Wakilii

Gulyetonda v Muganwa Kajura and 2 Others (Election Petition 19 of 96)

High Court · [1996] UGHC 51 · 1996 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the validity of parliamentary elections in Bugahya County, Hoima District
Decision
Petition dismissed for procedural non-compliance with mandatory filing requirements

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that Rule 5(6) of the Parliamentary Elections (Election Petitions) Rules 1996 is mandatory and requires an election petition to be filed at the High Court District Registry established for the constituency area where the election took place. Where Bugahya County in Hoima District fell within the Masindi District Registry area, the petition should have been filed at Masindi, not Kampala. Held further that while an advocate practising without a valid certificate commits a professional offence, documents drawn and filed by such advocate remain valid and competent provided the advocate was duly instructed and remains on the Roll. Petition struck off for misfiling in the wrong registry.

Outcome

Petition dismissed for procedural non-compliance with mandatory filing requirements

Facts

The petitioner and first respondent were candidates in parliamentary elections for Bugahya County, Hoima District, held on 27 June 1996. The first respondent was declared winner with 24,806 votes (65.5% of votes cast). The petitioner filed an election petition on 26 July 1996 at the High Court Registry in Kampala, alleging numerous illegal practices, electoral offences, and violations. The first respondent applied to dismiss the petition on grounds that it was filed in the wrong registry (should have been filed at Masindi District Registry which served both Masindi and Hoima Districts) and that the petition was drawn by an advocate without a valid practising certificate. At the hearing on 10 September 1996, the petitioner and his counsel did not appear despite service. The Chief Registrar confirmed that the advocate who drew the petition (Tibamanya Urban) last held a valid practising certificate on 28 May 1993 which expired on 31 December 1993, and that the advocate who commissioned the supporting affidavit (J.E. Kityo) last held a valid certificate on 1 July 1991 which expired on 31 December 1991.

Issues

  1. Whether an election petition must be filed at the High Court District Registry established for the constituency area rather than at the High Court Registry in Kampala.
  2. Whether a petition is incompetent where it is drawn and filed by an advocate who does not hold a valid practising certificate at the time of filing.
  3. Whether a petition is invalidated where the accompanying affidavit is commissioned by an advocate without a valid practising certificate.

Orders

  • Election petition struck off the court record for having been misfiled in the wrong registry of the High Court in contravention of mandatory provisions of Rule 5(6).
  • Petitioner to meet the costs of the Respondent.

Rules and key headnotes

Electoral Law — Election Petitions — Filing Requirements — Venue
Rule 5(6) of the Parliamentary Elections (Election Petitions) Rules 1996 is mandatory and requires a petitioner whose constituency falls within the area of a High Court District Registry established under the Civil Procedure Act to present the petition at the office of that District Registry and nowhere else. The provision is clear, straightforward, and unambiguous, allowing no discretion to file elsewhere.
Electoral Law — Election Petitions — Consequences of Misfiling
Where an election petition is filed in the wrong registry in contravention of the mandatory provisions of Rule 5(6), the petition is incompetent and must be struck off. Misfiling is fatal to the petition. The court has no jurisdiction to try a petition that has not been properly filed in the correct registry.
Civil Procedure — Practising Certificates — Effect of Absence on Documents Filed
An advocate who practises without a valid practising certificate commits an offence under section 14(1) of the Advocates Act 1970, but as long as the advocate is duly instructed by the client in accordance with the Civil Procedure Rules and remains on the Roll, documents signed and filed by that advocate during the period of grace or even after are valid and competent. The provisions of the Advocates Act are directed toward the profession and do not seek to punish parties for matters they cannot reasonably investigate.
Civil Procedure — Affidavits — Commissioning by Advocate Without Practising Certificate
An advocate who does not hold a valid practising certificate at the time of commissioning an affidavit does not automatically cease to be capable of commissioning affidavits. The power to commission affidavits terminates only when the advocate ceases to practise or is struck off the Roll, not merely because the practising certificate has not been renewed. An affidavit commissioned by an advocate without a current practising certificate is not thereby rendered invalid.
Electoral Law — Election Petitions — Legislative Intent Behind Filing Venue Rules
The mandatory requirement that election petitions be filed at the District Registry nearest to the constituency is intended to make proceedings easily accessible to the electorate, enabling them to attend the trial unhindered by inability to meet travel expenses or distance, and to facilitate attendance by witnesses and all interested persons with minimum inhibition.
Statutory Interpretation — Mandatory vs Permissive Language — 'Shall' vs 'May'
Where an enabling provision uses the word 'may' to allow the exercise of power or authority, that power or authority must be exercised in the manner contemplated by the statute, regulation, or rule. The words 'shall be presented at the office of that registry' in Rule 5(6) import mandation and must be given their ordinary natural meaning without searching for extraneous meanings.
Civil Procedure — Substantive Justice — Rule 26 and Formal Objections
Rule 26 of the Election Petition Rules 1996, which provides that no proceedings upon a petition shall be defeated by any formal objection, presupposes that the petition must in the first instance have been properly before court. The rule enjoins the court to ensure that a petition validly before it is not defeated by formal objections, but it does not cure fundamental defects such as filing in the wrong registry. Substantive justice should not suffer by court paying undue regard to technicalities, but only after the petition has been properly instituted.

Legislation cited (18)

  • Parliamentary Elections (Interim Provisions) Act No. 4/95 s.13
  • Parliamentary Elections (Interim Provisions) Act s.4
  • Parliamentary Elections (Interim Provisions) Act s.12
  • Advocates Act 1970 s.14(1)
  • Advocates (Amendment) Decree 1975 s.2
  • Commissioners for Oaths (Advocates) Act s.2(4)
  • Advocates Act No.22/70 s.13(1)
  • Statutory Instrument No.14/76
  • Civil Procedure Act
  • Civil Procedure Rules O.3 r.1
  • Civil Procedure Rules O.44 r.1
  • Parliamentary Elections (Election Petitions) Rules 1996 r.5(6)
  • Parliamentary Elections (Election Petitions) Rules 1996 r.4(8)
  • Parliamentary Elections (Election Petitions) Rules 1996 r.10(1)
  • Parliamentary Elections (Election Petitions) Rules 1996 r.10(2)
  • Parliamentary Elections (Election Petitions) Rules 1996 r.13(3)
  • Parliamentary Elections (Election Petitions) Rules 1996 r.26
  • Constitution 1995 s.126(2)(e)

Cases cited (16)

  • Kaggwa Mpanoa v Ziiula Muchanya and Others (Election Petition No. 13 of 1996)
  • Alfred Oliora v UCTU (Civil Appeal No. 25 of 1992)
  • Kiyemba-Kagwa v Masood Adatil Khan (Miscellaneous Civil Application No. 223 of 1996)
  • Lipparli vs Brieton V.C.R [1866] p.64 at 67
  • Holdgate vs Slight 21 L.J (O.B) 14
  • Patrick Kibirige v Kam Vole [1972] ULR 166
  • Prem Chand Rai Hand Ltd v Quarry Services [1969] EA 514
  • Balinda v Kangwamu [1963] EA 157
  • Emokino Nasugirya v The Returning Officer and 2 Others (Election Petition No. 20 of 1996)
  • Ramaya Elapa vs Muhammad Bhai 10 B.H.C.R 495
  • Kagenyi v Musirano and Another [1968] EA 43
  • Ledgard vs Bull [1886] 11 App. Case No.648
  • J.W. Ongom Jennefer Musisi vs Epiphanus Besigeri Akabway & 2 Others
  • De Santos Iruaga v Epiphanus Besigeri Akabway & 2 Others
  • P.J. Sehmi v Central Provisions Stores [1957] EA 579
  • Opo v Uganda [1967] EA 152

Full judgment

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Gulyetonda v Muganwa Kajura and 2 Others (Election Petition 19 of 96) [1996] UGHC 51 (24 September 1996)
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