Wakilii

Ssewanyana v Lubowa (Revision Order No. 12 of 2012)

High Court · [2014] UGHCCD 134 · 2014 Revision Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Revision application arising from an order on costs in a withdrawn election petition
Decision
Order of the Chief Magistrate set aside; applicant entitled to recover costs of the withdrawn election petition upon taxation

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that Section 144(4) of the Local Governments Act is mandatory, requiring a petitioner who withdraws an election petition to pay the respondent's costs. The Chief Magistrate exceeded her jurisdiction when she ordered each party to bear its own costs. The court exercised its revisional powers to set aside the Magistrate's order and directed that the applicant's bill of costs be taxed.

Outcome

Order of the Chief Magistrate set aside; applicant entitled to recover costs of the withdrawn election petition upon taxation

Facts

In 2011, following Local Council elections, Lubowa Francis Anthony (the respondent) filed an election petition challenging his defeat by Ssewanyana Allan Aloysious (the applicant) as LC V Councillor for Makindye Division. On 26 October 2011, the respondent withdrew the petition with the parties' consent, but they could not agree on costs. The Chief Magistrate adjourned to allow the parties to reach consensus. On 4 November 2011, when no agreement had been reached, the Chief Magistrate ordered that each party bear its own costs, citing the absence of the applicant and his counsel and stating that election petitions should not frustrate innocent people. The applicant then brought this revision application, arguing that Section 144(4) of the Local Governments Act mandates that a petitioner who withdraws must pay the respondent's costs, and that the Magistrate had no discretion to order otherwise.

Issues

  1. Whether the Chief Magistrate exercised jurisdiction not vested in her by law when she ordered that each party bear its own costs of a withdrawn election petition.
  2. Whether Section 144(4) of the Local Governments Act Cap 243 is mandatory or directory.
  3. Whether the affidavit in support sworn by an advocate was defective.

Orders

  • Application granted.
  • Order of the trial Chief Magistrate regarding costs set aside.
  • Applicant's bill of costs in the lower court to be presented for taxation.
  • Costs of the revision application awarded to the applicant.

Rules and key headnotes

Electoral Law — Election Petitions — Withdrawal — Costs on Withdrawal
Section 144(4) of the Local Governments Act Cap 243 is mandatory and provides that if an election petition is withdrawn, the petitioner shall be liable to pay the costs of the respondent. The use of 'shall' in this provision removes the court's discretion to make a different order as to costs.
Civil Procedure — Costs — Discretion of Court — Specific Statutory Provisions
Where a specific statute governing a particular type of proceeding makes express provision for costs, that provision prevails over the general discretionary power as to costs conferred by Section 27 of the Civil Procedure Act. The general provision is subject to any law for the time being in force.
Civil Procedure — Revisional Jurisdiction — Grounds for Revision
Under Section 83 of the Civil Procedure Act, the High Court may revise a decision of a Magistrate's Court where the lower court exercised jurisdiction not vested in it by law. A Magistrate who orders costs contrary to a mandatory statutory provision acts outside her jurisdiction.
Civil Procedure — Affidavits — Affidavit Sworn by Advocate — Defects
An affidavit sworn by an advocate who conducted the matter in the lower court, without explicit mention of agency but disclosing his role as counsel, is not fatally defective where the advocate is not the counsel prosecuting the current application. Courts adopt a liberal approach to affidavit defects in line with Article 126(2) of the Constitution.

Legislation cited (12)

Cases cited (10)

  • Kaloli Mubiru and 21 Others v Edmond Kayiwa and 5 Others [1979] HCB 212
  • Attorney General and Another v James Mark Kamoga and Another (Supreme Court Civil Appeal No. 8 of 2004)
  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Kabenge Advocates v Mineral Access Systems (U) Ltd (High Court Miscellaneous Application No. 565 of 2011)
  • Edward Byaruhanga Katumba v Daniel Kiwalabye Musoke (Civil Appeal No. 2 of 1998)
  • David B. Kayondo v The Co-operative Bank Ltd (Supreme Court Civil Appeal No. 10 of 1991)
  • Mukula International Ltd v D.E. Cardinal Nsubuga [1982] HCB 1
  • Sitenda Seballu v Sam Njuba and Another (Supreme Court Election Petition Appeal No. 26 of 2007)
  • Samwiri Massa v Achen [1978] HCB 297
  • Yonah Kanyomozi v Motor Mart (U) Ltd (Supreme Court Civil Appeal No. 8 of 1998)

Full judgment

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

Ssewanyana v Lubowa (Revision Order No. 12 of 2012) [2014] UGHCCD 134 (31 October 2014)
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.