Sematimba Peter v Sekigozi (Election Appeal No. 08 &10 of 2016)

Court of Appeal · [2017] UGCA 28 · 2017 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal from High Court judgment nullifying a parliamentary election

Decision

Appeal substantially succeeded; lower court judgment set aside and 1st appellant declared validly elected Member of Parliament for Busiro South Constituency

The full judgment

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Holding

The Court of Appeal held that while the burden lay on the 1st appellant to prove the authenticity of his academic qualifications once challenged, the trial Judge erred in finding the diploma non-existent or invalid given the original was produced and fraud was never proved to the required standard. The trial Judge correctly held the NCHE consulted UNEB and rightly admitted electronic annexures as the best available evidence. The certificate of equivalence should not have been declared null and void merely for absence of certified copies where the awarding institution had closed. The appeal substantially succeeded; the lower court judgment was set aside and the 1st appellant declared validly elected.

Facts

The 1st appellant, the petitioner (now respondent) and others contested for Member of Parliament, Busiro South Constituency, in elections held on 18 February 2016. The Electoral Commission declared the 1st appellant winner with 24,298 votes against the respondent's 19,266. The respondent petitioned, alleging electoral malpractices and challenging the authenticity and validity of the 1st appellant's academic qualifications, on the basis of which the National Council for Higher Education (NCHE) issued a certificate of advanced level equivalence. The 1st appellant claimed a Diploma from the Pacific Coast Technical Institute, USA, an institution that had closed in 1989. The High Court nullified the election, finding the certificate of equivalence illegal, invalid, null and void, declared the seat vacant and ordered fresh nominations and elections, with costs against the NCHE. The appellants appealed, contending the trial Judge erred on the burden of proof, the validity of the certificate, evaluation of evidence, admissibility of annexures, the standards applied, and the issue of consultation with UNEB.

Issues

Whether the trial Judge correctly applied the law on the burden of proof in a petition alleging fraud and forgery of academic qualifications.
Whether the trial Judge erred in finding that the certificate of equivalence issued by the NCHE to the 1st appellant was illegal, invalid, null and void.
Whether the trial Judge erred in her evaluation of evidence in finding that the appellant's Diploma was not legally authentic, valid or existent and that he led no evidence of attendance.
Whether the trial Judge erred in overruling the preliminary objection on admissibility and reliance on annexures to Kabakubya Bashir's supplementary affidavit.
Whether the trial Judge laid down standards and guidelines for equation to the prejudice of the appellant.
Whether the NCHE consulted UNEB before issuing the certificate of equivalence.

Orders

The judgment and orders of the lower Court are set aside.
The 1st appellant is the validly elected Member of Parliament for Busiro South Constituency.
Costs here and in the lower Court are awarded to the 1st appellant.

Key headnotes

Electoral Law — Parliamentary Qualifications — Burden of Proving Authenticity of Academic Certificates

While the petitioner bears the general burden of proof in an election petition, where the authenticity of a candidate's academic qualifications is challenged, the burden lies on that candidate to prove that his or her documents are authentic and valid.

Electoral Law — Certificate of Equivalence — Judicial Scrutiny of NCHE Decisions

A court should not ordinarily interfere with the NCHE's determination of equivalence where the qualifications presented are valid, but where the qualifications presented for equating are challenged the court may scrutinise their validity, and may declare the NCHE's decision invalid only where it was irrationally made or not based on proper diligence.

Electoral Law — Allegation of Fraudulent Qualifications — Requirement to Show Cancellation of Award

A party alleging that a candidate's academic qualification is fraudulent or non-existent must do more than merely allege; they must show that as a result the awarding institution cancelled or withdrew the disputed qualification, and failure to prove fraud leaves the documents intact, valid and presentable.

Evidence — Private Documents Executed Abroad — Section 84(d) Evidence Act

Under section 84(d) of the Evidence Act there is no requirement to produce certified copies of a foreign private document; rather the document must bear the signature and seal of a designated foreign service or consular officer, and where this is not met the court has a discretion to admit the document for the justice of the case.

Evidence — Electronic Records — Admissibility as Best Available Evidence

Under section 8(1) of the Electronic Transactions Act 2011, the rules of evidence shall not deny the admissibility of a data message or electronic record merely because it is electronic where it is the best evidence the party could reasonably be expected to obtain.

Evidence — Uniform Standard of Evaluation — Equal Treatment of Parties' Evidence

A trial court must apply the same evidential standard to both parties, and where uncorroborated affidavit evidence is challenged it may sever offending paragraphs rather than reject the evidence wholly unless it is fatally defective.

Electoral Law — Consultation with UNEB — Meaning of Consultation under Section 4(6) PEA

Consultation under section 4(6) of the Parliamentary Elections Act means the act of asking the advice or opinion of another body, and the NCHE's request to UNEB to advise whether qualifications are equivalent to A-level satisfies the statutory requirement of consultation.

Legislation cited (25)

Constitution of Uganda Article 80(1)(c)
Parliamentary Elections Act s.4(1)(c)
Parliamentary Elections Act s.4(5)
Parliamentary Elections Act s.4(6)
Parliamentary Elections Act s.4(8)
Parliamentary Elections Act s.4(10)
Parliamentary Elections Act s.4(13)
Parliamentary Elections Act s.61(3)
Parliamentary Elections Act s.100
Evidence Act s.63
Evidence Act s.67
Evidence Act s.75
Evidence Act s.79
Evidence Act s.84(d)
Evidence Act s.101
Evidence Act s.102
Evidence Act s.103
Evidence Act s.106
Electronic Transactions Act 2011 s.8(1)
Electronic Transactions Act 2011 s.11
Universities and Other Tertiary Institutions Act s.5(i)
Universities and Other Tertiary Institutions Act s.5(k)
Universities and Other Tertiary Institutions Act s.128
Court of Appeal Rules r.30
Civil Procedure Rules O.19 r.3(1)

Cases cited (12)

Paul Mwiru v Igeme Nabeta (Election Petition Appeal No. 6 of 2011)
Abdul Balingira Nakendo v Patrick Mwondaha (Supreme Court Election Appeal No. 9 of 2007)
Joy Kabatsi v Hanifa Kawooya and Electoral Commission (Supreme Court Election Petition Appeal No. 25 of 2008)
Gole Nicholas Davis v Loi Kageni Kiryapawo (Supreme Court Election Petition Appeal No. 19 of 2007)
John Baptist v Electoral Commission and Anthony Yiga (Supreme Court Election Petition No. 11 of 2007)
Commodity Export International Limited v NKM Trading Company (Civil Appeal No. 84 of 2008)
Kajala VS Noble (1982) 75 Criminal Appeal Reports 149
Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
Masiko Winifred Komuhangi v Babihuga J. Winnie (Election Petition Appeal No. 9 of 2002)
Mukasa Harris y Dr Lulume Bayiga (supra)
Muyanja Mbabali v Birekerawo Mathias Nsubuga (Election Petition Appeal No. 36 of 2011)
Butime Tom v Muhumuza David and Electoral Commission (Election Petition Appeal No. 11 of 2011)

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