Kakooza v Electoral Commission and Another (Election Petition Appeal 11 of 2007) [2008] UGSC 31 (22 May 2008)

ll I t. v \ a ,.li._._.....*-. IN,THE SUPREME OF UGANDA ATMENGO D (CORAM: ODOKI. C.J., TSEKOOKO, MULENG+ ru N YEI HA M B+ I(ATU R EEB E JJ. 5. C. ) ELE.9.TJ-OJ,I PE.TITION APPEAL NO. 11 OF 2OO7 THE REPI,'BLIC OF UGANDA IBETWEEN KAKOOZA JOHN BAPTIST ;::::::::: AND I.,ItEETORAL COMMISSION 2. YIGAANTHONY :::::::: RESPpNDENTS L ). (An appeal arising from the juclgment and orders of the court of Appeal at Kampala (Okello, Engwau and Byamugisha, JJA) dated llh January, 2007 in Election Petition Appeal No. 16 of 2006) ."- " IIJD-SMENT OF KANYEIHAMBA, J.S.C This is a second election petition appeal from the Court of Appeal which dismissed the appellant's appeal against the judgment and orders of the High Court'rat Masaka (Mugamba, J) dated th-g-22nd Septtrrber,-2006 in.election petition No. 006 of 2006, J , Nfr, .,- ..- :::::::: APPELLANT I \ I{L The background and facts of the appeal may be summarized as follows: Inthn-Parliameptaryelectionsthatwereheldthroughoutthe.country on the 23'd February 2006, the appellant, the second respondent and three other candidates contested for the parliamentary seat of KalunguConstituencyintheMasakaDistrict.Thesecondrespondent was declared the successful candidate with 9,411 votes qng-lhe appdlanl1l,gs.dpchre( th. rrnn", up with 8,602 votes' Jh9 appellant was dissatisfied with the declared results and particularly those from rrt the sub-county of Kyamuliibwa. He alleged that the elections in that sub-county were conducted contrary to the provisions of the constitution, the Electorq[ commission Act and the Parlia.q1.eJtary Electicns-Act-.Je ,.claimed that non-compliance with _the_se laws affected the outcome of the elections in Kyamuliibwa in a substantial manner. He further claimed that the total number of ballot papers counted at the end of the polling exercise did not tally with the number of the ballot paperrs received from the Electoral coqulljgsion at thct.he.ginning ott[e same election exercise. He allege-d.that there was non compliance with the principles of freedom and fairness in the election exercise and that the declaration of the results was tainted with fraud, intrigue and bad faith on the part of both respondents. He also alleged that he was denied representq.!!91 at the,noliog-stationS fluring voting, counting of votes.-a.1d.at the declaration of the results Ir I .1 'ir The appellant subsequently petitioned the High Court at Masaka seeking an order to nullify the election of the second respondent' The respondentsdeniedalltheallegationslistedinthepetitionandon f'"qg[-g*q!J.j!1e Raties, bn the issues agreed between them as requiring determination, the High Court dismissed the petitioril fne appellant,s appeal to the court of Appeal was dismisse8. Hence this appeal. The Kalungu - West Coristituency consists of two 'sub-irif,nties, .**--.....*- nan"f,,?if *Eu and'Kyamuliibwa. In the High Court, it'Wbs'corimon ground between the parties that elections in Kalunftr had been conducted properly and the results as declared from there were acceptable to both appellant and respondents. In relation to the conduct of etections, votirig and declaration of results in'KyamiIiibwa, thfi[owfig-iisues were framed for determination by the'court: 1. Whether there was any non-comptiandE with the relevant laws and the principles !aid therein' 2. If so whether such non'compliance affected the results in a substantial manner .*"*--.. -- 3. Whether any itlegat or any offence was clirilmitttd in connection with the said election by'the second 4. ;I respondent personally or by any other person with his knowledge and consent or approval. What remedies would be availabte to the part'rdi .,) I' I I I I r, ,.i . j 7 ,hb , iL, Mugamba, l. heard the petition and answered all the agrted issues in the negative, holding that none had been proved to the satisfaction Thfl\46iTi6rdh?um Of Appeal in this court contains 5 grounds of appeal framed as follows; 't 1. The learned Justices of Appeat erred in law and fact when they failed to hold that the events of Kyamuliibwasub-countyviotatedelectorallawsand '*-'-dfr6-ated th'e results in a substantial manner' ''- -' 2. The learned lustices of Appeal erred in law and fact when they failed to find that the 1"t respondent did not discharge its statutory duty to hear and determinethe;appeltant'swrittencomplaint"before announ clnE the results. 3. The learned Justices of Appeal erred in law and fact when they rejected the evidence of the DR forms' 4. The learned Justices of Appeal erred in law and fact in holding that the Appellant's Affidavit' in rejolnder ..rL-- -.... *- '- - *viiasIncomPetent 5. The learned Justices of Appeal erred in law when they faited in their duty to reevaluate the evidence on record. At the hearing of the petition, it was common ground'agairffiat the ./L --. * ... *- ,.eititdlrii'ni-Kalungu sub-county with 38 polling stations werenot in dispute. The appeal would therefore be conflned to{the conduct, .+ .-L I of the coutt. voting'fi4'ti:tiirEton cjf tne results in respect of the Kpmuliibum sub-county with 23 polling stations. ) Counsel for the parties filed written submissions in support of and agatnst the appeal. on ground 1 and for the appellant, Messrs, AmbrOflebyas6land C6mpany Advocates, contend that the Court of Appeal erred in both law and fact in failing to hold that the events during and after elections in Kyamuliibwa sub-county violated the provisions of the Uganda electoral laws. counsel relied on the affidavits of the_appellant ;himself, of Joseph Kakandg Rashida t',tanzirdiGrace' Nalumaga, Andrew Kagwa Bbuye and Robeft"Bballe. counsel contend that the High court and the court of Apped ignored the clear evidence that ballot boxes in Kyamuliibwa sub-county had been interfered with. This is the evidence that the said affidavits contain. Counsel further contend that the declaration of the resultvin Kyamu-flDwa-su$tounty. had been delayed considerably because' of the misconduct of the elections and the rigging of the resuEs as had been observed in the sub-county and as exemplified by the testimony of the deponents of the affidavits already referred to. Interference with the election exercise'had been detected by witnesses-who Oeliev#that'tltEle had,been foul play in the election exercise and the declaration of results. Counsel contend further that following the breaches of the electoral laws, the presiding officer for Kalama polling station, David Nyombi and his assistant Nagirinya were arrested and charged together with one Karim Sendi for opening ballot'f,oieB""afr'tr interfering with election materials, contrary to on groundJ,*Counsel for the respondents opposed the..submissions in support of the appellant's case. Counsel supported,f,he findings and decisions of both the High Court and the Court of Appeal. According to Counsel's view, the appellant failed to justify his contentions by credible evidence. Counsel contended that the.record shorr'-thal results were declared at all polling stationq in.the Constituency and the report of poll watchers and theocandidate's agents confirm this state of affairs. Counsel, conceded that one ballot box at Kalama polling -sjgtion whiflg,y^as.de.lirlered to the Kyamuliibwa sub-county was foun_d open. However, Counsel contended that no evidence had been presented to prove that either the actual results in that box or in any other in the whole Constituency had been interfered with or altered. The officials concerned gave a satisfactory explanation as to why that singlg.$rllot box-ha-d.-.ppqp-tound open and the courts below a.ccepted the explanation. Counsel submitted that the appellant had failed io piou. 'I that either foul play had occurred or that any acts of the respondents or their appointed agents had in anyway violated the electoral laws or altered the results in anyway or in a substantial mannel.-The 6 Section 76 of -the Parliamentary Election Act. Counsel criticised the Courtof-Appeal for dismissing the affidavits and other" evidence in suppoft of the appellant as unreliable or insufficient. Couosel contend that the findings by the coufts below was against the weight of evidence which was overwhelming. t affidavitsilf -V\famald J'B; Nyombi, Karim Ssendi and of independ'gnt ' witness Rutebemberwa all confirm that whereas only one bgx had been opened, there is no evidence as to who, when and where that box was opened, let alone any evidence that the votes in it had been tamperedwith.Couoselfurther:contendedthatresu|tsfromapolling. station fdPp,urpcses"of declaring a result are not those contained fi a ' pollingboxbuttheonesalreadycountedandcertifiedinaseparate, DR Form, sealed in an envelope at the polling station and dealt with under Section 50(lXc) of the Parliamentary Elections Act' I am constrained to observe t!1at ground 1 of this appeal is t vague andgerrralized.ground.in.so,farasitrequiresthiscourtto|aI!t-|ne Court of Appeal for failing to hold that the events at ryamulii-bwa, sub-county violated electoral laws and affected the results in a substantial manner which begs the question - what events? The rules of this court on what grounds of appeal must contain are cle-ar' Rule B2(4 provides.as follows: 7 Counsel"contend-that ,the appellant had failed to prodg-cq.3ny. witnesses including his agents who could suggest or show [fat the contents of that single polling box had been interfered with. counsel further contend that the evidence contained in the appellant's witnesses, affidavits_ is based pn speculation and was intended-to. please tb-appellant and not satisfy the court' In conseQuence'. Counsel contend that the courts below were right not to re.[ on it and to dismiss the Petition. ,,5 'A Memorandum of Appeal shall set fotth concisely and under distinct heads without argument or narrative, the grounds of obiection to the decision appealed against, specitying the points which are alteged toh'dVe bd; wronglydecided,,and.the nature of the order which it is proposed tg ask the court to make". r Be that as it may, in so far as the conduct of the elections, the counting of votes and declaration of the results in Kyamuliibwa s_Uh county afe concern-ed, I am satisfied that the learned trial Judge and the Justices of Appeal adequately considered the apgell;ntt complaints about the same, and resolved them correctly. Thus, in his lead judgment, Okello, J.A., as he then, was, having examined the evidence and the witnesses'testimony in detail, concluded: "It i5 interesting to note that'none ofthese eye witnesses vouched for any .*"---.-.-,-r' i I change of the resulE frcm a pafticular figure to another in favour of the second respondent. Onty Messrs Joseph Kakande and nobifr Bbaale alluded to the fact that there were other open ballot boxes in another room within the sub-county headquarterc. There was really no credible evidence to suppott this claim. The credibility of this claim was fufther wegfi12{.yhglLBbaalqstated that it was dark then as there_w9re_ no. electric lights. In that poor lighting condition, visibility was obviously poor. Without other supporting evidence regarding the presence of otfier open ballot boxes in another room, it was not safe to betieve the ctaim of those two witnesses. I therefore do not fault the trial judge for describing the evidence of the eye witnesse*,as cosmetic. Their evidence did not addrcsf th*tEaflbihange of the resulB in favour of the second re$pondent. as alleged" 8 ,iL -.r^-rarorl results in the constitu€ocY' ' *ith the declared resu It is worth notins that *n::::^:';',n" ,"roondent, the eventual the difference in votes obtained t' :T""t ,*ro ,OO votes' At the winner and the appellan! one of tng'",til irregutarities, annexture ..'.. ;"; shrio,iwhereff J?[":jil'il1'r* ;;, votes artesedrv - 816 to his affrdavit t' iected votes were 5. The .ura u, that polling station were 231' The re' btal votes accounted f;r at this particular polling station were 236' However, tne annextr]re"i'int' reveals that the total number of ballot paper$i*'* ;;;"ltut'on'*u' :o'"nextra 2 ballot papers;-"-. The informati" '' tpp]'"ttly obtained no-l on" of the forms signed by the returning J;'' ;t is on tnese figures that 2nd respondent was declared "rcd"a' Subsequently' the appellant submits that this discrepancy it"ff ''ln "xample of fraud' The appellant gives other examples 'rtn-nut" tlitn* tto'S"e clearly whether the results were'- altered or indeed r'J'ia *" committed by anyone' I am therefore not ' persuaded Uy tou'i'"t for the appellant that the learned lustiaes of Appeal erred in 't; * fact or that they failed to reevaluate the evidence or "r"no at Kyamuliibwa. in order to discover that these events cdtlstitu;;o'='n*'uiu'ities which were enough to vi:atr the results for the whole sub-county' There is the evidence of a single box at Kalama polling station which was found open' ,rtris n*n''t''* -::]i:rJ]:,:lil,tJJ:ffi: *nn"rr*ttnevef intended to alter *"-t1; candidates' I agree ;;; concurrent findings of the learned tria! 9 .$- Judge and the lustices of Appeal that that evidence alone cannot vitiate the election results of the whole constituency' . ib. l0 sealed electoral boxes However, it'rttrst'be said that tampering with after the votes have been cast and counted is a serious *"T: i:l ' ought to be condemned' Nevertheless' to vitiate the results' the appellant needs to prove that the phenomenon he complains of had extended beyond one.polling station and affected more than' :T .. ballot box "rq ,ae of sttch nature as to affect the results.s':"ti:'1ll '. in the constituency' In my opinion' the appellant has failed to qoi:' Therefore ground 1 of this appeal ought to fail' In my view' the disposal of this ground disposes of ground 2' In any event' I agree with counser for the re-spondent that the contents of ground 2 of th[ -. appeal did't+ct'*'"-up for adjudication nor were they canvassed in the High Court' Lastly, the failure of ground 1 necessarily exonlles ' the first respondent' I do not find it necessary to consider grouno z' On ground 3, it is the appellant's.contention that the learned lustices of Appeal.'crred".in,-law wh.en t'hey confirmed the decis'ron " tn''. learned trial judge rejecting the evidence of the DRForms' Fle ' contends that copies of the DRForms consisting both of those obtained by his agents and those supplied by the Returning Officer were annexed to the. affidavit of the appellant and the copied forms together with 'appeuant's afficlavit were admitted at the :"nd:]itn.. conference in the High Court by consent of both parties' It is ' contended on behalf of the appellant that the annexed copies"of the I .i5 Counsel for the aPPe llant contends that since these form5 were not challenged, they shou ld have been accepted by the High Court and the Court of APPeal a s containing the truth' Counsel contends that some of the witnesses of the respondents admit to the truth of *'lhat nature of these forms even though theJ claim is contained in an dth e they had been too busy to sign them. It is further contFnded that whereas the resPon dents relied on them to declare and accept the results those forms contained' the appellant was refused to rely on them to Prove his case beca use it is said theY were uneerUfled contrary to the P rovisio ns of the Evidence Act and Yet the same qoutt v. v had held in the case of Election Petition APPeal N o. 24 of 2006 that the Evidence Act does not aPPIY to affidavit evid ence. Counsel for the appellant contended that this case was similar to that in Life Insurance Corporation of 1 of 1967 where it was'said t[at: India v.Panesar, CivilAPPeal No' "unless otherwise provided for by a written law the rutes 9f evidence do not aPPIY to affida vit. mere being no such written law' the best evidence rule does not aPPIY to affrdavit"' ant submitted in the alternative that even if there was such a law, Section 64(1)(a) of the Evidence A-ct should i ;tt il DRForms show crearly that there were discrepancies and irregularities relating to the voting and declaration of results in the constituency which were brought to the attention of the lower courts which should have been sufficlent to vitiate the results in the constituency' .*.--,*..,. --- ' iL. I s.c. m sion in CNo'7 nals of DRForms are t nce the origi ainst whom thfl the effect that sl dent who is a partY a9 theY should be apply to held as Provud n of the first respon t from and who r againg! that efuses to Prod Couns uce therflr el irted the decl n possessio were sough r n re admitted in a h s held that docu ments which a come part o the recordbnd 03 in which it wa of 20 sched will thereafter be t that can be ch allenged' Court CO of APPeal' unsel also cited Election uling conference their conten I it is only eal No' 1 of 2001 in whi Petition App ack of signature' ch the court of APPeat*' invalidated a n affidavit for I isions of the courts Counsel suPpo rted the dec to hold that the For th e Respondents' rts were correct to support theu below' p conrcn-qld that those cou nd there w as no evidence were'not onlY DRFOTM s were defedive a the DRForms nded that ies Predented to validation' Counsel conte the record but their cop at the lu*ices of defecttve on the face of r contended th unselfufthe e Evidence Act' court were uncertrfled' Co correct to r e$ on the h need to be au provisions of th thenticated'bry a ApPeaFwere' ments whic e daifir for Jhe DRForms are public docu I contends fufther that th coSies of the relevant offt cer. Counse at he asked hich were d enied to h fcr the s counse uPP[ of cerilfied im, entitles hi I for the resp ondents contends to relY on the apPellant th DRForms, w undrtified co Btes. Hovvever' as it is not suPPo that that is n ot the correct position at in th e absence or sull evidence' Cou rted"bY any certifioatton' nsel submiG th partY' l I \2 \ \ ,*. the use of such form s in coutt cannot be justified' Couniel distinguished the case of Life Insurance Corooration of India v' Panesar (suPra) bY showing that the rule in that case is distinguishable because it was dealing with an interlocutory matter as opposod to a.substantive issu e as in this aPPeal' r r I d The oPinion exPressed in n ,rib- 13 V Panesar (suPra) is that: 'unless otherwise provided for by a written ldL the rules of evidence do not apply to affidavit' There being no such written law' the best evidence rule does not aPPtY to affidavit'" ,rlir.-..-,..,.*- In my opinion theretorb, rules that apply to affidavit evidence doJrot necessarily apply to annextures to those affidavits' Theoreason for this view is that the affidavit contains the facts to which the deponent swears to be true because he or she has personal knowledge of them. This cannot always be true of annextures to affidavits' A-non- ai,"a DiF;rft canhot be validated by the mere fact that it. is annexed to an affidavit' A DRForm is a public documen! within the meaning of section 73(a) (ii) of the Evidence Act' It requires certification if it is to be presented as an authentic and valid document in evidence' Corisequently' I agree with Okello' J'A''where 'i',- '-" *- 15 of the Parliamentary in h;bil'jrffiment'he opines that Rule Elections (Election petitions) Rules, 1gg6, does not prohibit or indeed conflict with section 76 of the Evidence Act which provides that the contents of public documents or pafts thereof are to be proved by certifiedcopies.IalsoagrbewiththelearnedJusticeofAppm}.when ;dL... . - , '..- he opines that the 'appellant could have provided the uncedified I lotice to the Electoral copies of the DRForms if he had given r commission .o ,,.oo"""t*ies or arrj::.:":":J"J,:"J::TI I: ,ui-.oun* but it.failed to do so' 'nut"-: appellar6'had''given''lt1'-#t't" to .t:" ll-ectoral Commission-nor applied through court for tne Electoral Commission to produce at the trial the DRForms for all the polting stations in Kyamuliitrwa sub- countY' fr. dismissed. In my6gpiq'191 .![erefore' the courts below cannot be faulted'-for holding that the 'nt"n'Otd copies of DRForms annexed to the affidavit of the appellant were inadmissible as evidence' t On the contention that the returning officer or his agents failed to sign {gclaratioliorms' I agiee with counsel for the appellant that it is a statutory requirement for the presiding officer at an qlectlon polling station to sign the DRForms and to fulfil all the requirements contained in Section 50 of the Parliamentary Etections Act' 2005' However, I do not agree that it is obligatory that each candidate or his ogherelection agent must first be supplied with or rec€ivealopy of every declaration iorm before atl the results are declared and validated. In my view' the election results should @ declared immediately after the count and the signature of the DRForms by the returning officer and other relevant persons in accordance with the relryant.laws:J u* not pdrsuaded that the Court of Appeal er'rcd in relation to the issues raised in ground 3' It therefore ought fo be b . il- t4 On ground 4, the substante of the appellant's submissions is-th'5t the .otft, b"toW'-erred ln both law and fact when they'reJected the appellant's affidavit in rejoinder' In the Court of *ppeal, the complaint was contained in ground 4 of the appeal where the appellant claimed thaU "The learned tial Judge ered by misdirecting himself on'the Eiil'of the ^affidavit;striking'out. a competently sworn affidavit. in reioinder of the petitioner while allowing the respondents'defective affidavig; to stand and be relied on." This ground was combined with ground 7 by counsel for the appellant and argued together in the Court of Appeal. On the evidence and submissions by Counsel, Okello, J.A.,as he then 'ir was adequately reevaluated that evidence and considered Counsel's arguments, having said; "I wish to start considering this issue by pointing out that the approach . rL. which the Supreme Court had adopted towards defec'b in affidavits election petitions was stated in Dn Kllza Besigye v. Electoral Commission and Museveni Kaguta. Election{etition No. 1 ot 2001 to be a liberal one. In Mbayo Jacob Robert v, Electoral Commission and Talansya Sinani, EPA, No. 07 of 2006, this couft dealt with a similar situation .... lLre found that the trial Judge took a strict rather than a llberal view .... We found that those affidavits satisfied the .-.. -..,- -... *- essential reguirements of Section 6 of the Oath Act. We followd the liberal approach adopted by the Supreme Court in Kiiza'8esigye9 case (supra) .... At ftrst I thought that the trial judge in the instant case took a strict rather than a liberal approach as held by the Supreme Court. Afrer a ) t l- ',t5 'i.-'*' ' '-- rehrd' however' I changed my mind' s"qjo! 2of ' closer scrutiny of the recoru' """".-:.:: an oath to swear by saying or the oath Ad requires a person takins an *';;;"';;;;,-oni'u"'W repeating afrer the person administering the oat taw or by the praAice of me Court as the case may be"' Thereafttr,' 'the learned Justite of Appeal analysed minutely the evidence as to when'" *n"; ttd how the deponent t*61s' thQ affidavit in question including the remarks the deponent made during cross-examination in tnltrl' court' The learned Justice of Appeal then concluded; "I*,the- circumsta nces I find this case differs from both the Kizza Besigwg caSe 6uPra). To -cgndole case (suPra) and the such an unsworn statem ent seeking to Pass as an affidavit evidence would of affidavit evidence which is rooted on the fact undermine the mPoftance that it is made on oath' I therefore find tha t the trial )udge rightlY rqected that affidavit in ' rejoinder (even) thoug 'h he gave a different 'tason. I would dismiss ground 4' With regard to ground 5' it is my opinion that the issue raised in tils ground was disposed of during my determination of grounds 1' 2 and 3. ThsefQ.r-g/ lgtning '"1*"0 be said u::*'t here again'-Inlhe result, I would dismiss this appeal with costs in this court and in'the ,i courB below' Before leaving this appeal' I am constrained to obserue that both Counsel..fgf' tng pa'ties #ted the practice directions of the{earned 16 ' t'l-.^'^-r^''15' These are supposed r--- . Lord Chief :ustliE regerdirg writEn submisslol to be confined to 10 (ten) pases of double spaced '" **Ll,1nl,]i It appears not to have ;*"; on Counsel that by stating that; "we repeat our earlier submissions at pages 438-447 in the High Couft and pages 4gg-504, 531-537' 562-563 of the record '(appellant's submissions on p'11)" or "we equattv 'aa*e-!Ll;b;;if 1n tiL Hish court at pss 450470 of 'the '-'-- " Record (s'c) (sic) and ''""fJ"i;n-ot'Appeal at pages 518'527 (respondents"- ' -' submissions on p.2),ithose pages became part and parcel of the wri$gn submissions and made those submissions much longer' far in excess of the double spaced pages allowed by the practice directions' counsel are r5frlffyion:: ":ittlv to the practice o''""1]lt'..- -, : Dated at Mengo this l}f 6u, o6 ----, 2008. i.t I r, f*t- ,*" Y" -c.w L F T KAN IHAMBA P I 17 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO RESPONDENT Appeal No.16 of 2006) JUDGMENT OF ODOKI, CJ {An Appeal frcm the iudgment and Orders of the Coutt of Appeal at KlnPla i'oiit't|i irg*"u and eyaiugisha JJ.A) dated 19 January 2007 in Election Petition I have had the advantage of reading in learned brother, Kanyeihamba .lSC, and appeal should be dismissed with costs' draft the judgment of mY I agree with him that this I have also read in draft the concurring judgments of my learned brothers, Mulenga JSC and Katureebe JSC, and I agree with their comments regarding the legal requirements for the Returning officers and candidates' agents to sign the Declaration of Results Forms (DRF) and for the candidates' agents to be supplied copies of the Declaration of Results Forms. I agree with their comments (CORAM: ODOKI CJ, TSEKOOK-O. MULENGA, KANYEIHAMBA ' AND KATUREEBE' JJ.SC) ELECTION PETITION APPEAL NO' 11 OF 2OO7 BETWEEN KAKOOZA JOHN BAPTTST :: : : :: : : :: : : : : : : : : : : : : : : : : : : : : : APPELLANT AND 1. ELECTIONCOMMISSION) 2. YIGA ANTHONY ) I the present case As the other members of the Court agree with the judgment of my learned brother Kanyeihamba JSC' and the orders he has proposed' this appeal is dismissed with costs here and in the Courts below' Dated at Mengo this " day of 2008 BJ o U ki c F JUSTICE 2 "or""rning the circumstances under which a Court may admit in evidence, uncertified copies of Declaration of Results Forms' as in /) THE RE PUBLI coF UG ANDA IN THE SUPREME COURT OF UGANDA AT MENGO TION PE TITION APPEA L No.1 10 BETWEEN AND J DG E TO FTS EKO OK J (CORAM:ODOKI, CJ', TSEKOOKOT MULENGA' 1\'\''r \rrrrI I [ar,riEIinrir BA AN D KATU REEBE, JJ.s.c.) F 2007 ELEG 1. THE ELECTORAL COMMISSTONI::: RESPONDENTS 2. ANTHONY YIGA ) [Appeal from the decislon of the Court of Appeal at Kampala {okello.EhqwauandByamuglsha,JJ.A)dated1gthJanuary,2007' in Civil APPeal No' 16 of 20061 I have had the benefit of reading in draft the lead judgment prepared by my learned brother, Kanyeihamba, JSC', and I agree that this appeal ought to be dismissed with costs to therespondentshereandinthetwoCouttsbelow.Ihave similarly read the concurring judgments of my learned I KAKOOZA JOHN BAPTIST : APPELLANT I wish to comment on the 4th ground of appeal. Under it, boththetrialJudgeandtheCourtofappealarecriticisedfor rejecting the appellant's affidavit in rejoinder purporting to have been sworn on 10th JulY, 2006' The record of appeal shows that during cross-examination on that affidavit, the appellant answered that: "I read through the affidavit and signed it before I sent it to the Commissioner"' Both the trial judge and the court of Appeal rejected the affidavit because it was not properly sworn before a commissioner for oath, In this court appellant's counsel, in their written statement of arguments, attempt to play down thesaidanswerwhichtheappellantgaveincourtwhile being cross-examined. counsel state that the appellant had work in court in Masaka and so on 10th July, he carried the ') / brothers Mulenga, JSC' and Katureebe' JSC' and I agree with their opinions in respect of ground three of the Memorandum of Appeal which I think ought to succeed' fl I un.sworndraftaffidavittoMasakawhereheactuallyswore it before a registrar. Learned counsel suggest that the affidavit to which the appellant referred in court is different from that which was filed in court. I am not persuaded by these arguments. Delivered at Mang o this . n.d. day of 2008. l.w N. TSEKOOKO ]U CE /rne SUPREME couRT. ) 3 clearly counsel for the appellant are attempting by these arguments to give evidence from the Bar about the existence of the defective affidavit. on the facts I think that both the trial judge and the Court of Appeal acted properly in rejecting the disputed affidavit. I agree with the opinion of Katureebe, JSC., on this ground which ought to fail. ) IN'THE SUI}IIEME ()F UGANI)A AT MEN(;O (('Oll,AM: ODOKI, ('.,1., TSEKOOKO' Mtll.l.l,NGA, KANYE I HAM I}A, KATTI ITEEI}8.' J.I.S.C].) l,].t,.("t'loN t,t..'t't lto\ At,t,l,t.\t. No. I I ot.'2(x)7 llEl'Wlrt.N KAK(X)7.A.rOllN llAl'1'lS'!':::::::::::::::::::::::::::: Al'}ltlll.l.AN'l' .\\ l) :: :: :: :::::: :::::: : Itt]SI)ONDEN-I'S (.ln uppaul trisingJrom thc jutlgnrcnt ol tht: (.ourt ol ..lppcul (OAcllo, Iittgtrou un l\vmugi,;hu, .Lt..l) ut Kunryult ddul lgtt' ,\unuor.1,,2007 in l.llectiotr ltatition .,lppcul ,\'o. l6 ol 2l)0(t) I had advantagc ol'reading in drali thc judgment of my lcarned brother Kanyciharnba JSC. I agree that having regard to the evidencc adduced, it is inevitablc that the appeal should be dismissed. The appellant did not prove the allegcd irregularities to the required standard, let alone that they aflected the rcsults in a substantial manner. However, I would likc to express my reservations on the issuc of the l)eclaration of Results l.'orms (DR F'orms) produced by thc appcllant, which are subject olthc third ground ofappeal. r. Er_r,r("r'oRAl. ('oMMrsstoN 2. YI(;A AN'I'IIONY .tt tx;\ll..N't' o[' \tt t.EN(;/\ .ts( . ln his petition and his supporting affidavit, the appellant averred that ofllcials of the l'' respondent had interlered with the electoral results from Kyamulibwa sub-county. He sought to prove this by showing inter alia that thc intbrmation contained in a number of the DR Forms in the possession ol' the Returning Ofllcer diflered from that on copies of the DR Forms the appellant received from his own agents. He annexed to his affidavit twenty uncertified copies of DR Forms, as Annexture B I - 820, to show the discrcpancies. Among the affidavits in support of the petition was one sworn by (iodtiey Ntale, the appellant's agent who obtained photocopies of the DR l"orrns lrorn the District Registrar. In the affidavit Codfrey Ntale narrated in detail, how he had obtained the photocopies on behalf of the appellant. He averred that the copies were rnade in his presence and supplied to him by the t)istrict ltegistrar as dirccted by thc Returning Oflicer. l'he witness further avcrrcd that thc lleturning Olficer had rel'used to certify the photocopies of thc t)l{ l:orrns despite his request. Both the Retuming Officer and the District I{egistrar swore afldavits in support of the l " respondent's answer to the petition. Neither of them refuted those averments. 'l'hey did not deny that thc documents were true copies ol the DR Forms used in determining and declaring the results, which were kept by the Retuning Officer; nor did thc Rctuning Offlcer deny the averment that he refused to certify them. At thc prc-hearing scheduling conference, no objection was raised to any ol- those DR liorms. According to what counsel on both sides stated at thc confbrence, the only documents which the respondents did not admit were Annexturc A to the appellant's alfidavit and Annexturc A to Godfrey Ntale's allldavit. ]'he DIt Forrns anncxcd to the lormer alfidavit as B I - 820 werc thcrelbre admitted. Scction 57 of the Evidence Act provides - l "57. l"uc'ls utltrtitted nac not hc Drowl. No Jiul need hc provad in rny procceding which lhc purtics to lhe procec ittg or lheir ugcnls ugrcc to alntit ut lhc hcuring, or t'hich, helire lhe hcuring tht.1' ugree lo ulntit h)' u n.t' x'riling undar thcir hutttls, or n'hich h.t' utt.t' rulc oJ pleailing in /brcc ut tha tinrc thc.t' rc dccnrcl to huve ulmitted hy lhcir plerulings; e\ccpt th t thc court mu.t', itt ils rliscrctiott, requirc lltc .fitc'ts ulnittctl to be proved othcrwisc thutt b.t'sut'h u ntissions," ln rny vicw, the most appropriate time lor the court to require a party to prove an admittcd fact otherwise than by such admission, would be at the pre-hearing scheduling conference, though the court may exercise the discretion later in the proceeding. Obviously, however, the requirement must bc cornmunicated to give opportunity to the allected party to provide proof other than the admission. -l'here is no indication anywhere in the record of proceedings that the trial court communicated such requirement to the pctitioncr/appel lant. Notwithstanding that, in his judgment the learned trial judgc said llrst of the af lldavit evidcnce ol-Godfrey Ntale as PW9 "His efforls lo secure certiJied declarution of resuhs fbrnts for K.1'omulibwa sub-coun\, from the Relurning Otficer, Mosaka is jlx'al in lhc tnnrn ol his cviilant'e. Sutlll' lha iocunrcnts Drcsantcl lo thc nelitioner ht ,\,llulr x'ara nol utpias ol lerlurolirttt ol rasufts lbrnts ccrtiliel hy tltc Ilaturrtittg Ollircr. So ntuch lbr thcir worth." l-atcr in the judgrnent, thc learned trial judge stated that Annextures I] l- 820 were intended to prove discrepancy in the arithmetic ol the votes as an indicator ol'possible lalsification of'results in lavour ol'thc 2"'r rcspondent. llc reiterated that the Annextures are not certified as true copies of the originals and observed - 'l'hc Court ol- Appeal upheld the decision of the trial judge to disregard the said DR Irorms, holding that DR Forms are public docurnents within the rneaning ol- scction 73 ol the f:vidence Act, and pointing out that under scction 76 ol'the same statutc the contents of'public documents are proved by ccrtitied copie s thereot', and hc could have proved them with the uncertifled photocopies if he had given to the Electoral Commission notice to produce. Scction 76 has to be read with section 75. 'Ihe lattcr imposes an obligation on a public ollicer having custody o[a public document to give to a pcrson cntitled to inspect it, a certilied copy thcrcol on payment of lcgal Ii'cs lbr thc copy. Section 76 does not providc that the contents ol- a public docurncnt can only bc proved by certilicd copy. lt sirnply provides - "Such certified copies mry be produced in proof of the contenls of the puhlic documents or pdrls of the public documents of which they purport to be copies" In thc lcad.iudgnrent. Okcllo J.A. said ",.1n ulta,rrpt to prore results Jitls(icalion hf irregularitics in the Dcc'luruliott oJ Results liornts t'urrttot hc eff'et'leil olherwisc lhutr h.t' ccrtiliul topies thercof. Evcn ( the rcltvutrl I'resiling OJfiurs x'cra to uilmit Jitilure lo sign lhc Dcclurulion oJ Rcsults l"ornt oJ- Itis sluliotr il hus to he shown lhul thc suitl Dcclurution ol'Rasulls l"orm hu hcen reliel on h!' thc Rclurning OlJicer to trtlll'the rasults. This Lttukl hc possihlc iJ thc Dcclurulion ol Rcsulls I"ornts.f ntm the Returning OlJiccr n,cre rsccrluittohla. This coultl htvc hccrr possible iJ they were ccrlifictl. Thd nutull dill2renliutc thcm .f ntm c'opies ohluined lrom the uppcllunt's ugents." + "lt is nol surprising thul lhc.l' urc utttlcslad h.1'lhc rcspondcnts. .,ls I ttotctl rcgurling thc evilcncc of Pll'9 lhc hut,c no cvidcnliul wtluc rts lhair ltuthanliL'it)'l is qutsliortul. For thc suntc rcusotr thc pctitioncr is hunl pul to Dnrvc uttt'thirrg bt' t,ut' ol'dcclurution ttl rcsults lbrnts n,hcrc it is ullctlal lbr c.rnnrplc thul lhc Prcsilins Ollictr il trot uttpctr his or hcr sigttolurc to lhcnt," 1 l: nr plilsis is acldcd) With duc rcspect, this conclusion is unduly restrictive. I am not certain if this was derived lrom the provision of subsection (4) of section 65 of the Evidence Act, which on the face of it prohibits the use of secondary evidence, other than a certified copy, to prove a public document, even if the notice to producc is given. That would lead to an absurd scenario where, as in thc instant case, the person who has custody of an allegedly falsified public document, rctuses to give a cenified copy thereof and does not produce it. ln rny vicw the better interpretation is that any document, whethcr public or privale, falls in thc catcgory under section 6a (l) (a) il its original is in the possession of the person it is sought to prove it. Accordingly, any form of sccondary cvidence rnay be given to provc it, if notice to produce was previously given. 'l'his is consistent with the earlier statement in the same judgrncnt that the unccrtificd photocopies could havc been eflective if the appellant had given to the Electoral Cotnrnission noticc to produce. Notice 1o produce is provided fbr undcr section 65 of the Evidence Act. In a nutshell, the scction in eflect provides that a party proposing to give secondary evidence of a document may only do so if previously the party gave to the party in possession of the original, notice to produce the original. 'l'hc section then lists circumstances in which the notice to produce may be dispensed with. I need not reproduce that list. Suffice to say that it includes "tn1t p111r, cose in which the court thinks jit lo tlispense with [the noliceJ". It is apparent that both courts below refused to consider the contents of the photocopies of the DR Forrns sirnply because they were not certified. They did not consider othcr tnaterial lhctors. In my view, the better'interpretation is that any document' whether public or privatc, falls in the caregory under section 6a (l) (a) if its original is in ihe possessionofthepersonitissoughttoproveit'Accordingty'anyform'of sccondary cvidence may bc given to prove it' if notice to produce was previously given. This is consistent with the earlier statement in the same judgmcnt that the uncertified photocopies could have been effective if the appcllant had given to the Electoral Cornmission notice to produce' Notice to produce is provided for under section 65 nutshell, the section in effect provides that sccondary cvidence of a document may only do so if previously the party gavc to the party in posscssion of thc original' noticc to produce the original' 'l'hc section then lists circumstances in which the notice to produce rnay be clispcnscd with' I need not reproduce that list' Suffice to say that it includes "rrny other cose in which the court thinks Jit to tlispense with [the noliceJ"' Itisapparcrrtthatbothcourtsbclowrefusedtoconsiderthccontentsofthe photocopies of the DI{ Irorms sirnply because they were not certified and the appcllantdidnotgivethetjlectoralCommissionnoticetoproduce.Theydid not consider other material lactors' ln n.ry opinion, having rcgard to all the circumstances' particularly the fact thatthcrespondcntsdidnotrefuteGodfreyNtale'sevidencethatthe photocopies were true copies of the DR Forms in the custody of the I{eturning Officer, the fact that the Iletuming C)fficer was request;d to certilythcphotocopiesbuthcrefusedtodosothoughhehadauthorised thcirmakingandthefactthat.therespondentsthroughtheircounselatthe prc-hearingschedulingconferenceadmittedthephotocopies'theabsenceof aformalnoticetoprodtrcethcoriginalformswasnotsufficientgroundfor () of the Evidence Act. In a a party proPosing to give disrcgarding their photocopies' On the whole I would n:'O :n*'tT^::::: bclow misdirected themselves in law and fact in holding that the photocoptes of thc I)Il l''orms produced by the appellant had no evidential value' In my vicw ground 3 succeeds' J.N. Mulcnga J usticc of SuPrcme Court 7 I woutd not have hesitated to deduce from the aloresaicl circumstances that thc photocopies that the District Registrar supplied to PW9 were true copies ol'thc l)lt Iiorms in the custody of the Retuming Officer and that the latter were used in tallying and determining the election results of Kalungu -West constitucncy. Flowever, it was not satisfactorily proved that alleged discrepancies between the contents of the DR Forms in the custody of the I{cturning officer and those handed to the appellant by his agents, were of such magnitude as to show substantial effect on the results' In his affidavit' thc appcllant only referred to a difference ofone vote or two votes 'here and thcrc. Although in submissions the appellant's counsel referred to' large arithmctical discrepancies' and invited this Coua to find that the DR Forms show that the declaration of results "were grossly contaminated"' I am unablc to say that there is sufficient evidence on which to base such finding' It is lbr that reason that I concur in the holding that the appeal be dismissed' r)A'nlD at Mengo tni, ZAlatv or 'Q*7 2008 \ i$., ) \tlhi, \r. +-- 0 k rnrA 1'IIE IIIII'UBI,IC OT UC-A.NDA IN TIIE SUPITENIE COURT OF UGANDA A'I )ll.t\ (;() (CORAM: ODOKI, CJ, I'SEKOOKO, MULENGA T)ANyETHAMBA. AND KATUREEBE, JJ.SC), ELECTION PETITIOH APPEAL NO I{. OF 2OO7 BETWEEN KAKOOZA JOHN BAPTIST:::::::::::::::::::!::::::::::APPELLANT AND I. ELECTORAL COMNUSSION 2. YIGA ANTIIOI,,IY (n an4eal yistng from the judgment and orders of the Court of Appeal at {lyyyta_lO*an, Ensn-uu ani Byamugishr, tt.el aoii ii'';;;;;;, 2007 in Election petition Appeat Ni. rc b ZOOOj. :::::: ::::::::: ::: RESPONDENTS. JUDGM ENT O F KATUR EEBE, JSC. ) I have had the benefit of reading, in draft, the judgment of my learned brother, Kanyeihamba, JSC, and I agree with him that this appeal be dismissed for the reason that the appeilant faired to prove to the required standard that the irregularities and violations of the law affected the results of the election in a substantial manner. I would, however, wish to touch on two matters. The first is the issue of the Declaration of Results Forms and their admission in evidence as argued in ground 3. There can be no doubt that the DRF's are a crucial part of the record of elections. They contain the data as to the votes cast at each polling station, It is the totality of these votes as contained in the DR Forms that determines the winning candidate in a given constituency. Given their importance, it is crucial that the provisions of the law relating to them be complied lvith. The First provision is section 47(5) of the Parllamentary Elections Act 47(5): "The presiding officer and the candidates or their agenE, if any, shall sign and retain a copy of a declaration stating : - a) the polling station; 1 which states: b) the number of votes cast in favour of each candidate; and the presiding officer shall there and then announce the resul9 of the voting at that polling station before communicating the results to the returning officer." Clearly, the declaration of result form must be signed, at the very Section 50 of PEA provides for the distribution of the declaration of result forms as follows: a) One copy of the completed form must remain attached to the report book. b) One copy must be retalned by the presidlng officer for display at the polling station. c) One copy must be enclosed in an envelope of the Electoral Commission, sealed by the presiding officer and delivered to the nearest result collection centre; d) One copy must be delivered to each of the candidates agents: -1 least, by the presiding officer, and their candidates or the agents must retain a copy. A signed declaration of result form becomes the basis for the immediate declaration of results at that polling station. An unsigned declaration of results cannot be validly used as a basis for declaring results. e) One copy must be deposited and sealed in the ballot box. The section further provides in sub-section 2 that the presiding officer must then seal the ballot box. Sub-section 3 provides for the materials to be contained in the sealed ballot box, and these include that the declaration of results form must be signed by the presiding present and willing to do so, and the presiding officer must then immediately declare the result. Clearly, the presiding officer has no the declaration of results form is signed. In this case, evidence shows that there are instances where agents of the appellant dld not sign the DR Forms, and they were not given copies thereof. In my view, failure by the presiding officers to give agents copies of the form is a violation of the law. What has to be determined is whether that violation affected the results of the election in a substantial manner. It is also to be noted that under section +7(7) (e) of PEA, the absence of the candidate or an agent + one duly siqned declaration of results form. Sub-section 4 provides officer and the candidates or agents of the candidates that are cholce in the matter. He must declare the results immediately after from signing of the declaration form does not by itself invalidate the results announced. But the presiding officer should have recorded the fact of the failure or refusal to sign or the absence of the (c) of PEA. records. In my view this section is important in this case so I will reproduce it: 52(7)'The returning officer shall be responsible for the safe custody of all the election documenB used in the district in connedion with an election until the documenE are destroyed in accordance with the dircctions of the Commission, but the Commission shall not ves directio 'ns before the settlcm ent o f D utes tn an v ute anstn o from the election." (emphasis added). What emerges from ttte above provisions of the law is that if the law is properly applied and election procedures followed, there should have been several centres from where copies of the declaration of results forms could have been obtained for use in court. Certainly those in the safe keeping of the returning officer as per section 52 were public documents within the meaning of section 73 of the 5 candidate or their agents in accordance with section 47(7) (b) and Section 52 provides for the safe keeping of election materials and evidence and could and should have been produced in court using proper court procedures for production of documents. That must be the reason why the section provides for safe keeping of the records until any disputes have been settled, These DR Forms would have been the primary evidence in this case. In absence of that primary evldence, the appellant could then have proceeded under sections 64(1) (a) and 65 of the Evidence Act to produce secondary evidence in the form of copies. The appellant and his counsel produced uncertified photocopies of DR Forms, arguing that the returning officer had refused to give then certified copies. Okello, J.A in his lead judgment dealt with this matter as follows:- "The appetlant could have pruvided the uncertified copies of those Declaration of ResulB Forms if he had given notice to the Electoral Commission to produce copies of all the Declaration of Results Forms from that sub-county but did not, There is no evidence that the appettant had given such a notice to the Etectoral Commission nor applied through the court for the Electoral Commission to prcduce at the trial the Declaration of ResulB Forms for all the polling stations in Kyamutibwa sub-countY, fn the 6 circumstancesl f agree with the trial judge the unceftified photocopies of the Declaration Forms really had no evidential value", necessary to examine the law with regard to notice to produce. This is provided for under Section 65 of the Evidence Act. It is discernible documents such as tlrese forms (under section 64 (t) (a)) notice to those documents. The Notice must be in a manner prescribed by law. But where the notice is not prescribed by law, it must be "such notice as a coutt considerc reasonable in the circumstances such notice shall not be rcquired in order to render secondaty evidence admissible in any of the following casesl or in any other case in which the court thinks fit to dispense with it .,,, (b) when, from the nature of the case the adverse ,7 This matter therefore, as far as the learned Justice of Appeal was concerned, hlnged on the appellant's failure to serve on the Electoral Commission a notice to produce the DR Forms. In my view, it is from that Section that before secondary evidence of the contents of produce must first har,e been given to the pafi in possession of of the case." There is also an important exception: "except that party must know that he or she will be reguired to produce it." This is a case of an Election Petition to resolve an election dispute. The Electoral Commission is a respondent in the case, and therefore an adverse party to the petition. In terms of section 52 of PEA (supra) the Electoral Commission is in possession of the Electoral records including the DR Forms in issue in this petition. The sole reason that Electoral Commission keeps these records is so that they may be used to resolve election disputes. In my view, by operation of Section 52, the Electoral Commission is on notice that these records may be needed. It should be obliged to produce them' But the evidence shows that the returning officer, an agent of the Commission, refused to give certified copies to the appellant, nor did he produce the forms in court. In his evidence, under cross- examination, the appellant stated thus: "1 went to the District Returning Officer seeking for att the 23 DR forms from Kyamulibwa sub-county. The letter is annexed to the affidavit of Godfrey Ntale' The District Returning officer wrote directing the District Registrar 6 Peter Kasozito fotlow up the matter. That, he endorsed on my letter to him after that I got the DR forms I asked for. They were not ceftified. They are annexed to the petition as 81 to 820. I wanted DR forms from the Returning Officer because I had not got the 23 DR forms. The 7 I received tooked suspect. After photocopying the District Returning Officer said he had decided not to ceftify them." The affidavit of Godfrey Ntale itself supports this evidence. In my view, this is a case where the trial court ought to have taken into account the exceptional circumstances of the case, namely, that this is an election petition. The court ought to also have taken into account the provisions of section 52 of PEA, and the fact that the commission and the District Returning officer knew that these forms would be required to resolve the election dispute since the appellant had requested for certified copies thereof, The court should also have noted that by refusing to give the appellant certified copies, the Returning Officer was in breach of Section 75 of the Evidence Act' The court basing crn Section 65 should then have allowed the 9 secondary evidence in the form of uncertified copies which, in my view, are covered under Section 62 (b) of the Evidence Act' In my view the coutts below failed to address themselves properly to Sections 64(1)(a) and 65 of the Evidence Act, and to Section 52 of PEA. So in my view, ground 3 rvould succeed. The other aspect I wish to comment on is ground 4. The appellant who testified that he is a lawyer and a commissioner for oaths, swore an affidavit in rejoinder which was rejected by the coutt because apparently he had not appeared before the commissioner for oaths. He had signerl the affidavit in Kampala and, in his own evidence, sent it to the commissioner for oaths for commissioning' It l0 To me it defeats justice for the Returning Officer who is an agent of the Electoral Commission to refuse to give certified copies of election records to a party to an election dispute, fail to produce the records in court, and then for the party seeking the records to be defeated on the grounds that he did not issue formal notice to produce' turned out that it was then commissioned in Masaka. In effect the commissioner for oath did not administer the oaths and see the deponent signing the affidavit, Section 6 of the Oaths Act states:- "Every commissioner for oaths or notary pubtic before whom anv oath or affidavit i-s bken or made under this Act shail state truly in the iurat or attestation at what place and on what date the oath or afftdavit is taken or made." (emPhasis added). The practice where a deponent of an affidavit signs and forwards the affidavit to a commissioner for oaths without him being present is, in my view, a blantant violation of the law regarding making affidavits and must not condoned in anyway. The deponent of an affidavit must take oath ancj sign before the commissioner for oaths as required by law. A commissioner who commissions an affidavit without seeing the deponent cannot say that the affidavit was taken or made before him, or her nor can he state truly in the jurat or attestation at what lllace or time the affidavit was taken or made. Equally the deponent cannot claim to have taken or made the affidavit before the comrnissioner for oaths, Surely the appellant as an advocate and commissioner for oaths ought to know better' This I ground is totally without merit and the courts below dealt with it most appropriately and correctly, and it must fail. Notwithstanding my conclusion on ground 3, this appeal ought to fail on grounds contained in the judgment of my learned brother Kanyeihamba, JSC. r11 2008. Dated at Mengo this rt M. Katureebe Justice of the Supreme Couft day of t2 ""t