Court name
HC: Civil Division (Uganda)
Case number
Election Petition 13 of 2021
Judgment date
30 September 2021

Semugoma v Salim and Another (Election Petition 13 of 2021) [2021] UGHCCD 114 (30 September 2021);

Cite this case
[2021] UGHCCD 114
Coram
Muwata, J.

 

 

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL DIVISION

IN THE MATTER OF THE LOCAL GOVERNMENT ACT, CAP 243 AS AMENDED

AND

IN THE MATTER OF THE ELECTORAL COMMSSION ACT CAP 140

AND

IN THE MATTER OF THE LOCAL GOVERNMENT COUNCIL ELECTIONS FOR CHAIRPERSON OF KAMPALA CENTRAL

DIVISION HELD ON THE 25TH DAY OF JANUARY 2021

ELECTION PETITION NO.13 OF 2021

SEMUGOMA KIZITO HAMDAM::::::::::::::::::::::::::::::::::::PETITIONER

VERSUS

  1. SALIM SAAD UHURU
  2. THE ELECTORAL COMMISSION:::::::::::::::::::::::RESPONDENTS

 

BEFORE HON: JUSTICE ISAAC MUWATA

                             

                            RULING ON PRELIMINARY OBJECTIONS

 

BACKGROUND

The petitioner, the 1st respondent and six other candidates participated in an election conducted by the 2nd respondent for the position of Chairperson /Mayor Kampala Central City Division, Kampala District held on the 25th January 2021 wherein the 2nd respondent returned, declared and published the 1st respondent as the validly elected chairperson with 13,114 votes as opposed to the petitioner’s 10,654 votes. Being aggrieved by the outcome of the elections and subsequent declaration of the 1st respondent by 2nd respondent as the validly elected chairperson, the petitioner herein petitioned this court challenging the elections on grounds that the 2nd respondent failed in its duty to conduct the elections in accordance with the electoral laws and principles governing elections.

Representation

Counsel Kenneth Kakande, Muyizzi Samuel together with Ms. Lydia Nakyejwe appeared for the petitioner.

Counsel Ambrose Tebyasa together with Ssemanda Ben Zziwa appeared for the 1st respondent.

Counsel Hammidu Lugolobi appeared for the 2nd respondent.

The parties filed their joint scheduling memorandum which was adopted by this court, counsel for the 1st respondent however raised objections pertaining to the competence of the petition. The objections are particularly that;

  1. That all affidavits filed by the petitioner on 6th ,7th, and 16th September 2021 introduce new matters that are not before court in the original petition.
  2. The competence of petition relating to the validity or invalidity of the 1st respondent’s nomination.
  3. Evidence contained in the petitioner’s affidavit in support is hearsay.

1st respondent’s submissions

Counsel Ambrose Tebyasa submitted that Section 138(4) of the Local Government Act enjoins a candidate who desires to challenge an election of the chairperson of a Local Council to file his petition within 14 days from the date of the return of results in the Gazette

He submitted that the petition is supposed to comply with provisions of Section 139 of the Local Government Act by stating out the grounds on which the petition is founded.

That any subsequent affidavits to be filed in court ought to be read together with the petition filed within the 14 days.

That all the 18 affidavits that were filed by the petitioner offend the provisions of Order 6 rule 7 of the Civil Procedure Rules. He emphasized that a supplementary affidavit can only supplement what is already on the court record and cannot purport to support a matter that is not pleaded.

He also submitted that the petitioner in his petition started by challenging the nomination of the 1st respondent claiming that a one Salim Uhuru Nsubuga was the person nominated and not Salim Uhuru.He specifically pointed out that the petitioner contested that the persons who nominated the 1st respondent in Kamwokya 2A, Kamwokya 2B, Kamwokya 2C, Nakasero I and Nakasero II nominated a different person other than the 1st respondent.

Counsel referred to the other names of persons allegedly outside the electoral area of Kamwokya 2C and pointed out the names of Otema Ronald, Nakasenge Racheal, and that the other names contained in the petition are from the areas of Nakasero I and II, Kisenyi II, III and Kololo IV, the other areas from Kololo I, Industrial Area, Bukesa and Nakivubo Shauriyako.He claimed that there is no complaint whatsoever regarding the alleged forgery of names from those polling areas.

Counsel also referred to the petitioner’s additional affidavit in support filed on the 6th September which introduces a completely new claim before this court, he pointed out that annexures C6(a) is introducing a document which is not a representation of the purported nomination papers of the 1st respondent attached to the affidavit in support of the petition. He argued that this additional affidavit seeks to smuggle another document on record.

Counsel further referred to this additional affidavit and stated that it introduces a new claim in respect of the documents from the 2nd respondent dated 20th May 2021.He submitted that the claim of supporters not being found in the register was not part of the original petition and that these claims are being brought through these additional affidavits.

Counsel submitted that the petitioner introduces a new claim in respect of persons supporting the 1st respondent’s nomination whose names and signatures were allegedly fraudulently obtained. The names referred to are Anyazo Ahmed Munagi, Mayanja Ali, Kalisa Daniel, Sekyanzi Ivan, Ssali Fred, Ssozi Twaha, Kakooza Sania, Bweshoro Gilbert, Muwonge Frank, Openja Steward and Mukhama Emma. Counsel submitted that this claim does not appear anywhere in the petition and is founded on the newly introduced documents.

That the affidavits of Anyazo Ahmed Munagi, Mayanja Ali, Kalisa Daniel, Sekyanzi Ivan, Ssali Fred, Ssozi Twaha, Kakooza Sania, Bweshoro Gilbert, Muwonge Frank, Openja Steward and Mukhama Emma all have the same claim that their signatures were forged. He argued that these affidavits cannot be affidavits in support of petition that was already filed, that they are incompetently before court because they introduce new matters which are not in the petition.

Counsel further pointed out that paragraph 8 of the additional affidavit of the petitioner filed in court on 6th September 2021 introduces another claim of bribery that the 1st respondent bribed voters and donated gifts including money to voters and boda riders of Kampala Central Division. He submitted that the only incidents of bribery pleaded by the petitioner in his petition are the claim that on the 23rd December 2020 the 1st respondent allegedly bribed voters of Summit View Kololo II with posho and beans. The second incident being the alleged bribery of UPDF officers on 23rd January 2021 at Kololo II and last the incident is the alleged bribery of voters with masks branded with names of the 1st respondent in the villages of Kamwokya, Kagugube and Mengo Parishes on the 5th December 2021.

He pointed out that it is only the above incidents of alleged bribery that were pleaded in the original petition, and that the other acts of alleged bribery in Kampala Central Division are new claims not included anywhere in the petition.

Counsel also referred to the affidavit of Semanda Ismael wherein he states that he was the petitioner’s agent at summit view polling station. He pointed out that the petitioner does not mention any of his polling agents being forced to sign any declaration of results forms and being closed out of the polling station.

Counsel also referred to the additional affidavit in support of the petition filed on 16th September 2021and specifically pointed out where the respondent stated that he had written to the Electoral Commission for certified copies of the Declaration of Results Forms from the polling stations of Summit View (A-J), Summit View (K-M), Summit View(N-OM) Summit View (ON-Z). He however objected to annexures C1 to D14, and submitted that the documents being introduced in the further affidavit are not the same documents referred to in the original petition and that none of the voter information slips bears a photograph.

That it is a settled position of the law that the petitioner can only file the supporting affidavits to the petition once and any subsequent affidavits must support what is already pleaded. He cited the case of Wanghede Aliyi Vs Mulepo Umar Fadur and 2 others Election Petition No.021 of 2021 High Court at Mbale where the court held that a petition shall be accompanied by an affidavit stating out the grounds on which it is based, that other affidavits of any other persons only come in to fortify the grievances raised by the petitioner in the petition.

Counsel for the respondent also cited the case of Mutembuli Yusuf vs Nagwomu Moses Musamba and Another EP 13 of 2016 where the court held that at no point is a petitioner or applicant permitted to introduce new matters or pleas in his or her affidavit in rejoinder as the basis of a new claim. He submitted that the affidavits filed by the petitioner do not pass to be supplementary affidavits in support of the petition because there is nothing to supplement in the original petition.

He submitted that affidavits are considered purely as evidence and as such they can only contain what has already been pleaded. He cited the case of Mutembuli Yusuf v Nagwomu Moses and Another EPA No.43 of 2016 where the court of appeal emphasized that a party cannot adduce evidence in respect of the matter that is not pleaded.

That to allow the petitioner to continue with his impugned affidavits would amount to permitting the petitioner to set up another claim not originally pleaded. That it would be in essence amending the petition by introducing new evidence outside the original pleading.

He prayed for court to strike out all the 18 affidavits and expunge them off from the record.

Counsel further submitted that the annexures of the petition marked C1, E1-E33, & G, annexures H-J are inadmissible and incompetently before court for they are not certified as required by the Evidence Act. He cited the case of Kakooza John Baptist Versus Election Commission and Yiga Anthony EPA No.11 of 2007 where the court held that a person who seeks to rely on DR forms ought to have secured certified copies of the same Declaration of Results Forms from the Electoral Commission.

Counsel submitted in respect the petitioner’s complaint regarding the nomination of the 1st respondent. He argued that there is no indication that the complaint was brought to the attention of the Electoral Commission, that if the petitioner had any complaint regarding the nomination of the 1st respondent, he ought to have submitted it under Section 15 of the Electoral Commission Act.

That there is no indication whatsoever that the petitioner explored the requirements and provisions of Section 15 of the Electoral Commission Act. He cited the cases of Baleke Kayiira Peter V Electoral Commission and Another EP No.4 of 2016, & Kasirye Zimula Fred V Bazigatilawo Kibuuka Francis Amooti &EC EPA No.1 of 2018 where the court held that it is now settled law that any party having grievances with the candidate’s nomination and fails to explore the provisions of Section 15 of the Electoral Commission Act is subsequently estoped from raising such issues after elections. 

Counsel concluded that the residual parts of the petition before court do not contain any substance that would require this court to investigate. He cited the case of Achieng Sarah Opendi v Ochwo Nyaketcho Keziah EPA No.39 of 2011 where the court held that the standard of proof is one of balance of probabilities but slightly higher though not beyond reasonable doubt owing to the importance of an election.

That the remaining evidence is hearsay, because the petitioner does not mention any names of persons bribed, that a person alleging bribery has to mention names of those persons allegedly bribed, that there must be proof that those persons are registered voters. He cited the case of Sam Otada Amooti Versus Taban Amin and Another EP 93 of 2016 which was to the effect that there must be proof that the person is a registered voter.

He prayed to this court to find that the residual claims that are left of the petition are not worth investigating. He cited the case of Lumu Richard Kizito Versus Makumbi Kamya and EC EPA No.109 of 2016 wherein the court struck out the petition after finding that the residue of the petition was not worth investigating.

He prayed for the entire petition to be struck off with costs to the 1st respondent

Counsel for the 2nd respondent also associated himself with the submissions of counsel for the 1st respondent.

Petitioners submissions in reply

Counsel Samuel Muyizzi submitted that it is trite law that a preliminary objection should raise a pure point of law which is argued on the presumption or assumption that all facts pleaded by the other party are correct. He argued it cannot be raised if any facts have to be ascertained or if what is sought is in exercise of judicial discretion. He cited the case of Mukisa Biscuit Manufacturing Company Limited versus West End Distributors Limited [1969] EA at page 696.

He contended that the respondent’s submissions are matters of mixed law and fact which can only be entertained during a full trial.

Counsel for the petitioner also submitted that Order 6 Rule 7 is not applicable at this stage because the scheduling conference is not completed. He argued that the trial/ hearing has not commenced and thus the preliminary objection is premature. He cited the cases of Kyagulanyi Sentamu Robert Vs Yoweri Museveni Tibuharburwa Kaguta and EC Misc.1 of 2021 where the court held that the Civil Procedure Rules and the Act are only applicable during the trial or hearing of the petition.

On the admissibility of the additional affidavits, counsel cited the case of Odo Tayebwa Versus Gordon Kakuna Arinda and the EC EPA 86 of 2016, where it was emphasized that it is up to court to set the timelines to ensure justice to all parties bearing in mind the overall constitutional goal that election petitions should be expeditiously disposed of. He submitted that the preliminary objection in this respect is misconceived because the court had granted the petitioner leave to file additional affidavits on the 7th September and argued that the same are properly before this court.

Regarding the nomination of the 1st respondent, counsel submitted that the case cited by counsel for the respondent of Kasirye Zimula Fred v Bazigatilawo Kibuuka Francis Amooti &EC EPA No.1 of 2018 created an exception to Section 15 of the Electoral Commission Act.

It was his submission that the election of the 2nd respondent did not comply with the law as provided for under Part X, section 139 paragraph (a), (b) and (d) of the Local Government Act because he was not validly nominated at the time of his election. He cited the case of Ngoma Ngime V EC and Hon.Winnie Byanyima EPA No 11 of 2002 where it was held that the operative words under Section 61 of the Parliamentary Elections Act are in para material with Section 139 of the Local Government Act which require that a candidate must be duly nominated for them to qualify for the election.

He further submitted that besides nomination, the petitioner is complaining about forged signatures made by the 1st respondent. He submitted that the illegality has been brought to the attention of court regarding the respondent’s nomination papers and cannot therefore be ignored. He cited the case of Makula International Limited Versus Cardinal Emmanuel Wamala Nsubuga [1982] HCB 11 to support his argument.

Counsel Kenneth Kakande submitted that this court is being called upon to test the truthfulness of the deponents without calling the deponents for cross examination. He submitted that testing the veracity of the evidence on record at this stage would amount to condemning a party unheard contrary to Articles 28 &44 of the Constitution which require that a party is accorded a fair hearing.

Regarding the 18 additional affidavits counsel submitted that the law does not say all affidavits intended to be relied on by the petitioner have to be filed within the restricted time. He cited the case of Nalugo Mary Margaret Sekiziyivu V Bakaluba Mukasa Peter and EC Election Petition No.30 of 2011 where the court held that given the nature of election petitions, subsequent affidavits should be allowed and considered as a whole.

Regarding the nomination matters placed before this court, counsel for the petitioner submitted that section 111(4) (f) of the Local Government Act provides that a person who wishes to stand as chairperson must attach on his or her nomination papers a list of names of 20 registered voters from each electoral area and each of the 20 registered persons who must have appended their signatures, physical address, and voter’s registration number in the specified form.

That the names on the nomination papers of the 1st respondent contain forged signatures, some of the names do not have signatures at all, and that the names used by the 1st respondent are names of people who are not from the electoral Area. He argued that the additional affidavits buttress the ground already pleaded of the invalid nomination of the 1st respondent.

Counsel submitted that the expert affidavit of Chelangat Sylvia buttresses the petitioner’s ground and complaint that the 12 names used by the 1st respondent were actually forged and are invalid. He invited court to inquire into the petition as the court cannot run away from these alleged illegalities.

Counsel further submitted that on the allegation of bribery, he argued that the affidavits of Okot Steven Kabuli, Oketch David Obadia introduce evidence to support the ground of bribery already pleaded in the petition. He cited the case of Kyagulanyi Sentamu Robert Vs Yoweri Museveni Tibuharburwa Kaguta and EC Misc.1 of 2021 where the court stated that there is no restraint to the applicant to produce relevant evidence at trial to prove the electoral offence he alleges. It was his submission that the offence of bribery is in the Act and what is required is just bringing evidence.

Regarding the non-disclosure of the petitioner’s source of information in his supporting affidavit, counsel submitted that for a cause of action to be made out the pleadings had to set out the facts which the party wishes to rely upon to prove and succeed in its claims. In support thereof he cited the case of Mutembuli Yusuf v Nagwomu Moses and Another EPA No.43 of 2016 where the court stated that pleadings have to set out a cause of action.

 He submitted that petitioner need not to be in every place to make pleadings that cover the entire process. That a petitioner is not expected to be personally at every polling station but to only have his agents provided they depone to affidavits providing the source of information relied on. He cited the case of Nsubuga Jonah Vs Electoral Commission and Bwanika Mathias Lwanga EP No.34 of 2011 where it was held that agents can depone on affidavits providing the source of information relied upon by the petitioner

He also cited the case of Betty Muzanira Bamukwatsa Vs. Matsiko Winnifred Komuhangi, the Returning officer and EC EPA No.65 of 2016 where it was held that the omission to disclose a petitioner’s source of information contained within their affidavit is not fatal.

In respect of the annexures to the petition, counsel submitted that the petitioner gave notice and applied for certified copies which were not provided in time. He argued that it is wrong to disregard evidence simply because it was filed after the petition. He cited the case of Bantalib Issa Taligola V Wasugirya Bob Fred and the EC. Election Appeal No.11 of 2006, where the court allowed evidence after the petition had been filed.

Counsel also cited section 64 of the Evidence Act which provides that secondary evidence relating to documents may be given and admitted where it is shown that the originals are in possession of the person against whom the document is sought to be proved. He relied on the case of Tamale Julius Vs Senkubuge Isaac and EC EPA No.75 of 2016, where the court held that there are exceptional circumstances under which uncertified copies of DR forms can be admitted pursuant to section 64(1)(a) and 65 of the Evidence Act.

That voter slips or location slips are generated and certified by the Electoral Commission and as such these documents are a creature of the Electoral Commission used to identify voters. He prayed for the voter slips to be admitted in evidence

He concluded by praying that the preliminary objections raised by the respondents are mere technicalities meant to prevent this court from administering substantive justice.

Counsel for the respondent made a rejoinder which I have considered.

Consideration by this court

I have carefully taken note and listened to the submissions, made by counsel for the respondents and the petitioner. At scheduling, it was agreed by both parties that court first resolves the issue regarding the competence of the petition before the matter proceeds any further.  I now proceed with the consideration of the matter.

The issues that arise from the above submissions are;

  1. Whether matters regarding the nomination of the 1st respondent can be entertained by this court
  2. Whether the 18 affidavits filed by the petitioner on the 6th,7th and 16th of September 2021 introduce new matters not pleaded.
  3. Whether the petitioner’s affidavit in support of the petition is based on hearsay

Resolution

  1. Whether matters regarding the nomination of the 1st respondent can be entertained by this court

The main thrust of this objection revolves around the allegations of irregularities and illegalities in respect of the 1st respondent’s nomination to contest for the position of Mayor/ Chairperson Kampala Central Division.

Counsel for the 1st respondent submitted that the petitioner’s claim regarding the nomination of the complaint was never brought to the attention of the 2nd respondent at the time of nomination as required by law. He argued that pre polling complaints have to be handled before polling as required by Section 15 of the Electoral Commission Act. He argued that there is no indication whatsoever that the petitioner explored the requirements and provisions of Section 15 of the Electoral Commission Act.

On his part, counsel for petitioner pointed out that besides nomination the petitioner is complaining about forged signatures made by the 1st respondent. That the illegality has been brought to the attention of court regarding the respondent’s nomination papers and cannot therefore be ignored.

The original jurisdiction of the High Court and the Electoral Commission in respect of election related disputes arising before polling and during polling emanates from the Constitution of the Republic of Uganda

The following provisions of the constitution have a bearing on the mandate of the Electoral Commission and the High Court with regard to disputes arising before and during polling day

Article 61 of the Constitution provides that;

The Electoral Commission shall have the following functions—

…………

(f) to hear and determine election complaints arising before and during polling….”

While Article 64(1) of the Constitution provides;

“Any person aggrieved by a decision of the Electoral Commission in respect of any of the complaints referred to in article 61(1)(f) of this constitution may appeal to the High Court.”

The constitution under Article 61(1)(f) confers original jurisdiction to the Electoral Commission to settle election related disputes arising before and during polling, the same applies to Article 64(1) of the constitution as cited above which expressly confers the High Court with appellate jurisdiction in respect of election disputes decisions made by the Electoral Commission. It could not have been the intention of the framers of the Constitution to confer both original and appellate jurisdiction to the High Court in respect of the same subject matter of settling election related disputes arising before and on polling day. See the case of Akol Ellen Odeke Vs Okodel Umar EPA No.6 of 2020

Section 172 of the Local Government Act permits this court to make use of the provisions of the Parliamentary Elections Act and in this regard I refer to

Section 15 of the Parliamentary Elections Act which provides,

“Any voter registered on the voters roll of a constituency may-

  1. during office hours on the nomination day at the office of the returning officer, inspect any nomination paper filed with the returning officer in respect of the constituency;
  2. after the closure of the nomination time and during such period as maybe prescribed, inspect any nomination paper in respect of the constituency at such time and subject to such conditions as may be prescribed; and

lodge any complaint with the returning officer or the Commission in relation to any nomination in respect of the constituency challenging the qualification of any person nominated.”

Further Section 15 of the Electoral Commission Act gives power to the commission to handle any complaints that may arise from the nomination which includes inspection of any nomination papers

“(1) Any complaint submitted in writing alleging any irregularity with any aspect of the electoral process at any stage, if not satisfactorily resolved at a lower level of authority, shall be examined and decided by the commission; and where the irregularity is confirmed, the commission shall take necessary action to correct the irregularity and any effects it may have caused.

(2) An appeal shall lie to the High Court against a decision of the commission confirming or rejecting the existence of an irregularity. …………………….”

The Electoral Commission is therefore mandated to investigate any complaint raised before them and make necessary orders in resolving such disputes that arise at the nomination.

The allegations of the petitioner against the 1st and 2nd respondent are clearly a complaint which is arising after polling and the petitioner never challenged the 1st respondent candidature at nomination or even after nomination. The petitioner was comfortable with the 1st respondent taking part in the elections whether he had broken the law or not. It was incumbent upon the petitioner to challenge the nomination of the candidate at the pre-polling stage, where he failed to do so, he cannot challenge them after the election has been concluded. Similarly, as noted above, inspection of nomination papers and lodging of complaints challenging the qualifications of any person nominated has to be done prior to the election date. Why wait this long to raise a complaint regarding nomination matters which would have been addressed at the preliminary stage. The petitioner’s averment that he inspected the nomination papers of the 1st respondent and register after the election was an action which had clearly been overtaken by events.

The electoral process is organized in such a manner that there is time for nominations, a time for candidates or interested persons to inspect nomination documents of the candidates, a time for lodging complaints to the Electoral Commission under its mandate, a time for voting and declaring results, once the candidate skipped the stage of making complaints to the Electoral Commission, he cannot be allowed to do that after elections. See: Ngoma Ngime V Winnie Byanyima and Another Revision Application No.9 of 2001

The court of appeal in Kasirye Zzimula Fred V Bazigatirawo Kibuuka Amooti &EC EPA No.01 of 2018 held as follows,

From the reading of the above provisions of the law, it appears to us that the intention of the legislature in enacting section 15 of the Electoral Commission Act was to ensure that all disputes arising prior or during nomination before voting are resolved with finality before the election date, except where the law specifically provides. Timely complaints will avoid undue expense and inconvenience to the parties inclusive of the electorate who don’t have to vote where nomination is contested. Issues of nomination should be resolved before elections.

It appears to us that, the appellant waived his rights to complain when he failed to bring the complaint within the stipulated period and as such would be estopped from doing so after the election.”

In the case of Giruli David Livingstone v Mulekwa Herbert &EC EPA No.76 of 2016, court held that “………... a period to contest such eligibility should be provided for and where there is no contest then a candidate is estopped from raising the same issue again simply because he lost the election.” See also the case of Baleke Kayiira Peter V Electoral Commission and Another EP No.4 of 2016.

Having found that the allegations of irregularities and illegalities in respect of the nomination of the 1st respondent ought to have been addressed and handled by the 2nd respondent, the contentions as to irregularities and illegalities contained in the nomination papers filed in this court have no basis. The objection in respect thereof is accordingly allowed.

2.Whether the 18 affidavits filed by the petitioner on the 6th,7th and 16th of September 2021 introduce new matters not pleaded.

From the onset, I must point out that a trial commences at the scheduling and as such all evidence at the trial of an election petition is required to be adduced by affidavits. Cross-examination of the deponents may be permitted only with the leave of the court. This is provided in Rule 15 of the Parliamentary Elections (Interim Provisions) Rules, which states as follows:

“(1) Subject to this rule, all evidence at the trial, in favor of or against the petition shall be by way of affidavit read in open court.

(2) With leave of the court, any person swearing an affidavit which is before the court may be cross-examined by the opposite party and reexamined by the party on behalf of whom the affidavit is sworn.”

Section 172 of the Local Government Act permits this court to make use of the provisions of the Parliamentary Election Act and in this regard court will refer to Rule 4(8) of the Parliamentary Election Petitions (Election Petitions) Rules SI 141-2 which provides that the petition shall be accompanied by an affidavit setting out the facts on which the petition is based.

Rule 17 of the Parliamentary Elections (Interim Provisions) Rules permits this court to make use of the provisions of the Civil Procedure Rules.

Order 6 rule 7 of the Civil Procedure Rules provides; -

No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading

In the usual practice and procedure under the Civil Procedure Rules, the petitioner files an application or petition supported by an affidavit, the respondents reply by filing an affidavit in reply which may raise new matters or fresh issues touching on the subject matter of the dispute. At no point is a petitioner permitted to introduce a new plea by way of filing an additional affidavit. The procedure and practice in election petitions takes the same format as was stated in the case Mutembuli Yusuf Vs Nagwomu Moses Musamba EP No.13 of 2016

If an election petition and the reply thereto are considered as pleadings, then the petitioner is not permitted to introduce fresh issues or to change the substance of his or her claim by introducing a new matter by way of affidavit. Any subsequent affidavits to be filed in court ought to be read together with the petition filed within the 14days.

Counsel for the 1st respondent submitted that the petitioner introduces a new claim, in respect of persons supporting the 1st respondent’s nomination whose names and signatures were allegedly, fraudulently obtained. I have perused the petition and the names of Anyazo Ahmed Munaji, Mayanja Ali, Kalisa Daniel, Sekyanzi Ivan, Ssali Fred, Sozi Twaha, Kakooza Sania, Bweshoro Gilbert, Muwonge Frank, Openja Steward and Mukhama Emma are not alluded to anywhere in the petition, am also in agreement that the purported missing names were not pleaded in the original petition. It is settled law that a party to a suit cannot be permitted to depart from his pleading, the court ought to discard such evidence which has no foundation in the pleadings.

Counsel for the petitioner referred to the case of Nalugo Mary Margaret Sekiziyivu V Bakaluba Mukasa Peter and EC Election Petition No.30 of 2011 where the court held that given the nature of election petitions, subsequent affidavits should be allowed and considered as a whole.

It is not in doubt that court granted leave to the petitioner to file additional affidavits. However, these additional affidavits were meant to be restricted to the matters that were already pleaded in the main petition. It is also a matter of law that evidence has to be confined only with regard to the facts which are pleaded. Affidavit evidence in election petitions can only buttress a claim made in the petition, it can also support factual assertions made in the petition but it cannot state facts which cannot be derived from the petition.

The object and purpose of pleadings is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the facts before the court for its consideration. Pleadings are meant to give to each side intimation of the case of the other so that it may be met. It also enables court to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.

It follows therefore that persons referred to in these impugned additional affidavits in support cannot form the basis of the allegation of forgery by the petitioner when they are not contained in the petition, the petitioner had the opportunity to list all the names he referred to in the original petition but chose to miss out the impugned deponents referred to in the additional affidavits. Allowing this set of names would amount to allowing the petitioner set up a new claim not based on the petition.

In light of the above therefore, am in agreement with learned counsel for the 1st respondent that this new set of names were not pleaded in the original petition and as such they have no basis on which they are introduced in the petition. Introducing new pleas through affidavits after the respondent has filed his response would be prejudicial to the respondent. The legal principle that parties are bound by their pleadings cannot be overemphasized. All the affidavits are deponed by persons not mentioned in the original petition.

The above notwithstanding, I also find that the said evidence from the affidavits referred to relates to the nomination papers of the 1st respondent which I have found that ought to have been handled at the nomination stage.

Counsel for the respondent submitted that the impugned affidavits of Okot Steven, and Oketcha David Obadia introduce another claim that the 1st respondent bribed voters and donated gifts including money to voters and boda riders of Kampala Central Division.

I have perused the affidavit of the petitioner. The only incidents of bribery pleaded by the petitioner in his petition are the claim that on the 23rd December 2020 the 1st respondent allegedly bribed voters of Summit View Kololo II with posho and beans. The second incident being the alleged bribery of UPDF officers on 23rd January 2021 at Kololo II and the last being the incident of alleged bribery with masks branded with names of the 1st respondent in the villages of Kamwokya, Kagugube and Mengo Parishes on the 5th December 2021.

The incidents referred to by the impugned affidavits of Okwot Steven Kabuli, Oketcha David Obadia seek to introduce video evidence of bribery not pleaded in the original petition. Counsel for the petitioner contended that the there is no restraint to the petitioner to produce relevant evidence at trial to prove the electoral offence he alleges. While that is true, the evidence adduced must relate to the material particular of the electoral offence pleaded.  

In this case the claim that the 1st respondent bribed voters and donated gifts including money to voters and boda riders of Kampala Central Division on the 6th day of January 2021 is nowhere in his petition. There is no mention in the main supporting affidavit that boda boda riders were allegedly bribed, similarly the date 6th January 2021 said to be the day the alleged acts happened is not mentioned in the petition, there is also no statement in the main petition that the petitioner will adduce video recording to support his allegations of bribery. The affidavit of Kaweesa Templer is equally affected because the incident of bribery it refers to was not pleaded in the petition.

Allowing the petitioner to raise a new claim not canvassed in the petition would prejudice the respondents case who have already filed their answer to the petition. Counsel for the petitioner sought to rely on the case of Akunguzibwe Lawrence Vs Muhumza David, Mulimira Babra &EC EPA No.22 of 2016 where affidavits which had been filed after the petition were accepted. The cited case is distinguishable in the sense that none of those affidavits had evidence departing from the petition that was before that court. The same cannot be said of this case wherein the impugned affidavits that seek to introduce new claims of bribery which in essence depart from the principle rule that parties are bound by their pleadings.

The affidavit of Semanda Ismael referred to by counsel for the 1st respondent does not introduce a new claim since it is sworn in support of the allegation that his agents were coerced to sign blank Declaration of Results forms captured under paragraph 27 of the petitioner’s affidavit in support.

However, the affidavits of Anyazo Ahmed Munaji, Mayanja Ali, Kalisa Daniel, Sekyanzi Ivan, Ssali Fred, Sozi Twaha, Kakooza Sania, Bweshoro Gilbert, Muwonge Frank, Openja Steward, Mukhama Emma, Okwot Steven Kabuli, Oketcha David Obadia, Kaweesa Templer, Chelangat Sylvia and the petitioner’s additional affidavit filed on the 6th September ,2021 introduce new pleadings and are not contained in the original pleading and are hereby expunged from the record.

3.Whether the petitioner’s affidavit in support is based on hearsay

Counsel for the 1st respondent referred to paragraph’s 23,37,38,39, and 40 of the petitioner’s affidavit in support of the petition where the petitioner alleges bribery. I will reproduce them for ease of reference,

The petitioner depones under paragraph 23։-

“That I state that upon being informed of the state of affairs, I went to summit view polling stations at around 1:00pm and approached the presiding officer raising concerns of the soldiers surrounding the polling station and multiple voting.”

Paragraph 37: -

“That I am aware that the 1st respondent and his agents with his knowledge and consent or approval during the election period and with intent directly or indirectly to influence voters to vote for the 1st respondent and to refrain from voting the petitioner gave donations and gifts to wit branded beans with words Beans donated by Uhuru Mayor Kampala Central Not for Sale 3kgs Net to the voters on the 23rd day of December,2020”

Paragraph 38: -

“That I am aware that the 1st respondent and his agents with his knowledge and consent or approval during the election period and with intent directly or indirectly to influence voters to vote for the 1st respondent and to refrain from voting the petitioner donated and gave gifts to wit money to some officers and voters of the summit view barracks on the 23rd day of January ,2021 at Kololo II Kampala Central Division”

Paragraph 39: -

That I am aware that the 1st respondent and his agents with his knowledge and consent or approval during the election period and with intent directly or indirectly to influence voters to vote for the 1st respondent and to refrain from voting the petitioner gave donations and gifts to wit soap, posho, oil and rice to officers and voters on the 23rd day of December ,2020 at Summit view, Kololo II Kampala Central Division”

Paragraph 40: -

“That I am aware that the 1st respondent and his agents with his knowledge and consent or approval during the election period and with intent directly or indirectly to influence voters to vote for the 1st respondent and to refrain from voting the petitioner gave gifts to wit masks branded with his names around of 5th December 2020 in the villages of Kamwokya, Kagugube and Mengo Parishes.”

The above impugned paragraphs point to allegations of bribery, however, the petitioner does not mention names of the particular persons who were bribed. It is clear that when statements are made in an affidavit on information and belief the sources of information should be clearly disclosed and the grounds of the belief also must be stated with sufficient particularity to enable the court to judge whether it would be safe to act on the deponent's belief. These are but the basic requirements of pleadings and the contents of affidavits and care must be taken to comply with the same.

The petitioner’s allegations of bribery are faceless in as far as no particular person is mentioned. Bribery is a grave offence provided for under Section 147 of the Local Government Act and must be given serious consideration. In Hellen Adoa and EC vs Alice Alaso EPA No.57&54 of 2016, the court of appeal was of the view that given the gravity of the offence of bribery in elections, it is necessary that persons said to have been bribed be clearly identified.

Further the allegations must be described in sufficient detail; questions as to who gave what, to who, at what time and for what purpose have to be shown by the petitioner in his pleadings. It is not enough to mention that a person is a registered voter, there must be proof that the person is a registered voter with his/her name appearing in the voter’ register, and that he/she is a voter in that particular constituency or polling station. See: Sam Otada Amooti Versus Taban Amin and Anor EPA 93 of 2016.

In the case of Bantalib Issa Taligola versus The Electoral Commission and Wasugirya Bob Fred (High Court E.P. No.15 of 2006) the court was faced with a similar situation and it struck out a paragraph in a petition alleging bribery, it had this to say “……. setting out the ground in the petition, without more, cannot satisfy the requirement under S.147 of the act. In other words, to establish the ground of bribery. The Petitioner cannot just allege bribery. He has to specifically plead facts going to the elements of that offence. For instance, the nature of the bribe to a named voter or voters, with the purpose of inducing the voter or those voters in a particular way. The petition lacks those details. The allegation about bribery is vague. It does not put the case of the Petitioner in terms that make it clear just what is being alleged. It raises the inference that at the time of filing the petition the Petitioner did not have any evidence of anybody who had been bribed but that after filing the same he went on a fishing expedition to look for evidence to support the blanket accusation. This cannot be the object of the Law. In the circumstances the paragraph in the petition alleging bribery should be struck out for failure to on the part of the Petitioner to plead specific elements of the allegation in the petition. In view of the Petitioner’s failure to mention in the petition even a single name of any person who had been bribed at the time of filing ………….”

Similarly, in this case the petitioner fails to name any persons or officer who received gifts, food, masks and money as inducement to vote for the 1st respondent in his affidavit.

The affidavit has to be treated as evidence and, that being so, the rules of evidence must be strictly adhered to. The impugned paragraphs in the affidavit, which are verified as based on information, are, by their very nature, hearsay evidence. And if such averments are the foundation of the case made by the petitioner, the court cannot rely or act upon the same. To do otherwise, would be to ignore the fundamental principles of the rules of evidence. 

I find that in the absence of evidence to support this claim, the evidence in the impugned paragraphs referred to above in the petitioner’s affidavit is hearsay.

In Rtd. Col. Kizza Besigye v. Yoweri Museveni Kaguta & the Electoral Commission, Supreme Court Presidential Election No.1 of 2006, the court held that the parts of an affidavit which are hearsay and offend provisions of Order 19 rule 3 Civil Procedure Rules ought to be severed off without rendering the remaining parts of the affidavit defective or a nullity, and that a defective affidavit is not necessarily a nullity. Paragraph’s 23,37,38,39, and 40 of the petitioner’s affidavit in support of the petition are hereby severed off his affidavit in support.

It is now imperative to determine whether what is left of the petition is capable of satisfying the required standard of proof in election petitions.

Section 139 of the Local Government Act provides for the grounds for setting aside election

The election of a candidate as a chairperson or a member of a council shall only be set aside on any of the following grounds if proved to the satisfaction of the court—

(a)that there was failure to conduct the election in accordance with the provisions of this Part of the Act and that the noncompliance and failure affected the result of the election in a substantial manner;

(b)that a person other than the one elected purportedly won the election;

(c)that an illegal practice or any other offence under this Act was committed in connection with the election by the candidate personally or with his or her knowledge and consent or approval; or

(d)that the candidate was at the time of his or her election not qualified or was disqualified from election.

After finding that matters regarding the nomination of the 1st respondent could not be raised during this petition and expunging the affidavits referred to above for introducing new claims not in the petition, and having carefully subjected the remaining parts of the Petitioner's affidavit to the same test in the case of Rtd. Col. Kizza Besigye, (supra), I find that the residual part of the claim is not worthy investigating given that it does not satisfy the required standard of proof set out in Section 139 of the Local Government Act and further that it involves unsupported claims by the petitioner. Accordingly, I hereby strike out the petition with costs to the respondents.

I so order

JUDGE

30/09/2021