Kanyihe v The Electoral Commission and Another (CIVI APPLICATION NO. 13 OF 2006) [2007] UGCA 76 (8 January 2007)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

#### CORAM: HON. MR. JUSTICE S. B. K. KAVUMA, JA.

# **CIVIL APPLICATION NO. 13 OF 2006**

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# HON. ANTHONY KANYIKE....................................

### **VERSUS**

| 1. | ELECTORAL COMMISSION | |----|----------------------| | | |

THE RETURNING OFFICER, MUKONO )..... RESPONDENTS $2.$

HON. MUWULIZE NORMAN IBRAHIM) 3.

### (ARISING OUT OF ELECTION PETITION APPEAL NO. 4 OF 2006) 20

# RULING OF MR. JUSTICE S. B. K. KAVUMA, JA.

This is an application brought under Rules 2 $(2)$ , 30 $(1)$ $(b)$ , $(2)$

- $(3)$ and $(4)$ and $43$ , $44$ of the Court of Appeal Rules. It is 25 seeking orders from this Court that: - - The applicant be granted leave to adduce additional $(a)$ *evidence on appeal.* - $(b)$ The additional evidence be by affidavit. - $(c)$ The costs of this application be provided for.

The application is supported by an affidavit sworn by Hon. Anthony Kanyike (hereinafter called the applicant/appellant)

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dated the 17'r'day of November 2006. The application is based on seven grounds which are stated in the Notice of Motion.

Hon. Muwulize Norman Ibrahim (hereinafter called the 3'd respondent) opposed the application and atfirmed to an affidavit in reply dated the 8'l'January 2007.

Briefly, the back ground to the application is that judgment was entered against the Petitioner, (now applicant/appellant), in E,lection Petition No. I of 2006 where it was held inter alia that the 3'd respondent had spelling mistakes in his'O'level certificate he had presented tbr nomination trnd election in the February 23rd 2006 Parliamentary elections fbr Buyikwe West Constitr-rency (hereinafter called the constituency). The applicant/appellant challenged the nomination, election and declaration of the 3'd responclent as the valic'lly elected member olParliament lbr the constituency on the grounds, inter alia, that the 3'd respondent was, at the time of his election not possessed of the requisite academic qualifications and that he had told a lie to court that his 'O' level certificate contained spelling mistakes concerning his names, which lie was believed by court. l0 l5 l0

At the hearing of the application, Mr. Richard Mwebembezi appeared together with Mr. Steven Mungoma (hereinafter 25 together called connsel for the applicant/appellant) representing

the applicant/appellant. The 3'd respondent was representecl by Mr. Paul Kiapi (hereinafter called counsel for the 3'd respondent).

Cor.rnsel for the applicant/appellant submitted that Rule 30 (1)

5 (b) gives Court discretion to admit additional evidence on appeal fiom the decision of the High Court in the exercise of its original jurisdiction if sufficient reason is shown.

Counsel submitted, further, that in the instant application the applicant/appellant seeks to adduce additional evidence of l0 records of entry of the 3'd respondent into senior 1 at St. Mary's College Kisubi and his Nomination papers for the 23'd February 2006 Parliamentary elections for the Constitr"rency. The applicant/appellant, by adducing the additional evidence he seeks Court's leave to adduce, intends to prove that at the trial of 15 the petition, the 3'd respondent, fraudulently told a lie to court about his names and that the court believed his lie hence its judgment in his f-avour. According to the applicant/appellant, this judgment was fraudulently obtained and is, therefore, a nullity. Fraud, counsel contended, is one of the exceptional zo circumstances fbr which additional evidence on appeal is admissible. It was counsel's submission that instead of his extensive search for the information he seeks to adduce as adclitional evidence on appeal, he was only able to get it after judgment had been delivered. He relied on Karmali

25 Tarmohamed and Another v Lakhani [1958] EA. 567. He

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also referred Court to Rev. Fr. Narsensio Begumiso und three Others Vs Erick John Tibebago Court of Appeat Civil Application No. 64 of 2000 (unreported). Counsel contended that it was not until the 3'd respondent had introducetl the element of mistaken misspelling of his name in his 'O' level certificate in an affidavit in support of his answer to the petition that the records of his entry in St. Mary's College Kisubi became relevant to the matter. Regarding the nomination papers fbr the 3'd respondent, counsel sr-rbmitted tl.rat tl.rroughout the proceedings at the court below, counsel fbr both parties and the learned trial judge kept referring to them but they were never exl-ribited in court. The same was true to the 3'd respondent's admission records mentioned above. Counsel prayed Cor-rrt to invoke its inherent powers under rule 2 (2) of the Rules of this Court to ensllre the ends of justice are met. These records according to counsel, are necessary to enable Court to reach a conch"rsive and just decision concerning all the matters raised in tl're appe:rl. LIe prayed Court to grant the appellant/applicant leave to addr-rce the additional evidence he seeks to adduce on appeal. He also prayed fbr costs of the application.

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Opposing the application, counsel for the 3'd respondent sr"rbmitted that leave to adduce additional evidence is granted only on exceptional circumstances. He relied on G. M.

Corubined (U Ltd Vs. A. K. Detergent Lttl and onother SC 25

Civil Appeal No.7 of 1998. He submitted that Hon. Kanyike did not prosecute his petition cliligently. [t was connsel's ftlrther submission that the evidence sought to be addtrced would have no influence on the outcome of the appeal. According to the Parliamentary Elections Act, (PEA), counsel contended, an election petition is supposed to be filed within 30 days from the date of gazelting or publishing the election resr.rlts. That time had long been expired yet, according to him, the petitioner is supposed to flle his petition with the evidence to sLrpport it. He prayed Court to dismiss the application with costs to all the respondents.

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In reply, counsel for tl.re applicant/appellant submitted that when admitted, the additional evidence the applicant/appellant seeks to adduce will have a tremendous impact on the outcome olthe main appeal as it will show that the 3'd respondent claimed to be what he was not. Counsel submitted that the sum total of the additional evidence sought to be adduced by the applicant/appellant is that the 3'd respondent could not have been qualified for nomination, election and declaration as the elected Member of Parliament for the constituency.

It was counsel's final strbmission that whereas there is a time limit for fiting a petition, there is no law limiting the time for filing evidence. They opposed counsel for the 3'd respondent's prayer for costs to all the respondent's since the other two

neither filed any evidence nor appeared at the hearing of the application.

I attentively listened to submissions by counsel for both parties; I also carefully perused the pleadings and evidence on record $\mathsf{S}$ and gave careful consideration to the law applicable to the matter now before me. I also studied all the authorities relied upon by both parties.

Rule 2 $(2)$ of the Rules of this Court provides: $10$

> "Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Court, to make such orders as may be necessary for attaining the ends of justice or to prevent abuse of the process of any such court, and that power shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be exercised to prevent abuse of the process of any court caused by delay."

reappraise the evidence and draw inferences $(a)$ of fact, and

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Rule 30 $(1)$ and $(2)$ provides -20

$30(1)$ On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court $may-$

- in its discretion, for sufficient reason, take $(b)$ additional evidence or direct that additional evidence be taken by the trial court or by commission. - When additional evidence is taken by the court, it may $(2)$ be oral or by affidavit and the court may allow the cross-examination of any deponent. - From the above rules, it is clear this Court has jurisdiction to 10 hear and determine the application before it. See also Fredrick J. K. Zaabwe v Orient Bank Ltd and Others CAMCA No. 10 of 2003.

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- The issue for determination in this application is whether the 15 applicant has shown sufficient reason for the Court to exercise its discretion to grant him leave to adduce additional evidence on appeal. - The principles upon which an appellate court should admit fresh 20 evidence where the application is not made on the grounds of fraud or surprise are well settled.

These are as was held in *Karmali Tarmohamed and Another* Vs T. H. Lakhani & Co. 1958 EA,

except on grounds of fraud or surprise, the $(i)$ 25 general rule is that an appellate court will not admit Jresh evidence, unless it was not available to the puty seeking to use it ut the trial, or that reusonable diligence would not huve made it so available."

- s In lYamisungo Vs Galiwungo and unolher 1986 HCB. -17 Odoki J, as he then was had this to say "Except for Jiawl or surprise, the general rule to thut an appellute cor.rt ruill not admit Jresh evidence unless it x,as not avoilable to the party seeking to use it at the trisl or thut - r0 reasonable diligence woukl not have made it available. Fresh evidence may ulso he admitted where some basic assumplion common to both parties hus clearly been falsified by suhsequent events, or where to refuse such evidence would be tffiont to common sense d source of - 15 injustice" (sic)

ln Ladd v Marshall (1) fi9541 I WLR 1489, Lord Denning in his jrrdgment lreld -

"ThereJbre to justiJy the receptiort of fresh evidence or o new triul, three conditions 20 must be fu\$illed: Jirst, it must be shown thot the evidence could not ltave been gained with refisonable tliligence for Court use ot the trial; secondly, the evidence must be sucl, that, iJ given, it wottld probably huve un 75 important influence on the result oJ.the case,

o though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."

'It is an invariable rule in all the courts... that if evidence which either was in the possession of parties at the time of a trial, or by proper diligence might have been obtained, is either not produced, or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by the granting of a new trial.'

'The new evidence is admissible if it would have formed a determining factor in or an *important influence on the result...* $\overline{A}$ fortiori where it would be conclusive .... Sed quaere if it is admissible if there is only a reasonable probability that, if it were given, a different decision would be reached...'

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See also Rev. Fr. Norsensio Begumisa and three Otlters Eric John Tibebogu Cortrt oJ'Appeal Civil Applicotion 64/2000. Vs. No.

5 Blachs law clictionary defines fiaucl tl'rr-rs: -

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"An intentional perversion of truth for the purpose of intlucing another in reliance upon it to pirrt with sorne valuable thing belonging to hirn or to surrentler a legul right. A f'alse representation of ir ntatter of fact whether by wrtrds or lry contluct; by lalse or misleatling allegations, or by concealment of th:rt which should have been disclosed, which deceives antl is intendetl to rleceive another so th:rt he shall act upon it to his legal injury. Anything calculated to deceive,, whether by single act or combination or by suppression of truth or suggestion of what is lalse whether it be by direct falsehoo<l or innuentlo, by speech or silence, word of mouth or look or gesture. A generic term embracing all multifhrious means which human ingenuity can tlevise which are resortetl to by one intlividual to get atlvantage over another by false suggestions or by suppression of truth aud includes all surprise, trick, canning, tlissembling and any unl'uir way by which lnnther is cheatetl." (Blacl<s Luw Dictionury Sixth Bdition at page 660).

This definition, in my view, is so wide as to cover the circumstances surrounding the 'O' level certiflcate of the 3"1 respondent, the sr"rbject matter of this application considering all the pleadings and evidence on record. My understanding of the purpose for which the additional evidence sollght to be adduced by the applicant/appellant is to show, inter alia, that the

explanation the 3"1 respondent gave to court about the discrepancies in his academic records, which the cotrrt believed, was a total lie fraudulently floated by him. A judgment influenced by and based on such a fraud, is itselfa nullity and an iltegality which court cannot sanction or condone.

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## See Makultr Internationsl Ltd Vs. His Eminence Cordinol Nsubuga and another p9821 HCB I l.

On this ground alone I woulcl grant the applicant/appellant's application. Fraud is, in itself, an exceptional circumstance enough to justify leave to adduce additional evidence on appeal, Turmohumed ond dnotlrer Vs Lakhora & Co. (supra).

That apart, however, I find additional justification for this Courl to exercise its jurisdiction and take in turther evidenoe at tl're appellate stage. I base myself on the case of R. Vs Yakobo Busigo s/o Moyogo ll945l 12 EACA 60. ln that case, tl.re Court of Appeal tbr Eastern Africa made a distinction between new evidence in a trial and evidence adduced to elucidate eviclence already on record. ThoLrgh a criminal case, R. Vs Busingo (supra) is now applicable to civil proceedings in Uganda. (See Oder JSC (as he then was) in G. M. Combined U Ltcl and A. K. Detergent Ltd and 4 Others Supreme Court Civil Appeil No. 7of I998 (unreported). l5 l0

T'he Supreme Cor"rrt Justice had this to say on calling evidence to elucidate on evidence already on record - 25

"Realizing that such jurisdiction must always be exercised with great care (The King v. Robinson (1917) 2 KBD 1098), we are of the considered opinion that this is a proper case for its exercise. Quite apart from the fact that the evidence shall throw light upon the case (The King v Robinson) (supra) this is not a question of directing new evidence to be taken but merely of directing the elucidation of evidence already $on$ the record............. the East African Court of Appeal had occasion to discuss calling new evidence at a trial and elucidating on evidence already on record in the case of Rv. Yakobo Busigo s/o Mayogo (1945) 12 EACA 60. There the Court of Appeal held that the appellate court had jurisdiction to take in evidence at the appellate stage that elucidates on the evidence already on record, as opposed to the introduction of an altogether new matter, that was never raised or does not emerge at all from the evidence already on record."

In the instant case, the records of entry of the $3rd$ respondent in St. Mary's College Kisubi and his nomination papers for the February 23rd 2006 Parliamentary elections for the constituency do "*emerge*" from the evidence on record. They keep featuring 25

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![](0__page_13_Picture_0.jpeg)

in the judgrnent in Election Petition 0001 of 2006, now annexture 'A' to the applicant/appellant's affidavit in supporl of this application.

: Going by the authority of R Vs Yakobo Busigo (supra), the applicant/appellant's request in the instant case.also qualifies, in my view, as one for Court to take in the records of entry into S1 at St. Mary's College Kisubi by the 3'd respondent and his nomination papers for the February 23'd 2006 Parliamentary t0 elections for the constituency, as evidence that elucidates on the evidence that emerges tiom and is already on record. I, therefore, also on this gror,rnd, find that this is a proper case for Court to exercise its discretion and invoke its powers r.rnder r. 2 (2) of the Rr,rles of this Court to allow the applicant/appellant to 15 call evidence in the form of the entry records of the 3'd respondent into S1, St Mary's College Kisubi and his nomination papers for the February 23'd 2006 Parliamentary elections for the Constituency to elucidate on evidence that emerges liom or is already on record, to ensure that the ends of zo justice are attained.

I am not persuaded that the applicant/appellant is time bzrrred in firrnishing additional evidence in the m:rtter before Cotrrt in tl.re main appeal as contended by counsel for the 3'd responclent. As long as the applicant/appellant does so with the leave of Court,

all election petition appeals, there could never be a need or justification for a party, in a deserving case, to furnish court with additional evidence or evidence elucidating on evidence already on record or evidence that emerges from the record to enable s Court reach a fair and just decision in matters before it on appeal.

In the circumstances, I find that this application is one that is proper for the grant of leave to the applicant/appellant to adduce additional evidence on appeal or to call evidence that elucidates on evidence already on record or evidence that emerges from the record and leave to do so is hereby granted.

That evidence shall be adduced by way of affidavit with the records of entry of the 3'd respondent to S. I at St. Mary's College Kisubi and his Nomination papers for the Febrr-rary 23'd 2006 elections fbr tl-re constituency annexed thereto. Costs of this application are granted to the applicant/appellant.

It is so orderecl. Dated at Kampala ttris .? k l0 ....day of. 2001.

> s't'ti . ITISTICE OF'APPEAL.

o ## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

### CORAM: HON. MR. JUSTICE S. B. K. KAVUMA, JA.

# **CIVIL APPLICATION NO. 13 OF 2006**

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HON. ANTHONY KANYIKE...... APPLICANT/APPELLANT

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- 15 $1.$ ELECTORAL COMMISSION ) THE RETURNING OFFICER, MUKONO)... RESPONDENTS $2.$ - 3. HON. MUWULIZE NORMAN IBRAHIM)

## (ARISING OUT OF ELECTION PETITION APPEAL NO. 4 $OF$ 2006)

## **RESPONSE OF JUSTICE S. B. K. KAVUMA, JA.**

On the $10^{\text{th}}$ instant, at the commencement of the hearing of Civil Application No. 13 of 2006 of this Court arising out of Election Petition Appeal No. 4 of 2006 of the Court, and after Mr. Mwebembezi (Counsel for the applicant/appellant) had made his opening remarks, Mr. Paul Kiapi (Counsel for the $3rd$ Respondent) addressed Court and stated that he had instructions from his client to make an application before me, for me to step down from the hearing of the application on the grounds which had been communicated to Court by the $3rd$ respondent the previous day, namely that he had a reasonable suspicion that I

may be biased since I and the appellant/applicant were members of the Sixth Parliament and of the then Movement Caucus in that Parliament and that we are known to be close friends. Counsel stated that as for him, as counsel, he had every conlldence in me but that he was not the litigant.

Counsel cited and reliecl on Professor Isoac Newton Ojok V Uganda S. C. Cr. Appeal No. 33 of 1991. He sLrbmitted that I, as the presiding JLrdicial Of ticer, had a duty to hear the application and make a decision on it from my own conscioLrsness. That the test to be applied in detemining whether a judicial oUicer is labouring r-rnder bias are first whether there is a real bias and secondly whether there is a reasonable suspicion of bias. He contended that a cou't must administer justice as to satisly reasonable persons that it was impartial and unbiased. He prayed that I stand down fiom the case.

Counsel tbr the applicantiappellant opposed the application for being baseless and unsustainable. He submitted that allegations of bias or a likelihood of bias are seriolrs and whoever makes them should adduce cogent evidence to prove them. The contents of the letter from the 3'd respondent are not such evidence. The letter does not show the source of the information contained therein. Counsel contended that in this country, in the administration of justice, it is not for parties to 25

choose judges to handle their matters on allegations on mere suspicion. He prayed Court to disallow the application tbr lack ofgrounds and evidence to support the suspicion. He prayed for costs against the 3'd respondent.

After listening to the submissions of counsel and considering the authority cited to Court together with others, I decided to disallow the application tbr lack ol merit. I ordered the hearing of tlie application to proceed with rro order to costs. I promised to give full reasons of my decision later and I now proceed to do s0.

The constitutional basis for administering jLrstice without bias in this coLrntry is to be found in Article 28 of the Constitr-rtion. In this case, this being a civil matter it is Article 28(1) which is relevant. It provitles: -

> "28 (I) Itt the determination oJ'Civil rights and obligations or any Criminul charge, a person shall he entitled to a fair, speedy and public hearing before an independent emd impnrtial Court or tribunnl established by lmu."

This provision recluires, inter alia, that a court which hears any Oase: -

(i) trrust be fair to all parties;

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#### *must be independent* $(ii)$ $(iii)$ *must be impartial.*

Speaking about bias, His Lordship the Chief Justice B. Odoki, CJ, had this to say in *Libyan Arab African Bank for Foreign* $\mathsf{S}$ Trade and Development and Another Vs Vassiliadis Supreme *Court Civil Appeal No. 9 of 1985* (unreported)

> "Bias may be established against a person sitting in a judicial capacity on one of two The first is direct pecuniary grounds. interest in the subject matter. The second is bias in favour of one side against the other: See Metropolitan Properties C. F. G. C Ltd v. Lannon 1 OB 577. Bias therefore means a real likelihood of an operative prejudice whether conscious or unconscious. See R.v. Justice of Queens Court (1908) 2 IR 282. In considering the possibility of bias, it is not the mind of the judge, which is considered, but the impression of bias it is not the mind of the judge, which is considered, but the impression given to reasonable persons. See Tumaini v Republic (1972 E. A 441. In *Metropolitan Properties Co. F. G. C. Ltd v.*

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Lannon (supra) Lord Denning said at P. 599.

'In considering whether there was a real likelihood of bias, the court does not look at the mind of the Justice himself or at the mind of the Chairman of the tribunal or whoever it may be who sits in a judicial capacity. The court looks at the impression, which would be given to other people. Even if he was impartial as could be, nevertheless if right-minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. *Huggius (1895) IOB 563.* See $Reg.$ v. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: See Cambone Justice, Exparte pearce (1955) 1QB 41, $48 - 51$ (1954) 2 All E. R. 850 and Reg. v. Nailsworth Licensing Justice Ex parte Bird (1953) 1 WLR 1046 $(1953)$ 2 ALL E. R 652. There must be circumstances from which a reasonable man would think it likely or probable that the

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judge would or did favour one side unfairly at the expense of other. The Court will not inquire whether he did in fact favour one Suffice it that reasonable side unfairly. people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: the judge was biased'.

Indeed it is a well settled principle that justice must not only be done but must be seen to be done. As Lord Hewart C. J. said in an often quoted passage, in R. v Sussex Justice Ex parte Mcarthy (1924) 1 KB 256 at $P. 259.$

'a long line of cases shows that it is not merely of some importance but is of fundamental importance had justice should not only be done, but should manifestly and undoubtedly be seen to be one'

As regards the evidence of bias, the authorities are clear that there must be

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reasonable evidence to satisfy the court that real likelihood of bias. there was $\boldsymbol{a}$ Objection cannot be taken at everything that might raise a suspicion in somebody's mind or anything which could make fools suspect. There must be something in the nature of a instance for bias. evidence $of$ real proprietary interest in the subject matter before the court or a likelihood of bias based on close association with one of the parties, as was the case in Tumaini v Republic (supra) in $R$ v. Justice of Queen's Court (supra) cited in $R$ v. Combone Justice ex *parte peace (supra)". (sic)*

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Bearing the above authoritative holding in mind and applying the same to the fears expressed by the $3rd$ respondent, I find that no case for a real likelihood of bias is made out in the instant No evidence was adduced to support the allegations of case. the supposed likelihood of bias.

I gave careful consideration to all that was submitted by counsel for the $3rd$ respondent basing on the letter by the $3rd$ respondent. I took the Judicial Oath as I was sworn in as a Judicial Officer of the Court of Appeal to adjudicate matters before me fairly,

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impartially and without fears or favour, affection or ill will and to do right to all manner of people in accordance with the Constitution. To say that merely because I was a member of the Sixth Parliament and the then movement caucus at the same time as the applicant/appellant was and merely to allege close friendship with him without adducing any credible evidence and then require me to stand down from the hearing of the application in such circumstances, is not only manifestly unjust but for me to stand down would be a betrayal of the Judicial Oath I solemnly took.

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The concept of justice and the principle that not only must justice be done, but it must be seen to be done, is a matter for the judgment of reasonable and right thinking members of the general public and not those intimately affected.

My conscience in this matter was absolutely clear and I was confident I would perform my duty fairly and impartially. I found no merit in the application and the above were my reasons for disallowing it and for the orders I made.

Dated at Kampala this ... 8th ... day of Febru are $...2007$ Steven B. K. Kavuma Justice of Appeal.