Wakilii

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

High Court · [1996] UGHC 65 · 1996 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging Parliamentary election results for Bugahya County, Hoima District, struck out on preliminary objection for procedural non-compliance
Decision
Petition dismissed for non-compliance with mandatory filing requirements

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that Rule 5(6) of the Parliamentary Elections (Election Petition) Rules 1996 is mandatory and requires election petitions for constituencies within the area of a district registry to be filed at that district registry. The petition for Bugahya County, Hoima District, which lies within the Masindi District Registry, was incompetent having been filed at the Kampala Registry. The court also held that an advocate drawing and filing a petition without a valid practising certificate commits an offence but does not render the petition incompetent, and that an advocate commissioning an affidavit without a valid practising certificate does not invalidate the affidavit.

Outcome

Petition dismissed for non-compliance with mandatory filing requirements

Facts

Jesse Gulyetonda and Henry Muganwa Kajura were candidates for the Parliamentary seat of Bugahya County in Hoima District in the 27 June 1996 elections. The first respondent was declared winner with 24,806 votes representing 66.5% of votes cast. On 26 July 1996, the petitioner filed an election petition at the High Court Registry in Kampala alleging various malpractices and electoral offences. The petition was drawn and filed by Urban Tibamanya and accompanied by an affidavit commissioned by J.F. Kityo on 26 July 1996. On 27 August 1996, the first respondent filed a notice of motion seeking dismissal of the petition on grounds including that it was filed in the wrong registry and that both the advocate who filed it and the advocate who commissioned the affidavit did not have valid practising certificates as at 26 July 1996.

Issues

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

Orders

  • Petition struck off the court record for having been misfiled in the wrong Registry office of the High Court.
  • The Petitioner to meet the costs of the Respondent.

Rules and key headnotes

Election Petitions — Filing Requirements — Registry Venue
Rule 5(6) of the Parliamentary Elections (Election Petition) Rules 1996 is mandatory and requires election petitions for constituencies within the area of a High Court district registry to be presented at the office of that district registry, not at the central registry in Kampala or any other registry. Failure to comply with this requirement renders the petition incompetent.
Statutory Interpretation — Mandatory vs Permissive Language
Where statutory language uses the phrase 'shall be presented at' rather than 'may be presented at', the provision is mandatory and must be given its plain and natural meaning without going behind it to search for extraneous meanings. The use of mandatory language in procedural rules governing election petitions reflects legislative intent to direct the venue of filing, not merely to suggest convenience.
Advocates — Practising Certificates — Effect on Documents Filed
An advocate who draws and files documents while not in possession of a valid practising certificate commits an offence under section 14(1) of the Advocates Act 1970, but the documents so filed remain valid and competent. The advocate's name remains on the roll and he continues to be an advocate; the consequence is that he loses the right to recover fees for work done during the period without a certificate, not that the work is invalid.
Affidavits — Commissioners for Oaths — Practising Certificates
The power of an advocate to commission affidavits under section 2(4) of the Commissioners for Oaths (Advocates) Act terminates only when the advocate ceases to practise, not merely when his practising certificate expires. An advocate whose name remains on the roll but who does not have a current practising certificate has not ceased to practise for purposes of commissioning affidavits. An affidavit commissioned by such an advocate is therefore valid.
Election Petitions — Substantive Justice vs Technicalities — Application of Article 126(2)(e)
Rule 26 of the Parliamentary Elections (Election Petition) Rules 1996, which echoes Article 126(2)(e) of the Constitution, directs that no proceedings upon a petition shall be defeated by any formal objection. However, this provision presupposes that the petition must in the first instance have been properly before the court. Where mandatory jurisdictional requirements such as filing in the correct registry are not met, the petition is not properly before the court and the substantive justice principle cannot cure the defect.

Legislation cited (19)

  • Parliamentary Elections (Interim Provisions) Statute No. 4/96 s.13
  • Parliamentary Elections (Interim Provisions) Statute No. 4/96 s.4
  • Parliamentary Elections (Interim Provisions) Statute No. 4/96 s.12
  • Parliamentary Elections (Interim Provisions) Statute No. 4/96 s.121
  • Parliamentary Elections (Election Petition) Rules 1996 r.4(8)
  • Parliamentary Elections (Election Petition) Rules 1996 r.5(6)
  • Parliamentary Elections (Election Petition) Rules 1996 r.10(1)
  • Parliamentary Elections (Election Petition) Rules 1996 r.10(2)
  • Parliamentary Elections (Election Petition) Rules 1996 r.12(3)
  • Parliamentary Elections (Election Petition) Rules 1996 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. 27/96

Cases cited (15)

  • Kaggwa Mpanga v Zimula Mugwanya and Others (Election Petition No. 13 of 1996)
  • Patrick Rwekiri v Kamya Vole [1972] ULR 168
  • Premchand Raichand Ltd v Quarry Services [1969] EA 514
  • PALINDA VS. KANGWAHU [1963] 557
  • Alfred Olwora v UCTU (Civil Appeal No. 25 of 1992)
  • E.T. Kiyimba-Kaggwa v Rasool Adam Khan (Miscellaneous Civil Application No. 223 of 1996)
  • Sparling v Brereton [1866] V.C.W. 64
  • Holdgate v Slight (1851) 21 LJ (QB) 74
  • Ramaya Elapa v Muhammad Bhai 10 B.H.C.R. 495
  • Kabageyi v Musiraho [1968] EA 43
  • Bwokino Wasugirya v The Returning Officer and Others (Election Petition No. 20 of 1996)
  • Opoya v Uganda [1967] EA 752
  • 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)
  • Ledgard v Bull [1886]

Full judgment

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Jesse Gulyetonda v Muganwa Kajura and Others (Election Petition 19 of 1996) [1996] UGHC 65 (14 September 1996)
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