Gole Nicholas Davis v Loi Kageni Kiryapawo (Election Petition Appeal 19 of 2007)

Supreme Court · [2008] UGSC 5 · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from the majority decision of the Court of Appeal in an election petition appeal

Decision

Appeal dismissed; the Court of Appeal majority decision upholding the respondent's election to Parliament affirmed

The full judgment

Read the complete, verbatim text of this judgment.

Treatment recorded in citing cases followed in 1 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed a second appeal challenging an MP's academic qualifications. It affirmed that a NCHE certificate of equivalence does not oust the High Court's jurisdiction under Article 86(1) of the Constitution to inquire whether a person was validly elected, since the court examines the existence and validity of the qualifications equated, not NCHE's equating function. However, the appellant failed to prove any direct link between the allegedly forged Diploma in Animal Husbandry and the genuine Diploma in Management Studies that NCHE actually equated. The majority of the Court of Appeal had properly re-evaluated the evidence, and there was no basis to interfere. The case was distinguishable from the Makula International illegality principle.

Facts

The appellant and respondent were among 12 candidates in the February 2006 parliamentary election for Budaka County, Pallisa District. The Electoral Commission declared the respondent the winner with 10,245 votes against the appellant's 9,896. The appellant petitioned the High Court, alleging the respondent lacked the academic qualifications required by Article 80(1)(c) of the Constitution. Her NCHE certificate of equivalence was based on a Diploma in Management Studies from Huron University, USA in London, which she had obtained after submitting, among other documents, a Diploma in Animal Husbandry that the appellant alleged was forged. The High Court found the Animal Husbandry diploma forged, held it tainted the later diploma with fraud, and nullified the election. The Court of Appeal, by majority, reversed, finding the certificate of equivalence rested on the genuine Management Studies diploma and that there was no evidence her university admission depended on the forged diploma.

Issues

Whether the Court of Appeal came to the right findings on the evidence and whether there were valid reasons for the Supreme Court, as a second appellate court, to interfere with those findings.
Whether a certificate of equivalence issued by the National Council for Higher Education ousts the High Court's jurisdiction under Article 86(1) of the Constitution to inquire into the validity of a candidate's academic qualifications.
Whether the respondent's allegedly forged Diploma in Animal Husbandry tainted with fraud the subsequent Diploma in Management Studies on which her certificate of equivalence was based.

Orders

Appeal dismissed.
Costs of the appeal awarded to the respondent in the Supreme Court and in the courts below, certified for one counsel only.
The Court of Appeal's certificate of costs for two counsel set aside (per Tsekooko, JSC).

Key headnotes

Electoral Law — Parliamentary Election Petitions — Jurisdiction to Inquire into Academic Qualifications

A certificate of equivalence issued by the National Council for Higher Education does not oust the High Court's jurisdiction under Article 86(1) of the Constitution to determine whether a person was validly elected to Parliament; the court may inquire into whether the qualifications equated by NCHE actually existed and were valid.

Administrative Law — NCHE Certificate of Equivalence — Scope of Decision and Evidential Status

A NCHE certificate of equivalence is evidence, but not conclusive evidence, of a candidate's qualification; NCHE only determines that a stated qualification is equivalent to the required standard and is not concerned with whether the underlying degree or diploma was in fact validly obtained, which remains a question for the court.

Evidence — Burden of Proof — Establishing a Nexus Between an Alleged Fraudulent Document and a Later Qualification

Where a petitioner alleges that a fraudulent document tainted a later academic qualification, the burden lies on the petitioner to prove a direct nexus between the impugned document and the admission or award of the later qualification; an inference of taint cannot be drawn without evidence of the admission criteria relied upon.

Civil Procedure — Second Appeals — Interference with Concurrent Re-evaluation of Evidence

A second appellate court will not interfere with the first appellate court's re-evaluation of evidence where that court subjected the evidence to adequate scrutiny, applied correct principles, and reached reasonable conclusions.

Civil Procedure — Costs — Certificate for More Than One Counsel

A certificate of costs for more than one counsel must be supported by sound reasons, such as the complexity or difficulty of the case; a parliamentary election petition is not inherently novel so as to warrant a certificate for additional counsel.

Legislation cited (8)

Constitution of Uganda Article 80(1)(c)
Constitution of Uganda Article 86(1)
Parliamentary Elections Act 2005 s.61(1)(d)
Parliamentary Elections Act 2005 s.4(11)
Parliamentary Elections Act 2005 s.4(6)
Parliamentary Elections Act 2005 s.60
Parliamentary Elections Act 2005 s.61
University and Other Tertiary Institutions Act s.5(k)

Cases cited (3)

Makula International Ltd v His Eminence Cardinal Nsubuga & Another [1982] HCB 11
Abdul Balingira Nakendo v Patrick Mwondha (Election Petition Appeal No. 9 of 2007)
Goustar Enterprises Ltd v John Kokas Oumo (Civil Appeal No. 8 of 2003)

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