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Wanyama v Hisa Albert and Another (Election Petition Appeal No. 99 of 2016)

Court of Appeal · [2017] UGCA 167 · 2017 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from High Court ruling striking out an election petition for incompetence and abuse of process
Decision
Appeal allowed; election petition restored and remitted to the High Court to be heard afresh before another Judge

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Holding

The Court of Appeal held that section 172 of the Local Governments Act applies the Presidential and Parliamentary Elections Acts only to the conduct of local council elections, not to court fees payable on election petitions, which are adjudicatory matters. The trial Judge therefore erred in applying the Parliamentary Elections (Interim Provisions) Rules to find the appellant paid insufficient fees. The court also found no provision of the Treasury Accounting Instructions or section 7(2) of the Public Finance and Accountability Act was contravened by the security payment. As court officials misassessed the fees, the petition should not have been struck out on a technicality. Appeal allowed and a retrial ordered.

Facts

The appellant and the first respondent contested the position of Chairperson, Sigulu Islands sub-county, Bukooli Islands County, Namayingo District. The first respondent was declared the winner with 2,106 votes against the appellant's 2,082 votes. The appellant filed an election petition in the High Court at Jinja challenging the results. The appellant was assessed by the court cashier and paid court fees of shs.100,000 in the bank, then paid a further shs.150,000 as security for costs directly to the Deputy Registrar, who issued a receipt. At the hearing, the second respondent raised a preliminary objection that the petition was incompetent for payment of insufficient court fees, contending that shs.150,000 was payable under the Parliamentary Elections (Interim Provisions) Rules applied through section 172 of the Local Governments Act. The trial Judge upheld the objection and struck the petition out for incompetence and abuse of court process. The appellant appealed.

Issues

  1. Whether the trial Judge erred in finding that the appellant paid insufficient court fees of shs.100,000 when presenting the petition.
  2. Whether the trial Judge erred in finding that section 172 of the Local Governments Act imported the applicability of the Parliamentary Elections Act to the hearing and determination of Local Government election petitions.
  3. Whether the trial Judge erred in finding that payment of money into court as security for costs contravened section 7(2) of the Public Finance and Accountability Act.
  4. Whether the trial Judge erred in dismissing the petition after the court had already conducted an inspection of the ballot box.

Orders

  • Appeal allowed and the ruling and orders of the trial court striking out the petition set aside.
  • The petitioner is to pay the balance of the correct court fees as assessed by the Registrar, High Court Jinja, under the Judicature (Court Fees, Fines and Deposits) Rules SI 13-3, within 15 days of assessment.
  • The petition is to be heard afresh before another Judge of the High Court.
  • The parties are to bear their own costs in this appeal and in the lower court.

Key headnotes

Electoral Law — Local Government Election Petitions — Applicability of Parliamentary Elections Laws under Section 172 LGA
Section 172 of the Local Governments Act applies the Presidential and Parliamentary Elections Acts only to the conduct of local council elections and not to court fees payable on election petitions, which are adjudicatory matters handled by the courts rather than the Electoral Commission.
Civil Procedure — Court Fees — Insufficient Payment — Remedy under SI 13-3 r.6
Where insufficient court fees are paid through mistake or inadvertence, Rule 6 of the Judicature (Court Fees, Fines and Deposits) Rules SI 13-3 empowers the court to order payment of the correct fees rather than to strike out the document, so that the proceeding becomes valid as if proper fees had been paid initially.
Civil Procedure — Access to Justice — Technicalities Defeating Substantive Rights
A litigant should not be denied access to justice through a technicality such as insufficient payment of fees where the deficiency arose from the confusion or mistake of court officials.
Statutory Interpretation — Public Finance — Treasury Accounting Instructions and Section 7(2) PFAA
A finding that a payment contravenes the Treasury Accounting Instructions 2003 made under section 7(2) of the Public Finance and Accountability Act cannot stand where the court fails to identify the specific instruction breached, as the Instructions permit receipt of cash and the issuing of receipts and do not prohibit cash payment.

Legislation cited (9)

  • Local Governments Act s.172
  • Local Governments Act s.48(1)(d)
  • Public Finance and Accountability Act 2003 s.7(2)
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.5(3)
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.5(4)
  • Judicature (Court Fees, Fines and Deposits) Rules SI 13-3 r.6
  • Judicature (Court Fees) Rules SI 13-1
  • Constitution of the Republic of Uganda art.126(2)(e)
  • Treasury Accounting Instructions 2003

Cases cited (2)

  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another (Civil Appeal No. 4 of 1981)
  • National Union of Clerical, Commercial and Technical Employees v National Insurance Corporation (Civil Appeal No. 7 of 1993)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.