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Akol Hellen Odeke v Okodel Umar (Civil Appeal 9 of 2021)

Supreme Court · [2024] UGSC 25 · 2024 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a Court of Appeal decision in an election petition appeal, against the refusal to grant consequential orders
Decision
Appeal dismissed; the Court of Appeal's refusal to grant the consequential orders affirmed

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Holding

The Supreme Court dismissed an appeal against the Court of Appeal's refusal to grant consequential orders degazetting an unopposed Woman MP and ordering fresh elections. The matter was an ordinary civil appeal, not an election petition. The orders sought were unavailable: revoking the Gazette notice fell within the High Court's exclusive jurisdiction as final appellate court from the Electoral Commission, and the appellant had withdrawn her High Court petition; declaring the seat vacant was a remedy available only in an election petition brought by a losing candidate or registered voters. The inherent power under Rule 2(2) could not be used to condemn a non-party, the gazetted MP, unheard, contrary to the non-derogable right to a fair hearing under Articles 28 and 44(c).

Facts

The appellant sought nomination to contest for Woman Member of Parliament for Bukedea District in the 2021 elections. The respondent filed Soroti High Court Miscellaneous Cause No. 22 of 2020 challenging her nomination, contending that the name 'Akol Hellen' on the voters' register differed from 'Akol Hellen Odeke' she was using. The High Court allowed the application and issued orders, whereupon the Returning Officer declined to nominate the appellant. The Electoral Commission, after a hearing, upheld that refusal, and declared Hon. Among Anita Annet, nominated unopposed, as the Woman MP-elect, publishing the result in the Gazette. The appellant withdrew her High Court petition against the Commission as overtaken by events and instead appealed to the Court of Appeal. The Court of Appeal held the Soroti High Court had lacked jurisdiction and nullified its decision, but declined to grant consequential orders degazetting Hon. Among or ordering fresh elections, reasoning these would adversely affect a non-party who had not been heard. The appellant appealed to the Supreme Court against that refusal.

Issues

  1. Whether the appellant is entitled to the consequential orders sought, namely an order degazetting the unopposed Woman MP and orders for fresh nomination and elections.
  2. Whether the Court of Appeal erred in declining to exercise its inherent jurisdiction under Rule 2(2) to issue orders that would affect a non-party who had not been heard.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the Respondent.

Key headnotes

Electoral Law — Nature of Proceedings — Challenge to Nomination Brought as Ordinary Civil Suit
A challenge to a candidate's nomination brought as an ordinary civil suit rather than as an election petition under sections 1 and 60 of the Parliamentary Elections Act is determined as an ordinary civil matter, and an appeal therefrom is an ordinary civil appeal, notwithstanding that it was intituled as an election petition appeal.
Electoral Law — Consequential Orders — Jurisdiction to Revoke Gazette Notice of Unopposed Candidate
Only the High Court, sitting as the final appellate court from a decision of the Electoral Commission under sections 14 and 16 of the Parliamentary Elections Act and section 15 of the Electoral Commission Act, has jurisdiction to order revocation of a Gazette notice declaring an unopposed candidate duly elected.
Electoral Law — Declaring a Seat Vacant — Locus Standi in an Election Petition
An order declaring a parliamentary seat vacant and directing fresh elections is available only in an election petition under the Parliamentary Elections Act, which may be brought solely by a candidate who loses an election or by a registered voter supported by the signatures of at least five hundred registered voters.
Civil Procedure — Inherent Powers — Limits of Rule 2(2)
The inherent power of the court under Rule 2(2) of the Court of Appeal Rules and the textually identical Rule 2(2) of the Supreme Court Rules cannot be exercised so as to contravene a clear provision of the Constitution or any other law.
Constitutional Law — Fair Hearing — Orders Affecting a Non-Party
A court may not make orders that adversely affect a person who was not a party to the proceedings and was not accorded a hearing; the right to a fair hearing under Articles 28 and 44(c) of the Constitution is non-derogable and embodies the maxim audi alteram partem.
Civil Procedure — Amendment of Pleadings — Amendments Affecting Identifiable Non-Parties
Before allowing an amendment to a memorandum of appeal that introduces a plea for orders capable of affecting an identifiable person's rights, the court must first satisfy itself that the amendment would not adversely affect the respondent or any other identifiable person who has not been joined and heard.

Legislation cited (22)

  • Constitution of Uganda Article 132(2)
  • Constitution of Uganda Article 61(1)(f)
  • Constitution of Uganda Article 64(1)
  • Constitution of Uganda Article 64(4)
  • Constitution of Uganda Article 86(1)(a)
  • Constitution of Uganda Article 28
  • Constitution of Uganda Article 44(c)
  • Judicature Act s.6(1)
  • Parliamentary Elections Act 2005 s.1
  • Parliamentary Elections Act 2005 s.13
  • Parliamentary Elections Act 2005 s.14(1)
  • Parliamentary Elections Act 2005 s.14(2)
  • Parliamentary Elections Act 2005 s.14(3)
  • Parliamentary Elections Act 2005 s.16
  • Parliamentary Elections Act 2005 s.60
  • Parliamentary Elections Act 2005 s.63
  • Parliamentary Elections Act 2005 s.66
  • Parliamentary Elections Act 2005 s.86(1)(a)
  • Electoral Commission Act Cap 140 s.15
  • Court of Appeal Rules rule 2(2)
  • Supreme Court Rules rule 2(2)
  • Supreme Court Rules rule 88(1) and (2)

Cases cited (1)

  • Uhuru Highway Development Ltd v Central Bank of Kenya (2002) 1 EA 314 (CA-K)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.