Attan and Another v Ariko (Consolidated Election Petition No. 7 of 2021) [2022] UGCA 154 (24 May 2022)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT I{AMPALA

#### CONSOLIDATED

## ELECTION APPEAL NO. O7 OF 2O2L

#### AND

### ELECTION APPEAL NO. IO OF 2021

# (Arising from Hlgh Court Soroti Election Petition No. OOS of 2O2Ll

#### 1. ATTAN OKIA MOSES

10 2. ELECTORAL COMMISSION APPELLANTS

#### \rERSUS

## ARIKO HERBERT EDMUND OKWORO: : : : : : : : : : : : : : : : : RESPONDENT

# CORAIVI: HON. MR. JUSTICE CHEBORION BARISHAKI, JA HON. MR. WSTICE STEPHEN MUSOTA, JA HON. MR. JUSTICE CHRTSTOPHER GASHTRABAKE, JA

#### JUDGMENT OF COURT

20 The two Election Petition Appeals, to wit; No.7 of 2O2 1 lodged by the Attan Okia Moses and No.10 of 2O2l lodged by The Electoral Commission are from the decision of the Hon. Justice Anna B. Mugenyi delivered at High Court of Uganda at Soroti on 31"t day of

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August, 2021 . By consent of both parties, the two Election petition Appeals were consolidated.

## Backeround of the ADDeals

- 5 From the outset, we shall adopt the view of the learned trial Judge that for avoidance of doubt, we shall adopt the spelling of "Opilyai" parish as set out in the Gazette and not "Opiyai" or "opiai" referred to severally in the proceedings which are all construed to refer to the same "Opilyai" parish. - 10 The l"t appellant and the Respondent were nominated by the 2"d appellant as candidates in the election for Member of Parliament of Soroti City East Constituency held on 14th January 2021 . Tlne 2"a Appellant returned and declared the 1", Appellant as the duly elected Member of Parliament for Soroti City East Constituency. The 2"a - t5 Appellant published the l"t Appellant in the gazette as the validly elected Member of Parliament for Soroti City East Constituency.

The election results were that the 1"t Appellant as winner had polled 7606 votes (48.94o/ol, the Respondent was second with 7167 votes (46.12%1, Ekemu Jimmy was third with 379 votes (2.55%), Inachu Sarah Oliver was 4th with 185 votes (1.19%), Etaju James Herbert Yoweri was sth with 99 votes (O.64%o) and Emachu Arnold was 6th

with 86 votes (0.55%).

The Respondent who was second in the election did not accept the results of the Election and accordingly challenged the election in High

Court at Soroti through Election Petition No. OOS of 2O2l claiming that the election had been conducted in a manner inconsistent with the Parliamentary Elections Act, 2005 because it removed the wards/parishes of Opilyai and Aloet from Soroti City East constituency where the same were designated to be by Statutory Instrument. That as a result the election was conducted in an illegally and unconstitutionally constituted Constituency of Soroti City East.

That throughout the campaign season he had participated in the election on the basis that the wards of Opilyai and Aloet were part of Soroti City East Constituency and indeed the 2"a Appellant had approved and administered his campaign schedule on this basis. That the act of eliminating Opilyai and Aloet parishes from Soroti CitSr East constituency was illegal and this illegality was confirmed by the High Court at Soroti. That this illegality together with others severally pleaded in the petition rendered the election a sham and a nullity in the eyes of the law. That the conduct of the election in an illegally and unconstitutionally constituted constituency, especially the registered voters in the impugned wards/parishes of Aloet and 10 15

Opilyai rendered the elections including computation of results legally and factually flawed for the benefit of the l"t Appellant and to the detriment of the Respondent. 20

In the Petition at the High Court the Respondent prayed for the following declarations and orders;

7. A declaration that no ualid election took place in Soroti Citg East Diuision Constituency as required bg laut.

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- 2. A declaration that the election conducted in an illegallg and incompetently constituted constituencg of Soroti Citg East Diuision, hauing excluded the paishes of Aloet and Opilgai was legallg inconsequential and liable to be set oside. - 3. An order that the declaration of the 7't Respondent (the l't Appellant in this appeal) as the directlg elected Member of Parliqment for Soroti Citg Diuision East Constituencg bg the 1"t Respondent (The 2"a Appellant in this Appeal) is annulled. - 4. An order that a fresh election for the position of the directlg elected Member of Parliament for Soroti City East Constituencg be conducted bg the 2"d Respondent in a legallg constituted constihtencg. - 5. An order that the Respondents pay the costs of the Petition - 6. Such other reliefs as auailable under the Electoral laws as the Court considers just and appropiate under the cirqtmstances.

The ls Appellant filed an Answer to the Petition denying the allegations in the Petition and opposing the Petition. He contended that the Petition did not disclose any of the grounds set out in the Parliamentary Elections Act, 2OO5 for setting aside an election of a member of Parliament. That the election was conducted lawfully and in accordance with the provisions of the Parliamentary Elections Act, relating to Elections, was free and fair and without any grave and/or material irregularities by the 2"d Respondent as alleged in the Petition.

The 2na Respondent also hled an answer to the petition and contended that the election was conducted lawfully and in accordance with the provisions of the Parliamentar5r Elections Act relating to elections, was free and fair and without any grave and/or material irregularities as alleged in the Petition and that there was no disenfranchisement of the voters of Aloet and opilyai as alleged in the Petition. That the results of the Soroti City East Constituency were tallied in accordance with the new geographical boundaries of Soroti city East constituency as ordered by court and the said Soroti city East constituency was lawfully constituted and elections held therein were legitimate.

The matter proceeded interparty with each part5r making oral submissions. Only three issues were framed by the trial court for determination, vide;

## <sup>15</sup> 7. Whether the petition is competent?

2. Whether the election was conducted in accordance with the Constitution and electoral laws of Uganda; and if there was noncompliance whether non-compliance affected the election in a substantial manner?

# <sup>20</sup> 3. What remedies are auailable to the parties?

The trial Judge answered all issues in favor of the Respondent. The tria-l Court found that;

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- a. The petition was competent, properly before court and did not fall within the scope of a constitutional reference as the Respondent wanted the court to believe - b. There was gross noncompliance with the provisions of the Parliamentary Elections Act 2015, Electoral Commission Act Cap 140, Local Government Act Cap 243 and the Constitution of the Republic of Uganda. - c. The Petitioner is entitled to remedies

In the final result the trial Judge made the following declarations and orders; 10

- 7. No ua.lid election took place in Soroti Citg East Diuision Constituencg as required bg law - 2. TYLe election conducted in an illegally and incompetentlg constituted Constituencg of Soroti Citg East Diuision hauing excluded the wa.rds/ paishes of Aloet and Opilgai was legallg inconsequential and a nullitg and is set aside. - 3. The 7"t Respondent was not ualidlg elected as the directlg elected member of Parliament for Soroti East Diuision Constituencg. - 4. The declaration of the 7"t Respondent as the directlg elected member of Parliament for Soroti Citg East Diuision Constihtency bg the 2"d Respondent is herebg annulled. - 5. A fresh election for the position of directlg elected member of Parliament for Soroti Citg Diuision Constihtencg should be

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conducted bg the 2"d Respondent in a legallg constituted. Constihtencg.

- 6. The cosls orf this petition are awarded to the petitioner and. pagable bg boththe 7"t and 2M Respondents. - The appellants (Respondents at the High Court) were dissatisfied with the Judgment and decree of the High Court of Uganda at Soroti and lodged the Election Petition Appeals which we consolidated.

### The Appeals

The Memorandum of Appeal in Election petition Appeal 07 of 2021, raises the following grounds of appeal; 10

- 7, The learned tial Judge ened in law in entertaining the Respondent's Petition to uhich she had no juisdiction. - 2. The learned trial Judge ered in law and fact in relging on decisions in Soroti High Court Ciuil Suit No.29 of 202O and Miscellaneous Application No. O3 of 2021, to which High Court lacke d orig in al Ju i s dictio n - 3. The learned tial Judge erred in law and fact in holding that the Re s pondent's Election Petition w as competent. - 4. The learned tial Judge ened in law and fact in retrospectiuelg applging the ruling in Soroti High Court, Miscellaneous Application No. O3 of 2021, to the detiment of the Appellant. - 5. The learned tial Judge ened in law and fact in finding that there was non-compliance with the prouisions and principles of the

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Parliamentary Elections Act which affected the results in a. substantial manner

6. The learned tial Judge ened in law and fact when she failed to exercise her discretion judiciously bg condemning the Appeilant fo cosls.

The Appellant in Election Petition Appeal No.7 of 2O2l proposes that court grants the following orders;

q. That the appeal be allowed.

- b. That the Judgment and orders of the lower court be reuersed. and. set aside. - c. That the Appellant be awarded the costs o/ the court of Appeal and of the Court below.

The Memorandum of Appeal in Election Petition Appeal No. 10 of 202 1, raises the following grounds of appeal;

- 7. The learned tial Judge ened in law and fact when she hetd that the re-constitution of the boundaies of Soroti Citg West Constituencg bg remouing the two impugned parishes of Atoet and Opiglai from Soroti Citg East Constituencg and placing them in Soroti Citg West Constituencg was done illegallg bg the Appellant. 20 15 - 2. The learned trial Judge erred in law when she applied the court order of the High Court in HCMA No. O3 of 2O21 Aiko Herbert Edmund Okworo uersus Antagu Michael Etadu & 5 Others issued on 15th march, 2021 retrospectiuelg and held that the election Page 8 of 30

conducted bg the Appellant pursuant the Court order dated 26th Nouember, 2O2O in HCCS No.0O29 of 2020 Engangu Michoel & 4 Others uersus Electoral Commission was a nullitg.

- 3. The Learned trial Judge erred in law and fact when she found that there was no ualid election conducted in Soroti Citg East Constifitencg as required bg law, the same hauing been conducted in an illegallg constituted constihtencg and were therefore e sham, illegal, null and uoid ab initio. - 4. The learned trial Judge ened in law and fact when she found that 5,233 registered uoters in the two paishes of Aloet and Opilgai were disenfranchised from the ight to uote their leaders. - 5. The learned tial Judge erred in law and fact when she found that there was non-compliance with the electoral laws bg the Appellant in Soroti Citg East Constituencg and that the result of the election was affected in a substantial manne4 - 6. The Learned tial Judge erred in law and fact, when she unfairlg and erroneouslg condemned the Appellant ln costs on account of allegedlg illegallg conducting the elections ln Soroti Citg East Constihtencg, despite existence of a binding Court Order. - The Appellant in Election Petition Appeal No.10 of 2021 proposes that court grants the following orders; 20

q. That the appeal be allowed.

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- b. That the Judgment and orders of High Court of tJganda at Soroti in Election Petition No. OS of 2021 be set aside and substituted with an order dismissing the Petition. - c. That the respondent pays costs o/ lhis appeal and in the lower court.

The consolidated Election Petition Appeals give rise to the following issues for determination;

> lssue I Whether the reconstitution of the boundaies of Soroti Citg West Constifitencg by remouing the Paishes of Aloet qnd Opilgai from Soroti Citg East Constituencg and placing them in Soroti Citg West Constituencg was done illegally?

> Issue 2 Whether the learned tial Judge erred in law uthen she applied the Court Order of High Court in HCMA No.3 of 2021 Aiko Herbert Edmund Okworo us Antagu Michael Etadu & 5 Others?

> lssue 3 Whether the learned tial Judge erred in law and fact uhen she found that there was no ualid election conducted in Soroti City East Constituencg?

Issue 4 Whether the learned tial Judge erred in laut and fact when she found that 5,233 registered uoters in the two paishes of Aloet and Opilyaiwere disenfranchisedfromthe right to uote their leaders? 20

lssue 5 Whether the learned tial Judge erred in law and fact when she found that there was non-compliance with electoral Laws bg the Appellants which affected the election result in a substantial manner?

lssue 6 Whether the learned tial Judge erred in law and fact when she condemned the Appellants in Cosfs?

Issue 7 Whether the High Court in Ciuil Suit No.29 of 2O20 and MA No. O3 of 2021 lacked the oiginal Juisdiction to handle the matters?

Issues 8 Whether or not the learned trial Judge erred in law and fact in holding that the Respondent's Petition was competent? 10

#### Representations / appearances

At the hearing of the appeal, Mr. Joseph Kyazze appeared for the 2"d Appellant, Mr. Julius Galisonga and Mr. Richard Okalany appeared for the l"t Appellant, Mr. Kirunda Robert and Mr. Simon peter Waiswa appeared for the Respondent. 15

On 3 1"t March 2022 lhe parties appeared before the court and prayed we adopt their conferencing notes as submissions which the court did. We have considered the said submissions in determination of the grounds of this appeal.

### Dutv of First Appellate Court

Under S. 66 (3) of the Parliamentary Elections Act, it is provided that;

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# "Notwithstanding section 6 of the Judicature Act, the Decisions of the Court of Appeal pertaining to Parliamentary elections petitions shall be final"

This being a first and last appeal it is important that we state the duty of this Court as a last appellate court. The role of this court as $\mathsf{S}$ a first and last appellate court is laid down under **Rule 30(1)** of **the Judicature (Court of Appeal Rules) Directions** which provides that;

> "30. Power to reappraise evidence and to take additional evidence.

(1) On any appeal from a decision of the High Court 10 acting in the exercise of its original jurisdiction, the court may—

> (a) Reappraise the evidence and draw inferences of fact; and

$(**b**)$ .....

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

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

> > Page 12 of 30

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 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 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 from the Judge even on a question of fact turning on $\mathcal{L}$ 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 page 5.

Furthermore, even where a trial Court has erred, the appellate Court will interfere where the error has occasioned a miscarriage of justice..."

$\mathsf{S}$

In Banco Arqbe Espanol Vs. Bqnk of tlganda Supreme Court Ciuil Appeal lVo.8 of 1998 the Supreme Court of Uganda apptied the Kifamunte standard in a civil matter. Therefore, the duty of a first and last appellate court is to review the evidence of the case and to reconsider the materials before the trial Judge then make its own conclusion.

10 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.

#### Consideration of the Appeal

<sup>15</sup> We shall deal with the issues in the order in which we identified them.

#### Burden and Standard of Proof in Election Petition Cases

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 substantial 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 Mwiru v. Hon. Igeme Nabeta & Others-**Election Petition Appeal No. 06 of 2011** this court held:

> "Section $61(3)$ of the PEA sets the standard of proof in parliamentary election petitions. The burden of proof lies on the petitioner to prove the allegations in the petition and the standard of proof required is proof on a balance of probabilities. The provision of this subsection was settled by the Supreme Court in the case of Mukasa Harris v Dr Lulume Bayiga (supra) when it upheld the interpretation given to the subsection by this court and the High Court."

Issue 1 Whether the reconstitution of the boundaries of Soroti City West Constituency by removing the Parishes of Aloet and Opiylai from Soroti City East Constituency and placing them in Soroti City West Constituency was done illegally? 15

The reason why the learned trial Judge found that the reconstitution of the constituency was illegal is at pages $6-21$ .

The learned trial Judge relied on the laws applicable to the Parliamentary Elections vide; Sections 2(1) of the Parliamentary

Elections Act No.17 of 2005, Articles 61, 1(4), 59, 179 of the 20 Constitution of the Republic of Uganda, Section 61(a) of the Parliamentary Elections Act, Section 19(3)of the Electoral Commission Act Cap 140 and Section $7(2)$ &(7) of the Local **Governments Act Cap 243** to find that the Statutory instrument

$\mathsf{S}$

published in the Uganda Gazette of 13th November, 2020 notified the public through the Minister responsible for Local Government with approval of Parliament that the Composition of Soroti East Division was as follows;

- 1. Eastern Municipal Division - 2. Nothern Municipal Devision - 3. Opuyo Parish - 4. Acetgwen Parish - 5. Opilt ai Pqrish

#### 6. Aloet Pqrish 10

7. Otatai Parish

That therefore the Electoral Commission had no powers to distort the composition of the Soroti City East Constituency by removing Opilyai Parish and Aloet Parish which had 1,337 voters and 3,896 voters respectively and placing then in Soroti City West Constituency where the said voters did not belong. Further that the use of the Court order in Civil Suit No.029 of 2O2O could not be considered because the court overturned its decision and declared that the change in constituencies was illegal and void. 15

The learned trial Judge relied on Macfog as Unlted AJrlca Co. Ltd [1961] 3 All ER I I69 where it was held by Lord Denning that; 20

> "if an act is uoid, then it is in law a nullitg. It is not only bad, but inanrablg bad. There is no need for an order to set it

> > Page 16 of 30

aside. It is automatically null and uoid without more ado, though it is sometimes conuenient to haue the court to declare it to be so. And euery proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stag there. It will collapse."

The learned trial Judge following the precedent of Lord Denning and the laws cited found that the Elections in Soroti East Constituency in January, 2O2l were done in an illegally constituted Constituency and were accordingly a sham, illegal and void in as far as noncompliance with the electoral laws by the Electoral Commission is concerned. That the elections were therefore nullity ob initio.

Further the learned trial Judge found that the court order in issue whereas in itself was valid and the Electoral Commission relied on it to conduct the election, it was later reviewed and found to have been issued in error and accordingly set aside. That therefore all the actions taken based on that order including the election effectively became a nullity, void, illegal and had to collapse accordingly.

We lind no fault with the Judge's reasoning and ratio decidendi on this issue. The trial Judge made it clear that once something on which an action is based is found to be null, illegal and void then that which was based on it cannot stand. 20

The reasons of the l"t Appellant (Attan Okia Moses) as to why he claims the trial Judge erred in this finding is because the election was conducted based on a decision of the High Court in HCCS 029

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of 2O2O which had been made before the election and yet the Judge relied on the subsequent decision in MA 03 of 2O2l which was made after the election to find that the Election was a nullity. Clearly this reason given by the appellants does not at all weaken the reasoning of the trial Judge. An illegality was brought before her, she was duty bound to consider it which she did and we agree with her reasoning on the matter.

On the other hand, the Electora-l Commission argues that under Article 31 and 61 of the Constitution they have the powers and mandate to demarcate constituencies and determine their boundaries. That this was the decision in the case of Eddie Kwizera vs Attorney General Constitutional Petition No. 20 of 2018. Whereas the Electoral Commission pleads power to demarcate and determine boundaries of Constituency with approval of parliament, they did not demonstrate that they followed this procedure in the Election under dispute. The Constitutional Court emphasized that any election conducted outside the precincts of that which parliament has approved is void ab initio. See Ed.dle Kwlzera (supra). 10 15

We are therefore inclined to agree with the hndings and decision of the trial Judge that the reconstitution of the boundaries of Soroti West City constituency by removing the parishes of Aloet and Opilyai from Soroti East constituency and placing them in Soroti City West constituency was done illegally. We answer issue 1 in the affirmative. 20

## Issue 2 Whether the leqrned. tl-/..al &tdge erred ln law uhen she applled the Court Ord.er of Hlgh Cour-t, tn HCITIA No.3 of 2O2l Arlko Herbert, Ed,mund. Okutoro as Antagu Mlchael Etadu & <sup>S</sup> Others?

5 The trial Judge dealt with this issue while addressing the matter of legality of the election which we have already analysed above in resolving Issue 1.

It is not in dispute, in the instant Appeal, that Parliament placed the parishes of Opilyai and Aloet in Soroti City East Division. It is also not in dispute that on polling day, for the purposes of the impugned. election, the two parishes were placed in Soroti City West Division. This was contrary to what Parliament had directed, and what had been gazetted in the Uganda Gazette notice of 13th November 2020. For all intents and purposes, therefore, the election of Soroti City East Division was conducted without the two parishes that had been so provided for by Parliamentary mandate. It cannot be said to have been the election Parliament intended slnce there ls JVO such q constltuencg called Soroti Cttg East Dlulsion WITHOUT Aloet and Opilgal Pqrlshes. 10 15

Faced with such a glaring illegality coupled with a court order emphasizing that the illegality existed, our view is that the Trial Judge was right to rely on the decision in MA 03 of 2021 . The Trial Judge also heard evidence of how the illegality affected the voters. 20

When the Appellants' witnesses were cross-exarnined and reexamined, they revealed that when they got to the polling stations, 25

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they were handed ba\_llot papers that did not bear the names of the candidate they had wanted to vote for but "theg found names and" photos of strange people". They were then informed that those candidates had been placed in Soroti City West Division. For that reason, they were unable to vote. This evidence was not controverted.

Instructive is the decision of Macfog us United Afr-tca Co. Ltd. [196U 3 All DR I I69 where it was held by Lord Denningthat; "if an act is uoid, then it is in law a nullitg. It is not onlg bad, but incurablg

- bad. There is no need for an order to set it aside. It is automaticallg null and uoid without more ado, though it is sometimes conuenient to haue the court to declare it to be so. And euery proceeding which is founded on it is also bad and inalrablg bad. You cannot put something oru nothing and expect it to stag there. It will collapse.', 10 - An illegality was brought to the attention of the trial Judge and she could not just ignore it. It is now settled law that an illegality once brought to the attention of the court overrides all matters of pleading. Therefore, the trial Judge had to appty the decision in MA 03 of 2O2l because it brought to her attention the illegality in the election. We therefore find that the trial Judge did not err in relying on the decision and court order in MA 03 of 2021 . See MacJog u. tlnlted. 15 20

#### Afrtca co. Ltd. (supra)

For the reasons we have given we resolve issue 2 in the negative. ## Issue 3 Whether the leq,rned trlo,l Judge erred 7n laut and fact when sllc found that there utaui rto aalid election conductcd tn Sorotl Ctty East Constldtencg?

Given our findings in resolving issues I and 2 above we find no basis to fault the trial Judge for finding that the election was not valid. The election having been entirely conducted in a constituency not lawfutly constituted could not stand.

We reiterate the holding in Macfog us Unlted. Africa Co. Ltd. [1961] 3 All ER I 169 where it was held by Lord Denning that; "if an act is

uoid, then il is in law a nullitg. It is not onlg bad, but incurablg bad... And euery proceeding which is founded on it is also bad and incurablg bad. You cannot put something on nothing and expect it to stag there. It tuill collapse. 10

We therefore find that the learned trial Judge did not err in finding

that that there was no valid election conducted in Soroti City East Constituency. 15

We accordingly answer issue 3 in the negative.

Issue 4 Whether the learned trlal Jud.ge erred ln lo,ut and fact when she found that 5,233 reglstered aoters ln the two parlshes

oJAloet and Opllgal uere dlsenfranchlsed,Jromthe rtghtto rsotc thelr leaders? 20

The Appellants' witnesses who were cross examined and re-examined revealed that when they got to the polling stations, they were handed ballot papers that did not bear the names of the candidate they had

wanted to vote for but "theg found names and photos of strange people". They were then informed that those candidates had been placed in Soroti City West Division. For that reason, they were unable to vote. This evidence was not controverted. The Appellants contend that the trial Judge erred in finding as she did, that the election was thereby substantially affected.

The learned trial Judge further found that the conduct of the Electoral Commission denied the voters of Opilyai and Aloet parishes the opportunity to choose their members of Parliament and that the failure of these voters to vote deprived the Respondent of the possibility of winning at least 430 votes out of 5233 potential voters, which could have tipped the margin.

This Iinding was based mainly on the fact that the Respondent had pleaded that Opilyai and Aloet Parishes were his major strongholds. This averment had not been controverted or even rebutted by any evidence or in cross-examination. The settled position of the law is that such evidence is deemed to be admitted. It was therefore more probable than not, that the Respondent would have garnered those votes. Quantitatively, the margin was too narrow to not be affected by the result. Qualitatively, once the trial court determined that the election did not pass the constitutional test as set out in the Eddle Kwizera decision (supra), the election could not be allowed to stand. 15 20

The learned trial Judge rightly defined the term disenfranchisement as per Blacks's Law Dictionary where at page 16 she stated that it 25

means to be deprived of the right to vote. This definition was relied upon in the case ofChebrot Stephen versus Kenneth and Electoral Commission. Election Petition No,12 of 2OL6. The trial Judge also considered the Supreme Court Case of Rtd Dr. Kiiza Besigye

- 5 versus Kaguta Museveni and another Election Petition No.1 of 2OO1 where it was held that The Constitution of Uganda guarantees the right to vote for every cilizen above 18 years. Legally, the voters in the impugned two parishes/wards were disenfranchised. - We agree with the findings of the trial Judge and accordingly answer issue 4 in the negative. 10

# Issue 5 Whether the leamed trtal Judge erred ln laut and fact when she found that there wos non-compliance wlth electoral Lauts bg the Appellants whtch aJfected the electlon result ln a substantlal manner?

Our resolution of the first four issues above demonstrate that all the laws relating to demarcation of constituencies and election boundaries are matters of Election law. It follows therefore that if an action taken under those relevant laws is found to have been not only illegal but also null and void ab initio, then a finding ought to be made that there was noncompliance with Election Laws. Therefore, the learned trial Judge did not err in this finding.

We accordingly answer issue 5 in the negative.

### Issue 6 Whether the learned trial Judge ened in laut and fact when she condemned. the Appellants in Costs?

We agree with the submissions of the appellants on this issue. The Judge dealt with the question of costs at the end of the Judgement. In one sentence, she stated thus;

#### KThe Costs oyf petltloner and Respond.ent" thts Petttl.on qre pagable bg both auqrd,ed. to the 7\* and the Ond

10 She did not explain why she found it necessary to award costs and why the costs had to be paid by the Appetlants (Respondents to the Petition)

The award of costs against the Attan Okia Moses who was never a party to the Civil Suit No.29 of 2O2O and MA 03 of 2021 which reviewed the election boundaries appears unfair. The illegalities were

15 never the responsibilit5r or a result of the actions of the said Okia. We therefore find that the learned trial Judge unfairly condemned Attan Okia Moses to pay costs of the Petition.

On the part of the Electoral Commission, it was also unfair to award costs against them because they were only acting in compliance with a court decision and order when they conducted the elections as they did. We also agree with their submission that costs are not intended to punish the unsuccessful litigant but rather to enable the

successful litigant recover to the extent reasonably possible the

normal expenses incurred in the conduct of their case; per Campbell vs Pollock ll927l AC 732.

We would accordingly answer this issue in the positive and hold that the learned trial Judge erred in law and fact when she condemned the appellants in costs given the circumstances of this case.

### Issue 7 Wlvther the High Coutt tn Ctutl Sutt No.29 of 2O2O and IIIA No. O3 oJ2O27 lackedthe orlglnalJurtsdlcttonto handle the mqtters?

Whereas we agree with the Electoral Commission that the procedure for the decisions in MA 03 of 2O2l and HCCS 29 of 2O2O appears to have been flawed as pointed out by the Electoral Commission, the Judge did not need the decisions and court orders to conclude that there was an illegality committed in the boundaries of the Constituencies for the Election. 10

- The learned trial Judge relied on the laws applicable to the Parliamentary Elections vide; Sections 2(7) of the Parllamentary Elections Act No.77 of 2OO5, Articles 67, 7(4), 59, 779 of the Constittttlon of the Republic of Uganda, Section 67(a) of the Pqrliq.mentary Elections Act, Section 19(3)of the Electoral 15 - Commission Act Cap 74O and Section 7(2)&(7) of the Local Gouentments Act Cap 243 to find that the Statutory instrument published in the Uganda Gazette of 13th November, 2020 notified the public through the Minister responsible for Local Government with approval of Parliament that the Composition of Soroti East Division was as follows; 20 25

- 1. Eastern Municipal Division - 2. Nothern Municipal Devision - 3. Opuyo Parish - 4. Acetgwen Parish

### 5. Opiluai Porish

### 6. Aloet Pqrish

7. Otatai Parish

10 That therefore the Electoral Commission had no powers to distort the composition of the Soroti City East Constituency by removing Opilyai Parish and Aloet Parish which had 1,337 voters and 3,896 voters respectively and placing then in Soroti City West Constituency where the said voters did not belong. Further that the use of the Court order in Civil Suit No.029 of 2O2O could not be considered because the court overturned its decision and declared that the change in <sup>15</sup> constituencies was illegal and void.

The learned trial Judge relied on often cited Macfog as United Africa Co. Ltd [1961] 3 All ER If 69 where it was held by Lord Denning that;

20 "if an act is uoid, then it is in law a nullitg. It is not onlg bad, but inqtrablg bad. There is no need for an order to set it aside. It is automatically null and uoid uithout more ado, though it is sometimes conuenient to haue the court to declare it to be so. And euery proceeding which is founded

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on it is also bad and incurablg bad. You cannot put something on nothing qnd expect it to stag there. It will collapse."

5 Therefore, far from what the Electoral Commission claims the Judge's decision was not entirely based on the court orders and findings in the previously filed and decided cases on the matter of boundaries of the constituency.

We would accordingly find that this issue is inconsequential and could have no bearing on the decision of the trial Judge.

#### Issues 8 Whether or not the leqrned trldl Judge ened ln law and fact in holding that the Respondent's Petition urc'si competent? 10

The competence of the Petition was adjudicated upon in the Judgment as issue 1 of the Judgment of the trial Judge. The reasons

for linding merit in the Petition was that it did not fall in the category of cases for constitutional reference as the Appellants (Respondents to the Petition wished the court to find). The learned trial Judge relied on Osotraco Llmited as Attonteg Generq.l HCCS 738O of l9a6 where it was held that where the question is simpty the construing of existing law with such modifications, adaptations, qualifications and exceptions as to bring such law into conformity with the Constitution this may be determined by the court before which such question arlses. 15 20

The Appellants/Respondents to the Petition at High Court had raised a preliminary objection that the question in the Petition was whether some parishes were supposed to fall in constituency "A" as opposed to Constituency "B". That this is outside the Parliamentary Elections Act Section 61 thereof. That questions of demarcations of Constituencies are constitutional matters which the Constitution only delegates to the Electoral Commission under the Electoral Commission Act. That any non-compliance with these does not and cannot found a Petition. That an Election cannot be set aside except for any of the reasons expressly provided for under the section of the Parliamentary Elections Act.

We do not agree with the appellants that the Petition or this Election Petition Appeals raises any matters for constitutional interpretation. A mere mention of the subject matter of the Petition does not make it a matter for constitutional interpretation.

We would accordingly answer issue 8 in negative

### Conclusion

Having resolved all issues in favour of the respondent save for the issue on costs, the appeal partially succeeds and we would allow this appeal with the following orders;

a This appeal partly succeeds on the issue on award of costs

b. The appeal fails on all other grounds of appeal.

- c. The Judgment, Decree and orders entered against the Appellants by the Learned trial Judge save for the award of costs are confirmed and upheld. - d. Fresh elections for the position of directly elected Member of Parliament for Soroti City East constituency be conducted by the 2.d Appellant in a legally constituted constituency. - e. The order of award of costs is set aside and substituted with an order that each party to the petition bears its own costs. - f. Each party shall bear its own costs of this appeal. - 10 We so order.

| 1s Dated this | L\<br>t- | h<br>dav of | o22. | |---------------|----------|---------------------|------| | | | | | | | | | | | | | c<br>rion Barishaki | |

JUSTICE OF APPEAL

Stephen Musota JUSTICE OF APPEAL

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JUSTICE OF APPEAL

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