Ariko v Omara and Another (Election Petition Appeal No. 41 of 2022)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal held that the trial judge erred in dismissing an election petition as incurably defective merely because counsel cited section 4(4)(a) of the Parliamentary Elections Act instead of section 116(5) of the Local Governments Act. The petition had also been brought under sections 138 and 139 of the Local Governments Act and section 16 of the PPOA, which correctly grounded the cause of action. A cause of action is founded on pleaded facts, not the statutory provision cited. Where illegality is alleged, the court must examine the facts and may cure a wrong citation under Article 126(2)(e). The appeal succeeded and the petition was remitted to the High Court for hearing on its merits.

Outcome

Appeal allowed; petition remitted to the High Court for hearing on its merits before a different judge

Facts

The appellant and the first respondent contested the position of District Chairperson for Abim in the election held on 20th January 2021. The Electoral Commission returned the first respondent as winner with 14,417 votes against the appellant's 4,809. The appellant petitioned the High Court at Soroti challenging the result on the ground that the first respondent, a serving UPDF officer at the rank of Captain who had not resigned his position, was not qualified for nomination. The petition cited numerous provisions including section 4(4)(a) of the Parliamentary Elections Act, sections 138, 139 and 172 of the Local Governments Act, and section 16 of the Political Parties and Organisations Act. The first respondent raised a preliminary objection that the petition was brought under the wrong provision, section 4(4)(a) of the Parliamentary Elections Act, which applied only to Members of Parliament. The trial judge upheld the objection, found the applicable provision was section 116(5) of the Local Governments Act, held the petition incurably defective, and dismissed it with costs. The appellant appealed.

Issues

1. Whether the appeal was filed out of time under the applicable rules for local government election petition appeals.
2. Whether grounds 3 and 5 of the appeal offended rule 86(1) of the Court of Appeal Rules by raising matters not decided by the trial court.
3. Whether the trial judge erred in striking out the petition on the ground that it was filed under the wrong law.
4. Whether the petition was incurably defective or curable under Article 126(2)(e) of the Constitution.
5. Whether the trial judge misinterpreted section 172 of the Local Governments Act.

Orders

• The order of the trial judge dismissing the petition with costs is set aside.
• Election Petition No. 007 of 2021 shall be returned to the High Court for hearing on its merits before a different judge.
• The costs of the appeal shall be borne by the respondents.

Rules and key headnotes

Legislation cited (23)

• Constitution of Uganda Article 126(2)(e)
• Constitution of Uganda Article 183(2)(a)
• Constitution of Uganda Article 180(2)
• Constitution of Uganda Article 80
• Constitution of Uganda Article 61
• Constitution of Uganda Article 62
• Local Governments Act s.116(5)
• Local Governments Act s.116(1)(a)
• Local Governments Act s.138
• Local Governments Act s.139
• Local Governments Act s.145
• Local Governments Act s.172
• Local Governments Act s.111
• Parliamentary Elections Act 2005 s.4(4)(a)
• Political Parties and Organisations Act 2005 s.16
• Electoral Commission Act s.15
• Judicature (Court of Appeal Rules) Directions SI 13-10 rule 30(1)
• Judicature (Court of Appeal Rules) Directions rule 86(1)
• Judicature (Court of Appeal Rules) Directions rule 83(1)
• Judicature (Court of Appeal Rules) Directions rule 76(2)
• Judicature (Court of Appeal Rules) Directions rule 78(1)
• Parliamentary Elections (Election Petitions) Rules rule 29
• Parliamentary Elections (Election Petitions) Rules rule 30(b)

Cases cited (21)

• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
• Ikiror Kevin v Orot Ismael (Election Petition Appeal No. 108 of 2016)
• Kasibante Moses v Electoral Commission (Election Petition Application No. 7 of 2012)
• Makatu Augustus v Masswa David and Another (Election Petition Appeal No. 73 of 2016)
• Kobwa Herbert v Sebugwawo Tadeo (Election Petition Appeal No. 108 of 2016)
• Attorney General v Florence Baliraine (Civil Appeal No. 79 of 2003)
• Katumba Byaruhanga v Daniel Kiwalabye Musoke (Civil Appeal No. 2 of 1998)
• Sukuton Titi v Augustine Kaplwonyongo and 2 Others (Civil Appeal No. 117 of 2012)
• Darlington Sakura and Another v Electoral Commission and Others (Constitutional Petition No. 8 of 2006)
• Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
• Bandikubi Boniface Musisi and 3 Others v William Tom Serwanga and Electoral Commission (Election Petition Appeal No. 110 of 2016)
• Ncon International v New Vision Printing & Publishing Co. Ltd and Another (Civil Application No. 4 of 2010)
• J. Kumaradasan Nair & Another v. Iric Sohan & Others, (2009) AIR(SCW) 1921
• Boyes v. Gathure [1969] EA 385
• Nanibhai Prabhudas & Co. Ltd. v. The Standard Bank Ltd [1958] EA 670
• Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
• Shabir Din v. Ram Prakash Anand (1955) Vol. 12, 48
• Major General David Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
• Makula International Ltd v His Eminence Cardinal Nsubuga (Civil Appeal No. 4 of 1998)
• Phillips v. Copping (1935) 1 KB 15 CA, at 21
• Sitenda Sebalu v Sam K. Njuba and Another (Election Petition Appeal No. 26 of 2007)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Timbigamba Simon and Others v Ker Kwaro Palabek and Others (Civil Misc. Application No. 150 of 2021)

The original judgment as reported. Read the original PDF before relying on any passage.