Kyagulanyi v Museveni & 2 Others (Miscellaneous Application 5 of 2021) [2021] UGSC 36 (18 March 2021)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

### AT KAMPALA

### **MISCELLANEOUS APPLICATION NO. 5 OF 2021**

## (ARISING FROM PRESIDENTIAL ELECTION PETITION NO.1 OF 2021)

CORAM: OWINY -DOLLO, CJ; KISAAKYE; ARACH-AMOKO; OPIO-**AWERI: MWONDHA; MUGAMBA: MUHANGUZI: TUHAISE:** CHIBITA; JJ. S. C.

KYAGULANYI SSENTAMU ROBERT ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. YOWERI MUSEVENI TIBUHABURWA KAGUTA

2. ELECTORAL COMMISSION :::::::::::::::::::::::: RESPONDENTS 3. ATTORNEY GENERAL

#### REASONS FOR THE RULING.

On 05 March 2021, by unanimous decision, the Court granted the Applicant/petitioner leave to withdraw Presidential Election Petition No. 1 of 2021. The reasons for the decision were reserved to be given at a later date. The issue of costs was not determined.

We now give our reasons for the decision to grant leave to withdraw the petition and resolve the issue of costs.

$\mathbf{1}$

### **Background:**

On 14th January 2021, the Electoral Commission (2nd respondent) held a Presidential Election in Uganda. The election was conducted under the provisions of the 1995 Constitution, the Presidential Election Act, 2005 (as amended), the Electoral Commission Act and the Presidential Election (Election Petition) Rules.

11 candidates contested the election. The results as declared and gazetted by the Commission were as follows:

| Candidate | | | No. of votes | Percentage | | |-----------|--------------------------------|----------------------------|--------------|-------------------|--| | | (i) Amuriat Oboi Patrick | | 323,536 | 3.24 | | | | | (ii) Kabuleta Kiiza Joseph | 44,300 | 0.44 | | | | (iii) | Kalembe Nancy Linda | 37,469 | 0.38 | | | | (iv) | Katumba John | 35,983 | 0.36 | | | | (v) Kyagulanyi Ssentamu Robert | | 3,475,298 | 34.83 | | | | (vi) | Mao Nobert | 55,665 | 0.56 | | | | (vii) | Mayambala Willy | 14,657 | 0.15 | | | | (viii) | Mugisha Muntu Gregg | 65,334 | 0.65 | | | | (ix) | Mwesigye Fred | 24,673 | 0.25 | | | | (x) Tumukunde Henry | | 50,141 | 0.50 | | | | (xi) | Museveni Yoweri | 5,851,037 | 58.64 | |

Yoweri Museveni Tibuhaburwa Kaguta (1st respondent) having obtained more than 50% of the valid cast votes, was declared the winner of the elections and therefore, the elected President of the Republic of Uganda.

$\overline{2}$

The applicant/petitioner, Kyagulanyi Ssentamu Robert, the runner up, being dissatisfied with the result of the election petitioned the Supreme Court of Uganda under the Presidential Elections Act, 2005 (as amended) as an aggrieved candidate, challenging the result of the Presidential election held on 14th January, 2021.

He sought orders that:

- 1. The presidential election held on the 14th, January, 2021 was not held in accordance with the provisions of the electoral laws and the principles governing elections, which noncompliance affected the results of the election in a substantial manner; - 2. The 1st respondent was not validly elected as the President of the Republic of Uganda; the election of the 1st respondent as President of the Republic of Uganda be annulled and set aside: - 3. A fresh election be conducted in accordance with the law; - 4. The 3rd respondent be directed again to cause amendment to the relevant electoral laws to comply with the observations, recommendations and directives of this Court in Presidential Election Petitions No. 1 of 2001; No. 1 of 2006 and No. 1 of 2016 to incorporate internationally recognized principles of a free and fair election; - 5. A permanent injunction restraining the Uganda Peoples' Defence Forces and intelligence services from involving themselves in and interfering with electoral processes:

injunction restraining Resident District $6. A$ permanent Commissioners from engaging in partisan politics and that the respondents pay costs of the petition.

The respondents in turn made their respective answers to the petition accompanied by affidavits. They opposed the petition and denied all the allegations of fact contained therein.

The $1st$ respondent's answer to the petition was accompanied by an affidavit sworn by the 1st respondent himself, Yoweri Museveni Tibuhaburwa Kaguta. The 1st respondent denied that his agents/ supporters interfered with electioneering activities of the applicant and his agents. He denied that his agents/supporters had committed any illegal activities, electoral offences or any other offences. He further deponed that he did not commit any of the alleged activities and offences and that he did not know of, consent to, or approve of the alleged activities, if they ever happened. He averred that the Presidential Electoral process was conducted under conditions of freedom and fairness which saw him obtain 58.64% of the total votes cast.

The $2nd$ respondent's answer to the petition was accompanied by an affidavit sworn by its Chairman, Justice Simon Byabakama Mugenyi. He contended that the election was held in compliance with the provisions of the Presidential Elections Act, Electoral Commission Act and other electoral laws. He added that if there was any noncompliance, such did not affect the results in a substantial manner.

The 3rd respondent's answer to the petition was accompanied by an affidavit sworn by the Director of Operations in the Uganda Police Force, Assistant Inspector General of Police, Edward Ochom. He denied allegations of members of the Uganda Police Force being involved in electioneering.

On 9th February, 2021, the first day of hearing the petition. Counsel for the applicant/petitioner sought leave of court to amend the Petition vide Misc. Application. No 1 of 2021. The proposed amendments pertained to non-compliance with the electoral laws, alleged commission of electoral offences and the issue of the 1st respondent's qualification to stand as a presidential candidate in the 14th January election.

We made a summary ruling in which, by unanimous verdict, we dismissed the application to amend. We reserved the detailed reasons for the decision to be delivered with the final judgment.

The Court in its summary ruling, found that the proposed amendments regarding non-compliance with electoral laws and commission of electoral offences were superfluous given that those matters had already been pleaded. We urged the applicant/ petitioner to adduce evidence in proof of those matters instead.

The proposed amendment regarding the qualification of the 1st respondent was denied by court on the ground that it was a new ground that had been introduced outside the limitation period allowed for filing a Presidential Election Petition.

$\mathsf{S}$

When Court resumed on 11th February, 2021, the day of the prehearing, the Court drew up a road map fixing definite dates for the filing of affidavits, preliminary applications, cross examination and other pre-trial issues, filing written submissions and oral submissions.

According to that road map, the applicant/petitioner was to file affidavits in support of his case by 14th February, 2021, whereas all the respondents were to file their affidavits in reply by 20th February. 2021. The applicant/petitioner was to file affidavits in rejoinder, if any, by 23rd February, 2021. All parties including the applicant undertook to abide by the scheduled time lines.

On 14th February, 2021, the last day for filing the applicant's affidavits, counsel for the applicant filed one volume of affidavits. The next day, the applicant unsuccessfully attempted to file more volumes of affidavits in the registry of the Supreme Court. Consequently, the applicant/petitioner filed Misc. Application No. 4 of 2021, an application for extension of time within which to file the additional affidavits. We dismissed that application by majority decision of 8:1 in a summary ruling but reserved the detailed reasons for the dismissal for delivery with the final verdict in the petition.

Subsequently, the applicant/petitioner filed an application for leave to withdraw Presidential Election Petition No. 1 of 2021. He also sought costs to be provided for.

The application was brought by Notice of Motion under section $61(1)$ of the Presidential Elections Act, 2005 (as amended); Sections 98 and 100 of the Civil Procedure Act, Cap. 71; Rule 20(1) of the Presidential Elections (Election Petitions) Rules, 2001; Rule 2(2) of the Judicature (Supreme Court) Rules S. I 13-11. The Motion is supported by one affidavit by the applicant and another by Ssekajja Ukasha, an advocate.

The application was based on grounds stated as follows:

- 1. That the petitioner's witnesses are being abducted, tortured, harassed and intimidated by state security operatives at the behest of the $1^{st}$ respondents and the $3^{rd}$ respondent's agents. - 2. That organs of the state like Uganda Police Force and National Identification of Registration of Persons Authority are being used by the Respondents to investigate and infringe on the privacy of the Petitioner's witnesses. - 3. That procedural rules governing Presidential Election Petitions have been applied to disadvantage the petitioner and his Petition in that: - (a) The petitioner's application for amendment of pleadings was dis allowed thus suffocating major grounds from being incorporated into the petition. - (b) The petitioner's application for extension of time for filing of additional affidavits was disallowed thus frustrating effective prosecution of the petition.

- 4. That the petitioner's political party offices were seized by state security operatives at the behest of the $1^{st}$ respondent and $3^{rd}$ Respondent's agent which rendered the applicant unable to file relevant affidavits and evidence in support of the Petition ion time of filing his Petition. - 5. That the petitioner lost time during the illegal house detention but this Honourable Court is more inclined towards the strict time lines which has disadvantaged the petitioner to the advantage of the respondents. - 6. That petitioner's decision to withdraw the petition had been influenced by the foregoing factors, and not by any corrupt bargain or consideration from the Respondents or any other person.

The 1st, 2nd and 3rd respondents filed affidavits in reply sworn by Oscar Kihika, Advocate and Director, Legal Affairs of the National Resistance Movement, Stephen Tashobya, Advocate and a Commissioner of the $2nd$ respondent, Jackson Kafuuzi, Member of Parliament and Deputy Attorney General, respectively.

In their affidavits, the respondents averred that the Applicant's decision to withdraw Presidential Election Petition No. 1 of 2021 had not been influenced by any corrupt motive.

### Representation.

At the hearing, representation was as follows:

Medard Lubega Ssegona, Samuel Muyizzi and Abubaker Sekanjako appeared for the applicant.

Ebert Byenkya, Kiryowa Kiwanuka, Edwin Karugire, Ronald Tusingwire and Esau Isingoma appeared for the 1st respondent.

Joseph Matsiko, Alfred Okello Oryem, Ellison Karuhanga, Eric Sabiiti and Jet Mwebaze appeared for the $2nd$ respondent.

William Byaruhanga, Attorney General,

Francis Atoke, Solicitor General,

Christine Kaahwa, Director, Civil Litigation,

George Kallemera, Commissioner,

Martin Mwambutsya, Commissioner,

Richard Adrole, PSA,

Geoffrey Madete, SSA,

Brian Musota, SA, appeared for the 3rd respondent.

When this application first came up for hearing on 4th March, 2021, Medard Lubega Ssegona, lead counsel for the Applicant brought to our attention the fact that his team lacked valid practicing certificates. The matter was therefore adjourned to the following day 5th March, 2021, to enable them obtain practicing certificates or provisional ones in case the former was impossible.

Counsel for all parties made oral submissions to supplement their pleadings.

#### **Submissions**

When the matter came up for hearing of the application for withdrawal, on 5th March, 2021, Counsel Ssegona submitted that the application was brought under the stated laws, that it had not been influenced by any corrupt bargain, and that power of the court was discretionary. He prayed court to let each party meet its own costs.

He referred court to the previous Presidential Election Petitions where each party was asked to bear its own costs. He cited **Besigye Kizza** vs. Museveni Yoweri Kaguta and Electoral Commission, Presidential Election Petition No. 1 of 2001 and Presidential Election Petition No. 1 of 2006.

He contended that since the 1st respondent had already been declared winner, that in itself was much more than costs could ever recompense. On the 2nd respondent, Counsel submitted that since procurement procedures had not been followed in sourcing for the lawyers to represent it, costs should not be awarded.

He referred court to Attorney General and Hon. Peter Nyombi vs. Uganda Law Society, High Court Miscellaneous Cause No. 321 of **2013** where Musota J, as he then was, found that the procurement procedures were flouted in the process of retaining Counsel. He urged court to find the authority persuasive.

For the 1st Respondent, Counsel Edwin Karugire submitted that he did not oppose the application for withdrawal. He, however, contended that the grounds advanced by the petitioner in support of the application to withdraw were not credible.

He contended that it was not true that the court was not independent and not impartial towards the Applicant. He pointed out that the petitioner had been given much more time than the 15 days provided for by the law, a favour, which had not been extended to the Respondents.

On the ground regarding restrictions on the petitioner's movements prior to, and during, the time of filing the petition, Counsel referred court to the affidavits of Geoffrey Turyamusiima and Hon Fred Zake. both of whom deponed to the fact that they were in constant telephone contact with the Petitioner.

This, he contended, meant that notwithstanding the physical restrictions, the petitioner could still access counsel and other witnesses if he so wished.

On the nature of evidence that the Applicant had in support of his petition, Counsel contended that it was insufficient, false and full of forgeries. He added that even when he was given opportunity to file additional evidence, such opportunity had been squandered.

He agreed with a paragraph in the affidavit of Ukasha Ssekajja that there was no sufficient evidence to support the petition and that on that basis alone he would not oppose the withdrawal of the petition.

He therefore prayed for a declaration that the $1^{st}$ respondent was duly elected President, that costs be awarded in accordance with section 60(1)(4) of the Presidential Elections Act, rule 20(7) of the Rules and section 61 of the Civil Procedure Act, and finally that costs and a certificate for additional counsel be awarded to the 1st respondent.

Counsel Ellison Karuhanga, submitting on behalf of the 2nd respondent, associated himself with the submissions of counsel for the 1st respondent. He, therefore, informed court that he did not oppose the withdrawal and that there had been no corrupt bargain with the Petitioner or any other party.

He, however, disagreed with the grounds provided by the Applicant as the reasons for the withdrawal. He contended that refusal by the court to allow the two applications by the Applicant cannot constitute evidence of lack of independence and impartiality.

On costs, he observed that the prayers in the application did not contain a plea for exemption from the consequences of section $61(4)$ of the Presidential Elections Act.

He referred court to section 27(2) of the Civil Procedure Act which provides that costs follow the event and asked court to award costs to his client.

He distinguished the case of **Raila Amolo Odinga and another vs.** Independent Electoral and Boundaries Commission and others, **Presidential Petition No. 1 of 2017**, stating that in that case the election had in fact been annulled unlike the instant case where the petition was simply withdrawn.

Counsel sought to punch holes in the affidavit of Ukasha Ssekajja regarding procurement of Counsel by the $2nd$ respondent. He pointed out that Counsel swore an affidavit containing contentious issues that he had no knowledge about.

He prayed court to allow the application with costs to the Respondents.

The learned Attorney General, William Byaruhanga associated himself with the submissions of the two Counsel for the respondents. He also agreed that there had been no corrupt bargain with the Petitioner or any other party.

He stated that he did not oppose the application but had issues with falsehoods contained in the grounds for withdrawal. He submitted that withdrawal should be done in accordance with the law and set down procedures.

He referred to specific paragraphs in the affidavit of the applicant which he deemed false. These paragraphs, he argued, seemed to attack the sanctity of the court. He pointed out that while the applicant was attacking the court as not being independent and impartial, the same applicant had won cases in the High Court before Ssekaana J and Elubu J.

He prayed for a declaration that the 1st respondent was duly elected President and that the applicant be condemned in costs for withdrawing the Petition and for his bad conduct. He was emphatic that if ever there was a time to condemn a party in costs, it was now.

In rejoinder, Counsel Ssegona reiterated his prayer for the application to be granted, more so now since it was unopposed. He submitted that the allegations of bad conduct raised by Counsel for the respondents against his client were unsubstantiated. To the contrary, he argued, evidence available was to the effect that his client was a regular user of court and a firm believer in the rule of law. He affirmed his confidence in the impartiality and independence of the court.

Counsel opposed the prayer to have the $1st$ respondent declared as duly elected. He referred court to section 59(5) of the Presidential Elections Act, which provides for declaration whereas section 59(4) does not.

On the issue of procurement of counsel by the $2nd$ respondent, he supported the affidavit of Ssekajja by contending that the information deponed to was public knowledge.

He reiterated his prayer for each party to meet its own costs. He referred court to the judgment of Tsekooko JSC in the case of Besigye **Kizza (2001) (supra)** to state that however frivolous a petition, no costs should be awarded.

He also referred court to the case of Sitenda Sebalu vs Hon Sam Njuba and another, Supreme Court Election Petition Appeal No. 26 of 2007 where it was held that "shall be liable" is not necessarily mandatory.

He concluded by asking court to exercise its discretion on costs judiciously.

Court unanimously granted leave to have the petition withdrawn and reserved its reasons and ruling on costs for a later date.

### **CONSIDERATION BY COURT**

We have had the benefit of considering the pleadings and submissions of counsel for all parties. Needless to say, this was an application for leave to withdraw a presidential election petition.

The enabling law is provided for under section 61 of the Presidential Elections Act and Rule 20 of the Presidential Election (Election Petitions) Rules.

Section $61(1)$ provides as follows:

# "An election petition shall not be withdrawn except with leave of the court and after such notice has been given as the court may direct."

Rule 20(3) provides for the procedure and form of the application for leave to withdraw a petition. It provides as follows:

"Subject to subrule (1) of this rule, an application for leave to withdraw a petition shall be supported by an affidavit of the petitioner and his or her advocate, if any, stating to the best of their knowledge and belief that no agreement or terms of any kind has been made, or undertaking made in relation to the petition or, if any lawful agreement has been made, stating the terms of the agreement.

The aforesaid laws can be summarized as follows:

- $(i)$ The court retains the discretion to permit or grant leave to a petitioner to withdraw the petition. - The applicant and his or her advocate must state in their $(ii)$ affidavits that no agreement or terms of any kind has been made or undertaking made in relation to the petition. The petitioner and his advocate must depone to the fact that the decision to withdraw the petition has not been influenced by a corrupt motive. - (iii) If any lawful agreement has in fact been made, the terms of the said agreement should be stated in the affidavit. - (iv) Notice of the application for leave to withdraw the petition has to be posted on the court notice board and in the gazette (rule $20(5(b))$ ).

The record clearly shows that applicant complied with the statutory requirements imposed on him in respect of the procedure for filing an application for leave to withdraw the petition. Indeed, he fulfilled a crucial part of the requirements by swearing an affidavit to the effect that the application for leave to withdraw has not been informed by a corrupt motive in paragraph 20 of his affidavit in support and paragraph 5 of his advocate Ssekajja Ukasha's affidavit. In paragraph 20 of his affidavit, the applicant stated as follows:

"That I have been influenced by the foregoing factors to withdraw the Petition, and not by any corrupt bargain or consideration from the Respondents or any other person."

Similarly, Ukasha Sekajja in paragraph 5 of his affidavit states as follows:

"That I together with other lawyers on the team representing the Applicant have interviewed him and confirmed that his decision to withdraw the Petition has not been influenced by any corrupt bargain or consideration from the Respondents or any other person."

This fact is conceded to by all the respondents.

Oscar Kihika, who swore an affidavit on behalf of the 1st respondent. in paragraph 34 of his affidavit stated that:

## "I know that there is no agreement or undertaking of anu kind that has been made between the 1st Respondent and the Applicant in relation to the Petition."

Stephen Tashobya, a Commissioner with the $2nd$ respondent, stated in paragraph 8 of his affidavit:

### "That I know that there has been no collusion or corrupt bargain between the Petitioner and the 2nd Respondent."

The Deputy Attorney General, Jackson Kafuuzi, in paragraph 25 of his affidavit stated as follows:

"That I know that the $3rd$ Respondent has not executed any agreement or terms of any kind with the Applicant/Petitioner regarding the proposed withdrawal of the Presidential Election Petition."

Notice of the application for leave to withdraw the petition was made by the registrar on the notice board of the Court and in the gazette as required under rule 20(5) (b) of the Presidential Election (Election Petition) Rules.

Therefore, the application for leave to withdraw the petition, having met all the conditions and procedures required by law, and the respondents having no objection to the application, the application for leave was granted and the petition was accordingly withdrawn.

The Court having granted the petitioner leave to withdraw the petition, what remains is for the court to determine the issue of costs and whether court should declare the winner or not.

### DECLARATION OF THE WINNER

Section 59(4) of the Presidential Elections Act provides as follows:

"Where no petition is filed within the time prescribed under subsection (2), or where a petition having been filed, is withdrawn by the person who filed it or is dismissed by the Supreme Court, the candidate declared elected shall conclusively be taken to have been duly elected as President."

Subsection (5), on the other hand, provides as follows:

"After due inquiry under subsection (3), the Supreme Court may-

(a)Dismiss the petition;

(b)Declare which candidate was validly elected; or

## (c)Annul the election.

It is clear that subsection (5) deals with a situation where an election petition is heard to its logical conclusion. Thereafter, one of the options available to the Court is expressly provided for in (b), to declare which candidate was validly elected.

In the instant case, subsection (4) is the applicable provision. It provides, *inter alia*,

## "... the candidate declared elected shall conclusively be taken to have been duly elected as President."

It goes without saying that without a valid and legal challenge to the candidate earlier declared by the Electoral Commission as the winner of the Presidential Elections stands unchallenged and is taken to be the duly elected President.

This fact stands whether or not the Supreme Court declares so or remains silent. It is a fait accompli and does not depend on a declaration by Court.

Does that therefore mean that Court cannot declare the candidate as the one validly elected? Or, can Court, following a specific prayer by the respondents, or any other party, go ahead and declare the candidate as the one validly elected?

For sure there is no legal impediment against such a pronouncement. This would be only for avoidance of doubt. This is because subsection (4) already provides that where a petition is withdrawn, the candidate declared elected shall conclusively be taken to have been duly elected as President

In conclusion, Court can safely say that in accordance with section 59(4) of the Presidential Elections Act, the petition against the declared candidate, Yoweri Museveni Tibuhaburwa Kaguta, having been withdrawn, he is taken to have been duly elected as President.

## COSTS

Section 61(4) of the Presidential Elections Act provides;

"If a petition is withdrawn, the petitioner shall be liable to pay **the costs of the respondent.**" (Emphasis ours)

Rule 20(1) to (7) of the rules reiterates this position.

The question to be determined is "Are the aforementioned provisions mandatory or directory?

To answer this question would require a review of previous decisions of this court in which the interpretation of the word "shall" has been dealt with.

In the case of Sitenda Sebalu vs. Sam K. Njuba and the Electoral **Commission** (Election Appeal No 26 of 2007) (unreported) this Court discussed Section 62 of the Parliamentary Elections Act where the word "shall" is used. The Court held as follows: -

"It is common ground that although prima facie the use of the word "shall" in a statutory provision gives the provision a mandatory character, in some circumstances the word is used

in a directory sense. Much as we agree with learned Counsel for the appellant to the extent that where a statutory requirement is augmented by a sanction for non-compliance it is clearly mandatory that cannot be the litmus test because all too often, particularly in procedural legislation, mandatory provisions are enacted without stipulation of sanctions to be applied in case of non-compliance. We also find that the proposal by Counsel for the $2^{nd}$ respondent to restrict the directory interpretation of the word "shall" to only where it is shown that interpreting it as a mandatory command would lead to absurdity or to inconsistence with the Constitution or statute or would cause injustice, to be an unreliable formula, which is not supported by precedent or any other authority" (Emphasis $Ours)$

Similarly, in the case of **Kampala City Council Authority vs.** Kabandize & 10 others, SCCA No. 13 of 2014, the court found that the word "shall" as used in the provisions of section 2 of the Civil Procedure (Miscellaneous Provisions) Act, did not connote a mandatory meaning which required a plaintiff to serve statutory notice on a government, local authority or scheduled corporation, 45 days before instituting a suit against the aforementioned parties. The court in arriving at the decision that the failure to do so would not vitiate the proceedings held as follows:

"As already stated in this judgment the rationale for the requirement to serve a statutory notice was to enable a

statutory defendant investigate a case before deciding whether to defend it or even settle it out of court. There was a claim that no statutory notice was served but the appellant was able to file a written statement of defence and adduce evidence in support of his defence. There was also nothing that stopped the parties from settling the case if ever a settlement was an option. This is a clear illustration that failure to serve the Statutory Notice does not vitiate the proceedings as the Court of Appeal rightly found. A party who decides to proceed without issuing the Statutory Notice only risks being denied costs or cause delay of the trial if the Statutory defendant was unable to file a defence because she required more time to investigate the matter.

This, however, does not necessarily mean that this court's position is always directory and not mandatory. In the case of **Bitamisi** Namuddu vs. Rwabuganda Godfrey, SCCA No. 16 of 2014, where the court made a determination of the meaning of the word "shall" in the provision of Order 5 rule 1(3) of the Civil Procedure Rules, the court held as follows:

" $0.5 r. 1$ (3) clearly states that where summons are issued and service is not effected within 21 days from the date of issue and no application for extension is made "the suit shall be dismissed without notice". The consequences of failure to serve the summons within 21 days from the date of issue and not making application for extension of time in the prescribed period are clear and straight forward- the provision does not give court discretion to decide whether to dismiss the suit. The action is dictated by law and it is mandatory. The dismissal is also effected without notice to the plaintiff."

From the foregoing, there is no clearly defined threshold for the interpretation of the word "shall" as used in a statutory provision. However, one thing is clear, the courts look at the intention of parliament while enacting the various provisions in order to determine what is mandatory or directory. For instance, in the case of **KCCA vs. Kabandize** (supra) it is shown that failure to serve statutory notice on the appellant did not affect the appellant's right to file a defence. The party affected was the plaintiff who decided to proceed without issuing the Statutory Notice because he or she risked being denied costs or cause delay of the trial if the Statutory defendant was unable to file a defence because she required more time to investigate the matter. The case of **Bitamisi Namuddu vs.** Rwabuganda Godfrey (supra) is distinguishable because the consequences of non-compliance with the provision affected the respondent's right to a fair hearing that is guaranteed under Article 28 of the Constitution.

In the instant case, counsel for the applicant invited court to exempt the applicant from paying costs to the respondents and prayed that each party should bear its own costs. His argument was that condemning the applicant in costs would scare away poor litigants seeking legal redress. He relied on the judgment of Tsekooko (JSC) in Besigye Kiiza vs. Museveni Yoweri Kaguta and 2 others (supra) and the case of Raila Amolo Odinga and Anor vs. Independent Electoral and Boundaries Commission and others (supra) to support the argument that even in cases where a Presidential Election Petition is frivolous, costs should not be awarded against the petitioner.

Counsel for the respondents rightly distinguished the cases relied on by the applicant from the instant facts. They correctly argued, firstly, that in the **Kiiza Besigye** case (supra) the petition was prosecuted till the end and that in the **Raila Odinga** case the petition was also prosecuted to the very end and that it resulted in the annulment of the election, which was not, they argued, the case in the instant petition which was prematurely withdrawn. They also argued that this was a proper case for penalizing the petitioner in costs for bad conduct.

We agree with Counsel for the respondents that the cases relied upon by the applicants were prosecuted to the very end unlike in the instant case.

Be that as it may, the similarities between the cases are more fundamental than the differences. As much as the instant Presidential Election Petition was not prosecuted to the end, it touches on democracy and the validity of election to the highest office in the land. We are therefore, not convinced that the court should apply different principles in light of the withdrawn petition. The same

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rules regarding costs that applied to previous election petitions in Uganda should therefore apply.

In the case of **Besigye Kizza vs. Museveni Yoweri Kaguta (2001)** (supra), Odoki CJ, stated as follows:

"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."

The risk of having to pay exorbitant costs in a Presidential Election Petition can have a chilling effect on petitions that have merit. It cannot be said that parliament intended that the risk of having to pay adverse costs should outweigh the benefits accruing from the petition.

The decision not to award costs may sometimes encourage and inundate courts with a plethora of frivolous and vexatious petitions well knowing that there will be no costly financial consequences.

The fear of frivolous and vexatious petitions, however, must, be weighed against the fear to access justice which may be caused by award of costs.

In our view, the benefit of doubt between being inundated with frivolous and vexatious petitions and access to justice must where pivotal, be tilted in favour of access to justice.

It is upon this background that we find that the word "shall" as contained in the provision of section 61(4) and rule 20 (7) of the Presidential Election Act and the Rules is directory and not mandatory. This means that the general provisions of the law relating to costs should be applied to this case.

The law governing the award of costs in civil matters is provided for in section 27 of the Civil Procedure Act, cap. 71. It provides as follows:

27. Costs.

(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 suits 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 those costs are to be paid, and to give all necessary directions for the purposes aforesaid.

(2) The fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of the powers in subsection (1); but 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

The general position regarding the award of costs is that costs follow the event unless the court orders otherwise for good reason.

The power of court to determine costs was explained by Lord Atkinson in **Donald Campbell v. Pollak, (1927) A. C. 732** was stated

## thus:-

$\lq\lq$ It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts... If, however, there to, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of the sufficiency of those grounds for this purpose is entirely a matter for the Judge himself to decide......"

In the case of **Kampala City Council Authority vs. Kabandize**, (supra), this court reiterated the provisions of section $27(1)$ of the CPA stating that the court has discretion to award costs and a successful party is awarded costs unless there are good reasons to deny such party costs. Each case has to be looked at based on its own peculiarities.

The circumstances in which it would be appropriate to depart from the rule that costs follow the event were considered by Murray CJ, in the persuasive case of **Dunne vs. Minister for the Environment**, [2007] IESC 60, 2008) 2 IR 775, a decision by the Supreme Court of Ireland while applying rule 99 and rule 1(3) & (4), an equivalent to our section 27 (1&2) of CPA which provides that the costs of every issue of fact or law follow the event unless the court otherwise orders. Murray, CJ explained as follows:

"The rule of law that costs normally follow the event, that the successful party to proceedings should not have to pay the costs of those proceedings which should be borne by the unsuccessful party has an obvious equitable basis. As a counterpoint to that general rule of law the Court has a discretionary jurisdiction to vary or depart from that rule of law if, in the special circumstances of a case, the interests of justice require that it should do so. There is no predetermined category of cases which fall outside the full ambit of that jurisdiction. If there were to be a specific category of cases to which the general rule of law on costs did not apply that would be a matter for legislation since it is not for the Courts to establish a cohesive code according to which costs would always be imposed on certain successful defendants for the benefit of certain unsuccessful plaintiffs. Where a Court considers that it should exercise a discretion to depart from the normal rule as to costs, it is not completely at large but must do so on a reasoned basis, indicating the factors, which in the circumstances of the case, warrant such a departure. It would neither be possible or desirable to attempt to list or define what all those factors are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case by case basis and decided cases indicate the nature of the factors which may be relevant but it is the factors or combination of factors in the context of the individual case which determine the issue".

Accordingly, each case has to be looked at based on its peculiarities.

Counsel for the respondents argued vehemently that the applicant's notice of motion did not contain a prayer for the exemption from the payment of costs. This was a true assessment of the applicant's pleadings. Ordinarily this would mean that court cannot consider the issue of costs as parties are bound by their pleadings. However, the court can deal with the matter since the parties were able to address court on the matter of costs. (See Sinba (K) Ltd and Others vs. **Uganda Broadcasting Corporation**, SCCA No 14 of 2014)

The instant case presents special circumstances that warrant the departure from the general rule that requires costs to follow the event. The special circumstances are that the applicant participated in the 14th January, 2021 Presidential Election and obtained 3,475,298 votes which is 34.83 % of the total votes cast in the country. He brought a petition under section 59 of the Presidential Election Act citing incidents of non- compliance with electoral laws of the country and alleged commission of electoral offences which were captured in his petition. He terminated the proceedings before the court had the opportunity to inquire into the validity of the allegations. They, therefore, remain mere allegations. Ordinarily, the petitioner would be ordered to pay costs of the petition to the respondents based on the general rule that costs follow the event. However, the need to promote access to justice in presidential election petitions overrides the need to condemn the applicant to payment of costs. The learned Attorney General urged the court to award the respondents costs due to the applicant's bad behaviour.

Counsel for the applicant argued against this award submitting that allegations of the applicant's bad behaviour were unsubstantiated. Court is inclined to find against the learned Attorney General on ground that costs are compensatory in nature and not punitive.

Before taking leave of this matter, we wish to comment on ground 3, as contained in the applicant's motion, paragraph 19 of the applicant's affidavit in support and his advocate's affidavit. We will reproduce them for easier reference:-

(3) That procedural rules governing Presidential Election Petitions have been applied to disadvantage the petitioner and his Petition in that:

- a) The petitioner's application for amendment of pleadings was dis allowed thus suffocating major grounds from being incorporated into the petition. - b) The petitioner's application for extension of time for filing of additional affidavits was disallowed thus frustrating effective prosecution of the petition.

Paragraph 19 of his affidavit stated as follows:

"That after deeply reflecting upon the foregoing circumstances, I reached the decision that withdrawing the instant Petition is the right thing to do since this Court is not handling the Petition with the independence, impartiality and equality I expected of it."

The applicant alleged that Presidential Election Petition Laws were applied to his disadvantage. He particularly referred to the dismissal of Misc. Applications No. 1 of 2021 and Misc. Application No. 4 of 2021. He also accused the court of failing to handle the petition with independence, impartiality and equality.

Independence of the judiciary and courts of law is provided for under Article 128 of the 1995 Constitution provides as follows:

- (1)In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority. - (2) No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.

The principle of judicial independence aims at protecting judicial decision making from intimidation and outside interference. (Pullman vs. Allen, 466 US. 522 Supreme Court of the United States, 1984).

Quoting The Queen vs. Beauregard, Supreme Court of Canada, (1987) LRC (Const.) 180, Justice Tibatemwa, JSC, in Attorney General vs. Gladys Nakibuule Kisekka SC Constitutional Appeal No. 02 of 2016, had the following to say:

"The purpose of judicial independence is the complete liberty of the judicial officer to impartially and independently decide cases that come before the court and no outsider, be it government, individual or other judicial officer should interfere with the manner in which an officer makes a decision."

The applicant's claims are unsubstantiated. He seems to base his claims on the fact that his applications to amend his pleadings and extend time within which to file additional affidavits outside the scheduled timelines were denied. This denial rather than being attributed to lack of independence and impartiality should be attributed to the strict time lines provided by law under Section 59 and the tardiness of his Counsel.

The timelines are prescribed under Article 104 of the Constitution as amended by the Constitution Amendment Act No. 1 of 2018

An aggrieved candidate is required to petition the Supreme Court for an order that a candidate declared elected as president was not validly elected within 15 days of the declaration of the presidential election results. The Court is required to inquire into and determine the petition expeditiously and declare its findings and reasons not later than 45 days from the date the petition is filed.

Whereas the court can exercise its discretion in ordinary suits to extend the various time lines within which litigants can perform certain acts, the strict constitutional timelines do not allow the court the luxury to do so in Presidential Election Petitions. On the day of pre-hearing, the court alongside Counsel for all parties agreed to the roadmap which contained the various dates on which the parties were to file their affidavits. Counsel for the applicant assured court

that he would have filed all the affidavits in support of the applicant's case by 14th February, 2021. The applicant's counsel however failed to do so. This failure can therefore not be visited on the court.

All these facts are within the knowledge of counsel for the applicant who assured Court that notwithstanding the Applicant's affidavit and other utterances attributed to him, the applicant, like the rest of the public have confidence in the rule of law.

Indeed, his having filed the Petition and followed procedure to withdraw the same, speaks louder about the confidence he has in the rule of law than any utterances made outside court.

Sadly, it is not unusual for parties who have been unsuccessful in litigation to label court negatively. Successful parties, on the other hand, are all full of praise. That notwithstanding, all the judicial officers will continue to adhere to their oath to do justice to all manner of people without fear, favour, ill will or affection.

From the submissions of the Attorney General and the affidavits of the respondents it is clear that the petitioner on several occasions, through utterances to the media and in diverse places was trying to interfere with the courts and the judicial officers.

Such conduct is not only unconstitutional it also offends the principle of sub judice. Such conduct is to be condemned in no uncertain terms. The maxim "He who comes to Equity must come with clean hands" prevails.

In the result, the following orders are made:

1. The Petition stands withdrawn

- 2. The candidate declared elected by the Electoral Commission, Yoweri Museveni Tibuhaburwa Kaguta, is duly elected as President. - 3. Each party will bear its own costs.

$18ft$ Dated at Kampala this .... ............day of March, 2021

Alfonse Owiny Dollo

**CHIEF JUSTICE**

Dr. Esther Kisaakye JUSTICE OF THE SUPREME COURT

Stella Arach-Amoko JUSTICE OF THE SUPREME COURT

Rubby Opio-Aweri JUSTICE OF THE SUPREME COURT

Dungialeo Faith Mwondha JUSTICE OF THE SUPREME COURT

Paul Mugamba JUSTICE OF THE SUPREME COURT

## Ezekiel Muhanguzi JUSTICE OF THE SUPREME COURT

## Percy Night Tuhaise JUSTICE OF THE SUPREME COURT

Mike J. Chibita JUSTICE OF THE SUPREME COURT