Omari Assini v Electoral Commission and Another (Election Petition Appeal 1 of 2023) [2024] UGHCCD 159 (4 October 2024)

### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **(CIVIL DIVISION)**

#### **ELECTION PETITION APPEAL NO. 0001 OF 2023**

**(Arising from Chief Magistrates Court of Makindye Election Petition No. 003 of 2021)**

**YASINI OMARI ASSINI------------------------------------------------------ APPELLANT**

## **VERSUS**

**1. ELECTORAL COMMISSION 2. WAFULA IVAN------------------------------------------------------ RESPONDENTS**

## **BEFORE: HON. JUSTICE. SSEKAANA MUSA**

#### **JUDGMENT**

The appellant and the 2nd respondent were some of the contestants in the elections conducted by the 1st respondent on 25th January 2021 for the position of Directly Elected City/District Councillor for Makindye East II Electoral Area in Makindye East Constituency, Kampala District.

The Returning Officer of the 1st respondent returned the 2nd respondent as validly elected District Councillor for Makindye Eat II Electoral area instead of the petitioner who won the election with 2,277 votes while the 2nd respondent obtained 1,753 votes and was subsequently gazette by the 1st respondent with 3,602 votes on the 12th day of April 2021 in Uganda Gazette.

The appellant in the petition to court stated that he won the election held on 20th January, 2021 with 2,277 votes as opposed to 1753 votes for Wafula Ivan who was a runner-up but the 1st respondent Returning Officer wrongly altered, falsified, declared, transmitted and gazette the false results showing 2nd respondent as winner thereof, whereas not.

The appellant stated that the election of the 2nd respondent was marred by illegal practices and/or election offences all of which, in sum were in gross noncompliance with the provisions of the Constitution, Electoral Commission Act, The Local Governments Act as amended and the principles governing and regulating conduct of elections in Uganda; which noncompliance, in effect, warrants the orders set in the petition and cancellation of the 2nd respondent win and declaration of the appellant.

The lower court heard the election petition and dismissed the same by declaring the 2 nd respondent the duly elected councilor. The appellant being dissatisfied with the decision filed this appeal on five grounds.

- *1. The learned trial Ag. Chief Magistrate erred in both law when she allowed the 2nd respondent to proceed with his case based on an Answer to the Petition that was filed on court record in violation of the Court order and Consent of the parties made on the 5th October 2021 which required the 2nd respondent to first pay costs of Ug. Shs 5,000,000/= to the petitioner before filing the Answer.* - *2. The learned trial Ag. Chief Magistrate erred in law and fact when she allowed the hearing of the petition interpartes on the 25th July, 2022 without complying with the Court Orders in Misc. Application 273 of 2021.* - *3. The learned trial Ag. Chief Magistrate erred in law and fact when she held that there were no agreed issues framed by the parties, and went ahead to frame and answer different issues not agreed in Joint Scheduling Memorandum filled and adopted by Court on August, 2022.* - *4. The learned trial Ag. Chief Magistrate erred in law and fact when she relied on the affidavits of Katushabe Flavia, Siyama Kassim, Wamukota Micheal and Amina Ramazan as witnesses after their affidavits were abandoned by the 2nd respondent.*

- *5. The learned trial Ag Chief Magistrate erred in both law and fact when she failed to follow the agreed issues in the Joint Scheduling Memorandum as endorsed by Court on 8 th August, 2022.* - *6. The learned trial Ag. Chief Magistrate erred in both law and fact when she held that the preliminary objection by counsel for the petitioner to the effect that the affidavit of Mr. Munanura, the Returning Officer, which was full of falsehood and could not be believed, was prematurely raised.* - *7. The learned trial Ag. Chief Magistrate erred in both law and fact when she found that non-compliance with electoral laws and rules did not affect the results of the elections in a substantial manner.* - *8. The learned trial Ag. Chief Magistrate erred in both law and fact when she found there were no electoral offences committed by the 2nd respondent.* - *9. The learned trial Ag. Chief Magistrate erred in both law and fact when she held that nomination of the 2nd respondent was not pleaded in the petition.* - *10. Having found that there were different TR Forms submitted and gazette, the learned trial Chief Magistrate erred in both law and fact when she held that the same could not have affected the results of the election in a substantial manner.* - *11. The learned trial Ag. Chief Magistrate erred in law and fact when she held that the petitioner did not lodge a Complaint about nomination of the 2nd respondent as required by law.* - *12. The learned trial Ag. Chief Magistrate erred in law and fact when she failed to follow the decision of the Court of Appeal of Uganda in Wakayima N Musoke & EC vs Kasule Robert Ssebunya EPA No. 50 and 102 of 2016, Hon Tumuramye Genensio v Tayebwa Herbert Musasizi & Electoral Commission, Kagyerero Ronald v Muwuma Milton Kalulu & Anor, EP No. 17 of 2005.*

The appellant prayed for the appeal to be allowed, the Orders of the Learned trial Chief Magistrate be reversed; *The Order maintaining the 2nd respondent as the winner of the election held on 20th January, 2021, as City Directly elected Councillor-Makindye East II Constituency be substituted with an Order declaring decision the petitioner as the validly elected councillor.*

At the hearing of the appeal, the appellant was represented by *Counsel Kandeebe Geoffrey Ntambirweki & Phiona Apili* for the appellant and the 1st respondent was represented *Counsel Edwin Tabaro* while 2nd respondent was represented by *Counsel Muwanga Isaac Ernest and Ssekyanzi Lawrence.*

In the interest of time the court directed that the matter proceeds by way of written submissions which I have read and considered in this Judgment.

It is true that the duty of this Court as first appellate court is to re-evaluate evidence and come up with its own conclusion. The duty to re-evaluate involves the examination of the record of proceedings and be satisfied that the findings are supported by the evidence on record.

Following the cases of *Pandya vs R [1957] EA 336; Bogere Moses and Another v Uganda Criminal Appeal No.1/1997,* the Supreme Court stated the duty of a first appellate court in *Father Nanensio Begumisa and 3 Others vs Eric Tibebaga SCCA 17/20 (22.6.04) at Mengo from CACA 47/20000 [2004] KALR 236.*

The court observed that the legal obligation on a first appellate court to re-appraise evidence is founded in common law, rather than the Rules of Procedure. The court went ahead and stated the legal position as follows:-

*"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions."*

This position was reiterated by the Supreme in the case of *Kifamunte Henry v Uganda SCCA No. 10 of 1997*, where it was held that;

"*The first appellate court has a duty to review the evidence the evidence of the case and to reconsider the materials before the trial Judge. The appellate Court must make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it*."

In a democracy, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained. The valuable verdict of the people at the polls must be given due respect and candor and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of shaky or prevaricating character. It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election. The functioning of the democracy depends on the quality of men and women chosen for the governance of the country.

I have taken the above principles into account as I consider the Appeal. I have considered the record of proceedings of the lower Court and have considered the written submissions of both parties.

## *Grounds 1 & 2*

The two grounds of appeal challenge the learned trial Chief magistrate for allowing the 2nd respondent to proceed on the case based on an Answer to the petition that was filed on court record in violation of the court Order and Consent of the parties made on the 5th October, 2021. In addition, the learned trial Chief Magistrate is faulted for allowing the hearing inter partes on 25th July, 2022 without complying with the Court Orders in Misc. Application No. 273 of 2021.

The appellant submitted that the 2nd respondent was served three times or different occasions by both the petitioner's counsel and court process servers and the 2nd respondent failed to file an answer and the court accordingly issued an order to proceed ex parte against the 2nd respondent. The court later set aside the order to proceed ex parte and granted leave to file his answer to the petition upon payment of security for costs within 10 days from the date of delivery of the ruling which he failed to do so. The learned ag Chief Magistrate allowed the 2nd

respondent to join proceedings after the time had lapsed and after he had failed to comply with the order.

The 2nd respondent's counsel submitted that the petitioner failed to make effective service upon which the court ordered the 2nd respondent be served properly. The 2 nd respondent filed miscellaneous application No. 257 of 2021 and the parties consented to the late filing upon payment of 5,000,000/= which condition the 2nd respondent failed to fulfil. And the court proceeded to hear the matter ex-parte and the 1st respondent witness-Returning Officer was cross-examined.

The 2nd respondent further applied to set aside the order to proceed ex-parte and the court allowed him to deposit the 5,000,000/=. The said amount was deposited and the 2nd respondent wrote to court affirming the said monies were deposited in court and prayed that the answer to the petition and supporting affidavits which had earlier been filed on the 12th October be admitted on record as the same had already been served on the appellant's counsel. The court admitted the same and the appellant was allowed to cross examine the 2nd respondent and also filed affidavits in rejoinder.

# *Analysis*

The Learned trial Ag. Chief Magistrate allowed the 2nd respondent to take part in the proceedings after he complied with requirement of depositing security for costs of 5,000,000/=. It would appear the same was deposited out of time but the court in its discretion allowed the same and the matter proceeded. The conduct of the 2 nd respondent was indeed shabby and indeed affected the appellant but the court in the interest of justice allowed him to take part in the proceedings.

The court allowed the 2nd respondent's answer to the petition and affidavits in support filed earlier to be adopted without necessarily filing fresh pleadings and affidavits and the same cannot be faulted or put into question after the trial and especially on appeal.

The court should in as much as possible administer justice to the parties without trying to punish the litigants for the errors or flaws/lapses. *Hon Justice Yorokamu Bamwine* in *Crown Beverages Ltd v Stanbic Bank MA No. 018 of 2005* noted that;

*"…..it is trite that courts do not exist for the sake of discipline, but for the sake of deciding the matter in controversy. The administration of justice should normally require that the substance of disputes should be investigated and decided on their merits and; errors, lapses should not necessarily debar a litigant from the pursuit of his rights. Unless the other party will greatly be prejudiced and cannot be taken care of by an order of costs, hearing and determination of disputes should be fostered rather than hindered."*

Non-compliance with the rules of procedure amounts to an irregularity that may lead to the setting aside of the process of the defaulting party but does not result to a nullity. The party should raise the objection about any defect promptly otherwise he will be deemed to have waived. Thus a point on procedural irregularity should be timeously and properly raised for it to become necessary for the appellate or trial court to consider its merits.

When an objection on procedural defects is not timeously taken as thus stated, the party should be deemed to have waived it. The only exception to this general rule is that a party would be allowed to complain on appeal if it can be shown that he suffered a miscarriage of justice by reason of procedural irregularities. The appellant has not shown any miscarriage of justice suffered by virtue of the 2nd respondent taking part in the proceedings inspite of depositing 5,000,000/= belatedly.

Therefore, the court agrees with the 2nd respondent that the irregularity of failing to deposit the money in time does not materially affect the merits of the case or engender a miscarriage of justice or that in any case it is too late for the other party to complain about such irregularity. Also, in general, where a party in a civil proceeding which is neither constitutional nor a nullity but merely wrong or irregular and in fact suffers no injustice and no miscarriage of justice is thereby occasioned, it would be too late to complain on appeal that the wrong procedure was adopted simply because he lost the case.

The appellant allowed the 2nd respondent to file the answer to petition and affidavits out of time inspite of the strict timelines in election matters. He cannot be seen to raise the essence of timelines in this appeal after he waived any rights during the trial.

These grounds of appeal fail.

# *Grounds 3 and 5*

The respondent contended in these two grounds of appeal that the learned trial Chief Magistrate erred in law and fact when she held that there were no agreed issues framed by the parties and went ahead to frame and answer different issues not agreed in Joint Scheduling Memorandum filed and adopted on 8th August, 2022.

The trial court in the judgment mentioned that noted that the issues in the joint scheduling memorandum was ever agreed upon since it was agreed upon between the petitioner and the 1st respondent. The court ignored the issues raised during the joint scheduling memorandum by all the parties and thus framed her own issues and condemned the parties unheard on the said issues framed by court.

The 1st respondent counsel submitted that the issue of nomination was rightly introduced by the learned trial magistrate as an issue for determination by the court. In addition, it was in exercise of this authority under Order 15 rule 1 that the learned trial magistrate framed issues for determination of court on her own volition.

The 2nd respondent equally contended that the trial Chief Magistrate did not err in any way when she found that the different counsel resolved different issues although they were similar and rotated around the same dispute. She went ahead to exercise her powers under Order 15 to reframe the issues to ensure that the disputes between the parties is adequately resolved. There was a disagreement on the issues raised in the joint scheduling memorandum.

# *Analysis*

The trial court is required to identify the core issues for trial and this is done with aid of the lawyers but he or she takes full responsibility for whatever decision he or she or she takes. The trial court is required to examine the pleadings carefully and to determine what issues will completely determine the case before him or her. In the course of doing this it is legitimate to set down one issue only often called the ultimate issue. And if in the course of determining the ultimate issue or where there are two or more issues initially set down for hearing, other ancillary or collateral matters arise, the party is entitled to apply and the trial court is empowered to amend the issues by adding to it or them and in general to vary the original orders at any time before the judgment. *See Okello Johnson v Lalam Angella HCCA No. 12 of 2019*

The flexibility is permitted by virtue of Order 15 which enjoins the court to frame issues. However, the trial court should equally respect and give due consideration to issues framed during the joint scheduling as a case management tool in order to limit any miscarriage of justice. The litigant's rights should be upheld and protected in the formulation of the issues and any change of the issues or amendment of issues agreed upon between parties during scheduling conference. In the administration of justice in our jurisdiction, no particular trial court has exclusive monopoly or ownership rights over any given case. *See Republic v High Court, FTD 2, Ex parte: Ghana Lotto Operators Association (National Lottery Authority Interested Party) [2009] 24 MLRG 36 SC*

It is very important that counsel (on both sides, if any) aid the court to decide on issues that they think are relevant to the case as a whole but more specifically the case of their clients. This is why the rules of court; Order 12 introduced Scheduling Conference to sort out points of agreement and disagreement which is only achievable in presence of both counsel for the parties. They may raise issues which they consider to be the real issues for determination in the case. Of course, it is for the trial court to eventually decide which issues he/she considers to be the most relevant and those are the issues he sets down for trial. But, the input of the parties through their counsel is very essential and it is their duty to ensure that issues relevant to their respective cases are set down. The court's power or unfettered discretion is to rearrange or formulate issues for determination by parties to meet the justice of a case.

The parties agreed in their joint scheduling on the issues to be determined and indeed the first trial Chief Magistrate agreed to the same. But the learned Chief Magistrate who was new in the matter appears to have missed the issues and proceeded to frame her own issues. The court is empowered to frame the issues as set out in Order 15 of the Civil Procedure Rules but the parties should be allowed an opportunity to address the court on such issues. The trial Chief Magistrate ought to have given the parties an opportunity to make submissions in support of those issues framed instead of framing her own issues and determining the same without according the parties a right to be heard on the same issues. The right to be heard is an inviolable right under Article 28 and 44 of the Constitution and this was fundamental breach of the rules of fair hearing.

Where there is a complaint that the re-arrangement of modification or amendment of issues by a court has caused a miscarriage of justice, the burden lies on the complainant to show that there was indeed a miscarriage of justice by the new arrangement or modification or amendment of the issues. It is for the court to figure out how the re-arrangement or modification of the issue caused a miscarriage of justice. The appellant in this case has set out the effect of the trial court raising a different issue and determining the same without according them a hearing on such new issue. The court ignored the core issue addressed by the parties raised during the joint scheduling which captured the essence of the dispute.

A court should and ought not raise, *suo motu*, any issue or issues without inviting the parties or their counsel to address it on such issue or issues, particularly the party that may be adversely affected as a result of the point or issue raised. The court cannot go outside the case made by the parties without affording the parties an opportunity to be heard. Thus, issues for determination must be limited to those raised by the parties in their pleadings and the court has no power to raise and consider novel issues without hearing the parties. *See Ogundele v Agiri (2009) 18 NWLR (pt1173) (pt 1290) p. 219*

The trial Chief Magistrate erred in law when she ignored the issue raised by the parties and court. A court has a duty to pronounce on all material issues raised but failure to do so is not necessarily fatal to a judgment if such failure did not occasion a miscarriage of justice.

## *Ground 4*

*The learned trial Ag. Chief Magistrate erred in law and fact when she relied on the affidavits of Katushabe Flavia, Siyama Kassim, Wamukota Micheal and Amina Ramazan as witnesses after their affidavits were abandoned by the 2nd respondent.*

The appellant's counsel submitted that the 2nd respondent testified in court that he only had one witness and only called Wafula Ivan and closed his case and the rest of the affidavits filed were expunged off the court record.

The 2nd respondent in his submission contended that the learned Chief Magistrate did not rely on the affidavits in issue in evaluating the evidence and in arriving at her findings and did not mention of any of the names of the aforesaid persons and their evidence had no bearing whatsoever on the court's decision.

### *Analysis*

The learned trial Chief Magistrate noted that "*the counsel for the petitioner never sought for leave to cross-examine the other witnesses of the 2nd respondent. The affidavit evidence of the other witnesses remain evidence in this case though the deponents were not subjected to cross-examination."*

The trial Chief Magistrate was under an impression that the 2nd respondent had other witnesses on record which in my view was quite erroneous. The 2nd respondent only had one witness and the petitioner could not cross examine the witnesses whose affidavits had been abandoned and were never called to have the same tendered in court. It is clear she alluded to the other affidavits which never existed when she stated; "The affidavit of the other witnesses remain evidence in this case though the deponents were not subjected to cross-examination.

It is not clear whether they such evidence was relied upon or not but the statement implies that the trial court was not alive to the fact the 2nd respondent only had one witness in opposition to the petition. Since the 2nd respondent had abandoned the witnesses, it was an error for the court to allude to the same affidavits which had been abandoned by the 2nd respondent. Normally a party can decide which witnesses to call and which not to bother about once it is realized that they are bound to repeat the same evidence. *See Badda & Anor v Mutebi CACA No. 25 of 2006*

The learned trial Chief Magistrate erred in law when she made reference to the 2nd respondent's abandoned affidavits and specifically the none cross examination of the witnesses and yet the affidavits had been abandoned and expunged off the record.

### *Grounds 6, 7 and 10*

*The learned trial Ag. Chief Magistrate erred in both law and fact when she held that the preliminary objection by counsel for the petitioner to the effect that the affidavit of Mr. Munanura, the Returning Officer, which was full of falsehood and could not be believed, was prematurely raised.*

*The learned trial Ag. Chief Magistrate erred in both law and fact when she found that non-compliance with electoral laws and rules did not affect the results of the elections in a substantial manner.*

*Having found that there were different TR Forms submitted and gazette, the learned trial Chief Magistrate erred in both law and fact when she held that the same could not have affected the results of the election in a substantial manner.*

The appellant's counsel submitted that the petitioner's submissions in the lower court shows the analysis of how the petitioner arrived at the fact that Mr Munanura's affidavit was full of falsehood.

The 1st respondent contended that the margin between the appellant and the 2nd respondent was at all material times over 1,200 votes and the margin is too big to be explained away through electoral offences and non-compliance. The corrigenda made by the 1st respondent did not in any way alter the results of the election, the earlier results published reflecting an error were the petitioner had garned 2277 and the 2nd respondent obtained 3602. The corrigenda published in May 2021 shows the respondent attained 3672 and the petitioner had 2286. According to counsel, the corrigenda in no way altered the eventual outcome of the election.

The 2nd respondent submitted that as a candidate he had no part to play in the said activities apart from critically following up every step of the way in order to protect his votes as a candidate in the election. It was his contention that it is not true that he was wrongly declared a winner. He agreed with the learned Chief Magistrate that there was a difference of over 1000 votes despite the errors done during the tallying, transmission and gazetting of the results of the election. The appellant never challenged or disputed or challenged the results or the DR forms from which the results were derived and the same where exhibited by both respondents.

# *Analysis*

The position of the law regarding the type of evidence which must be led in support of allegations in which figures or scores of any candidate at an election are being challenged should come from the officers who were at the venue where the votes were counted and or collated. Agents are in the most vantage points to give evidence of wrongdoings at the polling station or the tally centre.

The appellant alleged falsification of the results since there were two transmission of results forms. To prove falsification of results of an election, the two sets of results one genuine and the other false must be put in evidence by the party making the accusation. The Returning Officer was the person most conversant with the results and indeed clarified that the two results tendered were as a result of some errors which were detected and indeed both parties had the results changed accordingly.

The results declared by the Electoral Commission are prima facie correct and the onus is on the petitioner to prove the contrary. Where a petitioner complains of non-compliance with the electoral laws, he has a duty to prove it polling station by polling station, parish by parish or ward by ward. He/she must establish the noncompliance was substantial and that it affected the results of the election.

The duty lies on the court to determine whether or not an election was conducted substantially in accordance with the Constitution and the Electoral laws. The court will look at the circumstances of the case, including the state of pleadings, especially the credibility of the petitioner's position and the nature and substance of the complaints of the petitioner, the attitude of the functionaries charged with the conduct of the election and whether the omissions complained of by the petitioner, even if proved, affected the conduct of the election.

The appellant's complaint of falsification of results is ascertainable from the available evidence or specifically the declaration of results forms. It is easily provable by the simple mathematics of additions of the votes attained at every polling station. The complaint was about the changes in the transmission of results forms which was explained by the Returning Officer-Munanura and no polling station has been identified in evidence with false results.

# *Whether any electoral offence or illegal practice in connection with the election was committed by the 2nd respondent personally or with his knowledge and consent or approval.*

Free and fair elections are the very foundation of democratic institutions, elections should not only be fairly and properly held but should also seem to be conducted as to inspire confidence in the minds of the voters that everything has been above board and has been done to ensure free elections.

The Learned Trial Chief Magistrate in her decision stated that *"the 2nd respondent clearly rebutted the allegations of bribery in his affidavit and during his oral evidence in court when cross-examined……There was no proof adduced that the parents of pupils to whom bursaries were offered were registered voters for the 2nd respondent to have induced them to vote him.*

The 2nd respondent issued letters under his hand as *Recommendation for Bursary* and the said letter is reproduced here for ease of reference;

# **WAFULA FOUNDATION KISUGU**

REF DATE 11/01/2021

TO THE,

MINISTER OF ELDERLY AND DISABLED

### HAJJAT SARAH KANYIKE

Dear, Madam,

### RE: **RECOMMENDATION FOR BURSARY**

The above subject matters refers to Nsamba Fan Joseph P.4, Nanyunja Sanyu Kemba top.

Following the positive response that led to partnership with your Office, I kindly request you the above mentioned student for a support in your Office.

Any assistance rendered to him will be highly appreciated.

Most Obliged

### WAFULA IVAN

### DIRECTOR WAFULA FOUNDATION KISUGU

The 2nd respondent in his affidavit in support of his Answer to Petition did not deny the giving of the bursaries during the campaigns but rather his defence was that; *the bursaries were not intended to influence the way voters were supposed to elect but rather it was an initiative started by Hajjati Sarah Kanyike in 2018 as the Deputy Lord Mayor; That it was his duty to recommend people to the office of Hajjati Sarah Kanyike for granting of bursaries who would in return respond to the school with the nature of bursary she has granted that it may be half or full bursary; That it is not true that that he went to villages in Makindye requesting people to come for burasries but it is the individuals who used to approach him for bursaries; That in his line of business as a proprietor and director of earnest Primary School in Kisugu to give out school fees bursaries to the needy within the areas of Kisugu and Namuwongo; That he started Earnest nursery and primary school on the backdrop of assisting the less privileged to get quality education since it is through the same schemes that he was able to go to school.*

The allegations of bribery of corrupt practices in the present case were made partly in writing through the alleged promises for bursaries and then orally through public announcements. Documentary evidence always carries greater weight and assurance than oral evidence. It is safer to rest a conclusion on documentary evidence rather than oral evidence which may sometimes be treacherously deceptive and difficult of correct evaluation. *See Kanwar Lal Gupta v Amar Nath Chawla [1975] SCC 3 646*

The essence of bribery as a corrupt practice lies in making a gift, offer or promise with the object of inducing the voter to act or omit to act in a particular manner or as a reward for acting or not acting. The 2nd respondent in this matter clearly made a promise of bursary to the voters and encouraged the parents who are the potential voters to go for the same bursaries. It cannot be a defence that this project (bursaries) was always in place since 2018 and the 2nd respondent should have been aware of the period he was calling upon the people to go for the said bursaries at his school.

The 2nd respondent denied ever calling upon the people for bursaries and contended that the said parents were the ones who were going to his school for bursaries. This court is not satisfied by the statement in denial by the 2nd respondent since the corroboration of the public call for persons interested in bursaries is interrelated with the persons who received the letters for bursaries during this period in January 2021 as exhibited in court. The appellant attached a letter dated 18th January, 2021 complaining about the 2nd respondent issuing bursary forms recommending vulnerable children in order to secure votes.

If the promise for a bursary is pure, is an acceptable act but the eminence of election will be an important factor in determining the question as to whether object of the bursary was pure charitable or not. Acts of benevolence by the 2nd respondent would not be treated as corrupt or bribery but the act of trying to popularize the bursary project during this period of election indeed changed the motive from an innocent project to politicking or seeking votes or influencing the voting exercise. This was an inducement to vote for the 2nd respondent and indeed it must have brought some influence to bear upon the will of the voter. Promises of bursary to the voters by the 2nd respondent or publicizing the bursary project in the area where people have less or no means must definitely have some influence on the voters. The 2nd respondent should have suspended the publication of the bursary project although the scheme should have continued in earnest without popularizing the same within the election period.

This court has appreciated the evidence adduced and in its proper evaluation is satisfied that the 2nd respondent used the bursary project as a campaign tool to induce the voters of Kisugu and Namuwongo. The evidence on record clearly is more probable than not and it is proved at a higher threshold as a criminal allegation. The 2nd respondent committed an electoral offence or illegal practice which is contrary to the Local Governments Act.

## *Grounds 9, 11 and 12*

*The learned trial Ag. Chief Magistrate erred in both law and fact when she held that nomination of the 2nd respondent was not pleaded in the petition.*

*The learned trial Ag. Chief Magistrate erred in law and fact when she held that the petitioner did not lodge a Complaint about nomination of the 2nd respondent as required by law.*

*The learned trial Ag. Chief Magistrate erred in law and fact when she failed to follow the decision of the Court of Appeal of Uganda in Wakayima N Musoke & EC vs Kasule Robert Ssebunya EPA No. 50 and 102 of 2016, Hon Tumuramye Genensio v Tayebwa Herbert Musasizi & Electoral Commission, Kagyerero Ronald v Muwuma Milton Kalulu & Anor, EP No. 17 of 2005.*

The appellant contended that the 2nd respondent was invalidly nominated and that section 119 of the Local Governments Act should have been given a natural meaning as to the requirements/preconditions for nomination.

The appellant prayed that the court finds the learned chief magistrate erred in law since the respondents had not responded to this allegation.

The 1st respondent submitted that the trial Chief Magistrate was right not to consider the nomination as ground since it was never pleaded in the petition.

The 2nd respondent also contended that the petitioner did not plead the issue of nomination in his petition and supporting affidavits and that the same only came up in his affidavits in rejoinder. The main contention on nomination was that the 2 nd respondent was wrongly nominated without a valid seconder and also for telling lies under oaths about his education background.

## *Analysis*

The learned Trial Chief Magistrate found that nomination of the 2nd respondent was never raised in the petition and it was introduced in the affidavit in rejoinder. It bears emphasis that the nature of the affidavit in rejoinder is a dual purpose document which both a pleading and affidavit and must be treated as such. The election petition law does not provide for filing a Reply to Answer to Petition which is a pleading.

The rules of pleading are intended as aids for fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it. Pleadings, if taken as a whole, clearly indicate that they constituted the material facts so as to pose a triable issue as to whether the returned candidate was disqualified to contest election of City Directly Elected Councillor, Makindye East II Electoral Area, Makindye Division Kampala since he was not validly nominated.

The respondents had an opportunity to make a reply or answer the alleged new allegation of invalid nomination which was introduced by the petitioner. This being an election matter, it is a matter of general importance to the public to interrogate the conduct of an election. A party should not be absolved from liability simply because an allegation was brought improperly and belatedly. The pleadings ensure each side is fully alive to questions that are likely to be raised at the trial.

This new allegation went to the root of validity of the election for the 2nd respondent declared a winner in an election. The election is not a contest between the parties concerned alone. The statutory requirement of election law must be strictly observed and the election contest is not an action at law or a suit in equity, but purely statutory proceeding. An election petition is based on rights, which are purely a creature of a statute. If the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. See *Ajay Maken v Adesh Kumar Gupta, 2012 (12) SCALE 173; [2013] 3 SCC 489*

An election dispute has a public aspect in that it is concerned more with the right of a constituency to be represented by a particular candidate. But it does not follow from the public character of the controversy that there is no *lis* between the parties to the election contest, and that the *lis* can be relevant to relevant law. A judicial inquiry investigates, declares and enforces liabilities as they stand on present and past facts and under laws supposed already exist.

The policy of election law seems to be for upholding of purity of elections and to provide for investigation into all allegations of malpractices from the nomination exercise up to the final stages of the electoral process of declaration of a winner. These should be thoroughly investigated and the court has power to do so. A technicality which intends to uphold a questionable election should not be considered, if it is intended to make a candidate who was not qualified to continue to hold office.

The appellant challenged the nomination of the 2nd respondent vide his letter dated 24th/09/2020 contending that the seconder for his nomination Kazungu Bob Katusiime Flavia of Kisugu is not a registered voter. Secondly, the nomination was challenged for telling lies under oath when the 2nd respondent stated that he completed his O'level at Kisugu High School in 2010 and that he holds a diploma in education from Kyambogo University in 2017.

It is not in dispute that the appellant filed and lodged a complaint with 1st respondent and the same appears not to have been addressed and it is on this basis that the appellant has raised the same concern in this court. These are serious allegation which went to the validity of the nomination of the 2nd respondent. The sanctity of an election begins with ensuring that proper candidates are placed on the ballot papers and any wrongful nomination of candidates infects the electoral process with irregularity.

The 2nd respondent indicated on his nomination forms that his occupation/profession is teacher; the seconder for his nomination was Kazungu Bob Katushabe Flavia; and he stated the following qualifications; Diploma in Education (Kyambogo University), U. C. E Kisugu High School 2010, P. L. E (Kisugu Primary School) 2006

This court observes that the seconder to the nomination was not Kazungu Bob Katushabe Flavia but rather Kazungu Bob and the inclusion of the name of Katushabe Flavia within the same box was merely an error and indeed it was cancelled on the NIN and signature. It was not one name as the appellant wanted this court to believe but rather the 2nd respondent forgot to cancel out the name Katushabe Flavia.

This court has found issues with the educational qualifications of the 2nd respondent which he set out under OATH as stated herein before. The 2nd respondent claims to possess Uganda Certificate of Education from Kisugu High School of 2010. The evidence adduced by the appellant from the school shows that the 2nd respondent was a student for three years and he did not sit UCE EXAMINATIONS at Kisugu High School. In addition, the qualifications show some discrepancy since the 2nd applicant could not obtain a Diploma in Education directly from O'level without A'level-Uganda Advanced Certificate of Education or another qualification equivalent to A'level like a Certificate in Education from Teacher Training College. He tried to introduce another qualification in re-examination from Kibuli Primary Teachers College but the same was never included among the qualifications which was an afterthought and it never clarified the matters.

*Section 119(4)(d) of the Local Government Act* provides as follows;

*A nomination paper specified as Form EC 4 in the Seventh Schedule to this Act shall be signed by the candidate and seconded by two registered voters and tendered to the returning officer with the following-*

*(d) a statement under oath specified as Form EC 7 in the Seventh Schedule to this Act stating among other things-* The educational qualifications set on the form are suspicious and very questionable and this would be a clear breach of the oath since it points to deliberate falsehoods and this would put the entire nomination in question.

The court, apart from doing justice between the parties, must also consider the aspect of public interest in the electoral process which is to give the voters a duly elected representative. The electoral officials appointed by the Electoral Commission are expected to adhere to the provisions of the electoral laws substantially.

The importance of the Form EC7 should not be underscored and it must be scrutinized thoroughly because it is under oath. Whereas human errors errors may be acceptable and understood like in the case of Kazungu Bob Katushabe Flavia as noted earlier, but including qualifications which a person does not possess is not an error and it is serious flaw. A returning officer, even if he/she has taken assistance from his or her deputies or assistants cannot abdicate his/her duty to scrutinize the form submitted under oath to be sure that the oath is upheld and that there are no lies. *See Wakayima Musoke & EC Kasule Robert Ssebunya EPA Nos. 50 and 102 of 2016; Genensio Tumuramye vs Herbert Musasizi Tayebwa*

It is the duty of the Returning Officer to check whether the information required or given is fully furnished on the nomination forms since such information is very vital for giving effect to the "right to know" of the citizens. The 2nd respondent was not required to have academic qualification for councillorship position and should only have stated 'not applicable' or 'NIL' or 'not known' instead peddling falsehoods under oath. The effect of telling lies under oath on the nomination papers should be equated to failure to subscribe an oath or affirmation before an authorized officer, the nomination paper is liable to be rejected. *See Chandra Bhan v Ramesh Kumar, AIR 1998 P & H 262*

The 2nd respondent brought his nomination into question when he breached the oath by telling glaring lies on Form EC7 which is supposed to be under oath, this rendered his nomination invalid and the nomination forms should always be taken seriously. The requirement of the information to be given under oath is not a simple matter and the oath must be respected with accurate information to avoid

misleading the public or electorate who will be choosing a leader based on information given under oath. The 2nd respondent was not validly nominated and his nomination ought to have been rejected for telling lies under oath.

## *What remedies are available?*

The appeal is allowed and the judgment and orders of the Learned trial Chief Magistrate are set aside for the reasons set out in this judgment.

The court has found that the 2nd respondent was not qualified or was disqualified by virtue of telling lies under oath and his nomination was invalid for that reason. The nullification of 2nd respondent's nomination removes him from the contest and this leaves the appellant who was the 2nd best candidate or runner-up on top of the list. The appellant is declared a winner of the election upon disqualification of the 2 nd respondent because he should never have been a candidate in this election and was not validly elected as City Directly elected Councilor-Makindye East II Electoral Area. The appellant is the validly elected Councilor-Makindye East II Electoral Area.

The 2nd respondent has also been found to have committed an illegal practice when he offered recommendations for bursary during the election period which was contrary to the law. Even if he had been found to have been properly nominated in the said election, his election would have been set aside for this illegal practice.

The appellant is awarded costs of the appeal and in the court below against the 2nd respondent and between the appellant and 1st respondent each party shall bear its own costs.

It is so ordered.

*SSEKAANA MUSA JUDGE 4 th October 2024*