THE REPUBLIC OF UGANDA
IN THE SUPREME OF UGANDA
ELECTION PETITION APPEAL NO. 21 OF 2007
1. FRED BADDA :::::::::::::::::::::::::::: APPELLANTS
2. ELECTORAL COMMISSION
PROF. MUYANDA MUTEBI ::::::::::::::::::::::::::::: RESPONDENT
(An appeal arising from the judgment and orders of the Court of Appeal (Okello, Mpagi Bahigeine and Byamugisha, JJA) dated 21st May, 2007 in Election Petition Appeal No. 25 of 2006)
JUDGMENT OF KANYEIHAMBA, J.S.C
This is a second election petition appeal from the judgment and orders of the Court of Appeal which dismissed the appellant’s appeal against the judgment and orders of the High Court held at Masaka (Maitum, J.)
The background to this appeal is as follows:-
Parliamentary elections were held throughout the country on 23rd February 2006. Fred Badda, the first appellant, Professor Muyanda Mutebi the respondent and the one Andrew Kulazikulabe were some of the contestants for the Parliamentary seat for Bujumba country, Karangala District. The Electoral Commission declared the 1st appellant winner with 3,316 votes while the respondent was runner–up with 3,292 of the total votes cast.
Dissatisfied with the results, the respondent petitioned the High Court challenging the results. He joined the 2nd appellant alleging it had failed to conduct the elections in the Constituency in accordance with the law.
The High Court dismissed the petition. The appellants appealed to the Court of Appeal which dismissed the appeal. Hence, this appeal.
Before dealing with the issues raised in this appeal, I am constrained to observe that the record of appeal prepared and filed by counsel for the appellant offends against the rules of this court. The written submissions by counsel also offend against the guidelines issued by the learned Chief Justice regarding the length and format of written submissions under Rule 94 of the rules of this court. For the purposes of understanding and clarity, Rule 82 of the rules provided that;
The list of particulars contained in what Counsel call index and their contents immediately reveals non-compliance with those rules. The record of appeal itself is compiled in some seven hundred and sixty nine pages which, in my opinion, goes far beyond the realms of the rules of the court. It is inconceivable that the record of proceedings should also incorporate the number of authorities to be cited in the appeal, contrary to the Chief Justice’s guidelines on written submissions.
The first appellant’s written submission dated and filed in this court on the 23rd January, 2008 contain numerous pages including those which are smuggled in by such phrases as see pages 620, 621, 320 of our record or we adopt the submissions in the lower courts as appear on pages 667 – 685, 761 and 357-432 of the Court of Appeal and High Court respectively. To compound the error, the written submissions incorporate some 13 authorities with many of them reproduced while on others, the record of proceedings is conspicuously silent. There seems to be lack of seriousness and knowledge on the part of some counsel as to how appeals to this court, the highest and final court of appeal in our jurisdiction should be presented. In my opinion, the record of appeal before this court is not intended to contain everything that occurred before and during the proceedings in both the elections, High Court and the Court of Appeal, except in so far as they are pertinently relevant to the issues and grounds framed for the determination of an appeal. For instance, I can see no purpose in including the Uganda Gazette in the record of proceedings since what it contains is not a material particular in this appeal.
2. The learned Justices of the Court of Appeal erred in law and fact in holding that the prize of a cow to the runner up team in the Badda cup tournament amounted to a bribe within the meaning of the Parliamentary Election Act 2005.
3. The learned Justices of the Court of Appeal erred in law and fact in holding that the appellant and his agents offered monetary bribes to voters at Lutoboka and Bidico.
4. The learned Justices of the Court of Appeal erred in law and fact in holding that the appellant’s agents indulged in bribery and massive multiple voting which affected the results in a substantial manner.
The concurrent findings of the High Court and Court of Appeal on the facts were as follows: The learned trial judge said in his findings.