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

Issue No. 5: Reliefs to the Parties:

Issue No.5 was what reliefs are available to the parties? In the Petition the Petitioner prayed for the following reliefs:

“4. Therefore your Petitioner prays that this Honourable Court declares:

(a) That Museveni Yoweri Kaguta was not validly elected as President.

(b) That the election be annulled

5. The Petitioner prays for costs of this petition.”

In view of my findings on Issue No.3 and No.4 that the Petitioner had failed to satisfy me that the non-compliance with the provisions and principles of the Act affected the results of the election in a substantial manner and that the 1st Respondent committed any illegal practice or offence, I held that the Petition be dismissed. Consequently the reliefs prayed for in para (a) and (b) were refused.

On the question of costs Dr. Byamugisha learned lead counsel for the 1st Respondent submitted that the 1st Respondent be awarded costs of the petition since the petition had been dismissed. He contended that under Section 27 of the Civil Procedure Act, which governs the award of costs, costs of any action should follow the event unless the Court, for good reasons, orders otherwise. In this petition the costs should follow the event of dismissing the petition by awarding the successful party his costs. It was his submission that a person coming to court should weigh the consequences of his action to stop frivolous petitions.

Mr. Deus Byamugisha learned counsel for the 2nd Respondent agreed with the submission of Dr. Byamugisha that costs normally follow the event and therefore since the Petition was dismissed, the Petitioner should pay the costs of the litigation. He asked for a certificate of two advocates.

On the other hand Mr. Balikuddembe learned lead counsel for the Petitioner contended this was a historic and unprecedented case, brought by the Petitioner as an aggrieved party in the interest of Uganda, for the development of electoral law. He argued that the Petitioner had succeeded on some of the issues framed touching on the non-compliance with the provisions of the law. It would be unfair, he contended, to reward the 2nd Respondent for failure to comply with the law. He argued further that litigants should be allowed access to courts when aggrieved. He concluded that the petition was in public interest. He submitted that the 1st Respondent should be responsible for the intimidation which occurred, which forced the Petitioner to appear before this Court. He therefore prayed that each party bears its own costs.

It is well settled that costs follow the event unless the court orders otherwise for good reason. The discretion accorded to the court to deny a successful party costs of litigation must be exercised judicially and or good cause. Costs are an indemnity to compensate the successful litigant the expenses incurred during the litigation. Costs are not intended to be punitive but a successful litigant may be deprived of his costs only exceptional circumstances. See Wambugu vs. Public Service Commission (1972) E.A. 296.

In awarding costs, the courts must balance the principle that justice must take its course by compensating the successful litigant against the principle of not discouraging poor litigants from accessing justice through award of exorbitant costs.

In the present petition, I am of the considered opinion that the interests of justice require that the Court exercises its discretion not to award the costs to the Respondents. I agree with Mr. Balikuddembe that this was a historic and unprecedented case in which a presidential candidate who is a serving President was taken to court to challenge his election. The petition raises important legal issues which are crucial to the political and constitutional development of the country. In a sense, it can be looked at as a public interest litigation. It promotes the culture of peaceful resolution of disputes. The petition was not frivolous or vexations as the Petitioner succeed on issue No.1 and No.2. the petition was therefore of great public importance in the history of Uganda.

In several cases of significant political and constitutional nature, this Court has ordered each party to bear its own costs. This was done in the case of Prince J D C Mpuga Rukidi v Prince Solomon Iguru and Others. C.A. 18/94 (SC) where the right of the King of Bunyoro to succeed to the throne was unsuccessfully challenged. In the case of Attorney General V Major Gen. David Tinyefuza, Const. App. No.1 of 1997 (SC) the party agreed that each party bears their own costs. The position appears to be the same in India: see Charan Lal Sahu and Others v Singh (1985) LRC Const.31.

In Prince Mpuga Rukidi v Prince Salomon Iguru (supra) I said,

“In this case the learned fudge applied the general rule in exercising his discretion in favour of the successful party, the respondents. He did not consider the special nature of the case and the relationship between the parties before he came to his decision on costs. This was an important case, which settled the question of succession to the throne of Bunyoro-Kitara and therefore paved the way to the restoration of the institution of Traditional Ruler in Bunyoro-Kitara Kingdom. It was a matter of great public importance. The fact that the question has been settled also means that there is need for reconciliation among the contestants for the well being of the Kingdom. In those circumstances I agree that each party should bear its own costs here and in the court below.”

What I said in the Iguru Case applies with equal force to this Petition.

Accordingly, it was my view that each party should bear the costs of litigation in this petition.
For the above reasons, I dismissed the Petition and ordered that each party bears its own costs.

B. J. ODOKI

CHIEF JUSTICE


REASONS FOR JUDGMENT OF ODER - JSC

On 21-04-2001, by majority decision, the Court dismissed the petition and declared that the 1st Respondent had been validly elected President of the Republic of Uganda in the Presidential Election held on 12-03-2001. Reasons for the judgment were reserved to be given on a later date. The Court was unanimous about costs. It ordered that each party should bear its own costs, again reserving its reasons for doing so.

My own decision, however, was that the Petition should succeed, and that the election of the 1st Respondent on 12-03-2001 as President of the Republic of Uganda should be nullified, under article 104(6) of the Constitution.

I now give my reasons for doing so.

On 12-3-2001, the Electoral Commission (2nd respondent) held a Presidential Election in Uganda. The election was held under the provisions of the 1995 Constitution, the Presidential Election Act, 2000 (the Act), the Electoral Commission Act 1997 (Act 3/97), and the Presidential Election (Election Petition) Rules, 2001 (the Rules).

Six candidates contested the election. The result of the election as declared on 14-3-2001, was as follows:

(i) Awori Aggrey, 103,915, percentage of votes cast - 1.4%

(ii) Besigye Kizza, 2,055,795 - 27.8%

(iii) Bwengye Francis, 22,751 - 0.3%

(iv) Karuhanga Chapa, 10,080 - 0.1%

(v) Kibirige Mayanja Muhammad, 73,790 - 1 .0%

(vi) Museveni Yoweri Kaguta, 5,123,360, - 69.3%

Article 103(4) of the Constitution and section 56(4) of the Act both provide that a candidate shall not be declared elected as president unless the number of votes cast in favour of that candidate of the presidential election is more than fifty percent of valid votes cast at the election.

Museveni Yoweri Kaguta, (1st Respondent) was consequently declared the winner of the election, and, therefore, the elected President of Uganda.

The total number of valid votes cast were 7,576,144, amounting to 70.3% of the number of registered voters.

Col. (Retired) Dr. Besigye Kizza (the Petitioner), the runner-up did not accept the result of the election. He therefore, challenged it by filing this petition under article 104 of the Constitution and section 58(1) of the Act. The former provides that any aggrieved candidate may petition the Supreme Court for an order that a candidate declared by the Electoral Commission elected president was not validly elected. The same provisions are repeated in section 58(1) of the Act.

In accordance with the provisions of rule 4 of the Rules, the petition contains a list of the grounds on which it is based. They are set out in numbered paragraphs: The list is a long one. The grounds of the petition are so numerous that I shall not set out all of them early in this judgment. They will be set out as I consider them.

As required by law, the petition concludes with a prayer in paragraph 4 as follows: