THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
ELECTION PETITION APPEAL NO. 19 OF 2007
(CORAM: ODOKI, CJ., TSEKOOKO, MULENGA, KANYEIHAMBA,
AND KATUREEBE, JJ.SC).
BETWEEN
GOLE NICHOLAS DAVIS::::::::::::::::::::::::::::::: APPELLANT
AND
LOI KAGENI KIRYAPAWO::::::::::::::::::::::::::::: RESPONDENT
(Arising from the majority decision of the Court of Appeal S.G. Engwau, S. Kavuma, and Mpagi-Bahigaine JJ.A dissenting dated 29th March 2007, in Election Petition Appeal No. 10 of 2006).
JUDGMENT OF KATUREEBE, JSC.
This is a second appeal to this Court arising from the majority decision of the Court of Appeal dated 29th March 2007 whereby the Court of Appeal allowed the Respondent’s appeal against the decision of the High Court nullifying her election to Parliament pursuant to a Petition filed by the Appellant herein.
The background to the appeal is that the Appellant and the Respondent were among 12 candidates who contested election for the Parliamentary Constituency of Budaka County, Pallisa District, during the 23rd February 2006 Parliamentary Elections. At the end of the election, the Electoral Commission declared and gazetted the Respondent as the winner and duly elected Member of Parliament for that seat, having obtained 10,245 votes against the Appellant’s 9,896 votes. Not being satisfied with the election result, the Appellant Petitioned the High Court on one main ground that the Respondent, at the time of her nomination and election, was not academically qualified to be so nominated and elected as a Member of Parliament as envisaged in Article 80(1)(c) of the Constitution and Section 61(1)(d) of the Parliamentary Elections Act 2005 (PEA). It was contended for the Appellant that the Respondent did not possess the requisite academic qualifications in that she did not possess the Advanced Level Certificate, and that the certificate of equivalence granted by the National Council for Higher Education (NCHE) had been based on a Diploma in Management studies, Huron University, USA in London, which in turn was based on the Diploma in Animal Husbandry which was forged.
The trial Court found that the Respondent had presented to the Huron University, USA in London, among other documents, the said Diploma in Animal Husbandry for her admission to that University. The Court believed the evidence that that Diploma was in fact forged. Basing itself on the decision in MAKULA INTERNATIONAL LTD –VS- HIS EMINENCE CARDINAL NSUBUGA & ANOTHER, [1982] HCB 11, the trial Court held that in so far as that Diploma was fraudulent, it tainted the subsequent Diploma in Management studies with fraud rendering it also null and void. Therefore the NCHE could not have equated a Diploma that was tainted with fraud. In consequence thereof the trial Court found that the Respondent did not possess valid academic qualifications to be elected Member of Parliament, nullified the election and declared the Parliamentary seat vacant.
The Respondent successfully appealed to the Court of Appeal. By majority decision, the Court of Appeal reversed the decision of the trial Court, holding that the certificate of equivalence issued by NCHE had been based on the Diploma in Management Studies, and not on the impugned Diploma in Animal Husbandry, and that there was no evidence that the admission of the Respondent to Huron University, USA in London, had been based on that Diploma. Hence this appeal.
The appellant filed four grounds of appeal as follows:-
“1. That the learned Justices Hon. Mr. Justice S.G. Engwau and Hon Mr. Justice S.B.K Kavuma of the Court of Appeal erred in law and in fact where they found that the respondent was qualified to stand for Election as a Member of Parliament.
2.
That the learned Justices Hon. Mr. Justice S.G. Engwau and Hon. Mr. Justice S.B.K. Kavuma of the Court of Appeal erred in law and in fact where they found that trial court did not properly evaluate the issue of fraud by the respondent regarding her entry and registration for the Diploma in Management Studies.
3.
That the learned Justices Hon. Mr. S.G. Engwau and Hon. Mr. S.B.K. Kavuma of the Court of Appeal erred in fact and law where they found that the respondent’s Diploma in animal Husbandry is not tainted by fraud
.
4.
That the learned Justices Hon. Mr. S.G. Engwau and Hon. Mr. S.B.K. Kavuma of the Court of Appeal erred in law ain in fact n failing to properly evaluate the overwhelming evidence that weighed against the respondent and thus came to the wrong conclusions.”
Counsel for the appellant, Mr. Ntende, filed written submissions, while counsel for the respondent, Mr. Nangwala made oral submissions in reply. Both counsel combined the grounds and argued them together. I intend to deal with them in like manner in this judgment.
In his written submissions, learned counsel for the appellant, after reproducing the above grounds, submitted that the pertinent issue to be resolved in this appeal was:
“whether the Court of Appeal came to the right findings on the evidence and, if there are valid reasons for this Honourable court to interfere with the findings of the Court of Appeal”
Counsel then proceeded to break down the above issue into sub-components which are:
“ a) whether the Diploma in Animal Husbandry is valid
b)
Whether the presentation by the respondent of the said Diploma to Huron University was not an act of fraud affecting the subsequent studies and Diploma.
c)
Whether in evaluating the evidence of findings of the High Court, the Court of Appeal came to the right conclusion to overturn the High Court decision.”
Counsel submitted that the Diploma in Animal Husbandry was not valid because of the evidence of the Principal, Bukalasa Agricultural College, one Mubiru Moses who was called by Court, which showed that the records obtained from the Veterinary Institute at Entebbe upon its merger with Bukalasa Agricultural College did not show that the respondent had been a student there or that she had been awarded the said diploma in animal Husbandry. Counsel supported the findings of the trial court that this witness was truthful and that the Diploma presented by the respondent was a forgery.
Counsel criticised Engwau J.A for finding that the said Diploma had “discrepancies which were questionable” and yet did not find the Diploma to be a forgery. He equally criticised Kavuma, J.A, for finding that there was no justification for the condemnation of the said Diploma and declaring the said Diploma to be free from fraud. This, according to counsel, was serious misdirection in re-evaluating the evidence and he called upon this court to re-evaluate the evidence and come to the right conclusion.
Counsel further submitted that the respondent had used that impugned Diploma to gain admission to Huron University, U.S.A in London to study for the Diploma in Management studies. Since the first Diploma was fraudulent, any subsequent qualifications were tainted with fraud and could not be valid. In his view, the majority in the Court of Appeal had failed to properly analyse the evidence, as the trial court had done, and had come to the wrong conclusion. He prayed this court not to depart from the principle in the MAKULA INTERNATIONAL case (supra) that:-
“A court of law cannot sanction what is illegal, and illegality once brought to the attention of the court overrides all questions of pleading, including admission made thereon.”
In conclusion counsel asserted that even though the NCHE had equated the Diploma in Management Studies, that did not affect the fraudulent and illegal nature of the Diploma in Animal Husbandry upon which admission for the subsequent Diploma had been based. Therefore there was no valid diploma to equate. Counsel prayed this court to allow the appeal with costs with a certificate for two counsel.
In his oral submission in reply, Mr. Nangwala, contended that the majority Justices of Appeal had properly analysed the evidence on record and come to the right conclusions and decision. He argued that the respondent was nominated on the basis of possessing the equivalent of A-Level standard certificate which she did after obtaining a certificate of equivalence issued by the NCHE. That certificate showed that it had been issued based on the Diploma in Management Studies, Huron University U.S.A., in London, 2005 and East African Certificate of Education, EAEC, 1969. He contended that the arguments of the appellant were therefore misconceived in so far as they were based on the Diploma in Animal Husbandry which was not the basis for the issue of the certificate of equivalence. He contended further that the certificate of equivalence had been issued by the authorised body in a manner determined by law pursuant to Article 80(1) (c) of the Constitution. Therefore, according to him, the decision of NCHE as an administrative body could not be impeached except if it was proved to have been made in bad faith without diligence, which was not the case in this instance. In his view, if the Court to impeached that decision, it would be tantamount to the court usurping the powers of an administrative body that had properly discharged its statutory duties.
Counsel supported the evaluation of the evidence by the majority in the Court of Appeal and their conclusion that it was not proved that the admission to Huron University, U.S.A. in London, had been based on the Diploma in Animal Husbandry. In any case, he argued, the question of the fraudulent nature of that diploma had not been investigated into by the NCHE since it had not been the basis for the issuance of the certificate of equivalence.
Counsel submitted further that this was not a proper case where this court as a second appellate court should interfere with evaluation of evidence by the Court of Appeal since it was clear that the majority in the Court of Appeal had subjected the evidence to adequate scrutiny, applied correct principles and come to the right conclusions. He cited the decision of this court in GOUSTAR ENTERPRISES LTD -Vs- JOHN KOKAS OUMO, S.C.C.A. NO. 8 OF 2003 which sets out the principles upon which this court as a second appellate court may interfere with the Court of Appeal’s re-evaluation of the evidence.
Counsel prayed for the appeal to be dismissed with costs with a certificate for two counsel.
I wish to state from the outset that I agree with counsel for the appellant that the real pertinent issue in this appeal is whether the Court of Appeal came to the right findings on the evidence and whether there are valid reasons for this court to interfere with the findings of that Court. Be that as it may, I wish to first deal with the submission by counsel for the respondent that once the NCHE issued the certificate of equivalence it cannot be interfered with by any court of law as this would tantamount to the court usurping the powers of the administrative body. I must point out that similar arguments were made, and rejected by this court, in the recent case of ABDUL BALINGIRA NAKENDO -Vs- PATRICK MWONDHA (S.C. ELECTION PETITION APPEAL NO 09 OF 2007).
This court held, inter alia, that section 4(11) which provides for appeals to the High Court by a person aggrieved by the grant or refusal to grant of a certificate of equivalence by NCHE does not ouster the jurisdiction of the court to inquire into any question as to whether a person was validly elected a member of Parliament. This is a mandate given to the High Court by Article 86(1) of The Constitution which states:-
86(1): “The High Court shall have jurisdiction to hear and determine any question whether a person has been validly elected a Member of Parliament or the seat of a Member of Parliament has become vacant.” (emphasis added).
In my view, it is important to make a clear distinction between the procedures that may be invoked before nomination for the election takes place and those that may be invoked after the election. Section 4(11) clearly is a procedure that has to be invoked before the nomination for election. That is why it empowers the court to “confirm, modify or reverse the decision” of the NCHE in granting or refusing to grant the certificate of equivalence. That certificate is supposed to be presented at the nomination process. So procedures relating to its validity should be settled before the nomination of candidates for election. The question to be answered is whether after the nomination and election if evidence were to be found that in fact the academic qualifications upon which the certificate of equivalence had been based were non-existent or fraudulent, the court would be prevented from inquiring into the validity of such qualifications and therefore the validity of the election of the person concerned. In my view, certainly not. That is the essence of Article 86(1) of the Constitution. Furthermore, the qualifications for being elected as spelt out in Article 80 of the Constitution is that one must have A-Level standard or its equivalent. It is true that the equivalence must be determined in a manner stipulated by law. But there is a basic assumption that the qualifications to be equated must be in existence and valid. If the NCHE equates valid qualifications, then courts of law may not interfere with its decision. But where the certificate it purported to equate is what is being challenged, then the High Court has power to inquire into that question. It is not the equating which is being inquired into but the validity of the qualifications that were equated. In the lead judgment in the NAKENDO case (supra), I stated as follows:
“In my view, the court has power to hear and determine a petition where it is alleged that a person was not qualified for election on the grounds that papers he presented in order to obtain a certificate of equivalence for nomination purposes were not valid. The allegation, if proved to the satisfaction of the court, would go to the very root of the process leading to his nomination and subsequent election. It is a legitimate question that the Court must inquire into. It would not require proceedings for certiorari. It is an election matter and the court has jurisdiction to hear and determine it. If the High Court finds on evidence that the decisions of an administrative body, like NCHE, were irrationally made or were not based on proper diligence, the Court can, and should, so declare. In my view, the NCHE certification of equivalence is not the qualification for election to parliament. It is meant to be evidence but not conclusive evidence of the qualification set out in the Constitution. It is therefore subject to court’s evaluation or scrutiny.”
I reiterate that view of the law. A person elected to Parliament on the basis of a certificate of equivalence based on non-existent or fraudulent qualification would not have been validly elected for the simple reason that he would not be in possession of valid academic qualifications, the NCHE certificate of equivalence not withstanding. I therefore, find the submissions of counsel for the respondent in that respect totally misconceived. With great respect I also find the view held by Kavuma, J.A in the Court of Appeal misconceived when he states:-
“The Constitution required Parliament to prescribe the method of establishing academic qualifications and Parliament did so comprehensively. It also gave power to equate academic qualifications to the National Council. Nobody or authority can validly take on that task outside the provisions of the law. Any attempt by anybody or authority to do so would be tantamount to usurping the statutory powers of the National Council and attempting to substitute its own opinion for that expert body in the field. Where a statute gives power to a body or authority to carry out some function, a court of law should resist the temptation to appear to, or to actually, carry out that function itself. The court’s role should where necessary, be to review the decision of the body so entrusted with the power.”
In my view, the above view misses the point that the court is not questioning the criteria or method used by NCHE for equating qualifications. That would be the preserve of the statutory body, NCHE. What is being questioned and inquired into is whether the qualifications equated by NCHE existed in the first place. If NCHE were found to have equated a non-existent or fraudulent qualification, then the person elected on the basis of such certificate would not have been validly elected to Parliament. Clearly, the learned Justice of Appeal did not address the concerns of Article 86(1) of Constitution.
In this case, the gist of the submissions by counsel for the appellant is that since the respondent used, among others, the impugned Diploma in Animal Husbandry, to apply for admission to Huron University, U.S.A in London, whatever qualifications she subsequently obtained from that university were tainted with the fraud allegedly connected with the diploma, and therefore could not be valid. In his view, therefore, the diploma in Management Studies which the respondent presented to NCHE and which was used for equating to A-Level standard was tainted with fraud and therefore null and void. He cites the
