Wakilii

Serapio Rukundo v Attorney General (Constitutional Case No. 3 of 1997)

Constitutional Court · [1997] UGCC 6 · 1997 Petition Struck Out (Preliminary Objections Upheld) ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) determined on the respondent's preliminary objections
Decision
Petition struck out as misconceived and incompetent, with costs to the respondent

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Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The petitioner challenged a Court of Appeal election-petition decision (Bakunda's case) as inconsistent with Article 126(2)(e). The Constitutional Court upheld all three preliminary objections and struck out the petition. It held the petition time-barred, having been lodged about four and a half months after the impugned judgment, far beyond the 30-day limit in rule 4(1). The Attorney General was wrongly joined: under section 4(5) of the Government Proceedings Act and Article 128(4), no action lies against Government for judicial acts. The petition disclosed no cause of action because a final court decision cannot be challenged under Article 137 — the Constitutional Court being no appellate court — so the remedy lies with Parliament amending the relevant law.

Facts

The petitioner, Serapio Rukundo, was the unsuccessful parliamentary candidate for Kabale Municipality in the June 1996 elections, losing to Dr. Ruhakana Rugunda. He filed Election Petition No. MKA 3 of 1996 in the High Court at Kabale challenging that election. A preliminary objection that the petition's affidavit was defective, having been drawn by an advocate without a valid practising certificate, was overruled on 18 November 1996. Two days later, on 20 November 1996, the Court of Appeal in Civil Appeal No. 27 of 1996 (Bakunda's case) held that an affidavit commissioned by an advocate without a valid practising certificate is invalid — directly contradicting the High Court ruling in the petitioner's election petition. Fearing his pending election petition would be dismissed in light of Bakunda's case, the petitioner lodged this constitutional petition on 1 April 1997 under Article 137(3), seeking a declaration that the Court of Appeal's decision was inconsistent with Article 126(2)(e) of the Constitution and appropriate redress. The respondent answered denying any inconsistency and, at the hearing, raised preliminary objections on limitation, joinder of the Attorney General, and absence of a cause of action.

Issues

  1. Whether the constitutional petition was time-barred under rule 4(1) of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992, Directions 1996.
  2. Whether the Attorney General was the proper party to a petition complaining of a decision made by judges in the exercise of their judicial function.
  3. Whether the petition disclosed a cause of action, in particular whether a decision of the Court of Appeal can be challenged under Article 137 of the Constitution.
  4. Whether the petitioner had locus standi to bring the petition under Article 137(3) of the Constitution.

Orders

  • Preliminary objection that the petition is time-barred upheld.
  • Preliminary objection that the Attorney General is not the right party upheld.
  • Preliminary objection that the petition discloses no cause of action upheld.
  • Petition struck out with costs to the respondent.

Key headnotes

Constitutional Law — Constitutional Petitions — Time Limit for Lodging
A constitutional petition must be lodged within thirty days after the date of the breach of the Constitution complained of, as required by rule 4(1) of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992, Directions 1996; there is no rule that constitutional matters are subject to no time limit.
Constitutional Law — Article 137 — Challenge to a Final Court Decision
A decision of a court reached in the exercise of its interpretive jurisdiction can only be challenged by way of appeal; where no appeal lies, such a decision cannot be challenged under Article 137 of the Constitution because the Constitutional Court is not an appellate court, and the remedy lies with Parliament to amend the relevant law.
Constitutional Law — Locus Standi — Article 137(3)
Under Article 137(3) of the Constitution a person who alleges that any act or omission is inconsistent with or in contravention of the Constitution may petition the Constitutional Court without having to show any personal interest in the matter.
Government Liability — Attorney General — Acts of a Judicial Nature
By virtue of section 4(5) of the Government Proceedings Act and Article 128(4) of the Constitution, no proceedings lie against the Government in respect of anything done by any person in the discharge or purported discharge of a judicial function; the Attorney General is therefore not a proper party to a petition complaining of a court's decision.
Constitutional Procedure — Reference of Constitutional Question Arising in a Pending Suit
Where an issue of constitutional interpretation arises in a pending suit, a party should not stop the proceedings to file a separate constitutional petition; the trial court should proceed, record sufficient evidence, frame the issue and refer it to the Constitutional Court if the question is sufficiently important.
Civil Procedure — Preliminary Objections — Points of Law Decisive of Litigation
Where a point of law, if decided one way, would be decisive of the litigation, the court should dispose of it at the outset rather than incur the costs of a full trial; preliminary objections going to limitation, propriety of parties and cause of action cannot be brushed aside.

Legislation cited (12)

  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995 art.126(2)(e)
  • Constitution of Uganda 1995 art.119(4)(c)
  • Constitution of Uganda 1995 art.128(4)
  • Government Proceedings Act (Cap. 69) s.4(5)
  • Parliamentary Elections (Interim Provisions) Statute No. 4 of 1996 s.96(3)
  • Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 r.3(3)
  • Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 Directions 1996 (Legal Notice No. 4 of 1996) r.4(1)
  • Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 Directions 1996 (Legal Notice No. 4 of 1996) r.5(2)
  • Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 Directions 1996 (Legal Notice No. 4 of 1996) r.18
  • Commissioner for Oaths (Advocates) Act (Cap. 53) s.2
  • Advocates Act 22 of 1970 s.14

Cases cited (10)

  • Bakunda Darlington v Dr. Kinyatta Stanley and Anor (Civil Appeal No. 27 of 1996)
  • Attorney General v Oluoch (1972) EA 392
  • Jeraj Shariff & Co v Chotai Fancy Store (1960) EA 394
  • IRC v National Federation of Self-Employed and Small Businesses Ltd (1981) 2 All ER 93
  • R v Greater London Council, Ex parte Blackburn (1976) 3 All ER 184
  • Kabogere Coffee Factory v Haji Twahibu Kigongo (Civil Application No. 10 of 1993)
  • Attorney General v Milton Obote Foundation and Another (Civil Appeal No. 7 of 1992)
  • John Arutu v Attorney General (Constitutional Petition No. 4 of 1997)
  • Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Everett v Ribband and Another (1952) 2 QB 198
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.