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

Provided that the costs of any action, cause or matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”

Although costs should normally follow the event the section of the Civil Procedure Act above referred to gives the court wide discretionary powers to order otherwise for good reason. Like all judicial discretions, this one must be exercised judiciously.

In the case of Major Gen. D. Tinyefuza Constitutional Appeal No. 1 of 1997 (SCU) (unreported) this court ordered each party to bear its costs although the appeal was dismissed. The Court’s reasons for doing so were that in order to encourage constitutional litigation parties who go to court should not be saddled with the opposite party’s costs if they lose. If potential litigants know that they would face prohibitive costs of litigation, they would think twice before taking constitutional issues to court. Such discouragement would have adverse effect on development of exercise of the court’s jurisdiction of judicial review of the conduct of authorities or individuals which are unconstitutional. It would also stifle the growth of our Constitutional jurisprudence. The culture of constitutionalism should be nurtured, not stunted in this Country, which prohibitive litigation costs would do if left to grow unchecked. I agree with the principles in that decision. In my view they should equally apply to the instant Petition.

I think that there are even more compelling reasons for applying them to the instant case. First, this is the first time in the history of this Country that the result of a Presidential Election has been challenged in Court, not elsewhere. As Mr. Balikuddembe said, the Petitioner went to court in order to encourage the development of peaceful settlement of political and election disagreements.

This is important for the sake of peace and stability of the Country. The Petitioner took the right step by coming to Court, in my view.

Second, access to the Court for peaceful settlement of constitutional, political and election disputes should be available to all, the rich and the poor alike, which prohibitive costs of litigation would discourage effectively.

The third reason for ordering each party to bear its costs, is that even by the majority decision, the Petitioner won on certain issues, though few. The manner in which the 2nd Respondent conducted the election fell below expected or normal standards. So, the Petition was not frivolous. It had some substance.

Fourthly, this case should be regarded as a special one due to its circumstances. For these reasons my view was that each party to the Petition should bear its costs.

Before I leave this Petition I wish to say first, that there are certain flaws in the Presidential Election laws, some of which I have pointed out in the course of these reasons. I hope that the authorities concerned will study the laws with a view to amendments for improvement.
Secondly I wish to express my gratitude to the learned counsel for each and all the parties to the Petition for the industriousness with which they discharged their responsibility within the very limited time which was available. They did so much research of authorities, evidence and materials which gave me tremendous assistance in my work. Without such assistance it might have been impossible to achieve what I did in preparation and writing of these reasons.

A. H. O. ODER

JUSTICE OF THE SUPREME COURT

REASONS OF TSEKOOKO JSC FOR JUDGMENT