Gulyetonda v Muganwa Kajura and 2 Others (Election Petition 19 of 96) [1996] UGHC 51 (24 September 1996)
Full Case Text
### THE REPUBLIC OF UGANDA
### IN THE HIGH COURT OF UGANDA AT KAMPALA
### **ELECTION PETITION NO. 19/96**
JESSE GULYETONDA ::::::::::::::::::::: PETITIONER
#### VERSUS
$1.$ HENRY MUGANWA KAJURA } INTERIM ELECTORAL COMMISSION } ::::: RESPONDENTS 2.
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THE RETURNING OFFICER -3. } HOIMA DISTRICT
## BEFORE: THE HONOURABLE MR. JUSTICE GIDEON TINYINONDI
### R U L I N G
30 By the provisions of Section 13 of the PARLIAMENTARY ELECTIONS (INTERIM PROVISIONS) STATUTE, NO.4/96, Bugahya County in Hoima District, was constituted into a constituency for the election of one member of Parliament. It was given Constituency Code The Petitioner and 1st Respondent herein were $NQ.0.6028.$ nominated as candidates for this constituency. On the 27th day of June, 1996 Parliamentary elections were duly carried out. The Interim Electoral Commission whose continued existence was established under Section 4 of the aforementioned Statute and whose functions under Section 12 of the Statute were defined in $40$ the matters, inter alia, of organising conducting, supervising, ascertaining, publishing and declaring in writing under its seal the results of the elections, did in fact perform all these functions and issued GENERAL NOTICE NO.118 OF 1996 on 28/6/96. That GENERAL NOTICE was published in the UGANDA GAZETTE issue of 5th July, 1996. The 1st Respondent was declared the winner having obtained 24,806 votes representing a percentage of 66.5 of the total votes cast.
On 26/7/96 the Petitioner riled this petition. He prayed this court to declare the election null and void on account of "numerous illegal practices, electoral offences and violations of the Parliamentary Elections (Interim Provisions)." $1$ am unable to appreciate the tail end of the above quote. However, the Petitioner made out a catalogue of what he thought these The particulars do not interest us in this ruling. The were. Petitioner therefore prayed for:
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- That it be determined and declared that the first $\mathbf{1}$ . Respondent was not duly returned and that his election and return was wholly null and void. - 2. Alternatively it be determined that the election or member of Parliament for Bugahya Constituency carried out on the 27th day of June, 1996 be set aside and fresh elections be carried out. - The costs of this Petition be awarded to the 3. Petitioner.
The Petitioner signed the document. It was "DRAWN AND FILED BY: M/S TIBAMANYA URBAN ADVOCATES." The status of the advocate was to be assailed at the hearing of the notice of motion application, the subjection of this ruling.
The Petitioner duly filed an attidavit under <u>Rule 4(8)</u> of the PARLIAMENTARY ELECTIONS (ELECTION PETITION) RULES [1996], 30 (hereafter - " the Rules"). That affidavit was commissioned on 26th July, 1996 by "J. F. KITYO" stated to be an advocate and Commissioner of Oaths. This attidavit was also assailed by Counsel for the Respondents as will emerge in this discussion.
On 27th August, 1996 the first kespondent filed this notice of motion application seeking these orders:-
- $\mathcal{I}$ . *Election* Petition No.19 $of$ 1996 be dismissed. - The Petitioner pays the costs of the petition. $2.$
At the hearing Counsel for the Applicant/Respondent (hereafter
"the Applicant") sought to add a third order, to wit, that the Respondent/Petitioner (hereafter "the Respondent") be ordered to pay the costs of this notice of motion application. The hearing of this application was fixed for 10th September, 1996. service was effected on the Counsel on 2/9/96 (See the affidavit of service of Kalungi Samuel filed in the High Court on 4/9/96). On 6/9/96 Counsel for the Respondent filed, in the High Court, a letter reference UT/EL/495/96 dated 3rd September, 1996. I
will reproduce its contents extenso.
"TO: M/s Sebalu, Lule, Mulira & Co. Advocates for 1st Respondent.
> Attorney General's Chambers Advocates for 2nd and 3rd Respondent.
Dear Sirs,
MISC. APPL. NO.495/96 $RE:$ ELECTION PETITION NO.19 OF 1996 JESSE GULYETONDA -VS- HENRY M. KAJURA AND 2 $OTHERS$ -------
We refer to the above application coming for hearing on 10th September, 1996.
We shall be having two Criminal engagements on that day. However, from the recent decisions of the High Court on the matters raised, there is little likelihood of your application failing.
In the circumstances, we enclose herein a consent judgment which should be filed in court instead of getting another hearing date.
Yours faithfully,
TIBAMANYA URBAN ADVOCATES
c.c. Client c.c. The Registrar, High Court of Uganda."
On the hearing date the Respondent was absent. So was his Counsel. No reason was availed to court as to why both of them
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did not appear. Counsel for the Applicant (M/s Ndozireho and Matovu John) applied to proceed in the absence of the Respondent. I granted the application having been satisfied about service of the process.
Mr. Matovu John submitted, that the grounds of the application were mainly two. Firstly, that the petition was filed in the High Court Registry at Kampala instead of the High Court Registry at Masindi. That this contravened Rule 10(2) of the Rules (supra). He submitted that, for this misfiling, the petition was incompetent. He cited ELECTION PETITION NO.13/96: KAGGWA MPANGA VS. ZIMULA MUGWANYA AND OTHERS. Counsel prayed that the petition should be dismissed.
The second ground on which Counsel relied was that the affidavit accompanying the petition was incurably defective. That the bedrock of the whole petition was paragraph 8 of that affidavit. I will quote it here for ease of the reader.
- $"8.$ That malpractices, illegation and $the$ violation include:- - The first Respondent either by himself $(a)$ or through his agents was guilty of bribery and treating by giving money and other gifts to the electorate before, during and after the said elections. - $(b)$ The first Respondent did on the 16th day of June, 1996 hold illegal rallies at Kigorobya and Kibengeya Primary School playground whereat he addressed the electorate using loudspeakers mounted atop a vehicle and solicited for votes and whereat he distributed money and other gifts contrary to $of$ the provisions *Parliamentary* elections (Interim Provisions) statute. - The first Respondent by himself was $(c)$ guilty of corrupt practice undue influence when he directed voters to tick and vote for him at numerous illegal private rallies and for staging various illegal road-blocks on points leading to polling stations whereat his
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agents/ supporters intimidated voters and directed them to vote for the first Respondent whilst giving them various gifts, cash and inducements.
- $(d)$ The first Respondent used or caused to be used his position as a Minister to the tormer Government to direct LC's and Chiefs to harass and intimidate your Petitioner and that on the 17th day of June, 1996 supporters of the first Respondent *waylaid* your Petitioner and stoned his vehicle Reg. No. UPM 689 whereby its windscreen was shattered. - $(e)$ The Second and Third Respondents either by themselves or by their agents refused/ failed/neglected to stop these malpractices which prejudicially and substantially effected the results of the election. - $(f)$ The Second and Third Respondents either by themselves or their agents failed/ neglected to display the voters Register for the Statutory 14 days in various parishes of the Electoral area and your Petitioner believes that this denied his supporters the opportunity to ascertain and verify which persons were lawfully registered as voters and as a consequence persons who were qualified to be on the register and to vote did not vote and others who were not so qualified voted."
Counsel contended that references to "his agent" or "supporters" were matters of evidence; that the allegation were matters for $40$ conjecture; their names were not disclosed. He submitted that failure to disclose these people made the affidavit unreliable, hearsay and not worthy of any credibility rendering the affidavit
incurably defective. He prayed that it be struck out with costs. He quoted PATRICK RWEKIBIRA VS. KAMYA VOLE [1972] ULR 166; PREMCHAND RAICHAND LTD VS. QUARRY SERVICES [1969] E. A 514 AT 516 and BALINDA VS. KANGWAMU [1963]EA 557. I would quickly dispose of Counsel's argument by stating that, it was too early to raise this kind of objection. At the full hearing the court may invoke
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Rule $13(3)$ to cater for this situation.
Counsel then introduced what he termed a more serious problem bedeviling the petition. It was that one Urban Tibamanya who had drawn and filed the petition did not have a valid practising certificate as at $26/7/96$ (i.e the date of filing the petition). On that score the petition was incompetent and should be dismissed with costs.
Mr. Ndozireho associated himself with the above submissions. He $10$ however wished to add, that the name of the advocate who commissioned the affidavit did not appear on the list of advocates with valid practising certificates issued by the Chief Registrar, High Court as of 20th July to 20th August. That even if the petition had been filed in the right registry it lacked a valid affidavit.
I will first discuss the submissions that - $\!\!$
- (i) Mr. Urban Tibamanya who 'drew and filed' the petition did not have a valid practising certificate as at 26/7/96, and, therefore the petition was incompetent; and - commissioned the who Kityo J. F. $(ii)$ Mr. Petitioner's affidavit did not have a valid practising certificate as at 26/7/96, and, the petition lacked a valid therefore affidavit.
Following on these submissions I requested the Chief Registrar to officially post me on the two advocates. The Chief Registrar replied -
| | "INTERNAL MEMO | |----------|--------------------------------------------------------------------------------------------------------------| | TO: | The Hon. Mr. G. Tinyinondi | | FROM: | The Chief Registrar | | SUBJECT: | MISC. APPL. NO. 495/1996<br>Arising from Election Petition<br>No.19/1996 H. M. Kajura versus<br>J. Gulyetonda |
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REF. A.267
. . . . . . . . . . . . . . . . . . . . I refer to your memo of 10th September, 1996.
According to records maintained here, the last time Mr. J. F. Kityo got a Practising Certificate was on 1st July, 1991. It expired on 31.12.91.
Mr. Urban Tibamanya last got one on 28th May, 1993. It expired on 31.12.93. There is no evidence that they have since been in active Private Practise.
### YOROKAMU BAMWINE For: Chief Registrar
DATE: $11.9.96$ "
## Section 14(1) of the Advocates Act, 1970 stipulates:-
'14 (1) Any advocate not in possession of a valid practising certificate or whose practising certificate has been suspended or cancelled who practises as an advocate shall be guilty of an offence:
Provided that no prosecution shall be commenced under the provisions of this subsection before the first day of March next following the expiry of the validity of an advocate's practising certificate if the reason such advocate is not in possession of a valid certificate is only because he has neglected to renew the certificate which expired on the thirty-first day of December previous to such first day of March.'
# and, Section 1(c)(2) of the ADVOCATES ACT (AMENDMENT) DECREE [1976] provides:-
$(2)$ A practising certificate shall be valid until the thirty-first day of December next after its issue and it shall be renewable on application being made on such form and on payment of such fee as the Law Council may, by regulations, prescribe; and different tees may be prescribed for different categories of advocates."
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Let me start with Mr. Urban Tibamanya. Upon perusal of the Chief Registrar's correspondence Mr. Urban Tibamanya may have been practising without a valid certificate for three (3) years and nearly two (2) months. Under Section $14(1)$ he committed an offence of grave magnitude. He disgraced the profession. He is no better than a common thief in doing what he did. I implore the Chief Registrar to bring the matter to the attention of the Law Council and the Law Society. A prosecution could also be embarked upon.
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What is the fate of the petition which was drawn and filed by an advocate who did not have a valid practising certificate? In ALFRED OLWORA VS UCTU: C. A NO.25/92 Odoki J., S. C stated -
> "Section 14 is silent about the status of the document such advocate may sign and rile. In my view as long as the advocate is duly instructed by his client in accordance with 0.3 r.1 of the Civil Procedure Rules the documents he signs or files during the period of grace are valid and competent."
In E. T. KIYIMBA-KAGGWA VS RASOOL ADAM KHAN: MISC. CIVIL APPLICATION NO. 223/96 the effect my ruling was that documents (plaint and chamber summons) filed after the grace period were incompetent. I have since that ruling had opportunity to read SPARLING VS BRERETON V. C. W. [1866] p.64 at 67 where Sir W. Page Wood V. C quoting HOLDGATE VS SLIGHT: 21LJ (QB) 74 stated:-
"It seems to me, therefore, that an attorney, though uncertificated, may do acts in his capacity of attorney, but that the result will be that he will, in such case, lose fees. The name of the solicitor in this case was to be found in the 'Law List' for 1865, which, by the 23 & 24 Vict. c. 127, is prima facie evidence that he is duly qualified. According to the older statutes (before 6 & 7 Vict. c. 73), an attorney who did not take out his certificate for one year required re-admission, his admission being rendered void and himself incapable of practising. But under the new law (since 6 & 7 Vict. c. 73), an attorney neglecting to procure a certificate does not require re-
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Similarly under our Advocates Act, an advocate who neglects renewing his certificate does not get deregistered on that If he applies for He remains an advocate. account alone. renewal of his certificate he merely pays the arrears for the period he did not renew. I have in the light of this decision been persuaded by its reasoning. The provisions of the Act and Decree are directed toward the profession. They do not seek to punish the parties for matters (of the advocates being in possession of practising certificates) which would be extremely onerous, if not impossible, to investigate before handing down their instructions. I would in this application rule against the submissions of Counsel for the Applicant/Respondent. The petition is not incompetent simply on account of having been drawn and filed by an advocate who did not have a valid practising certificate in force when he drew and filed it. I hasten to add that my decision in the $E. T.$ KIYIMBA case (ante) was per incuriam.
It was also argued that J. F. Kityo did not have a valid practising certificate when he commissioned the affidavit of the Petitioner accompanying the petition. That the petition must be accompanied by an affidavit (See: Rules 3 and 4 (8) of the That in this case the affidavit was defective. That. Rules). therefore the petition lacked a valid affidavit. I will deal briefly with this submission as follows. Section 2(4) of the COMMISSIONERS FOR OATHS (ADVOCATES) ACT, CAP.53 provides -
forthwith commission shall " (4) Each terminate on the holder thereof ceasing to practice as an advocate."
(Emphasis supplied)
admission. His name remains on the roll, but he is incapable of recovering any fees for business done by him whilst he shall have been acting without a certificate. should be injuring both Plaintiffs and Defendants if I were to hold that the absence of a certificate had the effect of invalidating all proceedings taken in the suit. I must refuse the application. Section 13(1) of the ADVOCATES ACT, NO. 22/70 reads -
"(1) Whenever an advocate's name is removed from or struck off from the Roll for any cause, his practising certificate shall forthwith be deemed to be cancelled and shall return it to the Registrar.'
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The official communication by the Chief Registrar (ante) does not in any way state that the said J. F. Kityo has ever been struck off the Roll. The fact that J. F. Kityo did not have a valid practising certificate as at 26/7/96 did not automatically mean that he had ceased to practise as an advocate and therefore could not commission an affidavit. Commission an affidavit is not dependent on a valid current practising certificate. This petition was therefore not incompetent merely because the affidavit was commissioned by an advocate who did not have a valid practising certificate.
20 Now to the first ground concerning the venue of filing. Section 90(1) of the Statute stipulates -
> "90. (1) Election petitions under this Statute shall be filed in the High Court."
Rule 5(6) of the Rules (supra) provides -
"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<br>office of the High Court Registry." (Emphasis supplied)
In their submissions both Counsel did not refer to these 40 provisions. Only Mr. Matovu reterred to the provisions of the Rule.
There are recent decisions of this court the provisions of the Rule in question. In ELECTION PETITION NO. 13/96: KAGGWA VS.
ZIMULA MUGWANYA & 2 OTHERS where the petition was filed in the High Court Registry at Kampala. The constituency to which the petition related was Mawokota North, Mpigi District. There is a High Court District Registry at Mpigi. In discussing the provisions of the rule the Hon. the Principal Judge referred to the provisions of Order 44, rule 1 of the Civil Procedure Rules, which read -
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"Every suit in the High Court may be instituted at the Central Office of that court in Kampala or in a District Registry."
The learned Judge arrived at this conclusion -
"The employment ΟÍ this permissive expression "may be instituted" means that the petitioner has a choice of venues where to institute his suit either in Kampala or at the District Registry. This is not the case with Rule 5(6) of the Parliamentary Elections (Election Petitions) Rules, [1996] by which the petitioner must present his petition at the District Registry of the High Court in the area of the constituency, in which the challenged elections took place."
The learned Judge continues the discussion -
"The provision for filing the petition in the High Court District Registry is a statutory provision which does not allow the court a discretion to ignore it or even bend it. The provision in Rule 5(6) is a mandatory rule meaning that it must be<br>obeyed and if not obeyed, then the petition becomes incompetent. Indeed in the case of RAMAYA ELAPA -VS - MUHAMAD BHAI, 10, B. H. R., 495, it was held that where a plaintiff presented a plaint to the District Court, the Sub-Judge's court in which he ought to then presented it being have $closed$ temporarily, the District Court could not be considered a coult competent to receive the (See also Sarkar on Indian Civil plaint. Procedure Code, 17th Edn. Vol.1 at p.266).
It is necessary to point out that these Indian cases and commentaries on the **Indian** Code $of$ Civil Procedure are
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authorities in Uganda since our Civil Procedure Code had its roots in the Indian For this see Udo Udoma C. J in Code. KABAGENYI -vs- MUSIRAMO & ANOR. [1968]E. A. 43 $(45)$ ."
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He concluded: -
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"The petition is guilty of misfiling which is fatal to it and is therefore in a wrong place and incompetent."
Then there was the ELECTION PETITION NO.20/96: BWOKINO WASUGIRYA VS. THE RETURNING OFFICER & 2 OTHERS. Here the petition was attacked for having been filed in the wrong registry of the High Court, to wit, it was whereas the elections took place in the constituency of Kibuku, Pallisa where there is a District Registry office. In a lengthy discussion the Hon. the Principal Judge stated, inter alia,
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"It is trite law that where a petitioner presents a petition in a wrong registry, it cannot be said to have been presented. In the case of RAMAYA ELAPA -vs- MUHAMAD BHAI 10 B. H. C. R 495, it was held that where a plaintiff presented a plaint to the District Court, the sub-Judge's Court in which he ought to have presented it being then temporarily closed, the District court could not be considered a court competent to (See also Sarkar on receive the plaint. Indian Civil Procedure Code, 17th Edn. Vol.1 at p.226). This case is an authority in $in$ $decision$ $the$ Uganda according to KABAGENYI -vs - NUSIRAMO & ANOTHER [1968] E. A 43 (45) because the Civil Procedure Code of Uganda traces its roots in the Indian Code of Civil Proc dure which RAMAYA ELAPA -vs-MUHAMMAD BHAI 'as interpreting."
In discussing the mandatory na ire of the Rule the learned Judge cited, OPOYA VS. UGANDA [1967 EA 752 at 754 where Sir Clement De Lestang, VP said -
> "Subject to the general proposition that an equivocal word or ambiguous where sentence leaves a reasonable doubt as to the meaning of the law which the canons of $interpretation fail to solve the benefit of\\$ the doubt should be given to the subject,
there is now no distinction $in$ the construction of penal and other laws. The duty of the Court is in a nutshell to put upon the language of the legislature honestly and faithfully its plain meaning according to its express or manifest intention.
The learned Principal Judge concluded -
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"The plain meaning of Rule 5(6) of the Parliamentary Elections (Election Petitions) Rules, 1996 is that it compels the petitioner to file his petition in the High Court Registry easily accessible to the electorate where they can the attend proceedings uninhibited by inability of travel expenses and distance, and the witnesses and all the interested persons who should be able to attend such proceedings with minimum inhibition. Rule $5(6)$ is clear, straight forward and unambiguous and the court must give it its natural meaning without going behind it to search $$ extraneous meanings.
Indeed the courts in the above cases, namely, RAMAYA ELAPA -vs- MUHAMAD BHAI; KAGENYI -vs-MUSIRAMO & ANOTHER, and LEDGARD -vs- BULL [1886] 11 App. Case No.648 interpreted similar provisions to Rule 5(6) and came to the conclusion that it must be given its plain and natural meaning.
In light of the above reasoning, I should also point out that since this petition contravened Rule 5(6) this court has no jurisdiction to try it."
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In ELECTION PETITION NO.1/96: PIRO SANTOS ERUAGA VS. STEVEN BESWERI AKABWAY & 2 OTHERS; the elections in issue were held in East Moyo Constituency in Arua. The petition was presented and filed in the High Court District Registry of Gulu. Counsel for the Respondents contended that that was a wrong registry because by Statutory Instrument No.14/76 Moyo (East and West) is within the District Registry of Arua. The Petitioners' Counsel argued unsuccessfully, that Rule 5(6) was not intended to be mandatory but that, by it, the legislators intended to make it convenient to the Constituents for an election petition to be filed at the
High Court Registry nearest to their constituency to enable them to conveniently attend the trial. In his ruling my learned brother, Okello, J. held -
> "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 nowhere else. The words are plain and unambiguous. 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. "
20 He continues -
> "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 $\overline{a}$ registration. $For$ Petitioner whose Constituency to which the Petition relates, is within the area of a High Court District Registry established under the Civi1 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* $\scriptstyle \textit{Election}$ Rules $(1996)$ mandatory.
Rule 26 of the Election Petition Rules [1996] S. I. 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 echoes 126(2)(e) of our Constitution [1995] which
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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 say, $i$ s to objection. That formal substantive justice should not suffer by undue regards $t.0$ paying court 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."
In ELECTION PETITION NO.16/96: KWERA STELLA NKIRABAKINZI VS. NTABGOBA JENNINER & ANOR., the elections took place in Kisoro Constituency, the petition was filed in the High Court Registry Counsel for the Respondents sought an order to at Kampala. strike the petition off the record on the ground that the petition ought to have been filed in Kabale District Registry of the High Court.
In a well-considered opinion Ouma, J. discussed, inter alia, Section 121 of the Statute (supra) which stipulates -
Chief Justice, $i$ $n$ $"121$ $(1)$ The consultation with the Attorney General, may make rules as to the practice and procedure any of respect $_{\textit{in}}$ observed be t.o jurisdiction which under this statute is exercisable by the High Court and also in respect of any appeal from the exercise of such jurisdiction.
Without prejudice to sub-section (1) $(2)$ any rules made under that sub-section may make provision for;
> the practice and procedure $(a)$ to be observed in the hearing of election petitions;
> $of$ election (b) service an petition on the respondent.
> (c) priority to be given to the
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hearing petitions and of other matters coming before the courts under this statute.
He discussed these provisions alongside Rules 5(6) (ante) and 10(1) and (2) of the Rules. Rule 10 provides -
> $"10$ $(1)$ The trial of a petition shall be held at such time and place as the court shall direct.
> > Where the election was in respect $\mathbf{W}$ $(2)$ 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 learned Judge proceeded to interprete these provisions. He quoted, inter alia, P. J. STORM VS. CENTRAL PROVISIONS STORES [1957] EA 579 at 580 namely -
> " $\dots$ and I would say that where there is enabling section (regulation or rule added by this court) allowing the exercise of power or authority, that power or authority must be exercised in the manner contemplated by the statute (regulation of rule)"
$He$ added: -
"They (the provisions of the Statute and Rules) must therefore be construed in the ordinary and natural meanings of the words, phrases and sentences."
"In my view by the phrase 'may make rules as to the practice and procedure to be observed in respect of any jurisdiction which under the Statute is exercisable by the High Court' occurring in sub-section (1) of Section 121 of the Statutes the legislature intended to enable the making of Election Petition Rules (1996), particularly Rules $5(6)$ and $10(1)$ and $(2)$ in the manner they
were made to expedite trials of election petitions. (See: Statutory Instrument No.27 [1996]). I would therefore disagree with
The learned Judge concluded:-
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the argument that Rule 5 (b) of the Election Petitions, 1996 Rules qualified Section 121 of the Statute. SUD-rule (b) of Rule 5 directs a petitioner whose constituency is within the area of a district registry of the High Court to present his or her petition at the office of that High Court District Registry established by Statutory Instruments No.14 [19/6] and No.20 [19/6].
in my view the operative phrase in Rule 5(6) is 'the petition shall be presented at the office of that registry. The phrase is clear. It does not allow or admit or any other meaning. It is mandatory.
1 have tound the above decisions very persuasive. I am unable to differ from them.
By Statutory Instrument No.14//6 titled "The District Registries and District Registrars Order, 1976" there was established a District Registry of the High Court at Masindi for the Area of Masindi Magisterial Area. Despite the creation of Holma District. Masindi District Registry continues today to serve both Masindi and Holma Districts. In consequence or which I find and hold that this petition is incompetent having been filed in the wrong Registry of the High Court in contravention of the mandatory provisions of Rule 5(6) of the Rules.
In sum total this petition stands struck oir the court record for naving been mistiled in the wrong kegistry office of the High Court. The Fetitioner shall meet the costs of the Respondent.
Signed:
G. Tinyinondi ( **JUDGE** 24/9/1996
24/9/1996
Mr. Ndozircho for the lot Respondent Mr. Matovu for the lot Respondent Mr. Byenkya for the Petitioner. Mr. Kajura H. M. (HON) lst Respondent.
COURT:: Ruling delivered.
Signed: David Wangutusi Ag. Deputy Registrar (CIVIL) 24th September, 1996