Why court of appeal gave NRM's Panadol victory over FDC's Mudiobole

The Jinja High Court in June 2016 overturned results for the Member of Parliament for Iganga Municipality when the court judge Margret Elizabeth Mutonyi ordered Peter Mugema aka Panadol to vacate the seat.

The judge also declared Abed Nasser Mudiobole, as the duly elected MP after she found that Mudyobole had adduced sufficient evidence pinning Panadol of voter bribery.

According to petition, Mudiobole told court that Mugema the then incumbent bribed voters with money even on the voting date and video clips were produced in court to this effect.

It was also proved that Mugema made a donation of three hundred thousand shillings to Bethel Healing Church on the eve of the election.

However, a court of appeal ruling on Thursday March 22, 2018 by three justices including Steven Kavuma the DCJ emeritus, Cheorion Barishaki and Catherine Bamugemereire overturned the Jinja high court decision.

The panel had a vote of one Steven Kavuma against the other two who voted in favor of overturning the trial judgment.

During the appeal proceedings, Mugema was represented by a team of lawyers led by Kiryowa Kiwanuka, Thomas Ochaya and Muhammad Nsereko among others

The appeal raised about twelve contestations against the trial judgment arguing that the trial judge had erred in law while making her decision.

The first aspect the trial judges dealt with was the question on whether Panadol had properly logged his appeal since he didn’t have the certified copy of proceedings in court. There was contestation from the respondent’s team who preliminarily objected that Panadol had not followed the due diligence in filing his appeal.

Panadol’s lawyers informed court that they found a lot of difficulties driven by delays at the Jinja court registry while trying to secure the final copy of the trial proceedings something that prompted them to file their appeal in a rush so as to beat the election petition appeals deadline.

In their ruling, the panel found that the applicant couldn’t have secured the certified copies of the trial proceedings and judgment because he had no way to access them unless the registry had informed him of their availability.

These also said that the applicant’s lawyer exercised sufficient diligence through writings to the registry to access the same ruling that he therefore filed his appeal rightly.

The other contention by Mugema was around thirty-three affidavits that were prepared on behalf of different illiterate people without the Mudiobole team of lawyers following the due diligence according to the Illiterates Protection Act.

Panadol’s team of lawyers noted that Mudiobole had thirty-three affidavits which were prepared on behalf of an illiterate group. These disagreed with the fact that as part of the affidavits, there was no indication that the different people had agreed to whatever had been written on their behalf.

The person that is said to have translated the affidavits also didn’t have their details indicated on the same as is required by law.

The judges noted that though the trial judge agreed that affidavits are an important aspect in petitions as evidence, she undermined the omissions here as mere issues of circumstance and not substance and went ahead and accepted the said evidence.

The judges say the 23 affidavits also missed out on who prepared them and instead indicated who translated them something that was not in procedure.

The judges ruled that this ground succeeded because court found that after the trial judge agreeing that the affidavits didn’t follow right procedure, she should have expunged them from the list of evidence.

In his appeal Mugema also contested the fact that the trial judge did not even consider the inconsistencies in the signature of the person said to have translated the different affidavits and yet went ahead and gave a ruling based on his evidence.

The appellant judges noted that the trial judge erred when she took on a handwriting expert’s role to accept signatures that needed to be analyzed.

In his other contestation points, Mugema challenged the fact that some of the people that swore affidavits as evidence against him were his agents. He cited one Ngobi who was the NRM chairperson in Iganga who he denied to have been his agent saying there was no agreement between them.

The judges ruled that there was no evidence in court proving that the NRM Chairman was his agent.

The judges therefore ruled that any wrongful acts by the NRM Chairman were not binding to the appellant even if they all subscribed to the same party.

Another ground that succeeded was one where one Waibi’s evidence in court was disqualified by the appellant court judges after they said he was one of the 23 whose affidavits had been disqualified in an earlier ground and therefore his evidence was not withstanding.

The trial judge had also found Panadol guilty of bribery over allegations that he had made a donation of 300,000 to Bethel Healing Church during a crossover overnight and there was evidence on camera.

However, the judges noted that the two parties had each given money at different church occasions. These wondered how Mugema’s giving would tantamount to bribery and not Mudiobole’s.

They ruled that the 300,000 was mere offertory given as an act of religious dedication.

On the declaration of Mudiobole as the duly elected MP for Iganga municipality, the judges noted that the trial judge erred when she ordered Panadol to vacate his parliamentary seat on grounds that she was saving tax payer’s money by avoiding a by-election

The judges noted that though her decision was one of those prescribed by law, the peculiar circumstances of the petition didn’t justify declaration of Nasser Abed Mudiobole.

The appellant court before its final decision overturned the trial court decision that had ordered Panadol to cover costs for two of Mudiobole’s counsel saying there was no justification.

These reversed the order and instead directed Mudiobole to cover panadol’s costs at both the appellant and trial courts.

With most of his contestation successful, the lower court decision was overturned and the election and declaration by the electoral commission of Peter Mugema aka Panadol was upheld sending him back to parliament.