Wakilii

Serapio Rukundo v Attorney General (Consitutional Case No. 3 of 1997)

Court of Appeal · [1997] UGCA 6 · 1997 Petition Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) of the Constitution, determined on a preliminary objection
Decision
Petition struck out with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court, sitting as the Constitutional Court, struck out the petition on three preliminary objections. It held that a constitutional petition must be lodged within thirty days of the alleged breach under rule 4(1), and this petition, filed about four and a half months after the impugned judgment, was time barred. The Attorney General was wrongly joined because, under section 4(5) of the Government Proceedings Act and Article 128(4), no action lies against Government for acts done in the discharge of judicial functions. The petition disclosed no cause of action, as a final Court of Appeal decision in an election petition (final under section 96(3) of Statute No.4 of 1996) cannot be challenged under Article 137; the remedy lies in Parliament amending the law.

Outcome

Petition struck out with costs to the respondent

Facts

The petitioner was the unsuccessful candidate for the Kabale Municipality parliamentary seat in the elections of 27 June 1996, losing to Dr. Ruhakana Rugunda. He filed Election Petition No. MKA 3 of 1996 challenging that election. At its hearing a preliminary objection that the petition and affidavit were drawn by an advocate lacking a valid practising certificate was overruled on 18 November 1996. Two days later, on 20 November 1996, the Court of Appeal in Bakunda Darlington's case (Civil Appeal No. 27 of 1996) held that an affidavit commissioned by an advocate without a valid practising certificate is invalid, a decision directly contrary to the ruling in the petitioner's pending election petition. On 1 April 1997 the petitioner filed this constitutional petition under Article 137(3), alleging that the Court of Appeal decision was inconsistent with Article 126(2)(e) and seeking a declaration and redress. The respondent Attorney General denied the inconsistency and raised preliminary objections.

Issues

  1. Whether the constitutional petition was time barred under rule 4(1) of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992, Directions 1996.
  2. Whether the Attorney General was the proper party to a petition challenging a judicial decision.
  3. Whether the petition disclosed a cause of action, and whether a decision of the Court of Appeal in an election petition can be challenged under Article 137 of the Constitution.

Orders

  • The three preliminary objections upheld: petition time barred, discloses no cause of action, and the Attorney General is not the right party.
  • Petition struck out.
  • Costs to the respondent.

Rules and key headnotes

Constitutional Petitions — Limitation — Thirty-day time limit under rule 4(1)
A constitutional petition must be lodged within thirty days after the date of the breach of the Constitution complained of, as required by rule 4(1) of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992, Directions 1996; there is no rule that constitutional matters are subject to no time limit.
Judicial Immunity — Proper Party — Acts done in discharge of judicial functions
No action lies against the Government or the Attorney General in respect of acts done or omitted in the discharge or purported discharge of a judicial function, by virtue of section 4(5) of the Government Proceedings Act and Article 128(4) of the Constitution; the Attorney General is wrongly joined where the complaint is a judicial decision of a court.
Article 137 — Challenging final court decisions — Election petitions
A decision of a court can only be challenged by way of appeal; where no right of appeal exists, such as a final Court of Appeal decision in an election petition (final under section 96(3) of the Parliamentary Elections (Interim Provisions) Statute No.4 of 1996), it cannot be challenged under Article 137 of the Constitution, as the Constitutional Court is not an appellate court and to allow this would circumvent statutory finality.
Locus Standi — Article 137(3) — Public interest standing
Under Article 137(3) of the Constitution a person need not demonstrate any personal interest to petition the Constitutional Court; it suffices to allege that an act or omission is inconsistent with or in contravention of the Constitution.
Constitutional Interpretation Arising at Trial — Reference procedure
Where an issue of constitutional interpretation arises in a pending case, the proper course is to proceed with the trial, record evidence sufficient to substantiate the claim, frame the issue and refer it to the Constitutional Court; a party should not halt proceedings and file a separate petition.
Preliminary Objections — Determination of decisive points of law
Where a point of law, if decided one way, would be decisive of the litigation, advantage should be taken of the rules of court to dispose of it at or shortly after the close of pleadings, to avoid the unnecessary costs of a full trial.

Legislation cited (12)

Cases cited (10)

  • Bakunda Darlington v Kinyatta Stanley and Another (Civil Appeal No. 27 of 1996)
  • Attorney General v Oluoch (1972) EA 392
  • IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93
  • R v Greater London Council, Ex parte Blackburn [1976] 3 All ER 184
  • Jerai Shariff & Co v Chotai Fancy Store (1960) EA 394
  • Kabogere Coffee Factory v Haji Twahibu Kigongo (Civil Application No. 10 of 1993)
  • Attorney General v Milton Obote Foundation and Another (Civil Appeal No. 7 of 1992)
  • John Arutu v Attorney General (Constitutional Petition No. 4 of 1997)
  • Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Everett v Ribbands [1952] 2 QB 198

Full judgment

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Serapio Rukundo v Attorney General (Consitutional Case No. 3 of 1997) [1997] UGCA 6 (18 December 1997)
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.