Byaruhanga Katumba v Kiwalabye Musoke (Civil Appeal 2 of 1998) [1998] UGCA 55 (20 November 1998)


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# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

HON. MR. JUSTICE G. M. OKELLO, J. A.; CORAM: HON. MR. JUSTICE J. P. BERKO, J. A.; AND HON. MR. JUSTICE A. TWINOMUJUNI, J. A.

## CIVIL APPEAL NO. 2 OF 1998

#### BETWEEN

EDWARD BYARUHANGA KATUMBA::::::::::::::::::::::::::::APPELLANT

#### AND

DANIEL KIWALABYE MUSOKE::::::::::::::::::::::::::::::::RESPONDENT

### JUDGMENT OF G. M. OKELLO, J. A.

This is an appeal against the decision of the High Court (Arach- $\leq$ Amoko J.) which was delivered on 27th August 1998, whereby it $\eta$ allowed 'he respondent's petition, cancelled the results of the appellant s election to the L. C. N Chairperson of Kiboga District and ordered fresh election.

The brief facts giving rise to this appeal are as follows:- The appellant was elected the L. C. V Chairperson of Kiboga District in the elections of L. C. V Chairpersons held in April 1998. The second respondent who was one of the losers in the Kiboqa "District L. C. V Chairperson election, filed an election petition in the High Court in accordance with Section 139 of the Local Government Act 1997 under Election Petition No.10 of 1998 challenging the election of the appellant. His main ground for the petition was that the appellant was not academically qualified for election to L. C. V Chairperson. The petition was $\begin{array}{cccccccccccccccccccccccccccc} \end{array}$

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heard by Arach-Amoko J. who upheld the petition and made the orders already referred to. She also awarded to the respondent costs of the petition. Hence this appeal.

The memorandum of appeal sets two grounds namely:-

"[1] The learned Judge erred in law and in fact in ordering that results of the election of L. C. V. Chairperson, Kiboga $\mathcal{L} = \mathcal{L} \mathcal{L}$ be cancelled, election as the L:C. V Chairperson Kiboga be set aside and consequently that fresh elections be held.

[2] The learned Judge erred in law and in fact in passing judgment after the statutory period of ninety days thereby rendering the judgment of the lower court null and void."

At the commencement of the hearing, a preliminary objection challenging Ground 1 above was raised. In our written ruling, we upheld the objection that Ground 1 was too general and therefore contravenes rule 85 of the Rules of this Court, Legal Notice No 11 of 1996. The ground was consequently struck out and only Ground 2 was argued before us.

The sole complaint in Ground 2 was that the Judgment of the lower court having been delivered after the statutory period prescribed by Section 143 (2) of the Local Government Act 1997, is null and void as the Section is mandatory. It was argued that the limitation being a statutory one, the Court has no inherent power to extend it.

In support, Mr. Byenkya, learned Counsel for the appellant cited Makula International Ltd Vs Cardinal Nsubuga and Anor Civil Appeal No 4 of 1981 where the former Court of Appeal held at page

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16 of its Judgment that "Court has no power to extend time set by statute. Such extension would be null and void". Learned Counsel submitted that the Court's jurisdiction over the matter was limited within the period prescribed by Section 143 (2) of the Local Government Act above.

In response, Mr. Kakuru, Learned Counsel for the respondent, conceded that the judgment of the lower Court was delivered after the expiration of the statutory period prescribed by Section 143 (2) of the local Government Act. He however, contended that since the Section which falls within Part X of the Act does not state what happens if the Court does not determine an election petition within the prescribed period, then Section 173 of the Act is applicable. He argued that application of that Section would bring into play the Parliamentary Elections (Interim Provisions) statute No.4 of 1996 and the rules made thereunder to the election petitions filed under the Local Government Act. He argued further that under rule 19 of the Parliamentary (Elections Petitions) Rules 1996 (S-1 No 27 of 1996) the Court would have power to extend the time prescribed by Section 143 (2) of the Local Government Act.

to the mandatoriness of Section 143 (2) of the Local AS Government Act, Mr. Kakuru submitted that the word "shall" in that Section is not intended to be mandatory but directory as the purpose of the Act was merely to ensure expeditious determination of election petitions under the Act rather than the ouster of the jurisdiction of the court over the matter after the expiration of the prescribed period. Counsel contended that if that were so, the legislature would have said so expressly. In support he cited David B. Kayondo Vs The Cooperative Bank Ltd, Civil Appeal No. 10 of 199 (Supreme Court (unreported). $\mathcal{L}$

In Mr. Kakuru's view, Mukula International Ltd (Supra) is distinguishable from the instant case on their facts. He explained that in Mukula's case, time was limited for the parties to do certain things but that in the instant case, the legisture

never \.ntended to set time limit for the exercise of the Court's jurisdiction, as to do so would amount to interference with the independence of the judiciary. He prayed for the dismissal of the appeal.

In rejoinder, Mr. Byenkya submitted that Rules 13 and 19 of the Parliamentary Elections (Election Petitions) Rules do not apply to this case because the time limit was set by a statute.

The issue at hand calls for the determination whether or not 10 Section 143 (2) of the Local Government Act No.1 of 1997 is mandatory and therefore ousts the jurisdiction of the court over the matter after the expiration of the prescribed period. The Section reads as follows:

> "143 (2). An election petition filed under Section 139 shall be tried in open Court.

(2) The High Court or Chief Magistrate shall proceed to hear and determine the matter within three months after the day on which the petition was filed and may for that purpose suspend any other matter pending before Court."

The Section which falls in Part X of the Act, sets a time limit within whi i Court should hear and determine an election petition filed under the Act. The Section does not state the legal consequences of failure of the Court to determine an election petition within the prescribed period.

This is not unusual. Normally when Parliament prescribes the manner in which a duty is to be performed or a power to be exercised, it does not spell out what the legal consequences of filure to comply with the prescription will be.

The answer to the issue at hand is, in my view, dependent on the

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the answer which the court can give to the question whether the legislature intended the provision of Section 143 (2) of the Local Government Act to be either mandatory or merely directory.

In David B. Kayondo Vs The Cooperative Bank Ltd, Civil Appeal No. 10 of 1991, the Supreme Court had on occasion to construe the word "shall" appearing in Section 73 of the Cooperative Societies Act 1970 which provided for settlement of disputes. The Section provided that when a dispute touching the business of a registered society arises between the society or its Committee and any officer or past officer of the society, it shall be referred to arbitration. The question before the Court was whether the provision was mandatory and therefore ousts the jurisdiction of the Court over the matter.

The "Court held that mere use of the word "shall" cannot oust the jurisdiction of the Court as the word "shall" is not necessarily mandatory. It further held that for a Statute to ooust the jurisdiction of the Court, it must state so expressly or by clear words.

In the Secretary of State for Trade and Industry Vs Langridge [1991] 3 ALL Er 591 faced with a similar problem, the English Court of Appeal approved principles which quide courts in deciding whether legislature intended a provision of a Statute to be either mandatory or merely directory. The principles were adopted in this Court in <u>Jaffer Brothers Ltd Vs Mohamed</u> Magid Bagalaliwo and 2 others, Civil Appeal No...1997 (CA) unreported.

In Langridge's Case (Supra), the Court was faced with the question whether Section 16 (1) of the Company Directors Disqualification Act 1991 was mandatory or merely directory. The Section requires that Notice of Intention to apply for disqualification order "shall" be given to the person against whom the order is sought not less than ten days before filing the application. The Secretary of State gave Mr. Langridge less than

ten days Notice. The question before Court was whether the Statutory provision for ten days Notice period is mandatory or merely directory. What is the effect of failure to give the ten days Notice!

The Court adopted the following principles from "The Smith's Judicial Review of Administrative Action 4th Edn. 1980 pp 142 -143 to resolve the question before it:-

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"When Parliament prescribes the manner or form in which a duty is to be performed or power exercised, it seldom lays down what will be the legal consequences of failure observe its prescriptions. The Court must therefore formulate their own criteria for determining whether the procedural rules are to be regarded as mandatory, in which case disobedience will render void or voidable what has been done, or as directory, in which case disobedience will be treated as irregularity not affecting the validity of what has been done (though in some cases it has been said there must be 'substantial compliance' with the statutory provisions if the deviation is to be excused as a mere irregularity). Judges have often stressed the impracticability of specifying exact rules for the assignment of a procedural provision of the appropriate category. The whole scope and purpose of enactment must be considered and one must assess the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act.

$\therefore$ In $\therefore$ assessing the importance of the

provision, particular regards may be had to as $\overline{a}$ protection significance of its individual rights, the relative value that is normally attached to the rights that may be adversely affected by the decision and the importance of the procedural requirement overall administrative t he scheme in established by the statute. Although nullification is the natural and usual consequences of disobedience, breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a if no substantial trivial nature or prejudice has been suffered by those for whose benefit the requirements were $if$ introduced serious public $or$ inconvenience would be caused by holding them to be mandatory or if the Court is for any reason disinclined to interfere with the act or decision that is impugned."

In a nutshell, the above principles indicate that to determine whether the legislature intended a particular provision of a Statute to be mandatory, the Court must consider the whole scope and purpose of the Statute. Then to assess the importance of the impugned provision in relation to the general object intended to be achieved by the Act, Court must consider the protection of the provision in relation to the rights of the individual and the effect of the decision that the provision is mandatory.

In the instant case, the purpose of Part X of the Local Government Act No. 1 of 1997 in which Section 143 (2) falls is to set up Local Governments by elections. Section 139 thereof anticipated disputes arising from the elections and provided for the method of solving these disputes. An aggrieved candidate may petition the High Court. Section 143 (2) deals with the trial

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petitions. It requires that petitions filed under Section 139 shall be heard and determined by Court within ninety days after the date of filing. The Section is not concerned with the jurisdiction of the Court. It was only concerned with the speed at which the trial of the petitions should take. It should be expeditious. To hold that the legislature intended that provision of Section 143 (2) to be mandatory and therefore to oust the jurisdiction of the Court would be contrary to established principle, because the Section does not expressly or by clear words state the ouster.

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In my view, the word "shall" in Section 143 (2) of the Local Government Act therefore was not intended to be mandatory. It was intended to be directory only to ensure expeditious hearing and determination of election petitions filed under the Act. This is intended to enable the setting up of Local Governments without undue delay. The legislature could not have intended to oust the jurisdiction of the Court over the matter after the expiration of the prescribed period merely by the use of the word "shall". The ouster of the jurisdiction of the Court after the expiration of the prescribed period would be prejudicial to an aggrieved candidate as it would leave them without any means of resolving their disputes. For these reasons, I hold that Section 143 (2) of the Local Government Act No. 1 of 1997 is not mandatory but only directory.

In view of the above holding, the Court has inherent power to extend the time limit to meet the end of justice.

In the result, I would dismiss the appeal with costs here and in the Court be pw. As Berko, J. A and Twinomujuni, J. A both agree, the appeal is dismissed on the terms proposed above.

$2$ fit $\mathcal{M}$ of $\mathcal{M}$ empty 1998. Dated at Kampala this. OKELLO JUSTICE OF APPEAL,

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