Hon. Ogwari Polycarp v Ochwa David (Election Petition Appeal 4 of 2022)

Court of Appeal · [2024] UGCA 61 · 2024 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Appeal to the Court of Appeal from a High Court decision allowing an election petition and setting aside the appellant's election as Member of Parliament

Decision

Appeal dismissed; appellant ordered to vacate his parliamentary seat and the respondent declared the validly elected Member of Parliament for Agule County Constituency

The full judgment

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Holding

The Court of Appeal dismissed the appeal. The refusal of an earlier application to amend the petition did not make the validity of the appellant's nomination res judicata, as that application decided only the competence of the amendment. Section 15 of the Electoral Commission Act does not oust the High Court's jurisdiction to entertain a petition challenging a nomination where the invalidity of qualifications was not apparent at nomination. The appellant's failure to submit a National Council for Higher Education certificate of equivalence rendered his nomination and election invalid. However, the trial judge erred in ordering fresh elections rather than declaring the validly elected candidate; the Court declared the respondent, as runner-up, the validly elected Member of Parliament.

Facts

The appellant and the respondent contested the Member of Parliament seat for Agule County Constituency, Pallisa District, in elections held on 14 January 2021. The appellant was returned as validly elected. The respondent petitioned the High Court challenging the result. An application to amend the petition to add a ground that the appellant lacked a National Council for Higher Education (NCHE) certificate of equivalence at nomination was dismissed, and the petition was itself dismissed on a technicality; on appeal a re-trial was ordered. On re-trial, the High Court found the appellant had not submitted the requisite academic qualifications (a minimum of A-level or its NCHE-certified equivalent) at nomination. The appellant's nomination papers, adduced in evidence, did not contain a certificate of equivalence, and under cross-examination he could not produce one. The High Court held the nomination invalid and ordered fresh elections.

Issues

Whether the issue of the validity of the appellant's nomination was res judicata by reason of the dismissal of Miscellaneous Application No. 086 of 2021 for leave to amend the petition.
Whether the trial judge erred in setting aside the appellant's election on a ground of illegal nomination that was allegedly neither sought nor pleaded in the petition.
Whether a party's failure to challenge an opponent's nomination before the Electoral Commission under section 15 of the Electoral Commission Act bars it from challenging the nomination by an election petition before the High Court.
Whether the appellant's failure to submit a certificate of equivalence from the National Council for Higher Education at the time of nomination rendered his nomination invalid.
Whether the trial judge erred in awarding a certificate of costs for two counsel without giving reasons.

Orders

This appeal is hereby dismissed.
Mr. Ogwari Polycarp the Appellant is ordered to vacate the seat of Member of Parliament for Agule County Constituency immediately.
Mr. Ochwa David the Respondent is declared the winner of the election for the seat of Member of Parliament for Agule County Constituency and shall take office with effect from the date of this Judgment.
The Electoral Commission and the Speaker of Parliament are notified that Mr. Ogwari Polycarp shall, from the date of this judgment, cease to be the Member of Parliament for Agule County Constituency.
The Appellant shall pay the costs of this appeal and the costs of the lower court.

Key headnotes

Civil Procedure — Res Judicata — Effect of refusal of leave to amend pleadings

The dismissal of an application for leave to amend a petition determines only the competence of the proposed amendment and does not finally decide the substantive ground sought to be introduced; that ground is therefore not res judicata in the subsequent trial of the petition.

Electoral Law — Jurisdiction — Section 15 Electoral Commission Act and the High Court

Section 15 of the Electoral Commission Act provides an administrative procedure that does not oust the unlimited original jurisdiction of the High Court under Article 139 of the Constitution; a party to whom the invalidity of a candidate's qualifications was not apparent at the time of nomination may challenge that nomination by an election petition under section 61(1) of the Parliamentary Elections Act.

Electoral Law — Nomination — Academic qualifications and certificate of equivalence

A candidate for Member of Parliament must possess a minimum of advanced level education or its equivalent certified by the National Council for Higher Education; failure to submit a certificate of equivalence at the time of nomination is fatal and renders the nomination, and any consequent election, invalid.

Electoral Law — Remedies — Declaration of validly elected candidate under section 63(6)

Where the court finds that the candidate declared elected was not duly elected because of an invalid nomination, it must, under section 63(6) of the Parliamentary Elections Act, determine and declare the candidate with the highest number of votes among the remaining candidates as validly elected, rather than order fresh elections.

Civil Procedure — Costs — Certificate for two counsel under Rule 41(1)

A judge who certifies for the costs of more than one advocate under Rule 41(1) of the Advocates (Remuneration and Taxation of Costs) Rules must give reasons for exercising that discretion, having regard to the relief awarded and the nature, importance or difficulty of the case; failure to give reasons is a misdirection.

Legislation cited (18)

Parliamentary Elections Act s.4(1)
Parliamentary Elections Act s.13
Parliamentary Elections Act s.61(1)(a)
Parliamentary Elections Act s.61(1)(c)
Parliamentary Elections Act s.61(1)(d)
Parliamentary Elections Act s.61(3)
Parliamentary Elections Act s.63(6)
Parliamentary Elections Act s.66(3)
Electoral Commission Act s.15
Civil Procedure Act s.7
Constitution of Uganda 1995 Article 84
Constitution of Uganda 1995 Article 86(1)
Constitution of Uganda 1995 Article 139
Judicature Act s.6
Judicature (Court of Appeal Rules) Directions Rule 30(1)
Advocates (Remuneration and Taxation of Costs) Rules Rule 41(1)
Parliamentary Elections (Interim Provisions) Rules SI 141-2 Rule 27
Local Government Act s.138(3)

Cases cited (10)

Uganda Taxi Operators & Drivers Association v Uganda Revenue Authority (Civil Application No. 24 of 2019)
Geresom Rwambogo v Tereza Kyatifu (Civil Appeal No. 55 of 2009)
Grace Nalubega v Juliet K Suubi Kinyamatama (Election Petition Appeal No. 27 of 2021)
Abdul Balinaira Nakendo v Patrick Mwondha (Supreme Court Civil Appeal No. 9 of 2007)
Paul Mwiru v Hon. Igeme Nabeta & Others (Election Petition No. 6 of 2011)
Boutique Shazim Ltd v Norattan Bhatia & another (Civil Appeal No. 36 of 2007)
Namboowa Rashiida v Bavekuno Mafumu Godfrey Kyeswa and Electoral Commission (Election Petition Appeal No. 69 of 2016)
Mukasa Harris v Dr. Lulume Bayiga
Jack Odur v Lutanguau Electoral Commission & Another
Omara Yuventine vs Ariko Johnny De West, Election Petition Appeal No. Election Petition No.4 of 2023 (unreported)

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