Wakilii

Baku Raphael Obudra and Obiga Kania v The Attorney General [2003] UGSC 3

Supreme Court · 2003 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional appeal from the Constitutional Court's striking out of constitutional petitions for non-disclosure of a cause of action
Decision
Appeal allowed; constitutional petitions remitted to the Constitutional Court for determination on the merits.

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Cited — treatment unverified cited in 4 (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 Supreme Court, by majority, held that the petitions disclosed a cause of action: by alleging that section 67(3) of the Parliamentary Elections Act was inconsistent with Article 140 and barred their right of appeal, and praying for a declaration, the petitioners satisfied the test for a constitutional cause of action under Article 137(3). The Constitutional Court erred in striking out the petitions and in prematurely determining whether a right of appeal to the Supreme Court existed before trial. Appeal allowed and the petitions remitted for hearing on the merits. Tsekooko JSC dissented, holding that Article 86 conclusively limited election appeals to the Court of Appeal, so no enforceable right was violated and no cause of action arose.

Facts

The appellants contested parliamentary elections held in June 2001 and each lost in his constituency. Their election petitions were dismissed by the High Court at Gulu, and the Court of Appeal dismissed their subsequent appeals with costs. Wishing to appeal further to the Supreme Court, they were advised that section 67(3) of the Parliamentary Elections Act 2001 makes the decision of the Court of Appeal final. They filed constitutional petitions (Nos. 4 and 6 of 2002) in the Constitutional Court contending that section 67(3) was inconsistent with Article 140 of the Constitution and infringed their right of appeal to the Supreme Court, and praying for declarations to that effect. The original respondents raised preliminary objections, and the Constitutional Court struck out the petitions for failing to disclose a cause of action. The appellants appealed to the Supreme Court. The Attorney General, named as respondent on appeal, successfully applied to be struck out as he had not been a party below, so the appeal proceeded without a respondent.

Issues

  1. Whether the appellants' constitutional petition disclosed a cause of action under Article 137(3) of the Constitution.
  2. Whether the Constitutional Court erred in determining the substantive question of the right of appeal to the Supreme Court before that issue had been tried.
  3. Whether the Constitutional Court failed to address Article 140 of the Constitution.

Orders

  • Appeal allowed.
  • Constitutional Petitions Nos. 4 and 6 of 2002 remitted to the Constitutional Court for determination on the merits.
  • No order as to costs of the appeal.
  • Attorney General awarded the costs occasioned by his notice of motion to be struck out as respondent.

Key headnotes

Constitutional Law — Constitutional Petitions — Cause of Action under Article 137(3)
A constitutional petition under Article 137(3) sufficiently discloses a cause of action where it describes the act or omission complained of, identifies the provision of the Constitution with which the act or omission is alleged to be inconsistent or which it is alleged to contravene, and prays for a declaration to that effect.
Constitutional Law — Statute Inconsistent with Constitution — Question Requiring Interpretation
Where an Act of Parliament appears to conflict with a provision of the Constitution, a question requiring constitutional interpretation arises and the petition falls within Article 137(3)(a); it is for the Constitutional Court to decide on the merits whether the impugned provision is in fact inconsistent.
Civil Procedure — Preliminary Objections — Striking Out for No Cause of Action
On an objection that a pleading discloses no cause of action under Order 7 rule 11, the court decides only the fate of the impugned pleading and must not determine the merits of the case, save where it is satisfied that the cause of action disclosed is clearly not maintainable in law.
Civil Procedure — Preliminary Objections — Premature Determination of Substantive Issues
A court hearing a preliminary objection on cause of action errs where it determines a substantive issue, such as whether a right of appeal exists, before that issue has been tried; such a conclusion is premature and must be reserved for determination after due trial.
Constitutional Law — Interpretation — Liberal Construction of Petitions
A more liberal and broader interpretation should be given to a constitutional petition than to an ordinary plaint when determining whether a cause of action has been disclosed.

Legislation cited (17)

  • Parliamentary Elections Act 2001 s.67(3)
  • Constitution of Uganda 1995 Article 137(3)
  • Constitution of Uganda 1995 Article 140
  • Constitution of Uganda 1995 Article 86
  • Constitution of Uganda 1995 Article 132
  • Constitution of Uganda 1995 Article 50(1)
  • Constitution of Uganda 1995 Article 2(2)
  • Constitution of Uganda 1995 Article 139
  • Constitution of Uganda 1995 Article 134(2)
  • Civil Procedure Rules O.7 r.11
  • Civil Procedure Rules O.7 r.1
  • Civil Procedure Rules O.6 r.29
  • Civil Procedure Rules O.6 rr.27 and 28
  • Civil Procedure Rules O.13 r.2
  • Rules of the Supreme Court r.41
  • Rules of the Supreme Court r.77
  • Parliamentary Elections (Interim Provisions) Statute 1996 (Statute 4 of 1996) s.96

Cases cited (3)

  • Ismail Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
  • Attorney General v Major General Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Nurdin Ali Dewji v G.M.M. Meghji (1953) 20 EACA 132
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.