The republic of uganda in the supreme court of uganda at kampala

3. That after voting I moved home which is about 120 metres from the polling station and that is where Hon. Mike Mukula was.” (Emphasis is added)

Captain George Michael Mukula, M.R, made an affidavit, in which he denied being at Kichinjaji Polling Station between 8 a.m. and 12 noon on 12th March 2001, dishing out money to voters. Ekunyu Beatrice, Elietu Paul and Angolo Martha, the Presiding Officers for Kichinjaji Polling Stations “B”, “C” and “D” respectively, averred in separate affidavits that Hon. Mike Mukula did not visit their respective polling stations on polling day and that they did not see him dishing out money to voters. Omuge George William, the Returning Officer for Soroti District averred that on polling day he visited Kichinjaji Polling Station between 11 a.m. and 12 noon. He did not find Hon. Mike Mukula there, nor did he get any complaint that he had been there dishing out money to voters. One other person, however, saw Hon. Mike Mukula at Kichinjaji. Obela Lawrence, the Presiding Officer of Kichinjaji “A” polling station, deponed that Hon. Mike Mukula called at that polling station at about 10 a.m., waved to people at a distance of about 3 metres, inquired how the voting was progressing and left shortly after. But he did not see, nor hear of, Hon. Mukula dishing out money to voters and/or telling them to vote for the 1st Respondent. This evidence corroborates that of Etetu in a material particular, namely the presence of Hon. Mukula in the area, which the latter denied. The failure of the others to see him was not very material particularly in view of the evidence of Etetu that he saw Hon. Mukula moving among buildings not in the polling stations.

Joseph Drabo, the Petitioner’s mobiliser, of Mite parish in Ayivu County, Arua, deponed that on 12th March 2001 he saw Godfrey Asea, the LC I Chairman of Ndru sub-parish, Mite parish “giving out unspecified amounts of money to one Odipio Inyasio, at Lia polling station with directives that the same be given to all the women so that they vote for Yoweri Kaguta.” The Presiding Officer of Lia B (Panduru) polling station, Awita John Bosco, confirmed in an affidavit that Drabo visited his polling station but averred that Odipio did not come there and that he did not see any money changing hands at that polling station, nor did he receive any report about it.

My observation on the evidence from the three witnesses to the alleged incidents of bribery is that though I believe the witnesses, each was lacking in particularity. I would have looked for some corroboration, before acting on the evidence. However the major deficiency, for purposes of establishing that the 1st Respondent was liable for any of the alleged bribery is that there was no shred of evidence that Mwesigwa Rukutana, Mike Mukula and/or Odipio Inyasio had each done what was alleged with the knowledge and consent or approval of the 1st Respondent.

For the reasons I have outlined I answered issue No.4 in the negative.

ISSUE NO. 5:

The last issue was on what reliefs were available to the parties. Upon dismissing the petition, we invited the parties to address us again on the question of costs specifically, in view of the holdings on the other issues. After hearing counsel the Court by unanimous decision, ordered each party to bear its own costs. The reasons for that decision were also reserved, to be given along with the reasons for the rest of the judgment.

Dr. Byamugisha had prayed for costs on the principle under S.27 of the Civil Procedure Act, that costs shall follow the event. He maintained that the case was very important. It had been very involved both on facts and the law, but it had to be conducted in a very short time. That had necessitated hard work and engaging many advocates. He prayed that for the 1st Respondent the award of costs should include instruction fees for 13 counsels. He recalled that counsel for the Petitioner had in his original submission prayed for costs for 10 counsels in the event of the petition being successful, and argued that he (Petitioner’s counsel) should not be heard to renage from the principle. Learned counsel urged the Court not to encourage frivolous litigation by denying costs to the successful parties. For the 2nd Respondent, Mr. Deus Byamugisha, submitted that there was no good reason for not following the principle in S.27 of the Civil Procedure Act. He maintained that an unsuccessful candidate at an election should weigh his chances of success before petitioning the Court and thereby compelling other parties to incur litigation costs. He also prayed that the 2nd Respondent be awarded costs as a successful party.

Mr. Balikuddembe for the Petitioner reiterated that the case was very important and submitted that the petition had been brought in the interest of the country. He stressed that the Petitioner had not been wholly unsuccessful since he had scored some success on some of the issues. Learned counsel also maintained in particular that “it would not be proper to award costs to the 2nd Respondent for failure to conduct the elections in compliance with the law”

It is trite that as a general rule, in civil litigation, the successful party is awarded costs of the litigation. It is also trite that in awarding costs, the Court has very wide discretion, which needless to say, it must exercise judicially, having regard to the circumstances of the case.

To my mind the first and main consideration was the importance of, and public interest in, the case. Here I mean public interest, not in the sense of curiosity, but in the sense that the country needs to ensure that the election of its President is a free choice of the citizens, made in accordance with the Constitution and the laws enacted to regulate the election. That interest is of particular significance in Uganda today, given her history that is not noted for democratic election of the political leaders. In that sense, in addition to the Petitioner and the Respondents as the obvious parties, the public was the un-participating and silent party in the case, seeking a just pronouncement, according to the law, on whether the election of the President was a free expression of the will of the majority. I agree with the submission that it is important for the Court, in the exercise of its discretion, not to do so in a manner that would encourage frivolous litigation. However it is equally, if not even more important, for the Court to avoid discouraging would-be petitioners with substantial causes of action, from petitioning the Court for fear of being crippled by orders for costs. In its discretion the Court should assess the merits and demerits of the particular case before it. That brings me to the second consideration in the instant case.

The Petitioner brought to court a tangible case, which deserved to be inquired into. Although some issues that came up during the trial may have been farfetched or even trivial, the case as a whole could not be described as frivolous as suggested by counsel for the 2nd Respondent.

I agreed with the view expressed in the extract from the Guildford Case:

Elkins vs. Onslow (1896) 19 LT 729, cited in The Digest: Annoted British, Commonwealth and European Cases Vol. 20 at p.71, para. 642.

“Where the case as disclosed under a petition is proper for examination and the petition is founded upon strong prima fade grounds and attended with reasonable and probable cause for pursuing the inquiry to termination the Petitioner will not be condemned in the costs of the respondent although the result may be in favour of the latter.”

I hasten to add however that each case has to be considered on its own merits. For the reasons I have indicated I found it appropriate for the court to order each party to bear its costs of the petition.

I wish to add my expression of gratitude to counsel for all parties for tremendous assistance they rendered to the Court. Given the enormity of the task and the severe time constraint, the industry and skill put in the preparation and presentation of the cases of their respective clients was highly commendable.

I think they have set a good precedent and confirmed that the special procedure adopted for the undoubtedly special case can achieve the results.

J.N. MULENGA
JUSTICE OF THE SUPREME COURT

DATED at Kampala this 21^st day of April, 2001