[2022] UGCA 116

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# ELECTION PETITION APPEAL NO.0034 OF 2021

(Arising from Masaka Election Petition No.05 of 2021)

NANDAGIRE CHRISTINE NDIWALANA:::::::::::::::::::::::::::::::::: $\mathsf{S}$

#### **VERSUS**

KATUSHABE RUTH::::::::::::::::::::::::::::::::::::

# CORAM: HON. MR. JUSTICE KIRYABWIRE, JA HON. MR. JUSTICE STEPHEN MUSOTA, JA HON. MR. JUSTICE GASHIRABAKE CHRISTOPHER, JA

#### JUDGMENT OF THE COURT

This is an appeal against the decision of the Hon. Lady Justice Ketra Kitarisibwa Katunguka delivered on 28th September, 2021 at the 15 High Court of Uganda at Masaka.

#### **Background of the Appeal**

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During the General Parliamentary elections conducted by the Electoral Commission on the 14^th January, 2021; the Appellant Nandagire Christine Ndiwalana and the Respondent Katushabe Ruth 20 together with Lubyayi Kisiki, Kateregga, Mohamed Kawooya Yasiin, Namakula Racheal and Ssebugwawo Yusuf contested for the seat of Member of Parliament of Bukomansimbi North Constituency Bukomansimbi. 1n

The Appellant won the election and was returned as the duly elected Member of Parliament for the Bukomansimbi North Constituency.

- 5 The Appellant got 9617 votes cast in her favour while 6599 votes were cast in favour of the Respondent. The winning margin was a total of 3018 votes. Subsequently the Appellant was gazetted as the duly elected member of Parliament for Bukomansimbi North Constituency in the Uganda Gazette of 17th February, 202 1. - On 18th March, 2O2l the Respondent as an aggrieved candidate Petitioned the High Court of Uganda at Masaka challenging the election results on the ground that the Appellant who was the 2"d Respondent to the Petition was at the time of nomination not qualified to be nominated a candidate in the elections. The Electoral Commission was the 2"d Respondent. 10 15

The Appellant liled an Answer to the Petition challenging the competence of the Petition and contending that she was duly qualified to be a candidate in the election. She further denied the allegations of lacking the required academic qualifications for a member of Parliament.

Only three issues were framed by the trial Court vide;

1. Whether the 2"d Respondent was validly nominated and elected as Member of Parliament for Bukomansimbi North Constituency as required by law?

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- 2. Whether the 2"d Respondent made a false statement to the Returning Officer of Bukomansimbi District to gain nomination? - 3. What remedies are available to the Parties? - 5 The trial Judge answered all issues in favor of the Respondent in this appeal. The trial Judge held that the Appellant was not validly nominated and did not have the minimum academic qualifications. She then nullified the election and ordered for fresh elections.

The Appellant was dissatisfied with the Judgment and Orders of the court and lodged this appeal. 10

## The Appeal

The Memorandum of Appeal raises the following grounds of appeal;

- 1. The Learned trial Judge erred in law and fact when she found that the Respondent's Petition disclosed a cause of action - 2. The Learned trial Judge erred in law and fact when she held that the Appellant had lied on Oath by stating that she had a Uganda Advanced Certificate of Education (UACE) 15 - 3. The Learned trial Judge erred in law and fact when she held that the appellant lacked the relevant qualifications upon which the National Council for Higher Education could have validly equated - 4. The Learned trial Judge erred in law and fact when she shifted the burden of proof of academic qualifications to the Appellant.

- 5. The Learned trial Judge erred in law and fact when she failed to consider the Appellant's Certificate from Uganda Matyr's University on the basis that it was not presented to the Returning Officer thereby occasioning a miscarriage of Justice. - 6. The Learned Trial Judge erred in law and fact when she failed to evaluate the evidence on record hence coming to a wrong conclusion that the Appellant lacked the relevant academic qualifications of Uganda Advanced Certificate of Education or its equivalent to stand as a member of Parliament. - ¹⁰ The Appellant proposes that court grants the following orders; - i. That this Appeal be allowed by this court. - ii. The Judgment and Decree entered against the Appellant by the Learned trial Judge be set aside.

iii. The costs be awarded to the Appellant in this court and in the court below.

On 14th October, 2O2L the Respondent filed a Cross Appeal and on 24th February, 2022 the Respondent filed an Amended Notice of Cross Appeal stating three grounds as follows;

- 1. Having found that the Statutory Declaration of the Appellant dated 30th January, 2019 was false, the Learned tria-l Judge erred in law and in fact when she held that the O" level Certificate in the names of the "Nandagire Chriss" belonged to the 2nd Respondent - 2. Having found that the Nomination Paper of the Appellant was ²⁵ void, the learned trial Judge erred in law and fact when she

failed to follow a binding Decision of this Honourable Court of Appeal of Uganda in lllakayima N. Musoke & EtC vs Kasule Robert Ssebunya EPA No. SO and 1O2 of 2Ot6 which was binding on her to declare the Cross Appellant, winner of the Election held on the 14th January,2O2l.

3. That having found that the 1"t Cross Respondent did not comply with Section 4(5) of the Parliamentary Elections Act, the learned trial Judge, erred in law and fact when she held that the provision could on its own invalidate the election of the Cross Respondent

The Cross Appellant proposes that Court grants the following orders;

- 1. The Cross-Appeal be allowed with costs here and in the court below - 2. A declaration that the Cross Appellant was the candidate at the Election held on 14th January 2O2l , who scored the highest number of 6,599 valid votes and the runner up was Lubyayi Iddi Kisiki who obtained 4,238 votes - 3. A declaration that the Cross Appellant won the Election for Member of Parliament held on 14th January, 2O2l in Bukomansimbi North County Constituency - 4. Costs of the Cross-Appeal be paid to the Cross Appellant.

## Representations /appearances

At the hearing of the appeal, Mr. Katumba, Mr. Kyazze and Mr. Jude Mbabali appeared for the Appellant. Mr. Kandeebe Appeared for the

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Respondent. Mr, Sabiiti Eric appeared for the 2"d Respondent (Electoral Commission).

All parties filed conferencing notes which they prayed court adopts as their written submissions. Court adopted them for use and will consider them in determination of the grounds of this appeal.

Dutv of First Appellate Court

This being a first appeal it is important that we state the duty of this Court as a first appellate court. The role of this court as a first appellate court is laid down under Rule 3O(1) of the Judlcature

(Court of Appeal Rules) Directions which provides that; 10

> usO. Power to reappralse evldence qnd to take addltlonal evldence.

> (1) On ang appea.l Jrom q declslon of the Htgh Court, acting ln the exerclse of tts origlnalJurlsdlctlon, the coura maF

> (a) Reappraise the evldence and draut inferences of Jact; and.

(b).....

This Court is therefore obliged to reappraise the inferences of fact drawn by the trial court. 20

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In the case of **Kifamunte Henry v. Uganda Criminal Appeal No. 10** of 1997 the Supreme Court had this to say on the duty of a first appellate court;

"We agree that on a first appeal, from a conviction by a Judge the appellant is entitled to have the appellate $\mathsf{S}$ Court's own consideration and views of the evidence as a whole and its own decision thereon. The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up 10 its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises as to which witness should be believed rather than another and that question turns on manner and demeanour the appellate Court must 15 be guided by the impressions made on the judge who saw the witnesses. However there may be other circumstances quite apart from the manner and demeanour, which may show whether a statement is credible or not which may warrant a court in differing 20 from the Judge even on a question of fact turning on $% \left\vert \mathcal{A}\right\vert$ credibility of witness which the appellate Court has not seen. See Pandya v. R [1957] EA 336, Okeno v. Republic [1972] EA 32 and Charles Bitwire v. Uganda Supreme Court Criminal Appeal No. 23 of 1985 at 25 page 5.

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htrAlrcnnore, euen where a trlal Court has etred., the appellate Court wlll tnterfere where the error has occq.sToned. a mlscqtz-i,ag e oJ Justlce..,"

5 In Bq.nco Arabe Espanol Vs. Bank of Uganda Supremle Court Ciuil Appeal JVo.8 oJ 7998 the Supreme Court of Uganda applied the Kifamunte standard in a civil matter. Therefore, the duty of a first appellate court is to review the evidence of the case and to reconsider the materials before the trial Judge then make its own conclusion.

These principles were further stated in the case of Father Nasensio

Begumisa & 3 Others V. Eric Tibebaga, Supreme Court Civil Appeal No. 17 of 2OO2, is to subject the evidence adduced at the trial to a fresh and exhaustive reappraisal, scrutiny and then decide whether or not the learned trial judge came to correct conclusions, and if not then this court is entitled to reach its own conclusions. We shall consider the above principles in determining this appeal. 10 15

# Burden and Standard of Proof in Election Petition Cases

The burden of proof is cast on the petitioner to prove the assertions to the satisfaction of the court that the irregularities or malpractices or non-compliance with the provisions and principles laid down in the relevant laws were or is committed and that they or it affected the results of the election in a substantive manner in the election petition. The evidence must be cogent, strong, and credible. The standard of proof is on a balance of probabilities. In a recent decision

of Paul Mwlru v. Hon. Igeme Nabeta & Others-Election Petition Appeal No. 06 of 2O11 this court said;

> uSection 61(3) of the PEA sets the stqndard oJprooJin parlTannentary electlon petitions. The burden of proof lies on the petitioner to proue the allegatlons ln the petition qnd the stqndard of proof required ls proof on a bq.lqnce of probabilities. The provislon of this subsectlon wos settled bg the Supreme Court ln 35 the case of Mukasa Harris v Dr Lulutne Baglga (srl,pra) uhen tt upheld the interpretotlon giuen to the subsectlon bg this court and the Hlgh Court."

## Consideratlon of the Appeal

We shall deal with the grounds of appeal in the order in which they have been raised, then after deal with the Cross-Appeal in the same way.

#### Ground ¹

The learned trial Judge erred in law and fact when she found that the Respondent's Petition disclosed a cause of action

### Appellant's Submissions

In summary the appellant's submissions on this ground of appeal is that the trial Judge wrongly upheld the respondent's Petition grounded on a pre-election complaint and found that the petition disclosed a cause of action. That the trial court had the duty to 20

Page 9 of 17 consider this matter of law whether parties had raised it or not, and it is the duty of the Court when asked to give a judgment which is contrary to a statute to take the point although the litigants may not take it. Counsel relied on Ndawula Ronald versus Al Hajji Abdul Nadduli, Election Petition Appeal No. 2O of 2o,o,6.

Further that the Petitioner only started challenging the appellant's nomination after losing the election yet the appellant's nomination papers were available for inspection after nominations of 15th and 16th October, 2O2O within the confines of Section 15(a) and (b) of the Parliamentary Elections Act. The Respondent had the liberty to lodge complaints if any with the Electoral Commission.

After being heavily defeated by a margin of 3018 votes the Respondent belatedly raised the issue of alleged improper nomination which should not be allowed to happen. For this counsel 1s relied on Court of Appeal Kasirye Zimmula Fred vs Bazigatirawo Kibuuka Francis Amooti & Anor, Election Petition Appeal No. O1 of 2O18. As a matter of law and public policy, a cause of action based on account of alleged want of proper academic qualifications is not and should not be maintainable in law by the Petitioner after 2e conclusion of the elections and after expression of the will of the electorate. That the jurisdiction to handle matters of qualifications is vested in the Electoral Commission as per Akol Hellen Odeke versus Okodel Umar, Election Petition Appeal No.6 of 2O2O

Further counsel submitted that in an election petition the cause of action in the context of Section 61 of the Parliamentary Elections Act 25

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should relate to the election itself. That this court should make a distinction between Article 6 1 ( 1X0 and 64 ( 1) of the Constitution and Section 15 of the Electoral Commission Act and Section 15(a) & (b) of the Parliamentary Elections Act 2005 which govern the forum and determination of pre-elections complaint. After elections are held and results declared a reasonable complaint should be about conduct of the election not against an earlier segment of the process per Ongole James Mlchael versus Electoral Commission & Another, Election Petition Appeal No. 08 of 20,06,

- 10 The issue of eligibility of candidate for nomination should be resolved before elections and any aggrieved party who fails to do so, should be estopped. The learned trial Judge ought to have found that in so far as the petition was grounded in pre-election/nomination complaints, the Petition disclosed no cause action. For this submission the - 1s Appellant relies on Kasirye Zzimu,la Fred vs Bazigatirawo Kibuuka Francis Amooti & Another, Election Petition Appeal No. 01 of 2018 (CA) at page 10. The appellant invited court to so find.

#### Respondent's Submissions

In summary the respondent's submissions are that the learned trial Judge was right in finding that the Petition disclosed a cause of action. That this Court and the High Court are vested with jurisdiction to inquire into qualifications and nominations of ^a candidate that was declared elected under Section 60 and 61 of the Parliamentary Elections Act. 20

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That section 15(b) of the Parliamentar5r Elections Act which the Appellant relies on is not mandatory and does not state any condition or prescribe any penalties where there is a failure to challenge the nomination of a candidate. It does not prohibit presentation of the complaint during the election petition at High Court. A cause of action is determined by looking at the Petition and annextures and nothing else and the learned trial Judge was right to hold that the matter of qualifications was a triable issue which meant that there was a cause of action.

Counsel cited the Nakendo vs Mwondha Supreme Court Civil Appeal No. O9 of 2OO7 where Katureebe JSC stated that the High court has power to hear and determine a Petition where it is alleged that a person is not qualified for an election. That it is an election matter and court has Jurisdiction to determine and hear it. That if the High Court linds on evidence that the decision of an administrative tribunal like National Council for Higher Education 10 15

(NCHE) was irrationally made, or were not based on proper diligence, the court can and should so declare.

That Section 13 of the Parliamentary Elections Act provides that a person shall not be regarded as duly nominated for a constituency and the nomination paper of any person shall be regarded as void if the person has not complied with the provisions of Section 4 of the PEA. That the issue of qualifications therefore was an issue that had to be determined in the petition. 20

That the decision of Kasirye vs Bazigatirawo (Supra) referred to by the appellant was decided per in curium as it did not refer or analyse section 60 and 61 of the PEA nor did it refer to Nakendo vs Mwondha (Supra) which is a binding decision of the Supreme Court as opposed to the Appellant's authority which is merely persuasive.

Counsel prayed that court finds that the Petition disclosed a cause of action.

## Determination of Ground ¹

We have carefully considered the submissions of the parties and we agree with the submission of the Respondent that a cause of action must be determined on the face of the pleadings including any annextures attached thereto. In the case of Election Petition, the Petition is the pleading of reference in determining whether there is a cause of action. Therefore, we find that the learned trial Judge rightly found so in her Judgment. 10 15

The test as to whether pleadings disclose a cause of action was set out in the case of AUTO GARAGE AND OTHERS -VS- MOTOKOV (NO. 3) [197U I EA 514, where it was held that there are three (3) essential elements to support a cause of action; that is: -

- ²⁰ a) The plaintiff enjoyed the right. - b) The right has been violated. - c) The defendant is liable.

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The court went on to hold that if any one of these essential elements is missing, the plaint is a nullity and ought to be dismissed with costs.

The question then is; did the petition disclose a cause of action? To s answer this, we must first understand what an election petition is.

Section 1(1) of the PEA defines "Election Petition" as being a petition filed in accordance with section 60 of the Parliamentary Elections Act (PEA). This section is part X (Sections 60-67) of the PEA which provides for election petitions. The grounds for setting aside an election are stated in Section 61 of the PEA.

On qualifications of a person to be nominated Article 80 of the Constitution sets out the qualifications. The Parliamentary Elections Act Part X (Sections 60-67) is an operationalization of Article 80.

Specifically, section 61(d) allows as one of the grounds for challenging an election the allegation that a person is not quatified or disqualified for election. Being not qualified or disqualified are the conditions envisaged under Article 80 of the Constitution. 15

However, reading the above stated provisions of the Constitution and Parliamentary Elections Act together with Section 15 of the PEA and

the Electoral Commission Act shows that a Petitioner cannot as a matter of law and policy raise for the first time an issue on validity of a nomination after the election because these provisions were enacted for the purpose of ensuring that all disputes arising prior or during nominations before voting are resolved with finatity before the 20

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election date except where the law otherwise specifically provides. Pre election complaints have to be made to the Electoral Commission under S.15 ECA. Whoever is not satisfied can appeal to the High Court under S. 15 (2) ECA. The decision of the High Court is final. This law is self-regulating and a final decision of the High Court cannot be reopened on appeal to the Court ofAppeal.

Such timely complaints avoid undue expense and inconvenience to the parties inclusive of the electorate who do not have to vote where nomination is contested. Issues relating to nominations should be resolved before election day.

Therefore, a Petitioner in an Election Petition who did not bring complaints within the stipulated time at the time of nomination under sections 15 of PEA and 15 of the Electoral Commission Act is estopped from doing so after the election because he/she is taken to have waived his/her rights to complain within the stipulated period.

# See Kasirye Zimula Fred v. Bazlgatirawo Kibuuka Francis & Anor. (Supra)

We find that the Petitioner was estopped from raising matters of nomination after the election and accordingly the trial Judge erred in entertaining them. Where a cause of action is caught by estoppel there cannot be said to be any cause of action in existence. We accordingly find that the Petition did not disclose a cause of action against the Appellant. The Respondent having abandoned other grounds of challenging the election and left the Petition to be solely

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based on matters relating to nomination of the appellant as a candidate, this appeal fails.

Having found that the Petitioner was estopped from raising matters of nomination and the whole Petition having been a complaint entirely based on matters of nomination, it follows that Grounds 2, 3, 4, 5 and 6 of the appeal need not be considered.

### Final decision and orders on Appeal

For the reasons we have given we would allow this appeal with the following orders;

a. This appeal is allowed 10

- b. The Judgment and Decree entered against the Appellant by the High Court is set aside. - c. Costs are awarded to the Appellant in this court and in the court below.

#### Final declslon and orders on the Cross-Appeal 15

The cross appeal having arisen from the same Judgment and Decree which we have set aside is dismissed, we order that for reason of estoppel;

- a. The Cross-Appeal is dismissed. - b. Each part5r bears its own costs. 20

#### We so order.

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| Dated this | day of | 202 | |------------|--------|-----|

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA.

Curtamo Turo

### HON. MR. JUSTICE STEPHEN MUSOTA, JA.

$\mathbf{1}$

HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JA.

$10$

$\mathsf{S}$

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