Wakilii

Ariko v Omara and Another (Election Petition No. 7 of 2021)

High Court · [2021] UGHCEP 42 · 2021 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the election of the 1st Respondent as District Chairperson of Abim on grounds of improper nomination; preliminary objection raised regarding competence of the petition
Decision
Petition dismissed on preliminary objection for being brought under the wrong law

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed an election petition challenging the election of a District Chairperson on the ground that the petition was brought under the wrong law. The petitioner relied on Section 4(4)(a) of the Parliamentary Elections Act, which applies only to parliamentary elections and requires resignation 90 days before nomination. The court held that Section 116(5) of the Local Governments Act, which requires resignation 30 days before nomination, is the applicable provision for local council elections including District Chairperson. The defect was incurable because the two provisions create distinct causes of action with different resignation periods.

Outcome

Petition dismissed on preliminary objection for being brought under the wrong law

Facts

The petitioner and the 1st Respondent were the only nominees for the post of District Chairperson of Abim. Elections held on 20 January 2021 returned the 1st Respondent as winner. The petitioner challenged the election on the ground that the 1st Respondent, a serving Captain in the Uganda Peoples Defense Forces at the time of nomination on 28 September 2020, had not resigned at least 90 days before nomination day as allegedly required by law. The petitioner brought the petition under Section 4(4)(a) of the Parliamentary Elections Act. At the scheduling conference on 23 August 2021, the 2nd Respondent raised a preliminary objection that the petition was incompetent because it was brought under the wrong law, arguing that Section 116(5) of the Local Governments Act, not the Parliamentary Elections Act, applies to local council elections.

Issues

  1. Whether the petition was brought under the right law?
  2. Whether the defect in the pleadings is curable?
  3. Whether the law regarding resignation by public officers intending to run for political office applies to the 1st Respondent, an officer of the UPDF?

Orders

  • Preliminary objection upheld.
  • Petition dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Electoral Law — Local Government Elections — Applicable Legislation — Distinction Between Parliamentary Elections Act and Local Governments Act
Section 4(4)(a) of the Parliamentary Elections Act, which requires public officers to resign at least 90 days before nomination day, applies only to elections for Member of Parliament and does not apply to local council elections including the election of District Chairpersons.
Electoral Law — Local Government Elections — Resignation of Public Officers — Section 116(5) Local Governments Act
Section 116(5) of the Local Governments Act, which requires public officers wishing to stand for election to a local council office to resign at least 30 days before nomination day, applies to the election of District Chairpersons because the office of District Chairperson is a local council office within the meaning of the Act.
Statutory Interpretation — Local Governments Act Section 172 — Application of Parliamentary Elections Act to Fill Lacunae
Section 172 of the Local Governments Act empowers only the Electoral Commission, not litigants or courts, to apply the Presidential Elections Act or Parliamentary Elections Act to local council elections where there is a lacuna in the Local Governments Act, and only with such modifications as the Electoral Commission deems necessary.
Electoral Law — Election Petitions — Pleadings — Citing Wrong Law — Curable Defect
An election petition brought under the wrong statutory provision is incurably defective where the correct provision creates a distinct cause of action with materially different requirements, such that amendment would substantially alter the character of the petition; Article 126(2)(e) of the Constitution cannot be invoked to remedy such a fundamental error.
Administrative Law — Preliminary Objections — Points of Law — Determination Without Evidence
A preliminary objection raising a pure point of law arising from the pleadings is to be entertained by the court on the assumption that all facts pleaded by the adverse party are correct, and can be determined without evidence where the issues raised are capable of disposing of the matter.

Legislation cited (15)

Cases cited (14)

  • Bandikubi Boniface Musisi and Others v Sserwanga William Tom and Another (Election Petition Appeal No. 110 of 2016)
  • Darlington Sakwa and Another v Electoral Commission and Others (Constitutional Petition No. 8 of 2006)
  • Lunyolo Josephine v Lunyolo Juliet Catherine and Another (High Court Civil Appeal No. 35 of 2012)
  • Attorney General v Maj General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Mukisa Biscuit Manufacturing Company v West End Distributors Ltd [1969] EA 696
  • James Katabazi and 21 Others v Secretary General of the East African Community and Another (Reference No. 1 of 2007)
  • Ndaula Ronald v Hajji Nadduli Abdul (Election Petition No. 20 of 2006)
  • Simon Peter Kinyera v The Electoral Commission and Another (Election Petition Appeal No. 3 of 2018)
  • Gold Beverages U Ltd v Muhangura and Another (Civil Division Misc. Application No. 674 of 2019)
  • Ocen Peter and Another v Ebil Fred (Election Appeal No. 83 of 2016)
  • UTEX Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
  • All Sisters Co Ltd v Guangzhou Tiger Head Battery (High Court Misc. Application No. 307 of 2011)
  • Ikiror v Orot (Election Petition No. 8 of 2016)
  • Kizza Besigye v Museveni Yoweri Kaguta (Supreme Court Presidential Election Petition No. 1 of 2001)

Full judgment

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

Ariko v Omara and Another (Election Petition No. 7 of 2021) [2021] UGHCEP 42 (26 August 2021)
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.