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Ochieng v Adeya & 2 Ors (Election Petition Appeal No. 15 of 2002)

Court of Appeal · [2002] UGCA 6 · 2002 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from a High Court judgment in an election petition ordering the appellant to vacate his parliamentary seat
Decision
Appeal dismissed; trial Judge's findings on disqualification upheld but costs order varied so that each party bears its own costs (per the dissenting judgment of Byamugisha JA)

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Holding

In a dissenting judgment, Byamugisha JA held that section 5(4) of the Parliamentary Elections Act is mandatory: a candidate qualifies as having the equivalent of Advanced Level education only if he holds a UNEB-issued certificate, notice of which is published in the Gazette. The words 'shall' and 'only' were mandatory and exclusive. The appellant possessed only a UNEB letter, not a gazetted certificate, and that letter disclaimed his identity. Failure to obtain a gazetted certificate rendered his nomination void under section 15. She would dismiss the qualification grounds but allow the costs ground, ordering each party to bear its own costs given the petition's public importance.

Facts

The appellant contested and won the parliamentary seat for Bukholi South in Bugiri District at elections held on 26 June 2001, and was declared the winner by the Electoral Commission. The first respondent, a registered voter, petitioned the High Court at Jinja challenging the result on the ground that the appellant lacked the academic qualifications required to be a Member of Parliament. The appellant did not hold an Advanced Level certificate; instead he relied on a UNEB letter dated 19 May 2001 stating he held the equivalent of A Level education, but the letter was addressed to the Chief Administrative Officer Bugiri, disclaimed his identity, and was not published in the Gazette. He had attended a two-year course at Busitema National College of Agricultural Mechanisation. UNEB had not issued him an individual certificate gazetted under section 5(4). The trial Judge found his nomination void for non-compliance with section 5 and ordered him to vacate his seat, prompting the appeal.

Issues

  1. Whether the appellant was a person qualified to be nominated for election as a Member of Parliament under section 5(1)(c) of the Parliamentary Elections Act.
  2. Whether non-compliance with section 5(4) of the Parliamentary Elections Act (requirement of a UNEB certificate gazetted in the Gazette) was mandatory and fatal to the appellant's nomination.
  3. Whether the trial Judge erred in awarding costs against the appellant in a matter of public interest.

Orders

  • The appeal is dismissed.
  • Each party to bear its own costs.

Key headnotes

Electoral Law — Qualifications for Parliamentary Candidates — Equivalent of Advanced Level Education
A person qualifies as having the equivalent of Advanced Level formal education for parliamentary nomination only if he or she holds a certificate issued by the Uganda National Examination Board, notice of which has been published in the Gazette; a UNEB letter is not sufficient.
Statutory Interpretation — Mandatory and Directory Provisions — Words 'shall' and 'only'
Where statutory words are clear and unambiguous they must be given their natural and ordinary meaning; the words 'shall' and 'only' connote mandatory and exclusive requirements respectively, and whether a provision is mandatory or directory depends on the scope and purpose of the enactment, including whether a penalty for non-compliance is provided.
Electoral Law — Validity of Nomination — Non-compliance with Section 5
Under section 15 of the Parliamentary Elections Act, the nomination of a candidate who has not complied with section 5 is void, so failure to hold a gazetted UNEB certificate of equivalence is fatal to the nomination.
Costs — Discretion of Trial Court — Election Petitions of Public Importance
Costs are a matter of judicial discretion which an appellate court will not interfere with unless wrong principles were applied; however, in election petitions and matters of significant political or public importance each party may properly be ordered to bear its own costs.

Legislation cited (8)

  • Parliamentary Elections Act 2001 s.5(1)(c)
  • Parliamentary Elections Act 2001 s.5(4)
  • Parliamentary Elections Act 2001 s.5(5)
  • Parliamentary Elections Act 2001 s.5(6)
  • Parliamentary Elections Act 2001 s.15
  • Parliamentary Elections Act 2001 s.62
  • Local Governments Act s.143(2)
  • Parliamentary Elections (Election Petitions) Rules 1996 r.27

Cases cited (7)

  • Mabosi v Uganda Revenue Authority (Civil Appeal No. 16 of 1995)
  • Kizza-Besigye v Museveni Kaguta (Election Petition No. 1 of 2001)
  • Katumba v Kiwalabye (Civil Appeal No. 2 of 1998)
  • Matsiko Komuhangi v Babihuga (Election Petition Appeal No. 9 of 2002)
  • Kasiki v Kagimu (Election Petition Appeal No. 6 of 2001)
  • Prince Mpungu Rukidi v Prince Solomon Iguru and Others (Civil Appeal No. 18 of 1994)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.