Wakilii

Maliam Adekur and Anor v Joshua Opaja and Anor (Constitutional Petition No. 1 of 1997)

Constitutional Court · [1997] UGCC 4 · 1997 Petition Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition; preliminary objection by the 2nd respondent that the petition disclosed no cause of action against him.
Decision
Petition struck out as incompetent against the 2nd respondent (Attorney General).

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Holding

The court struck out the constitutional petition as against the Attorney General for disclosing no cause of action. The arrest of the petitioners had been effected by a sub-county chief, a servant of the Kumi District Administration, which under the Local Governments Act is a body corporate that may sue and be sued in its own name, and the prosecution was a private prosecution by the 1st respondent. The Attorney General could not be made liable under Article 250 for the magistrate's conduct because, under Article 128(4), a person exercising judicial power is not liable for acts or omissions done in that exercise. The petition against the Attorney General was therefore incompetent.

Facts

The 1st petitioner had been married customarily to Isaac (Okiria) Machinga in 1973, with bride price paid; they separated in 1978 and the bride price was never returned. Machinga died in 1988, and the 1st respondent was installed as his heir, who under Iteso custom was said to inherit not only the estate but the 1st petitioner as well. After Machinga's death the 1st petitioner married the 2nd petitioner. On 4 December 1996 the petitioners were arrested in Pallisa by the 1st respondent and the sub-county chief of Kidongole, and charged with elopement contrary to the Penal Code before the Magistrate Grade II at Kacumbala. They pleaded not guilty and were released on cash bail. They petitioned the Constitutional Court claiming the inheritance, arrest, detention, prosecution and confiscation of a bicycle were inconsistent with the Constitution. The Attorney General raised a preliminary objection that no cause of action lay against him.

Issues

  1. Whether the petition disclosed any cause of action against the 2nd respondent, the Attorney General.
  2. Whether the Attorney General could be held liable under Article 250 for the acts or omissions of a magistrate exercising judicial power.
  3. Whether the Attorney General was the proper respondent for arrests effected by a sub-county chief and a private prosecution by the 1st respondent.

Orders

  • Petition struck out as incompetent against the 2nd respondent for disclosing no cause of action.
  • Mr. Emoru to bear the costs of the petition personally.

Key headnotes

Civil Procedure — Cause of Action — Striking Out — No Cause of Action Against the State
A constitutional petition that joins the Attorney General without disclosing any act of the State or its servants forming a cause of action against him is incompetent and will be struck out as against him.
Constitutional Law — Judicial Immunity — Article 128(4) — Liability of the State for Judicial Acts
A person exercising judicial power is not liable to any action or suit for any act or omission done in the exercise of that judicial power, and the State cannot be made liable under Article 250 for the conduct of a magistrate exercising judicial power.
Administrative Law — Local Government — Body Corporate — Proper Defendant for Acts of its Servants
A district administration is, under the Local Governments Act, a body corporate with perpetual succession that may sue and be sued in its own corporate name, and is the proper party answerable for the acts of its sub-county chief rather than the Attorney General.
Constitutional Law — State Liability — Private Prosecution — No Responsibility of the Attorney General
Where a prosecution is conducted privately by a complainant rather than by the State, the Attorney General bears no responsibility for it and cannot be joined as a respondent on that basis.

Legislation cited (8)

  • Constitution of Uganda Article 31(1) and (3)
  • Constitution of Uganda Article 33(1), (4) and (6)
  • Constitution of Uganda Article 26(2)
  • Constitution of Uganda Article 250
  • Constitution of Uganda Article 128(4)
  • Penal Code Act s.121(A)(1)
  • Local Governments Act No. 1 of 1997 s.4(2)(a)
  • Local Governments Act No. 1 of 1997 s.7
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.