Wakilii

Kiwanuka Nsereko v Returning Officer and Another (Misc. Appl. No. 29 of 1994 (Mengo); Revision Order No. 3 of 1994)

High Court · [1994] UGHC 140 · 1994 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Revisional application arising from an election petition filed in the Chief Magistrate's Court challenging the Constituent Assembly election results for Makindye West Constituency
Decision
Petition struck out as having been filed out of time

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that 'polling day' in Rule 28(1) of the Constituent Assembly Statute means the day voting took place, not the day results were announced. The court further held that both court fees under Rule 3(4) and security for costs under Rule 6(1) must be paid at the time the petition is filed, as these requirements are mandatory. A petition filed without the requisite fees is not properly before court until full payment is made, and if payment falls outside the 30-day limitation period, the petition is time-barred. The Chief Magistrate exceeded his jurisdiction by hearing a petition filed out of time.

Outcome

Petition struck out as having been filed out of time

Facts

The petitioner challenged the results of the Constituent Assembly Election for Makindye West Constituency held on 28th March 1994, in which the 2nd respondent was declared winner. Results were announced on 29th March 1994. The petitioner filed an election petition in the Chief Magistrate's Court on 27th April 1994, paying only shs. 1,800 as court fees. On 4th May 1994, the petitioner paid an additional shs. 150,000. The Chief Magistrate ruled that 'polling day' meant the day results were announced and that fees could be paid in instalments. The 2nd respondent raised preliminary objections on these grounds. The Inspector of Courts brought the matter before the High Court for exercise of its supervisory powers under section 11 of the Judicature Act.

Issues

  1. Whether the Chief Magistrate correctly interpreted 'polling day' in Rule 28(1) of the 3rd Schedule to the Constituent Assembly Statute 6/1993 to mean the day when election results were announced rather than the day voting took place.
  2. Whether the election petition was filed within the prescribed 30-day period from polling day.
  3. Whether the fees referred to in Rule 3(4) and security for costs in Rule 6(1) of the Constituent Assembly (Rules of Court) Rules could be paid in instalments or after the petition was filed.
  4. Whether the petitioner could be excused for failing to comply with requirements under Rule 7(1) of the Election Petitions Directions regarding service and publication of the petition.
  5. Whether the High Court has supervisory jurisdiction to revise decisions of the Chief Magistrate in election petition matters where there is no right of appeal.

Orders

  • The ruling and orders of the Chief Magistrate dated 2nd June 1994 are set aside.
  • The petition is struck out with costs to the respondents both in the High Court and in the lower court.

Rules and key headnotes

Electoral Law — Election Petitions — Time Limits — Meaning of 'Polling Day'
In computing the 30-day period for filing an election petition under Rule 28(1) of the 3rd Schedule to the Constituent Assembly Statute 6/1993, 'polling day' means the day on which voting took place, not the day on which election results were announced.
Electoral Law — Election Petitions — Filing Requirements — Mandatory Payment of Fees
The requirement under Rule 3(4) of the Constituent Assembly (Rules of Court) Rules 1994 that a petition be 'accompanied by' the prescribed fee of fifty thousand shillings means that the fee must be paid at the time the petition is filed. The word 'accompany' means go together or coexist simultaneously, and the legislature intended fees and petition to be filed together.
Electoral Law — Election Petitions — Security for Costs — Time of Payment
Rule 6(1) of the Constituent Assembly (Rules of Court) Rules 1994 is mandatory and requires that security for costs of one hundred thousand shillings be deposited with the registrar at the time of lodging the petition. Payment at any later time does not satisfy this requirement.
Civil Procedure — Filing of Documents — Effect of Non-Payment of Fees
No document is properly filed until the prescribed fees have been paid. If a petition is filed on the last day of the limitation period without the requisite fees, and the fees are paid after the limitation period has expired, the petition is filed out of time and is barred by limitation.
Statutory Interpretation — Computation of Time — Exclusion of First Day
Under section 34(1)(a) of the Interpretation Decree 18/1976, in computing a period of days from the happening of an event, the day on which the event happens is excluded. The computation begins on the day after the event and includes the last day of the period.
Administrative Law — Judicial Review — Supervisory Jurisdiction of High Court
The High Court has wide powers of supervision over Magistrates' Courts under section 11 of the Judicature Act, and these powers extend to matters where there is no right of appeal. The supervisory power is particularly important in election petition cases to ensure illegality or error by the Magistrate can be corrected.
Administrative Law — Jurisdiction — Illegality Overrides All Questions
A court cannot sanction what is illegal. Illegality, once brought to the attention of the court, overrides all questions of pleading, including any admissions made thereon. A Chief Magistrate acts without jurisdiction when presiding over a petition that is time-barred by limitation.

Legislation cited (21)

  • Judicature Act s.11
  • Judicature Act s.3(1)
  • Civil Procedure Act Cap 65 s.84
  • Constituent Assembly Statute 6/1993 Schedule 3 Rule 28(1)
  • Constituent Assembly Statute 6/1993 s.24
  • Constituent Assembly (Amendment) Statute 8/1994
  • Constituent Assembly (Rules of Court) Rules 4/1994 Rule 3(4)
  • Constituent Assembly (Rules of Court) Rules 4/1994 Rule 4(2)
  • Constituent Assembly (Rules of Court) Rules 4/1994 Rule 6(1)
  • Constituent Assembly (Rules of Court) Rules 4/1994 Rule 3(1)
  • Election Petitions Directions Statutory Instrument No 131-1 Rule 7(1)
  • Election Petitions Directions Statutory Instrument No 131-1 Rule 4(3)
  • Election Petitions Directions Statutory Instrument No 131-1 Rule 4(4)
  • Election Petitions Directions Statutory Instrument No 131-1 Rule 22
  • Election Petitions Directions Statutory Instrument No 131-1 Rule 32(2)
  • National Assembly (Elections) Act Cap 131 s.68(1)
  • National Assembly (Elections) Act Cap 131 s.48
  • National Assembly (Elections) Act Cap 131 s.71
  • National Assembly (Elections) Act Cap 131 s.45(11)
  • Interpretation Decree 18/1976 s.34(1)(a)
  • Civil Procedure Rules Order 42 Rule 8

Cases cited (7)

  • Ijakula International Cardinal Ltd v Emmaunel Nsubuga & Anor [1982] HCB 11
  • Unta Exporters Ltd v Customs (1970) EA 648
  • Margaret Musango v Francis Musango [1979] HCB 226
  • Iga v Makerere University (1972) EA 65
  • Joseph Mukisa v Revocato K. Muwanga (Revision Order No. 32 of 1993)
  • Aristella Kabwimukya v John Kasigwa [1978] HCB 231
  • Makula International Ltd.

Full judgment

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Kiwanuka Nsereko v Returning Officer and Another (Misc. Appl. No. 29 of 1994 (Mengo); Revision Order No. 3 of 1994) [1994] UGHC 140 (28 July 1994)
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