Wakilii

Piro Santos Eruaga v Steven Besweri Akabway and Another (Election Petition No. 1 96)

High Court · [1996] UGHC 70 · 1996 Petition Struck Off AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging Parliamentary election results for East Moyo Constituency, struck off on preliminary objection
Decision
Petition struck off on preliminary objection for being filed at the wrong High Court district registry

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, requiring petitions to be presented at the district registry where the constituency is situated, is mandatory. The plain wording directs a petitioner to present at the office of that registry and no where else. An election petition relating to East Moyo Constituency, which is within the High Court District Registry of Arua under SI No. 14/76, must be presented at Arua. Presentation at Gulu rendered the petition improperly before court. Petition struck off for non-compliance with Rule 5(6).

Outcome

Petition struck off on preliminary objection for being filed at the wrong High Court district registry

Facts

Piro Santos Eruaga contested the Parliamentary election for East Moyo Constituency held on 27 June 1996 and lost to Ali Moses. He filed an election petition at the High Court District Registry of Gulu seeking to nullify the results. East Moyo Constituency is within the High Court District Registry of Arua under Statutory Instrument No. 14/76. At the hearing, counsel for the 1st and 2nd Respondents raised a preliminary objection that the petition was misconceived, irregular, and filed in the wrong registry in violation of Rule 5(6) of the Parliamentary Elections (Election Petitions) Rules 1996. Petitioner's counsel argued that Gulu was more convenient and accessible to the constituency than Arua, being 75 miles away compared to 135 miles to Arua, and separated from Arua by the River Nile.

Issues

  1. Whether the election petition was properly presented at the High Court District Registry of Gulu where the constituency was within the area of the High Court District Registry of Arua.
  2. Whether Rule 5(6) of the Parliamentary Elections (Election Petitions) Rules 1996 is mandatory.
  3. Whether the court could exercise discretion under Rule 10(2) to hold the trial at Gulu despite the petition being filed at the wrong registry.

Orders

  • Petition struck off for non-compliance with Rule 5(6) of the Parliamentary Elections (Election Petitions) Rules 1996.
  • Petitioner condemned to pay costs to the 1st and 2nd Respondents.
  • No costs awarded to the 3rd Respondent who neither appeared at the hearing nor properly filed an answer to the petition.

Rules and key headnotes

Electoral Law — Election Petitions — Jurisdiction — Presentation of Petition at Proper Registry
Rule 5(6) of the Parliamentary Elections (Election Petitions) Rules 1996 is mandatory in requiring that where a constituency is within the area of a district registry of the High Court established under the Civil Procedure Act, the petition shall be presented at the office of that registry. The plain wording directs presentation at that registry and no where else, importing mandation.
Statutory Interpretation — Use of Word 'Shall' — Mandatory or Directory
The word 'shall' in a statutory provision is not necessarily mandatory. Whether it is mandatory depends on how the sentence in which it is used is coached. The phrase 'shall be presented at the office of that registry' is plain and unambiguous, directing presentation at that registry and no where else, and must be given its ordinary natural meaning importing mandation.
Electoral Law — Election Petitions — Trial Venue — Discretion to Direct Trial Elsewhere
Rule 10(2) of the Parliamentary Elections (Election Petitions) Rules 1996 empowers the court to direct the trial of an election petition to be held outside the area of the High Court district registry where the constituency is situated if for special reasons the court considers it expedient. Such direction is a condition precedent to holding trial outside that area. The court must be moved to make such direction.
Civil Procedure — Formal Objections — Rule Against Defeat by Technicalities
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. Where a petition is improperly before court due to presentation at the wrong registry, Rule 26 does not apply to save it.
Statutory Interpretation — Mandatory Provisions — Determination of Mandatory Nature
Whether a provision of law is mandatory does not depend on whether the consequence of its non-compliance is provided. The mandatory nature of a provision depends on the wordings of the provision. If the wordings clearly show that the provision is mandatory, it shall be so whether or not the consequence of non-compliance is provided.

Legislation cited (8)

  • Parliamentary Elections (Election Petitions) Rules 1996 (SI No. 27 of 1996) r.5(6)
  • Parliamentary Elections (Election Petitions) Rules 1996 r.10(2)
  • Parliamentary Elections (Election Petitions) Rules 1996 r.26
  • Parliamentary Elections (Election Petitions) Rules 1996 r.5(4)
  • Parliamentary Elections (Election Petitions) Rules 1996 r.8(3)(b)
  • Civil Procedure Act O.44 r.2
  • Constitution of Uganda 1995 Art.126(2)(c)
  • Statutory Instrument No. 14 of 1976

Cases cited (6)

  • PP v Uganda (1967) EA 752
  • David Kayndo v The Cooperative Bank (U) Ltd (1988-90) HCB 826
  • Civil Appeal No. 10/91
  • Hope Kabirisi v Bernadette Bigirwa and Others (Election Petition No. 15 of 1996)
  • Kaggwa Mpanga v Zimula Mugwanya and Others (Election Petition No. 13 of 1996)
  • Edward Wesonga v Wajusi Wasieba and Another (Election Petition No. 9 of 1996)

Full judgment

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

Piro Santos Eruaga v Steven Besweri Akabway and Another (Election Petition No. 1_96) [1996] UGHC 70 (30 August 1996)
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.