Paul Mwiru v Hon. Igeme Nathan Nabeta Samson and Others (Election Petition Appeal No. 6 of 11)

Court of Appeal · [2011] UGCA 9 · 2011 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal from High Court dismissal of a parliamentary election petition, with a cross-appeal on the order as to costs.

Decision

Appeal allowed; first respondent's election annulled and a fresh election ordered; cross-appeal on costs dismissed.

The full judgment

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Holding

The Court of Appeal allowed the appeal, holding that the third respondent failed to consult UNEB on the totality of the first respondent's academic qualifications before issuing the 2010 certificate of equivalency, so the first respondent lacked the requisite minimum academic qualifications. A general inquiry could not satisfy the statutory consultation requirement, and an equating certificate is not valid in perpetuity. The court also found the trial judge applied too high a standard of proof (rather than the balance of probabilities) and conducted an omnibus rather than discrete evaluation of the bribery evidence, concluding the first respondent personally distributed welding machines to voters. The first respondent's election was annulled and a fresh election ordered. The cross-appeal on costs failed.

Facts

Parliamentary elections were held on 18 February 2011 for Jinja Municipality East Constituency. The Electoral Commission declared the first respondent the winner with 8,203 votes; the appellant came second with 7,060 votes. The appellant petitioned the High Court to annul the result, arguing principally that the first respondent lacked the minimum academic qualifications because the third respondent (NCHE) issued his 2010 certificate of equivalency without consulting UNEB on the totality of his foreign qualifications, relying only on a general inquiry and an earlier verification of his 'O' Level. The appellant also alleged bribery, including the distribution of welding and compressor machines to garage owners and electricity connections during the campaign. The first respondent denied bribery and claimed his qualifications had been cleared since 2001. The High Court dismissed the petition and ordered each party to bear its own costs. On appeal, the Court found no proper consultation with UNEB and that the trial judge applied an excessively high standard of proof and improperly evaluated the bribery evidence regarding the welding machines.

Issues

Whether the trial judge failed to properly record the evidence.
Whether the trial judge failed to properly evaluate the evidence and thus reached a wrong conclusion.
Whether the trial judge erred in placing a higher standard of proof on the petitioner than required by law.
Whether the trial judge erred in holding the first respondent possessed the minimum academic qualifications for nomination and election based on the certificate of equivalency issued by the third respondent.
Whether the trial judge erred in holding that the first respondent did not personally or through agents commit acts of bribery.
Whether the trial judge erred in holding that the elections complied with the electoral laws and any non-compliance did not affect results substantially.
Whether the trial judge erred in ordering each party to bear its own costs.
What remedies are available to the parties.

Orders

Appeal allowed.
Declaration that the trial judge erred in placing a higher standard of proof on the petitioner than the law required.
Declaration that the trial judge erred in holding the first respondent possessed the minimum academic qualifications for nomination and election.
Declaration that the first respondent personally committed an illegal act of bribery.
Election of the first respondent as Member of Parliament for Jinja East Constituency annulled.
A fresh election ordered.
Cross-appeal dismissed.
Appellant awarded costs of the appeal and the cross-appeal.

Key headnotes

Electoral Law — Qualifications of MPs — Consultation with UNEB on academic equivalency

Where a candidate must establish minimum academic qualifications under section 4 of the Parliamentary Elections Act, the National Council for Higher Education must actually consult UNEB on the totality of that individual candidate's qualifications before issuing a certificate of equivalency; a general policy inquiry does not satisfy the statutory consultation requirement.

Electoral Law — Certificate of Equivalency — Validity for future elections

A certificate of academic equivalency issued for one election is not valid in perpetuity for future elections; equating academic papers for electoral purposes is not a once-in-a-lifetime exercise, and treating it as such would amount to amending the law.

Evidence — Standard of Proof — Parliamentary election petitions

The standard of proof in parliamentary election petitions under section 61(3) of the Parliamentary Elections Act is proof on a balance of probabilities; authorities applying a higher standard under the Presidential Elections Act or decided before the enactment of the Parliamentary Elections Act are inapplicable.

Evidence — Corroboration and Evaluation — Election petitions

There is no rule requiring corroboration before evidence in election matters can be accepted as truthful; a trial court must evaluate evidence discretely, stating which witnesses are preferred and why, rather than conducting an omnibus evaluation, since no particular number of witnesses is required to prove a fact under section 133 of the Evidence Act.

Electoral Law — Bribery — Proof of personal commission and registered voters

To establish bribery as an illegal practice under section 68 of the Parliamentary Elections Act, the party alleging it must prove on a balance of probabilities that the persons bribed were registered voters; a single proven act of bribery is sufficient to nullify an election under section 61.

Civil Procedure — Costs — Appellate interference with trial court's discretion

An appellate court will not interfere with a trial court's discretionary order as to costs unless it is shown that the exercise was unjudicial or based on wrong principles; where the trial judge gives reasons that are not erroneous in law, the order will stand even if the appellate court would have decided differently.

Legislation cited (16)

Constitution of Uganda Article 80
Constitution of Uganda Article 132(4)
Parliamentary Elections Act (Act 17/05) s.4(1)(c)
Parliamentary Elections Act (Act 17/05) s.4(5)
Parliamentary Elections Act (Act 17/05) s.4(6)
Parliamentary Elections Act (Act 17/05) s.61
Parliamentary Elections Act (Act 17/05) s.61(3)
Parliamentary Elections Act (Act 17/05) s.68
Evidence Act s.133
Universities and Other Tertiary Institutions Act No.7/2001 s.5(k)
Universities and Other Tertiary Institutions Act No.7/2001 s.123(2)
Universities and Other Tertiary Institutions (Equation of Degrees, Diplomas and Certificates) Regulations S.I. No.84/05
Civil Procedure Act s.27
Parliamentary Petitions Rules S.I 141-2 r.27
Public Procurement and Disposal of Assets Act
Judicature (Court of Appeal Rules) Directions r.87

Cases cited (16)

Nicholas Gole v Loi Kiryapawo (Election Petition Appeal No. 7 of 2009)
Abdul Nakendo v Patrick Mwonda (Election Petition Appeal No. 9 of 2007)
Ahmed Kawoya Kaugu v Bangu Aggrey (Election Petition Appeal No. 9 of 2006)
Ahmed Kawooya Kaugu v Bangu Aggrey Fred (Election Petition No. 5 and 6 of 2006)
Rollo & another v Minister of Town and Country Planning [1947] 2 All 488
Rollo & another v Ministry of Town Planning (1948) 1 All ER 13
Dr Kiiza Besigye v Museveni Yoweri Kaguta (Election Petition No. 1 of 2001)
Mbayo Jacob v Electoral Commission (Election Petition Appeal No. 7 of 2006)
Harris Mukasa v Dr Lulume Bayiga (Election Petition Appeal No. 18 of 2007)
Bakaluba Peter Mukasa v Nambooze Betty Bakileke (Election Petition Appeal No. 4 of 2009)
Fred Badda v Prof. Muyanda Mutebi (Election Petition Appeal No. 21 of 2007)
Jugnauth v Ringadoo [2008] UKPC 50
Karokora Katono Zedekia v Electoral Commission & another
Software Distributors (Africa) Ltd v Kambaho Perez (Civil Appeal No. 7 of 2006)
Kiska Ltd v De Angelis [1969] EA 6
Kadama Mwogezaddembe v Gagawala Wambuzi (Election Petition No. 2 of 2001)

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