[1996] UGHC 70

# THE REPUBLIC OF UGANDA

# TN THE HIGH COURT OF UGANDA

### AT GULU

### ELECTION PETITION NO. $1/96$

#### **PETITIONER** PIRO SANTOS ERUAGA .....

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STEVEN BESWERI AKABWAY

(Chairman Interim Electoral Commission) ..... 1st RESPONDENT

S. P. O. OBOTH

(C. A. O/Returning Officer/Moyo) ............. 2nd RESPONDENT ALI MOSES (Member of Parliament) ...................... 3rd RESPONDENT

#### THE HONOURABLE MR. JUSTICE GALDINO MORO OKELLO. BEFORE

# RULING

This Election Petition sought to nullify the Parliamentary Election results for East Moyo Constituency. The petition was filed by Piro Santo^s Eruaga who was one of the Contestants in the Election held on $27/6/96$ for that Constituency. He was declared the loser to Ali Moses who was declared the winner.

The Election Petition was filed at the High Court District Registry of Gulu. At the hearing, Counsel for the 1st and 2nd Respondents raised a preliminary objection in which he contended that the Petition was misconceived, irregular and in a wrong court. This was pleaded in paragraph 7 of the 1st and 2nd Respondents' Answers to the Petition.

Arguing his point, Mr. Byamugisha-Kamugisha a State Attorney who represented the 1st and 2nd Respondents contended that the trial of the Petition was in a wrong court. He explained that the Petition should have been before a Court within the area of the established High Court District Registry where the Constituency was situated unless for special reasons the court considered it expedient to order otherwise. He submitted that since there was no such an order, the trial of this Petition within the High Court District

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Registry of Guru, contravenes Rule 10( 2) of the Parliamentary Elections (Election Petitions) Rules 1996 (SI No.²⁷ of 1996)\* He therefore prayed that the Petition be struck off.

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Mr. Ringwegi replied for the Petitioner that, Rule 1O( 2) above did not set the jurisdiction of the Court. He pointed out that it was within the discretion of the court to decide the place ^j where the trial of an Election Petition should take place once a Petition was filed at a Registry of the High Court.

The above arguments raised the question of interpretation of Rule 10(2) of the Parliamentary Election (Election Petitions) Rules ¹⁹⁹⁶ hereinafter referred to as Election Petition Rules 1996. For ease of reference, I reproduce here below the relevant rule. It reads thus,

"10(2):- . Where the election was held in respect of a constituency within the area of a district registry of 'the High Court, the trial shall, unless the court for special reasons considers it expedient to direct otherwise, be held at a place within that area."

The above provision of the rule appears to me clear. It prima facie dictates that the trial of an election Petition in respect of a Constituency shall be held at a place within the area of the High Court district registry where the Constituency is situated. However, the rule also empowers the court to direct the trial of such Petition to be held elsewhere if for special reasons the court considers it expedient to direct the trial of the Petition outside the area of the High Court district registry within which the Constituency is situated. High Court has jurisdiction all over Uganda.

In the instant case, Mr. Ringwegi argued -that it was more expedient that the trial of this Petition be held in Gulu than in Arua within whose area the Constituency is situated. He gave as his reasons that the Constituency was nearer to Gulu than it

is to Arua. It is *only* ⁷⁵ miles to Gulu while it is ¹³⁵ miles to Arua at the shortest point. Secondly that the Constituency was easily accessible to Gulu than it is to Arua. That the Constituency is separated from Arua by a natural barrier - River Nile but that there was no such barrier between the Constituency and Gulu. The learned - counsel pointed that rule 10(2) did not purport to limit the jurisdiction of the court, but intended to make it more convenient to the Const!to.ents to attend the Election Petition trial held at a place nearest to them. In Counsel'^s view, Gulu and not Arua was such a convenient place to the Constituents in this case.

The above was a forceful argument. I agree with Mr. Ringwegi that the reasons he advanced indicated that the High Court District Registry of Gulu was the more convenient place for the trial of this Petition to the Constituents in this case than Arua in whose area the Constituency is situated. It is nearer and more accessible to the Constituency than Arua is. But the law requires that court had to first direct that such ^a trial be held outside the area of tlie High Court District Registry where the Constituency is situated. Court had to be moved to make such direction. Such direction could only be made if there were special reasons from which court considered it expedient to make the direction. The reasons given by Mr. Ringwegi could have constituted the special reasons to support the request to court to direct the trial to be held in Gulu instead of Arua. But the court was not moved and no requisite direction was made by court for the trial of this Petition to be held in Gulu. It is my view that direction of the court that the trial of an Election Petition be held outside the area of the established High Court District Registry within which the relevant Constituency is situated, is a condition precedent to holding the trial of an Election Petition outside the area of the Registry in which the Constituency is situated. That condition precedent had not been fulfilled in this case.

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The more crucial point of the preliminary objection was that the Election Petition concerned was presented for filing at the wrong district Registry of the High Court. It is not in dispute that the present Election Petition was presented for filing at the High Court District Registry of Gulu. The Constituency concerned as already been pointed out carlier in this ruling is East Royo. Under Statutory Instrument No.14/76, Moyo (East and West) is within the High Court District Registry of Arua. That. put both East and West Moyo Constituencies within the High Court District Registry of Arua. There is no dispute about this.

Mr. Byamugisha-Kamugisha, Counsel for the 1st and 2nd Respondents contended that the presentation of this Petition for filing at the High Court District Registry of Gulu violated Rule 5(6) of the Parliamentary Election Rules 1996. He submitted that the above rule was mandatory. That a Petitioner had no choice but to comply with it and that non compliance with it rendered the Petition incompetent and prayed that this Petition be struck off for non compliance with that rule. He cited Election Petition No. 15/96 - Hope Kabirisi -vs- Bernadette Bigirwa and 2 others; Election Petition No.13/96 - Kaggwa Mpanga -vs- Zimula Mugwanya and 2 others; and Election Petition No.9/96 - Edward Wesonga -vs- Wajusi Wasieba and Another as authorities for his proposition.

Mr. Ringwegi responded for the Petitioner that Rule 5(6) above was not intended to be mandatory because it did not state the consequence of its non compliance. He argued that if that rule was intended to be mandatory, the consequence of its non compliance would have been spelt out as it was done in Rule 5(4) where it was stated that if sub-rule (3) was not complied with, the Petition should not be accepted. It was the view of the learned counsel that the legislatures only intended to make it convenient to the Constituents for Election Petition to be filed

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at the High Court registry nearest to thcix\* Constituency to enable them to conveniently attend the trial. He pointed out that in the present case, proximity and ease of accessibility of tho Constituency to the High Court District registry of Gulu made Gulu the most convenient Registry to register this Petition at.

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The above arguments again raised tho issue of interpretation of rule 5(6) of the Election Petition Rules 1996. It is therefore pertinent to reproduce the relevant rule here below for ease of referencc.

"5(6) - If the Constituency to which a Petition relates 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, and in any other case shall be presented at the office of the High Court Registry." (underlining was by me)

I have had no opportunity to look at and peruse the texts of the Election Petitions recently decided by my colleagues in Kampala to which Mr. Byamugisha-Kamugisha referred me. The texts of those decisions were not availed to me as the learned counsel said, they were still under typing. Much as I would have loved to look at and peruse the texts of those decisions, I can not withhold this ruling for the texts of those decisions to be typed. Election Petitions are expected to be disposed of expediteiously I shall therefore disregard those cases cited.

As for Da^zd^d Kaypndo -vs- The Cooperative Bank (U) LTD (1988-90) HCB'826 to which counsel for the 1st and 2nd Respondents referred me, I had the chance to look at and perused it. But, that decision had since been overturned on appeal by tho Supreme Court in Civil Appeal I<o. 10/91. In that Appeal Manyindo DCJ who wrote the Reading Judgment said at page ⁹ of his judgment thus,

"In my view the more use of the word "shall" can not oust the jurisdiction of the High Court because that word is not necessarily mandatory."

I agree with the above decision. The word "shall" is not necessarily mandatory. It all depends on how the sentence in which it is used was coached.

In Opoya -vs- Uganda (1967) EA 752, to which my attention was drawn, it was demonstrated that the wo d "shall" is not necessarily mandatory. It depended on how the sentence was coached. In that case the followings were considered:-

(1) "shall be liable to suffer death"

(2) "shall be sentenced to death."

It was held that "shall be liable" imports discretion. It is net mandatory. But "shall be sentenced to death" imposes a mendatory sentence of death. It is mandatory. This showed that the word "shall" is not necessarily mendatory. It depended on how the sentence is coached.

In the instant case, shall be presented at the office of that registry is plain enough. It directs a Petitioner whose Constituency to which the Petition relates is within the High Court district registry established under the Civil Procedure Act, to present his Petition at the office of that registry and unambiguous no where clse. The words are plain and They must be given their ordinary natural meaning. They import mandation and that must be the intention of the legislature. Effect must therefore be given to it.

As had already been pointed out in this ruling earlier, Moyo is within the High Court district registry of Arua. It was established by S1 No.14 of 1976. This Statutory Instrument was made by the Acting Chief Justice under 044 r 2 of the Civil Procedure Rules. These Rules were themselves in turn made under the Civil Procedure Act.

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Mr. Ringwcgi had submitted that Rule 5(6) was not intended to be mandatory because it did not provide the consequence of its non compliance as was done in rule 5(4). With all due respect to the learned counsel\$ I am unable to accept that argument. The mandatory nature or otherwise of a provision of a law does not depend on whether or not the consequence of its non compliance was provided. In my considered view, whether or not a provision of a law is mandatory depends on the wordings of the provision. If the wordings of the provision clearly show that -the provision is mandatory, it shall be so whether or not consequence of its non compliance was provided.

Mr. Ringwegi had stressed that what the legislature intended in rule 5(6) was that the Election Petition would be filed in the High Court. According to the learned counsel, that meant that once the Petition was presented for registration at a High Court registry, that was all that was required. Where the trial takes place was a matter of the discretion of the court because High Court has unlimited jurisdiction. He submitted that in the instant case, since the District Registrar had accepted and registered the Petition in G-ulu district Registry of the High Court, the Petition was properly before the High Court.

. The above argument is in my considered view partly correct and partly not. It is correct that once the Petition is properly before the court, its trial can on special reasons be directed by the court to be held elsewhere from the area of the district registry where the Constituency in question is situated. This confirms the fact that\* the jurisdiction of the High Court still remained unlimited. But the ^Px>°Prle^y the Petition before the High Court is not determined by the fact that a district Registrar has accepted and registered it at ^a Registry of the High Court. Registrars consider different criteria in accepting to register a Petition. They had to satisfy themselves that the

that the papers - wore in order and that appropriate fees were paid on filing. Whether the Petition was presented at the right registry of the High Court was a matter for the court to consider before it commences trial.

It is in my view not correct to say that rule 5(6) intended that an Election Petition be presented for filing at any registry of the High Court. The rule did not say so. It is implicit and mandatory as to where a Petition should be presented for registration. For a Petitioner whose Constituency to which the Petition relates, is within the area of a, High Court district registry established under the Civil Procedure Act, he was to present his Petition at the office of the district registry in whose area his Constituency is situated. In any other case, to register his Petition at the High Court Registry. This is in Kampala. I find rule 5(6) of the Parliamentary Election Rules 1996 mandatory.

Rule ²⁶ of the Election Petition Rules ( 1996) SI ²⁷ of 1996) provides as under \$

"No proceedings upon a Petition shall be defeated by any formal objection or by the miscarriage of any notice or any other document sent by the Registrar to any Party to the Petition."

The above provision of the rule echos Article 126(2)(c) of our Constitution 1995 which says in effect that court shall subject to the law, administer substantive justice without undue regard to technicalities. The rule therefore enjoins court to ensure that ^a Petition before it is not defeated by any formal objection. That is to say, substantive justice should not suffer by court paying undue regards to technicalities.

In my view, the above rule presupposes that the Petition must in the first instance have been properly before court.

Then any formal objection would not be permitted to defeat the Petition.

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In the instant case, the Petition was presented for filing at the High Court district registry of Gulu. This was in violation of Pule 5(5) of the Parliamentary Election Petition Rules 1995. That rendered tho Petition improperly before court. Rulo ²⁶ of tho Election Petition Rules ¹⁹⁹⁶ is therefore not applicable in this Petition. Tho objection is thus upheld and the Petition is accordingly struck off for non-compliance with Rule 5(6) of tho Election Petition Rules 1996.

The Petitioner is condemned to pay cost to the 1st and 2nd Respondent. I"o cost is awarded to tho 3rd Respondent because he neither appeared at the hearing of tho Petition nor technically filed an answer to the Petition having not paid tho requisite fees at the time of his presenting his Answer for filing inviolation of rule 8(3)(6) of the Election Petition Rules 1996. So it is ordered. ;

Galdino. Moro Okolio Judge 30.8,96 Ruling delivered in the presence of;

Petitioner.

Mr, Sam Ringwegi for the Petitioner.

Mr. Byamugisha-JIamugisha S. A. for the 1st and 2nd ^Respondonts.

Mr, Oyaro court clerk.

t • ^r vv-rt *^I* ^K Gaddino Moro Okello

Judge

30.8,1996