THE REPUBLIC OF UGANDA
(CORAM: TSEKOOKO, KATUREEBE, OKELLO, TUMWESIGYE
AND KISAAKYE, JJ.SC).
ELECTION PETITION APPEAL NO. 04 OF 2009
BAKALUBA PETER MUKASA ::::::::::::::::: APPELLANT
NAMBOOZE BETTY BAKIREKE :::::::::::::: RESPONDENT.
The background of the Appeal is that the Appellant together with the Respondent and one Kawadwa Dawood Katamba participated as contestants in the Mukono North Constituency Parliamentary Election held on 23rd February 2006. The Electoral Commission declared the Appellant the winner of the election with 22,680 votes. The respondent obtained 22,232 votes and Kawadwa Dawood got 627 votes.
The respondent was dissatisfied with the results and petitioned the High Court which annulled the election because it found that the election had been marred by malpractices. The Appellant was dissatisfied with that decision and appealed to the Court of Appeal. By a majority decision of two to one, the Court of Appeal upheld the decision of the trial judge, hence this appeal.
The appellant filed two grounds of appeal. The first ground states that:-
Both parties filed written submissions in this court and dealt with both grounds seriatim. I intend to consider them in like manner.
In arguing the first ground of appeal, counsel for the appellant, Mr. Ssekaana Musa of Ssekaana Associated Advocates & Consultants, submitted that in so far as the issue of fair trial had been raised as a ground in the Court of Appeal and submitted upon by the parties, it was imperative for the Court of Appeal to deal with that ground and make specific findings on it. By failing to even refer to the ground and failing to make findings thereon, the Court of Appeal had misdirected itself in both law and fact. Counsel further argued that since the question of fair trial had not been resolved as an issue by the trial court in its judgment, the Court of Appeal could not agree with a finding over which the trial court had not made a pronouncement. Counsel pointed out that whereas the majority judgment did not deal with the issue, in his dissenting judgment, Kavuma, JA, resolved the issue in favour of the appellant. Learned counsel relied, inter alia, on Interfreight Forwarders (U) Ltd –Vs- E.A. Development Bank (1990 – 1994) E.A. 117 and Esso Petroleum Co. Ltd –Vs- South Port Corporation (1956) A.C. 218.
In response, Mr. Lukwago Erias, counsel for the respondent contended that the appellant did not raise the issue of fair trial in his pleadings but only alluded to it in his submissions in the trial court. Learned counsel argued that the Court of Appeal considered the evidence on the record of appeal before it (by majority) upheld the trial judge.
In my view, there are two aspects to this ground. The first is the failure of the Court of Appeal to deal with the issue of fair trial and to make specific findings, thereon. The second aspect is the more substantive issue whether indeed there was a denial of fair trial and hearing in the trial court.
With regard to the first aspect, I am in agreement with learned counsel for the appellant that since the matter had been raised as a ground of appeal and an issue had not only been framed on it but both parties had made submissions thereon, it was imperative on the court to deal with it and make specific findings on it. Simply to ignore it was a misdirection both in law and fact.
The dissenting Justice of Appeal did the right thing to consider the ground and to make findings thereon.
Be that as it may, the more substantive issue is whether indeed there was a denial of a right to fair hearing. Counsel for the appellant argued that the Parliamentary Elections (Election Petitions) Rules, S1 141 – 2, clearly spelt out that an election petition had to contain a statement of the alleged facts giving rise to the petition. The petition had to be accompanied by an affidavit containing the particulars of the alleged offences or misconduct. If the affidavit accompanying the petition was lacking those particulars, then it was not an affidavit envisaged by the Rules and therefore the petition could not be entertained by Court. Counsel argued that the purpose of the above Rule was to ensure that a respondent to the petition knew before hand the nature of the case against him to prepare his defence. Where the party was not served with a proper petition and proper affidavit, he was in fact being ambushed by a case he had not prepared for and that denied him the right to fair trial. Counsel argued that the right to fair trial is so fundamental that our Constitution gives it in Article 44 as one of those rights that are non-derogable.
In this case, counsel argued, although the Petition contained a statement about the commission of illegal practices, the supporting affidavit did not contain any particulars thereof. These were to be found in other affidavits filed later. Counsel claims that the appellant was not given enough time to respond to and rebut all the allegations, having been given only 21 days to reply. All these, he submitted, amounted to a denial of fair trial. He cited the cases of INTERFREIGHT FORWARDERS (U) –Vs- EAST AFRICAN DEVELOPMENT BANK EALR [1990 – 1994] EA 117 where this court pronounced itself on the importance of pleadings and the effect of departure from pleadings. He also relied on the case of ESSO PETROLEUM COMPANY LTD –Vs- SOUTH PORT CORPORATION  AC 218.
In reply to this aspect of the first ground, Mr. Lukwago Erias counsel for the respondent, supported the decision of the majority Justices of Appeal. First he pointed out that the petition had originally been filed against two persons: the appellant and the Electoral Commission. Most of the findings, he contended, both by the trial Court and the Court of Appeal were against the Electoral Commission which had decided not to appeal to the Supreme Court. It is therefore not a party to this appeal. Counsel therefore argued that this appeal is rendered nugatory in that even if the appellant were to succeed, the decision of the lower courts could not be set aside since the findings against the Electoral Commission are not challenged.
But on the issue of fair trial counsel argued that the petition and the accompanying affidavit complied with the Rules and that the appellant knew the case he had to answer, and he actually did answer it by his affidavits in rebuttal, by cross examining the respondent’s witnesses, and by himself testifying in court. Counsel further points out that the issue of denial of fair trial came in as an after thought during submissions before the trial court. The appellant had not raised any issue with regard to inadequacy of the pleadings or the inadequacy of the time within which to file his reply or affidavits in reply. No issue of fair trial was ever framed and the court consequently did not pronounce itself on it.
According to counsel, the respondent in her petition had properly pleaded the issue of bribery in paragraph 7(a) which stated that the appellant had committed illegal practices contrary to section 68(1) of the Parliamentary Elections Act 2005. To counsel this complied with the requirement in Rule 4(2) of SI 141 – 2 that “Every petition shall state the holding and result of the election together with a statement of the grounds relied upon to sustain the prayer of the petition”.
With regard to Rule 4(8) which requires the petition to be accompanied by an affidavit setting out the facts and particulars upon which the Petition is based together with a list of any documents on which the petitioner intends to rely, counsel argued that there was nothing in the Rule that excluded more than one affidavit from being filed with the Petition. He argued that paragraph 9 of the petition stated that her petition was supported by her affidavit together with other affidavits of various deponents. He also sought to rely on paragraph 6 of the respondent’s affidavit in support of the petition which stated as follows:-
Counsel contended that it was as a result of the petition and the affidavits filed with it that the appellant was able to file affidavits in rebuttal and to give evidence and to cross-examine the witnesses of the respondent. In those circumstances, counsel submitted, one could not possibly say that the appellant had been denied the right to fair trial. He prayed court to dismiss the ground of appeal for lack of merit.
I wish to now deal with the issue of fair trial and hearing and whether indeed there was a denial of that right to the appellant. Fair trial, as rightly asserted by counsel for the appellant and by Kavuma, JA, in his dissenting Judgment, is one of the fundamental rights guaranteed by the Constitution. Article 28(1) on the right to fair hearing states:-
This right is so fundamental that it is given in article 44 of the Constitution as one of those rights that are non-derogable. The Constitution appears to only give the salient features of what constitutes fair trial, i.e., it must be before “an independent and impartial Court or tribunal established by law.” It does not define the term “fair trial.”
Because of its very importance, it is my view, that allegations of denial of the right of fair hearing or trial are very serious indeed and should not be made lightly or merely in passing. They impact on the very core of our trial system. I note in this case that at least there is no contention that the trial court was not independent or impartial or not established by law. The contention was that there was a failure to strictly abide by the Rules of pleading in an election petition, and that that failure had prejudiced the appellant in the preparation of his case in reply to the petition filed against him, thereby denying him a fair hearing.
As observed above, the Constitution does not clearly define fair hearing or trial. However the definition as given in BLACK’S LAW DICTIONARY (6th Edition) is illustrative and helpful. It defines “fair and impartial trial” as follows:-
“Fair hearing. One in which authority is fairly exercised: that is, consistently with the fundamental principles of justice embraced within the conception of due process of law. Contemplated in a fair hearing is the right to present evidence, to cross-examine, and to have findings supported by evidence.” (Emphasis added).
Having set out the Constitutional background, it is now necessary to examine the facts in this case. It is a given fact that the respondent filed a Petition in the High Court against the election of the appellant on grounds, inter alia, of commission by the appellant or his agents, of illegal practices under section 68 of the Parliamentary Elections Act. It is also true that the affidavit of the respondent supporting the petition did not contain detailed particulars of the allegations of bribery or illegal practices contained in the petition. For clarity, I should set out the relevant parts of the petition and supporting affidavit. Paragraph 5 of the petition states:-
“This Petition is supported by the Petitioner’s affidavit, together with other affidavits of various deponents to be filed herein.”
Counsel then cites the INTERFREIGHT FORWARDERS case and the ESSO PETROLUM COMPANY case (supra).
Having argued that the Petition as filed offended Rule 3 which defines Petition to include the affidavit supporting it, and having argued that the petition also offended Rule 4(8) which requires the affidavit supporting the Petition to set out the facts on which the Petition is based together with a list of documents on which the petition intends to rely, Counsel for the appellant submitted that this had denied the respondent the opportunity to adequately prepare his case, as the evidence of bribery contained in other affidavits could not be used to support a case that had not been stated in the Petition. Therefore, according to Counsel, this had denied the appellant his right to fair hearing.
The value of pleadings cannot be understated. I fully agree with what Oder, JSC, (RIP) stated in the INTERFREIGHT FORWARDERS CASE at page 125. He stated:-
“The system of pleading is necessary in litigation. It operates to define and deliver it with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which, the court will be called upon to adjudicate between them. It thus serves the double purposes of informing each party what is the case of the opposite party which will govern the interlocutory proceedings before the trial and which the court will determine at the trial…………. Thus, issues are formed on the case of the parties so disclosed in the pleadings and evidence is directed at the trial to the proof of the case so set and covered by the issues framed therein. A party is expected and is bound to prove the case as alleged by him and as covered in the issues framed. He will not be allowed to succeed on a case not set up by him and be allowed at the trial to change his case or set up a case inconsistent with which he alleged in the pleadings except by way of amendment of the pleadings.” (Emphasis added).
In this particular case, can it be said that looking at the Petition and the affidavits supporting it as a whole the appellant did not know the case he had to answer?
Rules of procedure are very important but they are not an end in themselves. They are often referred to as the hand maidens of justice, but are not justice themselves. Rules form the procedural framework within which a fair hearing is conducted. Having received the Petition, the appellant set out to answer it. He proceeded to file his own reply together with affidavits where he specifically rebutted many of the allegations made by the Petition and its supporting affidavits. Right at the beginning of the trial, counsel for the respondent is the one that requested for extra time – one week – within which to file “the remaining affidavits.” There then followed a discussion between the Judge and all the parties as a result of which the court gave out a time table within which all the affidavits were to be filed and the hearing of the case to start. At no point did the appellant or his counsel object to the competence of the Petition or apply for any extension of time within which to file any other affidavits or other documents. Subsequently the parties agreed on the agreed facts, agreed issues, agreed documents and witnesses for cross-examination.
It is important to recall the words of Oder, JSC, (supra) that issues are framed on the basis of the case made out from the pleadings of the parties. Thus one of the three issues agreed, No.2, was “whether the 1st respondent committed any illegal practices and or offences either personally or by agents with his knowledge and consent or approval.” It is my view that it would have been impossible to frame this issue if the appellant did not know the case. At this point, the appellant could have objected to the competence of the Petition and moved to strike it out if he felt that it did not disclose a case for him to answer. He did not.
In his reply to respondent’s submissions, counsel for the appellant referred to an Article entitled “THE JUDICIAL APPLICATION OF ELECTION AND COURT PRACTICE DIRECTIONS 2007) by CHIJIOKE OGHAM EMEKA. This article discusses what is known in Nigeria as the “front loading regime,” in election petitions. This refers to provisions in their Rules which are similar to our own, requiring that certain matters have to be contained in a petition. In some of the cases discussed therein, the Nigerian courts have held that failure to include the information as required by the Rules may be fatal to the competence of the petition as it would impinge on the right to fair hearing. But I must note that in those cases there was either an application to strike out the petition, or there was application for extension of time within which to file documents.
In this case, as already observed, the appellant and his counsel never raised this matter at any time during the trial except when counsel was making final submissions. Even then, he did not make any specific prayer to the court as to what he wanted the court to decide or what remedy he sought. The appellant could at the beginning of or during the trial have sought further and better particulars of the petition under Rule 8(5) and 8(6) of the Rules. He did not do so. The appellant argues that the period of 21 days within which he was to file all his affidavits was not sufficient. Yet there is nothing on record to show that he made an application for enlargement of time under Rule 19.
At the trial itself, the appellant not only gave oral evidence denying the allegations of bribery, he filed several affidavits in rebuttal. In her judgment, the learned trial Judge did consider the fact that the petition and the petitioner’s supporting affidavit lacked particulars, but seems to have looked, quite rightly in my view, at the case as a whole by looking at all the affidavits filed by the petitioner and replied to by the respondent. She stated thus in her judgment at page 2:-
The 1st respondent in his answer denied engaging in any illegal activities or any electoral offences. He also filed an affidavit in support of his answer and a supplementary affidavit dated 18/9/2006. He filed twenty other affidavits in support of his answer by various witnesses. They were bound in volumes I and II”.
On the specific issue of bribery, the learned trial Judge observed as follows at page 101:-
including…………..” (Emphasis added).
It is to be noted that in his argument about the importance of pleadings and fair trial, counsel for the appellant has not contended that the respondent departed from the case she had pleaded. His contention is that the particulars of bribery should have been contained in the respondent’s own affidavit and not the supporting affidavits of her witnesses. But does that mean that at the trial the appellant did not know the case he had to answer with regards to bribery when he had all those affidavits in his possession?
The failure to put particulars of the bribery in the affidavit of the respondent appears to have been regarded both by the parties and the court as an irregularity which did not go to the core of the case. In the peculiar circumstances of this case it is to be noted that the Petitioner did state in her own affidavit that she would rely on the affidavits of other persons who had witnessed the bribery. Their affidavits were duly rebutted by the appellant and his witnesses. To raise the issue of pleadings and fair trial at the very end of the trial would seem to indicate an afterthought on the part of counsel for the appellant.
In the Interfreight Forwarders case (supra) Wambuzi, CJ., (as he then was) cited the case of SEGAMULL -Vs- GALSTAUN  AIR PC 205, where an issue was framed but certain particulars had not been pleaded. He said, at page 129:-
The learned CJ, then distinguished that case from the one before him. The instant appeal, however, seems to be the case where an issue was framed by agreement of parties based on the petition and the supporting documents that were before the court. The affidavits in rebuttal were before the court. The case proceeded and was argued on the basis of those issues without at any one time the appellant seeking to strike out the petition or indeed applying to court for extension of time to file new or other affidavits. In RAILWAYS CORPORATIION -Vs- E.A ROAD SERVICES LTD  E.A 128, The East African Court of Appeal held that an unpleaded issue but made an issue at trial without objection may be decided by Court.
It is my opinion that the appellant ought to have shown that either the respondent had departed from her pleadings or that he, the appellant, had not known the case that he had to answer. Oder, JSC (RIP) in UGANDA BREWERIES LTD –Vs- UGANDA RAILWAYS CORPORATION  2 E.A. 634, elaborated on the issue of departure from pleadings and what the test is in determining whether a complaint should be allowed to succeed, He put it thus at page 643:
The learned Justice went on to reiterate the principles he had set out in his judgment in the INTERFREIGHT FORWARDERS case and continued thus:
‘The object of pleadings is of course, to ensure that both parties shall know what are the points in issue between them, so that each may have full information of the case he has to meet and prepare his evidence to support his own case or to meet that of his opponent.’
I agree with that view.”
In this appeal, bearing in mind the principles involved under the concept of fair hearing and trial, given that the appellant did have fair notice of the case which he duly responded to, I am unable to find that the irregularity of not putting the particulars of bribery in the body of the respondent’s affidavit unduly prejudiced the appellant in any way. The Court must also bear in mind the direction of Article 126(2)(e) of the Constitution that subject to the law, substantive justice must be administered without undue regard to technicalities. In the peculiar circumstance of this case, it would defeat justice to hold that a case that had gone through a full trial be defeated by a technicality particularly when the appellant did not raise that technicality before, and there is no evidence that he suffered any prejudice I find no basis to find that there was a denial of his right of fair hearing. This ground therefore must fail.
Ground two of appeal states:
“The learned majority Justices of the Court of Appeal erred in law and fact when they failed to re-appraise the evidence of the case before the trial court thereby arriving at wrong conclusions and finding.”
Counsel for the appellant bases his arguments on this ground on the following passage from the lead judgment of Engwau, JA,:
“In the premises, ground 1 of this appeal must fail.” To counsel this went to show that the court had not re-evaluated all the evidence in respect of the other findings by the trial court. Counsel cited the following passage in the judgement to further support his contention:-
On the other hand, counsel for the respondent supported the judgement of the majority, arguing that there was no particular format by which the Court of Appeal was to be taken to show that it re-evaluated evidence. The Appellant had not shown which evidence had not been re-appraised or the wrong conclusions or findings that the majority Justices had made. Counsel submitted that both the trial judge and the majority Justices of Appeal had carefully appraised the evidence on such issues as bribery, and disenfranchisement of voters at various polling stations and come to the right conclusions. He submitted that there was no ground for this court as a second appellate court to interfere with the concurrent findings of both lower courts.
The duty of the first appellate court and the principles governing the re-evaluation of evidence by the first appellate court are well set out in various decisions of this Court. In UGANDA BREWERIES LTD (supra), Oder, JSC (RIP) stated as follows (at page 641):
‘I would accept Mr.