of the petitioner while allowing the respondents’ defective affidavits to stand and be relied on.”

This ground was combined with ground 7 by counsel for the appellant and argued together in the Court of Appeal.

On the evidence and submissions by Counsel, Okello, J.A.,as he then was adequately reevaluated that evidence and considered Counsel’s arguments, having said;

“I wish to start considering this issue by pointing out that the approach which the Supreme Court had adopted towards defects in affidavits evidence in election petitions was stated in Dr. Kiiza Besigye v. Electoral Commission and Museveni Kaguta. Election Petition No. 1 of 2001 to be a liberal one. In Mbayo Jacob Robert v. Electoral Commission and Talansya Sinani, EPA, No. 07 of 2006, this court dealt with a similar situation …. We found that the trial Judge took a strict rather than a liberal view …. We found that those affidavits satisfied the essential requirements of Section 6 of the Oath Act. We followed the liberal approach adopted by the Supreme Court in Kiiza

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