Tuwuwe Watongola v Salaamu Musumba (Election Petition Appeal No. 27 of 2016)

Court of Appeal · [2017] UGCA 4 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Appeal from High Court decision allowing an election petition that set aside the appellant's election as Member of Parliament

Decision

Appeal dismissed; High Court orders setting aside the appellant's election and declaring the seat vacant upheld

The full judgment

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Holding

The Court of Appeal dismissed an appeal against the setting aside of the appellant's election as Member of Parliament for Kamuli Municipality. The Court held that where the authenticity of a candidate's academic qualifications is challenged, the evidential burden shifts to the candidate to prove their genuineness. Busoga University had revoked the appellant's certificate as a forgery, and an interim order obtained after the revocation did not preserve a valid academic status. The appellant failed to discharge the shifted burden of proving her qualifications were authentic, so she did not possess the minimum Advanced Level equivalent qualification required under Article 80(1)(c) of the Constitution.

Facts

On 18 February 2016 the appellant, the respondent and two others contested the Kamuli Municipality parliamentary seat. The appellant was declared winner and gazetted as Member of Parliament. The respondent petitioned the High Court alleging the appellant did not possess the minimum academic qualification at nomination and election. The appellant's eligibility rested on a Certificate in Public Administration and Management from Busoga University, said to be equivalent to Advanced Level standard which she otherwise lacked. Busoga University's senate had, by minutes of 17 December 2010 and a general statement of 20 December 2010, investigated and found the underlying certificate false, revoking all the appellant's awards. The appellant was served the revocation on 14 January 2011 and obtained an interim order on 25 January 2011 restraining the university from depriving her of her documents. The High Court allowed the petition, set aside the election and ordered fresh elections. The appellant appealed.

Issues

Whether the trial court relied on supposition, conjecture and matters extraneous to the record.
Whether the trial court relied on inadmissible documents in making a finding against the appellant.
Whether the trial judge erred in impeaching the appellant's Certificate in Public Administration and Management of Busoga University.
Whether the trial court made findings of law and fact without properly and exhaustively evaluating the evidence.

Orders

Appeal dismissed with costs to the respondent.
The orders of the lower court are upheld.

Key headnotes

Electoral Law — Qualification of Members of Parliament — Academic Qualifications — Shifting of Evidential Burden

Although the petitioner bears the legal burden of proof under section 101 of the Evidence Act, once an allegation is made challenging the academic qualifications of a candidate or Member of Parliament, the evidential burden shifts to the candidate who claims the qualifications to prove their authenticity.

Electoral Law — Minimum Formal Education — Advanced Level Equivalent

A candidate is not qualified to be nominated or elected as a Member of Parliament where the certificate relied upon as equivalent to Advanced Level education has been revoked by the awarding institution as a forgery and the candidate fails to prove its authenticity, as required by Article 80(1)(c) of the Constitution and section 4(1)(c) of the Parliamentary Elections Act.

Evidence — Secondary Evidence — Admissibility of Uncertified Documents

Uncertified copies of documents are admissible as secondary evidence where the awarding institution is itself a party and its representative deposes to the existence of the documents and attaches them, particularly where attempts to obtain certified copies have been unsuccessful, in accordance with sections 60 to 64 of the Evidence Act.

Evidence — Decisions Based on the Record — Matters Extraneous to the Record

A judicial decision must be based only on the evidence and issues that arose in the proceedings before the court, and a judge does not rely on matters extraneous to the record where his observations are drawn from proceedings, orders and statements appearing on the court record.

Civil Procedure — Interlocutory Injunctions — Preservation of Status Quo

An interlocutory order intended to preserve the status quo cannot create a state of affairs that did not exist before the controversy; an interim order obtained after an institution has already revoked a person's awards does not restore those awards and may amount to an order made in error subject to review.

Legislation cited (14)

Parliamentary Elections Act s.64(1)(b)
Parliamentary Elections Act s.61(1)
Parliamentary Elections Act s.61(3)
Parliamentary Elections Act s.4(1)(c)
Constitution Article 80(1)(c)
Constitution Article 86(1)(a)
Evidence Act s.60
Evidence Act s.61
Evidence Act s.62
Evidence Act s.63
Evidence Act s.64
Evidence Act s.101
University and Other Tertiary Institutions Act 2001 s.45(3)
University and Other Tertiary Institutions Act 2001 s.45(4)

Cases cited (6)

Nakendo v Mwondha (Election Petition Appeal No. 9 of 2007)
Watongola v Electoral Commission (Election Petition No. 6 of 2011)
Watongola v Busoga University (Miscellaneous Application No. 16 of 2011)
Nzeyi v Bank of Uganda (Constitutional Application No. 1 of 2013)
American Cyanamid Co v Ethicon Ltd [1975] AC 396
Dr. Sola Saraki V N.A.U Koloye, Supreme Court of Nigeria SC 174/89

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