Wakilii

Jesse Gulyetonda v Henry Muganwa Kajura and Others (Election Petition 19 of 1996)

High Court · [1996] UGHC 103 · 1996 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the return of the first respondent as member of Parliament for Bugahya County, Hoima District, on grounds of illegal practices and electoral offences
Decision
Election petition struck out for want of jurisdiction due to filing in wrong registry

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court struck out the election petition for want of jurisdiction. The petition challenging the election of the first respondent as member of Parliament for Bugahya Constituency in Hoima District was filed in the Kampala High Court Registry instead of the Masindi District Registry which serves both Masindi and Hoima Districts. Rule 5(6) of the Parliamentary Elections (Election Petition) Rules 1996 mandates that where a constituency falls within a district registry area, the petition shall be presented at that registry. The court held this provision mandatory and not permissive. The petition was dismissed with costs to the respondents.

Outcome

Election petition struck out for want of jurisdiction due to filing in wrong registry

Facts

Parliamentary elections were held on 27 June 1996 for Bugahya County Constituency (Code No.06028) in Hoima District. The first respondent was declared winner with 24,806 votes (66.5%). On 26 July 1996 the petitioner filed an election petition in the High Court Registry at Kampala alleging numerous illegal practices, electoral offences, and violations by the first respondent including bribery, treating, holding illegal rallies, undue influence, and intimidation of voters. The petitioner also alleged that the second and third respondents failed to stop these malpractices and failed to display the voters' register for the statutory period. The petition was drawn and filed by Urban Tibamanya, an advocate, and accompanied by an affidavit commissioned by J.F. Kityo, also an advocate. The first respondent filed a notice of motion on 27 August 1996 seeking dismissal of the petition on grounds that it was filed in the wrong registry and that both advocates lacked valid practising certificates as at 26 July 1996.

Issues

  1. Whether the petition was competent having been filed in the High Court Registry at Kampala instead of the Masindi District Registry.
  2. Whether the petition was incompetent on account of having been drawn and filed by an advocate without a valid practising certificate.
  3. Whether the affidavit accompanying the petition was valid when commissioned by an advocate without a valid practising certificate.

Orders

  • The petition is struck off the court record for having been misfiled in the wrong Registry of the High Court.
  • The Petitioner shall meet the costs of the Respondents.

Rules and key headnotes

Election Petitions — Jurisdiction — Registry Requirements
Where a constituency falls within the area of a district registry of the High Court established under the Civil Procedure Act, an election petition must be presented at the office of that district registry and not at the Kampala High Court Registry. The requirement in Rule 5(6) of the Parliamentary Elections (Election Petition) Rules 1996 is mandatory, not permissive.
Statutory Interpretation — Mandatory versus Permissive Language
The phrase 'shall be presented at the office of that registry' in Rule 5(6) of the Parliamentary Elections (Election Petition) Rules 1996 is clear, unambiguous and mandatory. It does not admit of any other meaning and must be given its plain and natural meaning. The provision directs where a petition must be filed and allows no discretion to the petitioner.
Advocates — Practising Certificates — Effect of Non-Renewal
Under the Advocates Act, an advocate who neglects to renew his practising certificate does not cease to be an advocate nor require re-admission. His name remains on the roll but he is incapable of recovering fees for business done whilst acting without a certificate. Documents filed by an advocate without a valid practising certificate during the period of grace (before 1 March following expiry) are valid and competent, and the court will not invalidate proceedings to the detriment of parties for matters relating to advocates' practising certificates which parties cannot reasonably investigate.
Commissioners for Oaths — Advocate's Authority
An advocate's commission to administer oaths does not automatically terminate merely because the advocate does not have a valid current practising certificate. Section 2(4) of the Commissioners for Oaths (Advocates) Act provides that a commission terminates when the holder ceases to practise as an advocate, but the absence of a practising certificate alone does not constitute ceasing to practise. An affidavit commissioned by an advocate without a current practising certificate is not thereby rendered invalid.
Election Petitions — Jurisdictional Requirements — Effect of Non-Compliance
Where an election petition is filed in the wrong registry in contravention of Rule 5(6) of the Parliamentary Elections (Election Petition) Rules 1996, the High Court has no jurisdiction to try it. The provision for filing in the designated district registry is a statutory requirement which does not allow the court discretion to ignore or bend it. Failure to comply with the mandatory requirement renders the petition incompetent and it must be struck out.
Technicalities — Substantive Justice — Jurisdictional Prerequisites
While Rule 26 of the Parliamentary Elections (Election Petition) Rules provides that no proceedings upon a petition shall be defeated by formal objection or technicality, and Article 126(2)(e) of the Constitution requires courts to administer substantive justice without undue regard to technicalities, these provisions presuppose that the petition must in the first instance have been properly before the court. Compliance with mandatory jurisdictional requirements such as filing in the correct registry is not a mere technicality but a prerequisite to the court's jurisdiction.

Legislation cited (21)

  • Parliamentary Elections (Interim Provisions) Statute No.4/96 s.13
  • Parliamentary Elections (Interim Provisions) Statute s.4
  • Parliamentary Elections (Interim Provisions) Statute s.12
  • Parliamentary Elections (Interim Provisions) Statute s.121(1)
  • Parliamentary Elections (Interim Provisions) Statute s.121(2)
  • Parliamentary Elections (Election Petition) Rules 1996 r.4(8)
  • Parliamentary Elections (Election Petition) Rules r.5(6)
  • Parliamentary Elections (Election Petition) Rules r.10(1)
  • Parliamentary Elections (Election Petition) Rules r.10(2)
  • Parliamentary Elections (Election Petition) Rules r.12(3)
  • Parliamentary Elections (Election Petition) Rules r.26
  • Advocates Act 1970 s.14(1)
  • Advocates Act (Amendment) Decree 1976 s.10(2)
  • Advocates Act No.22/70 s.13(1)
  • Commissioners for Oaths (Advocates) Act Cap.53 s.2(4)
  • Civil Procedure Act
  • Civil Procedure Rules O.44 r.1
  • Constitution of Uganda 1995 Art.126(2)(e)
  • Statutory Instrument No.14/76
  • Statutory Instrument No.20/76
  • Statutory Instrument No.27/96

Cases cited (14)

  • Kaggwa Mpanga v Zimula Mugwanya and Others (Election Petition No. 13 of 1996)
  • Patrick Rwekiri P.A vs. Kamya Vole [1972] ULR 168
  • Premchand Raichand Ltd vs. Quarry Services [1969] E.A 514 at 516
  • Pallinda vs. Kangwahu [1963] 557
  • Alfred Olwora v UCTU (Court of Appeal No. 25 of 1992)
  • E.T. Kiyimba-Kaggwa v Rasool Adam Khan (Misc. Civil Application No. 223 of 1996)
  • Sparling vs Brereton V.C.W. [1866] p.64 at 67
  • Holdgate vs Slight 21 LJ (QB) 74
  • Ramaya Elapa vs Muhammad Bhai 10 B.H.C.R. 495
  • Kabagenyi vs Musiraho & Another [1968] E.A 43 (45)
  • Bwokino Wasugirya v The Returning Officer and Others (Election Petition No. 20 of 1996)
  • Opoya vs Uganda [1967] EA 752 at 754
  • Piro Santos Eruaga v Steven Besweri Akabway and Others (Election Petition No. 1 of 1996)
  • Khera Stella Nkirabakinzi v Ntagoba Jenniner and Another (Election Petition No. 16 of 1996)

Full judgment

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

Jesse Gulyetonda v Henry Muganwa Kajura and Others (Election Petition 19 of 1996) [1996] UGHC 103 (24 September 1996)
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