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

I must state that our case here is distinguishable from the Tanzanian case. From the affidavit of Hon. John Nasasira the programme of tarmacking and upgrading of these roads had started long before presidential elections, starting with the Government Ten Years Road Sector Development Programme which commenced in 1 996. This was followed by the Credit Agreement between the Government of Uganda and the World Bank for the financing of the implementation of the programme in November 1 999. All this is clearly spelt out in Hon. Nasasira’s affidavit paragraphs 6 — 11.
I must state here that I have no reason whatsoever to doubt the contents of Hon. John Nasasira’s affidavit, It is possible that the petitioner’s campaign manifesto included tarmacking and upgrading of these roads, but that does not mean that the Government would abdicate its responsibility to implement its programme already set in motion, merely because the petitioner had undertaken to tarmack and upgrade the same roads in question if elected the President.

In my view, I think the petitioner has failed to prove to the satisfaction of this court that the 1 s respondent personally or with his knowledge and consent or approval embarked on the tarmacking and upgrading of the said road net-work with the intention of inducing people from those areas to vote for him.

In the result, this complaint must fail.

In conclusion therefore, issue No. 4 must be answered in the negative.

I must state that it was because of the reasons that I have given on each of the issues that led me to hold that the petitioner had failed to prove his case to the satisfaction of the court. It was because of the above reasons that the petition was dismissed.

I now turn to the 5^th issue of what reliefs are available to the parties.

Dr. J. Byamugisha for 1 s respondent and Mr. Deus Byamugisha for 2^nd respondent asked for costs to be awarded to them since the petition had been dismissed. They based their submission on the provision of subsection (1) of section 27 of the Civil Procedure Act (Cap 65) which provides that the costs of any action shall follow the event unless the court or judge shall for good reason otherwise order.

Dr. Byamugisha submitted that since the petition was dismissed it should be dismissed with costs. He submitted that there were two Counsel but required many Counsel to assist in dealing, researching for witnesses and authorities day and night. He asked that we should certify costs for 13 advocates. He argued that if we do not award costs to respondents we would be encouraging people who are defeated in election petition to come to court even when their cases are frivolous and vexatious.

Mr. Deus Byamugisha who appeared for 2’ respondent argued like Dr. Byamugisha that normally costs follow the event, therefore since the petition was dismissed, the petitioner should pay the costs of the litigation. He asked for costs with a certificate for two.

Mr. Balikuddembe, Counsel for petitioner argued that in the interest of justice it should be ordered for each party to meet its own costs, because, this was a historic and unprecedented litigation in our legal development. The petition challenged the election on the basis of non-compliance with the election law, when the 2nd respondent had many years within which he had time to prepare the election. He contended it would not be proper and fair to award costs to 2^nd respondent.

He further argued that it should be noted that the petitioner should not be penalised for having taken this step when respondent should be partly responsible for breach of the law the soldiers committed. He submitted that the fair decision should be that each party bears its own costs

.Section 27(1) of the Civil Procedure Act (Cap 65) governs award of costs in civil litigations. It provides as follows:

1. 
   Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suit shall be in the discretion of the court or judge and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of such powers.
   

Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. So normally costs follow the events unless the court or judge for good reason shall otherwise order. Therefore, the law gives wide discretion to the judge to determine by whom the costs must be paid. However, in deciding who should pay the costs or not pay he or she must be exercised judiciously.

In the instant case, it would not be correct to say that the petition was frivolous as Counsel for both respondents appeared to suggest in their address to us on the issue of costs. It must be noted that the petition contained several allegations of non-compliance with the law allegedly committed by the 2nd respondent or and his agents or servants. Against the 1^st respondent, the complaints were that he committed illegal practices and other offences in connection with the election.

There is no doubt that these allegations of non-compliance with the law which were raised deserved serious consideration by the court. And as submitted by Mr. Balikuddembe, Counsel for petitioner, most of his allegations for noncompliance with the law were upheld. It would therefore not be correct to say that the petition had not been founded on reasonable grounds which deserved to be investigated. Although the investigation of the grounds in the petition ended in favour of the respondent, it cannot be said it was not well founded.

In my view, although the petitioner lost the petition I would not hesitate to adopt the reasoning of the Indian Supreme Court in the case of Charan Lal Sahn & Others v S!ngh Renorted in 1985 LRC (const) 31 where the court held that ordering the petitioner to pay costs in those proceedings would amount to nipping in the bud future and well-founded petition.

In the instant case, considering the nature of the allegations raised in the petition, the historical nature of the petition where the petitioner had contested against the incumbent President and decided to take the incumbent to court, challenging the election result and seeking the court to annul the election result, was very courageous of the petitioner.

So the petition was very important in legal history, because when in 1981 election — was allegedly rigged, the aggrieved party decided to go to the bush and wage war. In the instant case, the aggrieved party instead of thinking of waging a war, decided to go to court.

He came to court before us to decide the matter. We decided it. Although he lost, I must say it was not a frivolous petition. It was very well-founded petition.

In order to encourage people like the petitioner to come to court and help in the development of our legal, historical and constitutional development in Uganda,
such people should be encouraged. Costs should not be awarded by way of penalising them so that they should get scared from coming to court.

Clearly, this petition has revealed how perfunctorily the Presidential Elections were organised by the Electoral Commissioner. It is hoped that if there is another election for them to organise/arrange, citizens will have properly organised elections.

It was for the above reasons that I considered it appropriate that each party meets its own costs.