[2022] UGCA 320

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA **ELECTION PETITION APPEAL NO. 025 OF 2021**

### OWORI CHRISTESTOM BONNY:::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. OKONGO MICHAEL

2. ELECTORAL COMMISSION::::::::::::::::::::::::::::::::::

(Appeal from the decision of the High Court of Uganda at Mbale before Matovu, J. dated 16^th September, 2021 in Election Petition No. 29 of 2021)

#### CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JA HON. MR. JUSTICE MUZAMIRU MUTANGULA KIBEEDI, JA HON. LADY JUSTICE MONICA MUGENYI, JA

### JUDGMENT OF THE COURT

This appeal is against a decision of the High Court (Matovu, J.) dismissing a Petition filed by the appellant seeking the annulment of the election of the 1^st respondent as Chairperson LCIII for Sere Sub-County in Tororo District.

### **Background**

The appellant and the respondent stood for election for Chairperson LCIII for Sere Sub-County, and the 1^st respondent was declared winner after obtaining 799 votes compared to the appellant's 776 votes. The appellant was dissatisfied and filed a petition challenging the election results on grounds that the elections were marred by incidents of non-compliance with the provisions of the Local Government Act, Cap. 243 and that the noncompliance affected the result of the election in a substantial manner. All the incidents of non-compliance complained of by the appellant occurred at only one of the six polling stations in the area, namely, Sere Primary School Polling Station Code 01 ("Sere Polling Station"). The appellant claimed that the following incidents of non-compliance occurred at that polling station: ineligible people were allowed to vote; cases of multiple voting by supporters of the $1^st$ respondent; and commission of acts of violence by supporters of the $1^{st}$ respondent, who forcefully caused non-voters to vote at the highlighted polling station in favour of the 1^st respondent. The appellant also alleged that the presiding officers at Sere Polling Station unlawfully stuffed pre-ticked ballots in favour of the 1s respondent in the ballot box. Fufther, that the Declaration of Results Forms (DR Forms) for Sere Polllng Statlon contained forged signatures of the appellantb polling agents. The appellant claimed that the signatures of the polling agents were forged after they refused to sign the DR Forms in protest of refusal of the election officials to record the anomalies they had witnessed In the voting process at Sere Polling Station. The appellant alleged that the incidents of non-compliance at Sere Polling Station had affected the election results for LCIII Chairperson Sere Sub-Coun\$ in a substantlal manner, and that the results were liable to be set aslde.

The appellant further claimed that the election of the 1\* respondent was liable to be set aside because it was him and not the 1s respondent who had won the relevant election. The appellant claimed that the results from Sere Polling Station in the official DR Forms, had been fraudulently changed to indicate that he obtained 06 votes, lower than the 60 votes he actually obtained at that polling station. Thus, the appellant claimed that considering the vote differential of 23 votes by which the 1\* respondent won the elections, he should have been declared winner of the electlons.

The appellant also alleged that the 1i respondent, personally or through his agents, committed various illegal practices and electoral offences under the Local Government Act, Cap.243, throughout the entire voting period.

The 1\* respondent denied the appellant's claims and stated that the elections for Chalrman LCIII Sere Sub-County were free and fair and were conducted in full compliance with the applicable provisions of the 1995 Constitution, the Electoral Commission Act, Cap. 140, the Parliamentary Elections Act, 2005 and the Local Governments Act, Cap.243. He also denied committing the electoral offences as alleged in the appellant's Petition. The 2nd respondent also asserted that the elections were carried out in compliance with all the relevant laws, and denied the claims in the appellant's Petition.

The learned trial Judge agreed with the respondents, and found that the appellant's allegations of non-compliance were not proven to the satisfaction of Court. He also found that the allegatlons of commission of electoral offences and illegal practices were not proved against the 1\* respondent.

The learned trial Judge consequently dismissed the appellant's Petition with costs. The appellant now appeals to this Court on the following grounds:

- **"1.** The learned trial Judge erred in law and fact when he failed to rely on and evaluate an exhibited forensic report on grounds that the author had not appeared before court. - The learned trial Judge erred in law when he ignored and failed to 2. evaluate the evidence of the appellant's witnesses. - 3. The learned trial Judge erred in law and fact when he found that the evidence of the appellant's witnesses was exaggerated. - The learned trial Judge erred in law and fact when he failed to 4. evaluate the appellant's evidence as a whole thereby arriving a wrong conclusion that the election was held in compliance with electoral laws."

The appellant prays that: 1) the appeal be allowed; 2) the judgment and decree of the learned trial Judge be set aside and substituted with judgment nullifying the election of the 1^st respondent as the elected LCIII Chairperson Sere Sub-County; 3) the Court makes an order for fresh elections; and 4) the Court grants the costs of the appeal to the appellant.

The respondents opposed the appeal.

# **Representation**

At the hearing, Mr. Isaac Obiro Ekirapa, learned counsel, appeared for the appellant. Mr. Isaac Nabende, learned counsel, appeared for the $1^st$ respondent. Mr. Jude Mwasa, learned counsel, appeared for the 2^nd respondent.

The parties' respective conferencing notes, filed prior to the hearing were adopted by the Court as the submissions in support of their respective cases.

# Appellant's submissions

Counsel for the appellant argued each of the grounds independently, in ascending order.

# Ground 1

Counsel faulted the learned trial Judge for failing to rely on Exhibit P.14, a handwriting report, on grounds that its author had not testified in Court. He submitted that the document could rightly be relied on without calling its author since it had been tendered in evidence during scheduling, with consent of the parties. Counsel relied on the authority of **Administrator** General vs. Bwanika James and 9 Others, Supreme Court Civil Appeal No. 7 of 2003 (unreported), for the principle to the effect that agreed documents admitted during scheduling become part of the evidence on record and have to be evaluated along with the rest of the evidence. Counsel submitted that ground 1 of the appeal should succeed.

# Ground 2

Counsel submitted that the learned trial Judge wrongly overlooked the evidence adduced for the appellant which proved that there was falsification of results from Sere Polling Station whereby the official results were falsified to show that the appellant obtained 06 votes whereas the true votes he obtained were 60 votes. Counsel contended that the evidence on falsification was corroborated by expert handwriting evidence (Exhibit P.14) which showed that the respective signatures of two of the appellant's polling agents at Sere Polling Station – PW2 Olowo Damiano and PW3 Opoya Jonnex, on the official Declaration of Results Form were forged. There was further corroboration offered by PW4 and PW5, polling agents of another candidate in the contested elections, who, in counsel's view were independent witnesses. Counsel contended that the evidence on falsification of results was very strong and proved non-compliance with the electoral laws. He prayed that ground 2 of the appeal succeeds.

# Ground 3

Counsel submitted that the learned trial Judge erred in considering that the evidence of some of the appellant's witnesses, namely: PW2, PW3, PW4 and PW5 was exaggerated. Counsel insisted that those witnesses' evidence was a true account of the events that transpired at Sere Polling Station on Polling day. The witnesses all testified that there was chaos at the Polling Station, and while PW3, PW4 and PW5 attributed the chaos to the malfunctioning of

the biometric voting machine and also to the presiding officer allowing one Okello Zaidi to vote yet he did not have a National ID Card; and PW2 stated that the chaos was caused by Onyango Fred who was telling voters not to vote by secret ballot, there was nothing to suggest that the difference in the witnesses' testimonies was intended to mislead the Court. In counsel's view, what was material is that the facts as narrated by the witnesses actually happened, and that difference in time of occurrence of a particular event or in identification of the source of the chaos in an election cannot be deemed to be an exaggeration. Counsel submitted that ground 3, too, ought to succeed.

# Ground 4

In support of ground 4, counsel merely reiterated his earlier submissions in regard to ground 2, and only added that the appellant's evidence was sufficient to prove the allegations in his petition on a balance of probabilities. In counsel's view, the appellant's evidence proved that there was rigging and ballot stuffing and that there was falsification of results to indicate that the appellant obtained 06 votes, yet the true votes he obtained were 60 votes. Further, that the evidence proved that the presiding officer had forged the signatures of the appellant's polling agents on the DR Forms as confirmed by Exhibit P.14. Counsel submitted that ground 4, too, must succeed.

# 1^st respondent's submissions

In reply, counsel for the $1^st$ respondent argued ground 1 independently, followed by ground 3 independently, and then grounds 2 and 4 jointly.

# Ground 1

Counsel supported the learned trial Judge's decision not to rely on the handwriting report (Exhibit P.14) submitting that the learned trial Judge followed the correct legal principle as stated in the authority of **Chebrot** Stephen Chemoiko vs. Soyekwo Kenneth and Another, Court of Appeal Election Petition Appeal No. 56 of 2016 (unreported) citing Mwithali vs. M'itombi [1986-1989] EA 389 that evidence of a statement made to a witness by a person who is not called as a witness is inadmissible where the object of the evidence is to establish the truthfulness of what is contained in the statement. In counsel's view, failure to call the

$\overline{5}$

handwriting expert who made the relevant report, as a witness, rendered the report inadmissible.

## Ground 3

Counsel contended that the learned trial Judge rightly held that the evidence of the appellant's witnesses regarding alleged non-compliance with the relevant governing laws during the relevant elections was exaggerated, and submitted that the evidence adduced for the respondents, which was more believable, proved that voting at Sere Polling Station was successful and peaceful.

### Grounds 2 and 4

Counsel submitted that the learned trial Judge properly evaluated the evidence on record and arrived at the right conclusion that the electoral process at Sere Polling Station was conducted in a free, fair and transparent manner. Counsel further submitted that while the evidence for the appellant was that relevant elections were tainted with incidents of non-compliance with the relevant governing laws, such as: multiple voting, ballot stuffing, and irregular voting involving the presiding officer ticking ballots in favour of the $1^st$ respondent, and ineligible persons being permitted to vote, the $1^st$ respondent's evidence was that those incidents had not taken place at the relevant polling station. Counsel contended that had the malpractices alleged by the appellant taken place, they would have been reported and recorded on the relevant DR Forms, but this did not happen, as the relevant DR Forms were duly signed by the appellant's agents without any complaints. Counsel submitted that the legal principle is to the effect that if the DR Forms are endorsed by a petitioner's agents, the results contained thereon cannot be interfered with. In support of his submissions, counsel relied on the following authorities – **Rebecca Balwanga Balwana vs. Electoral Commission** and 2 Others, High Court Electoral Petition No. 0047 of 2011; and Mbaghadi Fredrick Nkayi and Another vs. Dr. Nabwiso Frank, Court of Appeal Election Petition Appeal Nos. 14 and 16 of 2011 (unreported).

Counsel further submitted that it was illogical that it was only the appellant, one of the three candidates, in the relevant elections who had complained of malpractices, and that it would have been more plausible if the second candidate had also complained.

As for the submission that the appellant's evidence established that he had obtained "60" and not "06" votes at Sere Polling Station, counsel submitted that the evidence was insufficient to prove that allegation.

All in all, in support of grounds 2 and 4, counsel submitted that the learned trial Judge was right in finding that the respondent's evidence was more believable than that of the appellant. He submitted that grounds 2 and 4 ought to be disallowed.

# 2nd respondent's submissions

Counsel for the 2nd respondent argued grounds l, 2 and 3, jointly followed by ground 4, independently.

# Grounds 1, 2 and 3

Counsel contended that the learned trial Judge's finding that the handwriting repoft (Exhibit P.14) was inadmissible was consistent with the holding in the Chebrot Stephen Chemoiko case (supra) and was therefore correct.

Further, counsel submitted that in any case, even if the learned trial Judge had accepted the lmpugned document, the same was neither cogent nor relevant for proving the appellant's main allegation of falsification of results at the Sere Polling Station, to show that he obtained "60" and not "06" votes. Counsel contended that pursuant to Section 47 (d) of the Parliamentary Elections Act, 2005, made applicable to Local Government elections by Section L72 of the Local Governments Act, Cap. 243, the authenticity of results polled per candidate cannot be invalidated by mere allegation of failure, omission and or refusal of a candidate's agent to sign the DR Forms. The appellant should have produced an original of the DR forms with different results, in order to succeed, but did not do so, and instead the DR form attached to the appellant's evidence shows the results as declared by the Electoral Commission.

Furthermore, counsel contended that as the appellant's main complaint alleged making of wrong entries, he ought to have applied for a recount for

Sere Polling Station as envisaged under **Section 55** of the **Parliamentary Elections Act, 2005.** Counsel also cited the authority of **Winnie** Byanyima vs. Ngoma Ngime, High Court Civil Revision No. 9 of 2001 (unreported) in support of his submissions. Thus, to counsel, a recount was a better remedy than the Petition filed by the appellant.

Counsel also submitted that the evidence that the appellant's votes at Sere Polling Station were altered, was false, as it was given by witnesses (such as Olowo Domisiano, Okoth Peter Boire and Awori Rose Mary) who, by their own evidence, were not present at the polling station at the time of reading of the results, having been allegedly chased away during vote counting.

Counsel further pointed out that the allegation that the appellant obtained 60 and not 06 votes at Sere Polling Station would have the implication of changing the total number of votes cast from 325 to 379 votes, leaving 54 votes unaccounted for. This further affected the cogency of the appellant's evidence.

With regard to the handwriting evidence relied on to prove that the results contained in the relevant DR forms were fraudulent, counsel submitted that that evidence was rightly found to be inadmissible as it was hearsay, too remote, and empty verbiage. He relied on a statement from **Apea Moses** vs. Uganda, Court of Appeal Criminal Appeal No. 0653 of 2015 (unreported) where this Court defined hearsay evidence as a statement, whether a verbal statement, written document or conduct, which is made, generated or which occurred out of Court involving a person who is not produced in court as a witness, and where the statement is presented as testimony to prove the truth of facts which they assert.

In response to the submission that the handwriting report should have been believed as it was admitted during scheduling, with the consent of the parties, counsel submitted that the exhibiting of a document at scheduling only dispenses with the need to prove its authenticity but does not amount to an admission that the contents of the document are true and correct. He relied on the authority of **John Tiborugaba Kasangaki and Another vs.** Rajeev Jain and 3 Others, Court of Appeal Civil Appeal No. 69 of 2013 (unreported), in support of his submissions. Counsel further submitted that moreover, as evidence in election petition cases is by affidavit, it was necessary to bring the police officer who made the impugned handwriting report to testify.

It was further submitted that the incidents of electoral malpractices stated in the appellant's evidence were not brought to the attention of the Electoral Commission, during the election period, which makes them hard to believe.

Counsel contended that the learned trial Judge rightly found that the appellant's evidence was exaggerated as it was trivial, inconsistent, unsubstantiated and of no value to proving his allegations.

Counsel concluded by submitting that grounds I, 2 and 3 should be disallowed.

## Ground 4

Counsel submitted that the learned trlal Judge properly evaluated all the evidence. Counsel contended that whereas the appellant made several allegations of electoral malpractices, including rigging, violence, ballot stuffing and falsification of results, he failed to adduce credible evidence to prove them. Thus, the appellant's allegations of occurrence of incidents of non-compliance were not proved to the satisfaction of the Court and nelther was lt proved that those incident, assuming they happened, were capable of affecting the election results in a substantial manner. Counsel submitted that ground 4, should also be disallowed.

## Appellant's submissions in rejoinder

In respect to the respondent's submission that it was necessary to call the author of an agreed document to testify before the same could be relied on, counsel reiterated his earlier submission based on the authority of Administrator Genera! vs. Bwanika (supra) that agreed documents, admitted during scheduling, can be relied on without calling the author of the document. Counsel further submitted that the authority of Chebrot Stephen (supra), relied on by the respondents does not discuss principles on admissibility of documents admitted as exhibits during scheduling. He maintained that the handwriting report admitted in evidence as Exh. PE14 should have been relied on by the learned trial Judge.

As for the submission for the 2nd respondent that the appellant should have applied for a recount, counsel for the appellant submitted that it was not mandatory under the law to file for a recount in the circumstances of this case.

Counsel also reiterated his earlier submissions.

# Resolution of Appeal

We have carefully studied the Court record, and considered the submissions of counsel for both sides and the law and authorities cited in support thereof. Other relevant law and authorities have also been considered.

On a first appeal, like the present one, this Court will, pursuant to Rule 3O (1) (a) of the Judicature (Court of Appeal Rules) Directions, S. I 13- 10, reappraise the evidence and make inferences of fact. Furthermore, thls Court, as a first appellate Court, has a duty to review the evidence of the case and to reconsider the materials before the trial judge and then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. (See: Kifamunte vs. Uganda, Supreme Court Criminal Appeal No. 1O of L997 (unreported)). We shall bear these principles in mind as we resolve the grounds of appeal.

We shall deal with ground 1 separately; followed by grounds 2, 3 and 4, jointly.

## Ground 1

The appellant alleges in ground 1 of the appeal that the learned trlal Judge erred when he failed to rely on an exhiblted handwrltlng report on grounds that its author was not called as a witness. The relevant report was that of Sebuwufu Erisa, a handwriting expert, who allegedly examined the copy of the DR Form for Sere Polling Station given to the appellant, to establish whether the signatures of two of the appellant's polling agents, namely Opoya Jonex Ogero and Olowo Domisiao, indicated on the DR Form were genuine. The appellant had, by adducing the handwriting expert report, sought to prove that the signatures of his polling agents were forged so as to establish his case that his polling agents refused to sign the relevant DR Forms in protest against the irregularities they witnessed at the relevant

polling station. The handwriting expert report was admitted in evidence, by consent of the parties during scheduling, as Exhibit P. E14. The learned trial Judge had this to say, on the evidence of the handwriting report:

"Counsel for the petitioner strongly submitted that there was forgery on the declaration of results forms submitted and he relied on the evidence of the forensic expert.

With all due respect to counsel for the petitioner, court cannot rely upon the evidence of a witness who did not appear before court and this court is fortified by the case of Chebrot Stephen Chemoiko vs. Soyekwo Kenneth and Electoral Commission EPA No. 56 of 2016"

In Chebrot Stephen Chemoiko vs. Soyekwo Kenneth and Another, Court of Appeal Election Petition Appeal No. 56 of 2016 (unreported), one of the issues considered by this Court was whether certain documents, whose authors were not called as witnesses, were hearsay and thus could not be considered in evidence. The documents constituted of police statements that were annexed to an affidavit of one of the parties. This Court stated:

We accept the submission of counsel for the appellant that when a statement is made to a witness by a person who is not called as a witness, such evidence is inadmissible, particularly where the object of the evidence is to establish the truthfulness of what is contained in the statement (See: Mwithali vs. M'itobi [1986-89] EA 389."

However, we wish to point out that it is not clear from reading the **Chebrot Stephen authority (supra)**, whether or not the document sought to be relied on had been admitted by consent of the parties during scheduling, as was the case in the present case. To that extent, therefore, the authority is distinguishable.

In Administrator General vs. Bwanika and 9 Others, Supreme Court **Civil Appeal No. 7 of 2003 (unreported), the Supreme Court considered** an issue surrounding the evidential value of an agreed document, admitted during scheduling. Tsekooko, JSC stated that documents agreed upon during scheduling have to be considered in evaluation of evidence, observing that:

"The agreed facts and documents [agreed upon at scheduling] thereafter become part of the evidence on record so that they are evaluated along with the rest of the evidence before judgment is given. Indeed, in as much as they are admitted without contest, the content of such admitted documents can be treated as truth, unless those contents intrinsically point to the contrary, and if they are relevant to any issue, their admission disposes of that issue because the need for its proof or disproof would have been disposed of by the fact of admission."

In Tiborugaba vs. Jain and 3 Others, Court of Appeal Civil Appeal No. 0069 of 2013 (unreported), this Court considered a similar issue relating to the evidential value of an agreed document. Musoke, JA who wrote the lead judgment with which the other members of the Court agreed, stated as follows:

"In the authority of Attorney General vs. Baranga [1976] HCB 45 cited with approval by Madrama, J (as he then was) in Mawanda and Another vs. Kobil (U) Ltd [2013] UGComC 167, then Court of Appeal of East Africa held that admission in evidence of a document tendered in court by consent of the parties dispenses with the need to prove the authenticity of the report but does not amount to an admission that the contents of the document are true and correct. In view of that principle, it follows that the relevant expert report in the present case, having been admitted in evidence with consent of the parties, it was not open for counsel for the appellants to question its authenticity both in the trial Court, and on this appeal."

We therefore consider the principle to be that a document admitted by agreement of the parties is deemed authentic and has to be considered by the trial Court in evaluation of evidence. However, authenticity relates to whether the document is what it claims to be, and not whether the contents of the document are correct and should be believed. Thus, in the present case, the handwriting report (Exhibit P. E14) having been admitted as an agreed document was deemed authentic and had to be considered by the learned trial Judge, while evaluating the evidence. We therefore accept the submission of counsel for the appellant that the learned trial Judge erred in failing to evaluate the handwriting report (Exhibit P. E14). We find that ground 1 of the appeal must succeed.

#### Ground 2, 3 and 4

The gist of the appellant's case under grounds 2, 3 and 4, is that the learned trial Judge failed to properly evaluate the evidence on record, and thus

reached the wrong conclusion that the appellant failed to prove his case justifying the setting aside of the election of the 1d respondent as the LCIII Chairman for Sere Sub-County.

The appellant claimed in his Petition that there were incidents of noncompliance with the electoral laws during the relevant elections, and that those incidents had affected the election results In a substantial manner. The appellant averred in his affidavit that on polling day, he received a telephone call from one Opoya Jonnex informing him that the presiding officer was giving the 1\* respondent's suppofters more than one ballot paper; and that the presiding officer was stuffing pre-ticked ballot papers into the ballot box. The appellant stated that he went to the polling station but he was violently chased away by supporters of the 1\* respondent. The appellant stated that after being chased away, he called the elections parish supervisor Mr. Oloka Maftin to complain about the conduct of the presiding officer, but the latter told him to be calm and wait for the final result to be announced. The appellant stated that he later made a complaint to the area returning officer but he also received no assistance.

The appellant further stated in his affidavit that he was later in the day called by Opoya Jonnex and informed that two supporters of the 1\$ respondent, Onyango Fred and Osege had become rowdy and started ordering the presiding officer to allow everyone at the polling station to vote irrespective of whether the person ls on the voter register or not, and that the presiding officer had heeded to their demand. The appellant also stated that Opoya had informed him that later at around 3:00 p.m, the presiding officer, on realizing that the voter turnout was low, started to tick ballot papers in favour of the 1\$ respondent and place them in the ballot box.

The appellant further stated that despite the above electoral malpractices, Opoya informed him that at the conclusion of vote countlng, the presiding officer declared results indicating that the appellant had obtained 60 votes, but the said votes total was changed to 06 votes on the DR Forms. He also stated that as a consequence of Incidents of electoral malpractices and the fraudulent alteration of the appellant's votes, his polling agents refused to sign the DR Form, which he retained. The appellant also stated that he made a written report to the Electoral Commission about the irregularities in the

elections at Sere Polling Station. Opoyo Jonnex, in his affidavit, confirmed the incidents of electoral malpractices in the appellant's affidavit.

The respondents, in their respective Answers to the Petition, refuted the claims in the appellant's Petition. The 1\* respondent stated in his affidavlt that he did not particlpate in falsiflcation of results and neither did any of his agents commit electoral malpractices as alleged in the appellant's evidence. The li respondent also stated that he did not go to Sere Polling Station on the polling day, but that he was informed by his agents Awori Immaculate and Opalla lohn that the voting at the said polling station went on smoothly and was concluded at 4:00 p.m.

The 2nd respondent, in its Answer, denled occurrence of incidents of multiple voting, pre-ticking of ballots, ballot stuffing, voting by unregistered voters, bribery and other forms of malpractice as alleged by the appellant, and that any such incidents if they occurred were not reported. The 2nd respondent also denied that there was falsification of votes. The 2nd respondent relied on the evidence of Amuga Josephine, who was a Polling Assistant at Sere Polling Station. She stated that the election at the polling station was peaceful and that the alleged incidents of non-compliance by the appellant did not occur. Amuga stated that the Biometric Voter machine was fully functional and was used to verify voters before handing them ballot papers. Amuga further stated that the appellant's polling agents were present at the end of polling and that they had participated in the vote counting process. Amuga also stated she did not see any of the appellant's agents being chased from the polling station as alleged. Amuga stated that therefore the election results from Sere Polling Station correctly reflected the votes obtained by each candidate. The other affidavits sworn in support of the 2nd respondent's Answer, namely the affidavit of Gimei John, the area Returning Officer and that of Oloka Maftin, the Sub-County Supervisor for Sere Sub-County, contained averments similar to those in Amuga's affidavit.

None of the witnesses were cross-examined on the contents of their affldavit.

Upon re-evaluation of the above evidence, we find, in agreement with the learned trial Judge, that the parties presented conflicting accounts about what transpired on polling day at Sere Polling Station. While the appellant claimed that several electoral malpractices were committed, each of the

respondents denied commission of the said electoral offences. The trial Court's task of determining which account to believe was rendered almost impossible by the fact that none of the witnesses were cross-examined on their affidavits. Fact finding in electoral petitions is notoriously difficult because of the partisan nature of the witnesses, but in most cases, crossexamining witnesses may help in assessing the truthfulness of their evidence. This consideration weighed on the learned trial Judge's mind, and he rightly stated:

#### "Unfoftunately, since all counsel did not intend to cross-examine witnesses in this matter, court was denied an oppoftunity of assessing the demeanor and reliability of these witnesses while in the doclg and therefore Court will rely on their affidavit evidence."

We wish to observe that the practice is now that given the partisan nature of witnesses in electoral matters, corroboration of their evidence must be sought before a Court can rely on it. Counsel for the appellant submitted that there was such corroboration for the appellant's evidence, namely - ^a handwriting repoft and evidence of independent witnesses, namely PW4 and PW5, who were polling agents of another candidate in the relevant elections. Counsel for the appellant contended that the PW4 and PW5 were independent witnesses and their evidence should have been believed and taken as supporting the other appellant's evidence.

PW4 Okoth Peter Boire stated in his affidavit in support of the appellant's Petition that he was present at Sere Polling Station during polling day as a polling agent for Onduri Peter, a candidate in the elections alongside the appellant and the ls respondent. Okoth stated that voting started at 7:30 a.m. Okot further stated that at 10.30 a.m, the presiding officer one Omollo Denis informed him that the Biometric Voting Machine had become faulty, Further that when the Biometrlc Voting Machine developed issues, it was abandoned and that as ineligible persons were allowed to vote. Okoth further stated that the Biometric Voting Machine was abandoned after supporters of the 1\* respondent threatened the polling officials. Okoth further stated that the parish supervisor Mr. Oloka Martin allowed non-registered persons to vote while the presiding officer Mr. Omollo Denis gave more than one ballot paper to the 1\* respondent's voters. Okoth further stated that he saw the presiding officer ticking ballots in favour of the 1\$ respondent. He also stated

that there were incidents of violence caused by supporters of the $1^st$ respondent.

Okoth further stated as follows:

"That around 4:00 p.m after voting had ended, the presiding officer and the other polling officers from Electoral Commission started counting the votes but during the process of counting, they did not allow us the agents to see which candidates were ticked on the ballot paper but rather they were just stuffing ballot papers in favour of the $1^st$ respondent"

Furthermore, Okoth stated that the results declared by the presiding officer, after vote counting, showed that the appellant obtained 60 votes, although in the DR Forms, the presiding officer stated that the appellant obtained 06 votes. Okoth also stated that the number of votes counted were more than the people who actually voted. Okoth further stated that he and the agents of other candidates protested the electoral malpractices they witnessed at Sere Polling Station and refused to sign the DR Forms given to them. In addition, that their signatures were forged on the official DR Forms held by the Electoral Commission, to represent that they had not witnessed any electoral malpractices at Sere Polling Station. The affidavit of PW5 Awori Rose Mary contained similar averments to those in PW4's affidavit.

We observe that, as stated in **Kato vs. Uganda, Supreme Court Criminal Appeal No. 25 of 2000 (unreported)**, the essence of cross-examining the witness of the opposite party is to test the credibility of that witness. In the present case, none of the witnesses were cross-examined on their affidavits, and resultantly, the trial Court was left to consider two equally possible accounts about the relevant elections. Even the evidence of PW4 and PW5, whom counsel for the appellant wants to be treated as independent evidence was not tested in cross examination. It was difficult to determine its credibility.

We observe that in ordinary cases where oral evidence is relied on, failure to cross-examine a witness may lead to the inference that the oral evidence is deemed to be accepted. But in election matters, failure to cross-examine a witness on his/her affidavit will not automatically lead to the conclusion that the evidence of the witness is accepted. The rationale for this approach was given by Mulenga, JSC who stated in his judgment in Besigye vs. Museveni. **Presidential Election Petition** No. 1 $of$ 2001 **(unreported)**, as follows:

"Uncontroverted Affidavit evidence

Counsel for the Petitioner drew the Court's attention to very many affidavits in support of the petition, to which there was no reply. He invited the Court to take that as uncontradicted evidence and believe it. That is a general rule of practice applied on the presumption that what is not disputed is admitted, and is commonly resorted to in causes where facts are not very contentious. In my view, however, it would be highly inappropriate to apply that presumption to a case, such as this, where virtually all material facts are disputed. An election petition is a highly politicised dispute, arising out of a highly politicised contest. In such a dispute, details of incidents in question, tend to be lost or distorted, as the disputing parties trade accusations, each one exaggerating the other's wrongs, while down playing his or her own. This is because most witnesses are the very people who actively participated in the election contest. Let me point to an example which I think vividly demonstrates how inappropriate counsel's proposal would be. James Birungi Ozo, the Petitioner's District Monitor for Kamwenge, deponed that at Kakinga polling station at around 3.30 p.m. on polling day, he 'I found the Parish Chief removing the votes cast for the Petitioner from the ballot box, using sticks inserted into the box." That evidence was uncontradicted, but it is as incredulous as can be."

Thus, the principle to be taken from Mulenga, JSC's judgment is that due to the contentious nature of election petitions, lack of cross-examination of a witness on his/her affidavit, will not result in the Court automatically accepting the averments laid out in the affidavits, but the affidavit evidence must be weighed together with all the other evidence on record to determine if it must be believed. This was the import of the comments of **Odoki, C. J** in the same **Besigye case**, wherein he stated that:

"There was also a list showing affidavits of the Petitioner, which had not been rebutted or controverted. It was submitted that such affidavit should be taken to be admitted. I do not agree that they should be taken as gospel truth. I shall take into account all the various affidavits depending on their status and probative value as evidence in determining the issues in this petition."

This case is of the most contentious kind, the facts asserted by the appellant were denied by the respondents, with each party adducing affidavit evidence to support the facts they asserted. We have considered all the affidavit evidence on record, and specifically in light of the fact that the appellant's evidence was not tested in cross-examination, we found great difficult in accepting it, on its own. We shall proceed to consider whether the evidence of the handwriting report supports the appellant's affidavit evidence.

We observe that counsel for the appellant contended that the evidence of the handwriting report (Exhibit P. E14) lent credence to the appellant's evidence, and it's to a consideration of that evidence that we now turn. We earlier found that this evidence should have been considered by the learned trial Judge, although he did not have to believe it. Thus, it is necessary to re-evaluate the evidence of Exhibit P. E14, a report of Sebuwufu Erisa, a handwriting expert. Sebuwufu stated that he examined the signatures on the DR Forms for Sere Polling Station, attributed to two of the appellant's polling agents, namely – Opoya Jonex Ogeko and Olowo Damiano, and compared them against sample signatures voluntarily made by the duo. Sebuwufu's findings were that the signatures attributed to the polling agents on the DR forms were not made by them. This evidence was not rebutted by the respondents and neither did they express interest in cross-examining its author. In the circumstances, the report ought to have been believed, as proving that the official DR Form for Sere Polling Station contained forged signatures of the appellant's polling agents. In our view, the evidence of the handwriting report can only be disbelieved if there was other evidence, adduced by the respondents, which rendered the findings therein implausible or unconvincing. However, there was no such evidence. We therefore find that the fact of forgery of the signatures of the appellant's polling agents allows for an inference that the respondents gave false evidence in their affidavits, claiming that the appellant's polling agents voluntarily signed the DR Forms. It also renders, highly probable, the appellant's version of events, namely that his polling agents refused to sign the DR Forms in protest at the manner of the elections at Sere Polling Station, which they observed to have been marred by incidents of non-compliance with the electoral laws involving multiple voting, pre-ticking of ballot papers, unregistered persons being allowed to vote, and falsification of voting results.

Accordingly, we find that the appellant adduced enough evidence to satisfy the trial Couft that the electoral process at Sere Primary School Polling Station was marred by incidents of non-compliance with the provisions of several electoral laws, including Section 31 of the Parliamentary Elections Act, 2OO5 which forbids a person in an election from voting more than once; and Section 29 (4), by which only registered voters are permitted to vote. The Parliamentary Elections Act, 2005 is applicable by virtue of Section L72 of the Local Governments Act, Cap. 343 which provides that for any issue not provided for under that Act, the parliamentary elections law in force for the tlme being shall apply with such modifications as are deemed necessary. We also find that the incidents of non-compliance affected the election results for the whole Sere Sub-County constituency in a substantlal manner, considering that the difference in votes between the 1f respondent who was the winning candidate and the appellant who was the runner up was only 23 votes.

We now turn to the question of remedies. The appellant prayed thls Couft to set aside the results of the elections and either declare him winner or order for fresh elections. The issue of remedies is addressed under Section t42 (3) of the Local Governments Act, Cap. 243, which provides:

## "After due inquiry, the court hearing an election petition may-

- (a) dismiss the petition; - (b) declare a candidate other than the candidate declared elected earlier to have been validly elected; or - (c) set aside the election and order a new election."

Fufthermore, Section t42 (4) provides that the High Court before coming to a decision under subsection (3), may order a recount of the votes cast. In the present case, we do not find it appropriate to order a recount of the votes at Sere Polling Station because we are not confident that the ballot boxes have not been tampered with.

We also do not find it justified to declare the appellant as the winner of the relevant LCIII election under Section L42 (3) (b) of the Loca! Governments Act, Cap. 243,\_In Makatu vs. Weswa and Another, Election Petition Appeal No. 73 of 2016 (unrepofted), this Court declared the losing candidate the winner of an LCIII election after finding that there was sufficient evidence that proved that the losing candidate had actually won the election. The facts of the case were that the losing candidate in an LCIII election lodged a Petition asking the High Court to set aside the election of the winning candidate on grounds that results from 1 of the 9 polling stations in the area had been unlawfully excluded from the final results. The results had been excluded because the returning officer was of the view that the results had been tainted by malpractices committed at the impugned polling station. The High Court accepted the allegations of the losing candidate, set aside the relevant election, and ordered for fresh elections at the relevant polling station. On appeal, this Court found that that the proper remedy should have been to declare the losing candidate as the winner of the elections. In the lead joint judgment of Egonda-Ntende and Obura, JJA with which Kasule, JA agreed, their Lordships stated:

"However, we are of a different opinion on the [learned trial Judge's] 4^th order regarding holding re-election for Nakhamosi Polling Station. It is our considered view that basing on the evidence that the votes at this Polling Station were counted and the results declared as per the figures agreed to by all the parties, there was no need to order a re-election after the finding of the trial Court that there was no basis for cancelling the results. The learned trial Judge should have proceeded to add the results from Nakhamosi Polling Station and that of Namatotowa that was left out for unexplained reasons and declared the final results and announced the validly elected candidate.

In the present case, the appellant alleged that, at Sere Polling Station, he obtained more votes (60) than he was credited with (06) according to information he received from his polling agents, Olowo Domisiano and Opoya Jonnex, who were present during vote counting. However, we earlier expressed reservations about the evidence for the appellant and gave reasons for declining to believe it. We therefore find that there was insufficient evidence to prove that the appellant obtained more votes at Sere Polling Station than he was credited for. We therefore decline to declare him as the winner of the relevant elections.

We shall next consider whether this Court should make an order for fresh elections for LCIII Chairperson of Sere Sub County, under Section 142 (3) (c) of the Local Governments Act, Cap. 243 as prayed by the appellant. In

Edward Byaruhanga Katumba vs. Electoral Commission and Anor, Court of Appeal Election Petition Appeal No. 17 of 2002 (unrepoted), thls Court consldered the impoft of the above-highlighted provision. In that case, ^a losing candidate in an election for LCV Chairperson filed a petition in the High Couft challenging the election of the winning candidate. The High Couft found that the votes from one of the polling stations in the constituency had been unlawfully excluded from the final results, and that doing so had affected the election results for the whole electoral area In a substantial manner. The High Court ordered for a new election only at the affected polling statlon, and with the results there from to be added to the final results for the whole constituency.

The losing candidate appealed to this Court and argued, inter alia, that the High Court, under Section 143 (3) (c) of the Local Governments Act, Cap. 243, could only make an order for fresh elections in relation to the whole constituency and not only at the affected polling station. This Coutt agreed. Byamugisha, JA who wrote the lead judgment observed as follows:

"In order to resolve the issues that have been raised in these grounds regard must be had to the provisions of the law, which both counsel cited to us. Section 143 (3) provides that:

After due inquiry, the court hearing an election petition may-

- (a) dismiss the petition; - (b) declare a candidate other than the candidate declared elected earlier to have been validly elected; or - (c) set aside the election and order a new election."

Sub-section 4 provides that the court before coming to a decision may if applicable order a recount of the votes. The decision of the lower court which both counsel are complaining about was the ordering of fresh elections an Ntunda Parish, I think learned counsel for the appellant was right when he submitted that the learned trial Judge was wrong to order a repeat of elections in one parish instead of the whole constituency. Admittedly, one of the prayers in the petition was for a recount of the votes in a particular parish. This, however, in itself did not necessarily mean that the court had to grant the prayer. The Coutt could only make orders which the law authorizes it to make."

Later in her judgment, Byamugisha, JA concluded as follows:

## "The learned trial Judge erred in ordering a repeat of elections in only one parish after his finding that the non-inclusion of votes from that parish affected the outcome of elections in the entire District,"

The principle from the above decision, therefore, is that if a Court hearing an election petition finds: a) that during the impugned elections, there were incidents of non-compliance with the relevant electoral laws at only one or a few polling stations in the constituency; b) that, nonetheless, such noncompliance affected the results of the elections in the entire constituency in a substantial manner - the Court's only option is to order fresh elections for the entire electoral area, and it has no power to order elections at only the affected polling station. In the present case, we found that there were incidents of non-compliance with the relevant laws at only Sere Primary School Polling Station, and that the said non-compliance affected the results for LCIII Chairperson, Sere Sub-County in a substantial manner. Accordingly, the results for the constituency that formed the basis for declaring the 1\$ respondent as LCIII Chairperson of Sere Sub-County In Tororo District are hereby set aside.

For the above reasons, we allow the appeal, set aside the judgment and decree of the High Couft and substitute it with the following declarations and orders:

- a) The appellant adduced sufficient evidence proving that the electoral process at Sere Primary School Polling Station was marred by incidents of non-compliance with the provisions of several electoral laws including the Local Governments Act, Cap. 343 and the Parliamentary Elections Act, 2005, and that the incidents of non-compliance affected the election results for LCIII Chairperson of Sere-Sub County in a substantial manner. Accordingly, we set aside the election of the 1\* respondent as LCIII Chairperson for Sere Sub-County in Tororo District. - b) Having set aside the relevant election results we hereby declare the position of LCIII Chairman for Sere Sub-County in Tororo District, vacant. - c) The Electoral Commission is ordered to conduct fresh elections for LCIII Chairperson for Sere Sub-County in Tororo District, as soon as possible.

d) The appellant is granted the costs of the appeal and in the Court below.

We so order.

Dated at Kampala this t1rt day of 2022.

Elizabeth Musoke

Justice of Appeal

Muzamiru Mutangula Kibeedi

Justice of Appeal

I

Monica Mugenyi Justice of Appeal