Petitioner v Respondent (HCT-04-CV-001/2001) [2002] UGHC 134 (13 February 2002)


. APPELLANT WILLIAM GIBONI WANENDEYA....................................

VERSUS

ELECTORAL COMMISSION RESPONDENT

## BEFORE: THE HONOURABLE MR. JUSTICE RUGADYA-ATWORI

## JUDGMENT

This is a petition arising from the decision of the Respondent the electoral Commission in which the petitioner Mr. William Giboni Wanendeya was disqualified from being nominated to stand for elections for the L. C. V Chairperson for Sironko District. The petition was brought under S. 15 (2) of the Electoral Commission Act, 1997. and the Parliamentary Elections, Appeals to the high Court from Commission) Rules 1996.

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The background to this petition is as follows. The Petitioner is one of five persons intending to offer themselves for elections for the Office of L. C. V Chairperson for Sironko District. On 13.12.2001, he was declared nominated as a candidate for election for chairman L. C. V Sironko District. In his report on the nomination of candidates for District Chairperson to the Respondent, the Returning Officer Sironko District attached a letter from one Francis Nagimesi, one of the candidates in which the nomination of the Petitioner was challenged for non-compliance with the law. It was alleged that the Petitioner did not attach on his nomination paper, the full list of 50 voters from at least $2/3$ of the electoral areas in the District as required by Section 112 (3) $(g)$ of the Local Government Act.

On 15.1.2002, some meeting was held at the offices of the Respondent in Kampala, which was attended, by some two cemmissioners and some officials plus the petitioner.

The Respondent disqualified the petitioner from nomination and hence this petition which seeks orders or court that the decision and order of the Respondent directing and ordering his disqualification be set aside vacated, and declared null and void.

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$\mathcal{I}$

At the commencement of the hearing, a preliminary objection was raised by the Respondent. It was submitted that the Petition was filed out of time and therefore it was incompetent and ought to be dismissed. Mr. Phillip Mwaka for the respondent argued that rule 5 of the Parliamentary Elections Appeals to the high Court from Commission) Rules, 1996 provides that a petition which is appealing the decision of the Electoral Commission must be filed within five days after the decision of the decision complained of. In this case, it was submitted, the Commission sat and decided about the complaint regarding the nomination of the Petitioner on 15.1.02. The Petitioner was informed of this decision. Any Petition challenging that decision ought to have been filed by latest $21.1.2002$ , allowance for the 2 weekend days. This Petition was filed in court on 4.2.2002- well outside that period and so contravened the mandatory provisions above cited.

In response, Mr. Wilson Kwerisima submitted that from the affidavit of the petitioner, there was no such a thing as the meeting of the Commission on 15.1.2002 as alleged, at which he, the petitioner was officially informed of his disqualification. He only learnt of it from the letter by the respondent which was addressed to the Returning Officer, Sironko and copied to him. This letter was delivered to him by a messenger from the office of the said returning Officer on 28.1.2002. From that date, putting aside the two weekend days, the petition was

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filed on 4.2.2002 which was well-in five stipulated under the law. Counsel Kwarisima also argued that rule 5 of the Parliamentary Elections (Appeals to the High Court from Commission) Rules, 1996 which sets down the five days limit is not mandatory, inspite of the use of the word "shall". He relied on the case of Edward Byaruhanga Katumba V David Kiwalabya Musoke Civil Appeal No 2/98 (. C. A) which held that the use of the word "shall" in S. 143 (2) of the Local Government Act which provides for determination of an election petition within 90 days not to have ousted courts jurisdiction as it was not mandatory, but merely directory.

It was therefore argued that non compliance with rule 5 above was a mere irregularity which was curable.

Lastly it was submitted that court ought to hear and determine the petition on its merits as if on the face of it disclosed an illegality to have been committed by the Respondent. The petitioner was not accorded a right to be heard. He was in effect condemned unheard contravening the principles of natural justice. A decision taken in such contravention is an illegal decision and therefore court ought to listen to the petitioner and determine the illegality. The cases of Victoria Kakooko Sebagereke V Electoral Commission-Election Petition No 1/2001, and Mukula International Ltd v Cardinal Naubuga [1982] HCB 11 (C. A) were relied on.

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I dismissed the objection and I now give my reasons for doing so.

Article 61 (6) of the Constitution spells out one of the portions of the Electoral Commission as being, "to hear and determine election complaints arising before and during polling."

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Section 15 of the Electoral Commission Act, 1997 re-enacts the above Constitutional provision and gives, by the side note, power to the Commission to resolve complaints.

It was submitted that the respondent complied with the above provision and held a meeting on 15.1.2002 at which a decision to disqualify the petitioner was made. It was argued that the petitioner attended that meeting and was informed of the decision to disqualify him then.

What transpired at that meeting is disputed. However, it is not disputed that the respondent wrote a letter-annexture. A to the petitioners affidavit in support of the petition in which it informed the Returning Officer Sironko of the disqualify him then.

What transpired at that meeting is disputed. However, it is not disputed that the Respondent wrote a letter-annexture A to the

petitioners affidavit in support of the petition in which it informed the returning Officer Sironko of the disqualification of the petitioner. The Returning Officer was instructed to inform the electorate accordingly.

The letter was copied to the petitioner. That letter referred to a press release issued by the Respondent dated 11.1.2002 inviting certain persons including the Petitioner to report in person and without fail to the respondents offices in Kampala.

I found it odd that a letter informing the returning Officer of the disqualification of a candidate attacked as press release inviting such candidate for a meeting in Kampala. It did not have rather either copy of he minutes of the meeting at which such a decision was taken or an extract thereof. I did not see the relevance of the attachment of the press release. Equally trelevant was attaching to that letter, a copy of the letter from Uganda National Examinations Board (UNEB) which had not considered the petitioners academic documents, presumably because they were not disputed.

If a meeting was held on 15.1.2002 as alleged, and it was conceded that one was so held, then either a final decision was not reached or if it was, it was not communicated to the petitioner. Hence the need to write the letter annexture A referred to earlier. The respondents agent,

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the returning Officer ensured that the decision of the respondent was duly communicated to the petitioner. He assigned a messenger to deliver the petitioners copy. This was done on 28.1.2002. These facts were neither denied nor controverted.

Where the petitioner made these averments right from the beginning, it is to be noted that the proof of the alleged meeting by way of minute were not made available till the very morning of the hearing. As counsel for the petitioner remarked, one could not help but nearly if not outright suspicious of the authenticity of those minutes.

It was argued that the respondent even issued press releases to this effect. With respect, that would not absolve the respondent from its duty to duly communicate formally its decision to the affected party.

I was therefore satisfied that the betitioner learnt form formally of the decision of the respondent to is quality him on 28.1.2002 from the letter-annexture "A" to his affidavit. It was from then that time started running. Therefore a petition which was filed in court on 4.2.2002 was well within the time stipulated under rule $5$ of the parliamentary Elections (Appeals to the High Court from Commission) Rules, 1996.

Having so decided, I will not go into the other grounds which were argued by Counsel for the petitioner, due to the very limited time

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which i had to write this judgment. The preliminary objection is accordingly dismissed.

Now to the merits of the petition. The issues for determination were:

- Whether the petitioner was given a chance to be heard by the $\mathbf{1}$ respondent before disqualifying him - Alternatively. - Whether the decision of the respondent to disqualify the 2. petitioner was lawful. - 3. The remedies available.

It was submitted by Mr. Kwarisima learned Counsel for the Petitioner that the petitioner was duly and lawfully nominated as a candidate for election for Sironko District Chairperson; along with A Masa Gidudu, Wagidoso, Giruli and Francis Nagimesi. This was on 13.1.22001.

On $28.1,2002$ the petitioner received a letter which was delivered by a messenger from the Office of the Returning officer, Sironke District informing him that he had been disqualified fro standing fro election for the District chairmanship.

He was never summoned to appear before the respondent. He was not availed a copy of the complaint against him. He in fact did not appear


before the respondent for purposes of giving his side before the decision to disqualify him was taken

It was contended that this was in breach of the rules of natural justice which regime that a person shall not be condemned unheard. The cases of Victoria Kakooko Sebagereka i The Electoral Commission E. P. No 1/2001 and AlHaji Edirisa Mayanja Njuki v Electoral Commission E. P No 2/2002 (both unreported), and Local Government Board Alidge [1915] A. C. 121 and Board of Education & Rice [1911] A. C. 182 were cited in support.

In response, Mr. Mwaka Phillip S. A for the respondent submitted that the respondent was duly summoned to the offices of the respondent and indeed he responded. On 15.1.2002, he came and attended a meeting at which the issue of his disqualification was the main topic for discussion. He made a spirited defence after which, the respondent arrived at the decision to disqualify his nomination. The basic rules of natural Justice were all complied with.

The Electoral Commission, the respondent herein is under a legally duty imposed by the Constitution in Article 61 $(f)$ , to hear and determine Election complaints arising before and during Polling. This is a statutory duty. Section 15 of the electoral commission Act, 1997 provides that where the Commission receives a complaint in writing alleging any


$\overline{Q}$ irregularity with any aspect of the electoral process, it will, where such complaint is not earlier resolved by a lower authority, take the necessary corrective measures. From such decision of the electoral Commission an appeal lies to this Gourt. This present petition is such an appeal after the Electoral commission received a written complaint from one Francis Nagimesi alleging, irregular nomination of the petitioner.

The Commission took a decision and nullified the nomination of the petitioner. The petitioner was informed of this decision by letter dated 16.1.2002 was annexed to the petitioners affidavit as annexture A, which letter he received on $28.1,2002$ .

The respondent sent out a press release dated 11.1.2002. This was part of the annextures to the affidavit of Flora Nkurukenda, the deputy Chairperson of the respondent. The press release was a summons to the people named therein who included the Petitioner to report in person and without fail to the offices of the respondent on 14.1.2002.

Having seen or heard the press release, the petitioner similarly held a press conference on 13.1.2002 in which he informed the Chairperson of the respondent that he could not attend the meeting their offices on 14.1.2002 because on that date, he was to appear in the high Court -

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Mbale in Election petition No 4/2002 W. J. Masaba and W. G. Wanendeya vs D. G. K. Wampi and Another before Maniraguna J. He did not therefore attend the meeting of the respondent on 14.1.2002. but the following day, he appeared at the respondents office in kampala at which he met' the deputy Chairperson, and other officials, in which a discussion concerning his disqualification was held.

These are the circumstances in which the decision to disqualify the petitioner was made. Was he given a right to be heard. Was there compliance with the rules of natural justice

Implicit in the concept of fair adjudication lie two cardinal principles, namely that no man shall be a judge in his won cause (nem Judec in causa sua); and that no man sgall be condemened unheard (audialteram Partem). these two principles of natural justice must be observed by all bodies and persons who have a duty to act judicially. See Abbot C Sullivan [1952]1 All E. R. 226 (C. A), and Halsburys Laws of England, 4<sup>th</sup> Ed. Para 84. the modern view is that the duty to act fairly applies to almost all decision - making processes.

The presumption that natural justice must be observed is more evident where there is a duty to decide only after an inquiry.

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The respondent's duty as set out in the Constitution is to "hear and determine" complaints. That, to my mind necessarily envisages a hearing of some sort.

That means that when the electoral commission is hearing and determining Election complaints, it is acting as a quasi-judicial body. See Katutsi j in *Victoria Kakooko Sebagereka v Electorai Commission* E. P. No 1/2001 (unreported).

The complaint was that the respondent arrived at the decision to disqualify the petitioner without giving him an opportunity of being heard. The complaint against the petition was not availed to him. He was not formally summoned to appear he was not availed time and opportunity to prepare and part his case.

The rule of natural justice is that no man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard. See: Re Hamilton [1981] 2 All ER. 711. this rule in situations and circumstances in which acts or decisions of tribunals have civil consequences for individuals by directly affecting their legitimate interests and expectations. Halsbury's Laws of England (Supra) para 94.

**LECHSTRAR**

The audi alteram partem rule requires that a party likely to be affected by the decision, be given prior notice of the intended decision or action to be taken, the time and place of any hearing, and the charge or complaint against him. Chief Constable of North Wales Police & Evans [1982] 3 All E. R. 141.

In the present case, the press release dated 11.1.2002 is the only and nearest thing which can be called notice. It was a notice in the newspapers. That to me cannot be a proper mode of giving notice to the petitioner, unless so ordered by court. On that point I note with a lot of dissatisfaction the casual and in fact almost callous manner in which the respondent went about the issue of giving notice to the petitioner. If this was meant to constitute notice of a hearing on allegations of improper nomination, it failed miserably. It did not give reasons why the petitioner was being summoned. It did not assign a time of the meeting apart from a vague statement, "during working hours." The purpose of the meeting was not disclosed. The petitioner therefore even if he had come on that day, and also when he came the following day, he had not been given prior notice of the complaint against him.

In paragraph 11 of the petitioners affidavit in rebuttal, he stated that the only time he saw the complaint against him was when he read the


affidavit of the deputy Chairperson of the respondent which was filed in this petition.

On the above point, therefore the respondent did not comply with the principle of audi alteram partem.

The other aspect of this rule is the right of opportunity to be heard. It is a cardinal principle of fairness that a body or tribunal which is hearing a controversy between parties gives each of them a fair opportunity to put his own case, and to correct or contradict any allegations prejudicial to his view.

See: Board of Education Rice [1911] A. C 179. This duty lies upon an authority, as in the present case notwithstanding that the hearing or inquiry is between itself and a single party. See *Ridge i Baldwin* [1963] 2 ALL E. R 66

In the present case, it was alleged that the petitioner was given an opportunity to put his case. The contention was that the petitioner came to the respondents office on 15.1.2002, and there met the deputy Chairperson and other officials. He was then informed of the response why he was wanted, and from then, the petitioner put forward his case.

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While it is true that under section 8(8) of the Electoral Commission Act, it regulates its own procedure, this does give licence to depart from the rules of natural justice. H a party was not then, and apparently up to now never availed a copy of the complaint against him, it is difficult to see how it can be said that he was given a fair opportunity to put his case. It is therefore not surprising that the petitioner treated the meeting which he had with the deputy Chairperson and other officials as merely a casual one at which matter pertaining to his disqualification were discussed. There was no hearing. Indeed that seems to be the trend; to treat matters which have very serious implications or the livelihood of people in a casual manner.

I have no alterative but to hold that while there was a meeting between the Deputy Chairperson and the petitioner in the presence of some officials, there was no hearing in terms of $S$ . 15 (1) of the electoral Commission Act, read together with Article 61 (f) of the Constitution, a that rules of natural justice were not complied with. The petitioner was not given the right of being heard before the decision to disqualify his nomination was reached.

An act or decision reached in contravention of the rule of audi alterem partem, the right hot to be condemned unheard may be set aside by court. Halsbury's Law's of England (Supra) para 100. Section 15 (4)


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of the Electoral Commission Act provides that upon hearing a petition under this section, the High Court may make such orders as it thinks fit.

Having decided the point issue in fayour of the petitioner, I do not find it necessary to consider the second issue which was argued in the alternative. The first issue effectively disposes of the petition. I am mindful of the fact that the issues raised by both counsel in the alternative issue are very important which would need, at the appropriate time, courts determination. But considering that I was required to deliver this judgment barely hours before the election of the District chairperson, I will leave that noble duty of considering such issues for another time.

Counsel for the petitioner made the following prayers in his final submissions, in view of the framed issues.

- $1.$ That the decision of the respondent nullifying the nomination of the petitioner be set aside. - 2. That fresh date for nomination of candidates for District Chairperson for Sironko be ordered, and - 3. Costs of the petition

Having decided as I have above, judgment is hereby entered for the petitioner. The following orders are hereby made.

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- The decision of the respondent nullifying the nomination of $\overline{1}$ . the petitioner is null and void and is hereby set aside. - $2.$ the respondent shall set fresh dates for nomination, and elections of District Chairperson for Sironko District. - 3. Costs of this petition shall be paid by the respondent.

Judge.

Rugadya-Atwoki

13.2.2002

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