THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANGA

AT MENGO

(CORAM: ODOKI, C.J,. TSEKOOKO, MULENGA, KANYEIHAMBA

AND KATUREEBE, JJ.SC).

ELECTION PETITION APPEAL NO. 09 / 2007

BETWEEN

ABDUL BALINGIRA NAKENDO ::::::::::::::::::::::::::::: APPELLANT

AND

PATRICK MWONDHA :::::::::::::::::::::::::::::::::::: RESPONDENT

[An appeal from the decision of the Court of Appeal at Kampala (Mpagi Bahigeine, Engwau and Byamugisha, JJ.A) dated 18^th January, 2007 in Election Petition Appeal No. 23 of 2006]

JUDGMENT OF KATUREEBE, JSC

This is a second appeal arising from an election petition filed in the High Court by the Respondent. The High Court allowed the Petition. The appellant unsuccessfully appealed to the Court of Appeal, hence this appeal. --

The facts of the case are as follows:-

The appellant and the respondent were among the six candidates who contested for the Parliamentary seat of Bukooli North Constituency, Bugiri District, during the Parliamentary Elections that were held on 23^rd February 2006. Article 80(1)( c) of the Constitution stipulates that a person is qualified to be a member of Parliament if that person has completed a minimum formal education of Advanced Level standard or its equivalent which shall be established in a manner and at a time prescribed by Parliament by law. The appellant had not attained A-Level standard. The National Council for Higher Education (NCHE) which is by law the body authorised to issue a certificate equivalent to A-level standard for the purpose of the said election, issued the appellant with a “certificate of completion of Formal Education of Advanced Level or its equivalent” With that certificate the appellant was nominated and his nomination was accepted by the Electoral Commission. He contested the election and was subsequently declared winner of the election and duly elected Member of Parliament for the said constituency.

The respondent thereafter petitioned the High Court, at Jinja, seeking the nullification of the election of the appellant on grounds that the appellant was not qualified for election as a member of Parliament due to lack of academic qualifications notwithstanding the fact that he had been issued with the “certificate of Advanced Level or its equivalent” by NCHE. The NCHE and the Electoral Commission were cited as co-respondents in that petition.

In his answer to the petition, the appellant maintained that he was duly qualified for election and that he had been validly nominated for participation in the elections. The NCHE asserted that it had carried out the necessary consultations with the Uganda National Examinations Board (UNEB) as well as the Uganda Police Training School, Kibuli, where the appellant had undertaken a Police Course and training, and found his papers authentic. Similarly the Electoral Commission denied any wrong doing, maintaining that the appellant had been duly nominated and elected to Parliament.

The learned trial Judge , in his judgment dated 25^th October 2006, found that the appellant’s certificates were not authentic and held that the appellant lacked the requisite academic qualifications and decided that he was not qualified to be nominated for election as a member of Parliament. The Court of Appeal upheld the decision, hence this appeal.

In this Court, the appellant filed 10 grounds of Appeal: These grounds are set out in the body of this judgment in the order in which they were argued.

In his written submissions, Mr. F. Mukasa, learned counsel for the appellant, argued the grounds of appeal as follows: Grounds 4, 6 and 7 were argued together: grounds 1,2 and 3 were also argued together; and grounds 5, 8 and 9 were also argued together. Ground 10 was argued alone. I shall deal with them in that order.

Grounds 4, 6, and 7 are worded thus:

“4. The Learned Justices of the Court of Appeal erred in law and fact when they affirmed the Trial Judge’s decision allowing the respondent to succeed on a case that the respondent had not pleaded and proved.

6. The Learned Justices of the Court of Appeal erred in law and fact when they allowed the Trial Judge’s decision overturning the election based on mere inferences and not facts.

7. The Learned Justices of the Court of Appeal erred in law and fact when they affirmed the Trial Judge’s declaration that the Appellant’s certificates were fake, forgeries, unauthentic and nullity”.

In arguing these grounds, learned counsel submitted that the trial court had allowed the respondent to depart from his pleadings and adduced evidence to support a case that he had not pleaded. He argued that the court in its judgment departed from the respondent’s case which was that the appellant had not been validly nominated and that the election should be set aside, the NCHE be found to have failed in its duty to determine whether the appellant was qualified, and that he, the respondent as runner-up should be declared winner of the election. Instead, he argued, the court wrongly decided the case on the basis of the authenticity of the Police certificate and the duration of the Police courses. Counsel further argued that the trial Judge had further departed from the case by treating it as if it was an application to review the NCHE decision to issue the appellant with the certificate of A-level equivalent. He contended that the court should not have found that the NCHE “acted unreasonably, in bad faith, dishonestly, irrationally, not diligently” as none of these allegations had been pleaded or proved. He argued that court had no jurisdiction to intervene in the decision of NCHE, and to give orders which were not prayed for in the Petition He cited the case of ORIENTAL BROKERS LTD –Vs- TRANSOCEAN (U) LTD, SCCA NO. 55 OF 1995 (unreported) as authority for the proposition that a trial judge cannot introduce new issues while writing a judgment and decide a case on the basis of those issues without being addressed on those issues by the parties. Counsel further contended that the lower courts erred when they found fraud without specifying who had carried it out, when they found that the certificates were fake, forgeries and a nullity and not genuine. He submitted that there was no basis for this finding since there was no law on the signing or the mode of certificates. In any case, he argued, this had to be specifically pleaded and proved. It could not be presumed. He cited OKELLO – OKELLO –Vs- UNEB (SCCA NO. 12/87) (unreported) to support his argument. Counsel submitted that there was evidence showing that the certificates were properly signed according to the established practices and therefore the findings were based on mere inferences and speculations and not on facts Counsel therefore, submitted that the Court of Appeal had erred in confirming the decision of the trial court that the appellant had no qualifications to be elected a Member of Parliament.

On the other hand Mr. Abdul Katuntu, Counsel for the respondent, in opposition to the appeal, first argued grounds 1, 3, 6, 7 and 8 together and fully supported the findings and decisions of the courts below. He prefaced his argument by stating first that, ground one is the main ground of appeal and by itself would dispose of the appeal whichever way the Court decided. He contended ground 3 was irrelevant because it complained about a finding against the NCHE which was a party in the original suit, but not party to the appeal.

Counsel argued grounds 1, 3, 6, 7 and 8 together since, in his view, they were all related to the question of the qualifications of the appellant and were similar to issues 1, 2 and 3 which were agreed by both parties and framed for determination at the trial. Counsel contended further that the qualifications or non-qualification of the appellant was found as a fact by the trial Court and affirmed by the Court of Appeal. The Court found that the appellant had no qualifications at the time of nomination and therefore his nomination was null and void. Counsel urged this Court to uphold the concurrent finding of fact by the two lower Courts Counsel argued that the appellant had no A-Level certificate and had been nominated on the basis of the certificate of equivalency issued to him by NCHE which in turn was based on the certificates presented to it by the appellant from the Uganda Police Force. Regarding the argument by counsel for the appellant that the appellant did not know the case he had to answer, Counsel pointed out that the appellant had clearly tried in his affidavit in answer to the petition to explain his qualifications in paragraphs 3, 5, 8, 9 and 10 thereof. The respondent adduced evidence to show that the appellant did not have the requisite qualifications. In his view, the authorities cited by counsel for the appellant were distinguishable from the facts of this case. Learned counsel submitted that the courts below based their decisions on facts but not on inferences and suppositions as argued by the appellant. He submitted that court had carefully perused the certificates that were presented at the trial by the appellant himself and considered the contradictions in the evidence of the appellant. Counsel gave the example, of an affidavit sworn on 20^th May 1996 by the appellant whereby he had stated that after attending Police training he had been given a certificate in Law but that it had got lost. Later, in another affidavit he claimed that that claim of a certificate in law was a mistake and he had never had such certificate. The certificates he produced were in fact issued in 2001. Counsel submitted that Court was right to treat the appellant as an unreliable witness given the lies and contradictions in his evidence. Counsel further submitted that the lower courts were right to reject the evidence of Twaruhukwa the Police Officer who had earlier written a letter to say that the persons who had signed on the certificates of the appellant had not been authorized officers, only to attempt to change this in his evidence in Court. In his view court was correct to conclude that the officer was misleading the court.

As I pointed out earlier, I intend to deal with the grounds in the order they were argued by counsel for the appellant. This is because the grounds and submissions thereon overlap and are quite intertwined. The contention in the 4^th ground is that the two courts below allowed the respondent to succeed on a case he had not pleaded and proved I would point out that an appeal to this Court should be based on objections to the decision of the Court of Appeal. The objection raised in ground 4 was not raised in, and decided by, the Court of Appeal.

Be that as it may, it is clear from the petition that the respondent’s case was “that the said Balingirira Abdul Nakendo was at the time of his election not qualified for election as a Member of Parliament.” The petition sought declarations, inter alia, that the respondent “was not validly nominated and could not therefore participate in the election.” It prayed that the election of the appellant “be set aside as having been null and void.” I am of the view that the respondent’s case was sufficiently pleaded. The appellant responded to it. Both parties called evidence on it upon which the court based its decision. Accordingly I find no merit in ground 4 and it must fail.

Ground 6 alleges that the trial court’s decision to overturn the election was based on mere inferences and not facts, whereas Ground 7 alleges that the trial Judge was wrong to declare that the appellant’s certificates were fake, forgeries, unauthentic and nullity. Both grounds accuse the Court of Appeal of error in affirming these findings and decisions of the trial court.

The respondent in his affidavit supporting the petition alleged a number of anomalies in the certificates that the appellant presented to the NCHE, which, in his view, showed that the appellant did not have the qualifications. The wording of the certificate of equivalency issued by NCHE leaves no doubt that it was issued on the basis of the certificates proffered by the appellant.

It states:-

“I certify that NAKENDO, A.B. who was born on the 24/06/1946, has satisfied the National Council for Higher Education that he has completed formal education of advanced level standard or its equivalent, in that he holds the following qualification/s:

Certificate in Special Branch Course, Special Branch Training School Nairobi Police Training School, 1971.

Certificate in Basic Police Training, Kibuli Training School, 1970., East African Certificate of Education EAEC, 1968”. (emphasis added).

There must be a basic presumption here that the above certificates must be genuine, and duly issued by the bodies named therein. If it were proved that those certificates upon which NCHE based its decision to issue its own certificate were not genuine, then it would follow that the NCHE Certificate would be a nullity as the person would not have the necessary qualifications.

In the trial court, evidence was adduced both oral and by way of affidavit. The certificates were subjected to close scrutiny, as was the oral evidence. The first point to note was that the certificate in Special Branch Course, Special Branch Training School Nairobi, 1971, was actually not issued by that school, but by the Kibuli Police Training School of the Uganda Police Force. There were material contradictions in the evidence of the witness Twaruhukwa who testified as to whether the certificates purportedly issued by the Uganda Police Force were signed by authorized officers. Earlier, in answer to a firm of lawyers concerning the genuiness of the certificates purportedly issued by the Uganda Police Force, this same officer had written a letter (exhibit X) in which he stated:-

“Concerning the genuiness of the certificates of police training, it has been established that the officers indicated did not actually sign on the certificates, although the certificates bear their names. In other words no authorized person from the police signed the certificates.”

Clearly this letter was saying the certificates were not authentic. Yet in Court and under cross examination this same witness changed his story by stating that in the police it is normal for officers to sign correspondence for other named officers, and that his letter contained a mistake in that he had missed out “un” before