Wanyama v Hisa & Anor (Election Petition Appeal No. 99 of 2016)

Court of Appeal · [2017] UGCA 18 · 2017 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Appeal from High Court ruling striking out an election petition on a preliminary objection

Decision

Appeal allowed; election petition remitted to the High Court for hearing afresh before another Judge upon payment of correct court fees

The full judgment

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Holding

The Court of Appeal held that section 172 of the Local Governments Act does not import the Parliamentary Elections Act to govern court fees in Local Government election petitions, since petitions and fee payment are matters of adjudication, not the conduct of elections by the Electoral Commission. Court fees should instead have been determined under the Judicature (Court Fees) Rules. The trial Judge wrongly required shs.150,000 and wrongly held the security payment contravened the Public Finance and Accountability Act without identifying the breached instruction. As the appellant paid fees as directed by court staff, striking out the petition on a technicality defeated access to justice. The appeal was allowed and a retrial ordered.

Facts

The appellant and the first respondent contested for Chairperson of Sigulu Islands sub-county in Namayingo District. The first respondent was declared winner with 2,106 votes against the appellant's 2,082. The appellant filed an election petition in the High Court at Jinja challenging the result. He was assessed by and paid shs.100,000 in court fees in the bank as directed by the court cashier, and later paid shs.150,000 as security for costs directly to the Deputy Registrar, who issued a receipt dated 6/5/2016. At the hearing, the second respondent raised a preliminary objection that the petition was incompetent because insufficient court fees of shs.100,000 had been paid instead of shs.150,000 said to be prescribed by the Parliamentary Elections (Interim Provisions) Rules. The trial Judge upheld the objection and struck out the petition for abuse of process and incompetence, holding also that the security payment contravened the Public Finance and Accountability Act. The appellant appealed.

Issues

Whether the trial Judge erred in finding that the appellant had paid insufficient court fees of shs.100,000 at the time of presenting the petition.
Whether the trial Judge erred in finding that section 172 of the Local Governments Act imported the applicability of the Parliamentary Elections Act to hearing and determination of Local Government election petitions.
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.
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 election 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 — Court Fees and Applicable Procedure

Section 172 of the Local Governments Act does not import the Presidential and Parliamentary Elections Acts to govern the payment of court fees in Local Government election petitions, because petitions and payment of court fees relate to the adjudication of disputes by the courts, not the conduct of elections by the Electoral Commission.

Electoral Law — Court Fees — Absence of Specific Rules for Local Government Petitions

Where the Local Governments Act sets out no provisions on court fees payable upon lodgement of an election petition and no specific rules exist, the court must determine the fees payable by reference to the Judicature (Court Fees) Rules made under the Judicature Act.

Civil Procedure — Court Fees — Remedy for Insufficient Payment

Under Rule 6 of the Judicature (Court Fees, Fines and Deposits) Rules, where a document is filed through mistake or inadvertence without proper fees, the court may order payment of the correct fees, after which the document and proceedings become valid; a court should apply this remedy rather than strike out a petition for insufficient fees.

Civil Procedure — Technicalities — Access to Justice

A party who has come to court for justice should be facilitated to access the court and have the case heard; it is an injustice to use a technicality such as non-payment of sufficient fees, arising from the mistake or confusion of court officials, to defeat a litigant's right of access to justice.

Statutory Interpretation — Public Finance and Accountability Act — Treasury Accounting Instructions

A court finding that a payment of security for costs contravenes the Treasury Accounting Instructions made under section 7(2) of the Public Finance and Accountability Act must identify the specific instruction breached; the Instructions permit receipt of cash and the issuing of receipts, so a cash payment duly receipted is not unlawful.

Legislation cited (7)

Local Governments Act s.172
Public Finance and Accountability Act 2003 s.7(2)
Parliamentary Elections (Interim Provisions) Rules SI 141-2 Rule 5(3) and (4)
Judicature (Court Fees, Fines and Deposits) Rules SI 13-3 Rule 6
Judicature (Court Fees) Rules SI 13-1
Judicature Act s.48(1)(d)
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 Clerial Commercial and Techinal Employees vs National Insurance Corporation, SccA

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.