Ssentongo v Mugabe & Another (Civil Revision 10 of 2021) [2024] UGHC 296 (25 April 2024)

Full Case Text

# THE REPUBLIC OF UGANDA. IN THE HIGH COURT OF UGANDA AT MASAKA **CIVIL REVISION NO.010 OF 2021** (ARISING FROM ELECTION PETITION NO.52 OF 2021)

SSENTONGO ROSEMARY KYARIMPA....................................

#### **VERSUS**

## 1. MUGABE JANE

...................................... 2. THE ELECTORAL COMMISSION $\rfloor$ .

#### **Before: HON JUSTICE LAWRENCE TWEYANZE**

#### **RULING**

# Background.

- 1. The Applicant brought this Application for revision under Section 83 and 98 of the Civil Procedure Act Cap 71, Section 17 and 39 of the Judicature Act Cap 13, Order 52 rule 1 and 3 of the Civil Procedure Rules S1-71 as Amended seeking for orders that; The Judgment delivered on the 12th day of November 2021 vide Election Petition No.52 of 2021 by His Worship Oburu Morris Ezra, a Magistrate Grade One be revised and nullified for lack of Jurisdiction ; That the costs of this Application and the Trial Court be provided for. - 2. The grounds of the Application are contained in the Affidavit of Ssentongo Rosemary Kyarimpa, the Applicant and these grounds briefly are:- That the Applicant and the 1st Respondent contested for the position of a Woman Councilor Kakoma East Parish in Ssembabule District and the 2nd Respondent declared the Applicant as a winner with 214 votes against the 1st Respondent with 171 votes; That the 1st Respondent being dissatisfied with the decision of the 2nd Respondent, she filed a Petition in the Chief Magistrates Court of Ssembabule at Ssembabule and His Worship Oburu Morris Ezra, a Magistrate Grade One nullified the election and declared the $1$ st Respondent as the winner. - 3. That the Trial Magistrate Grade One lacked jurisdiction to handle the Election Petition; That the Trial Magistrate Grade one exercised the jurisdiction not vested in his Court and erroneously passed a judgment against the Applicant; That the Trial Magistrate Grade One relied on an uncertified declaration form to declare the 1st Respondent as the winner; That it's in the interest of justice that this Application be granted, the decision of the Trial Magistrate Grade One be revised

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and nullified so that the will of the people of Kakoma East Parish in Ssembabule District of choosing who should govern them is not sabotaged.

# **The Affidavits in Reply.**

- 4. The 1st Respondent filed an affidavit in reply and stated that this Application is incompetent, misconceived and an abuse of Court process and should be dismissed with costs to the 1st Respondent; That the Petition having been filed in the Chief Magistrate's Court of the Constituency of Sembabule, the trial Magistrate had jurisdiction to entertain the matter; That the trial Magistrate correctly considered the evidence in arriving at a decision to annul and set aside the election of the Applicant for the position of Woman Councilor in Kakoma East Parish in Sembabule District. - 5. In rejoinder, the Applicant stated that the $1^{st}$ Respondent's affidavit in reply is defective because it does not bear the date when she deponed the affidavit; That the Application is competent before this Honorable Court because the Learned Trial Magistrate Grade One of Ssembabule never had jurisdiction to determine Election Petition No.52 of 2021; That a Magistrate Grade one only has Jurisdiction to determine Election Petitions relating to Elections at **village**, **Parish or County** level having jurisdiction in that Constituency but not for the position of a Woman Councilor; That it is in the interest of justice that the Orders arising from Election Petition No.52 of 2021 be set aside and nullified for lack of jurisdiction. - 6. The Respondents never filed any Affidavit in reply, and if any, the same is not on Court record. There is an Affidavit of service deponed by Ivan Kyeyune, a Law Clerk attached to Xander Advocates.

# Representation.

7. The Applicant was represented by $M/s$ Xander Advocates while the Respondent was represented by $M/s$ Bashasha & Co. Advocates.

# Submissions.

8. The parties were directed to file written submissions. Counsel for the Applicants filed their submissions and as well as Counsel for the Respondent. I have read and appreciated the contents of the affidavit in support of the Application, the Respondents' affidavit in reply, the rejoinder and the submissions of the parties. I will refer to the submissions as and when I find it necessary since they majorly repeat the contents of the affidavits save for the cited authorities.

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9. The Applicant raised a preliminary objection that the Respondent's Affidavit is defective since it is not dated. However, none of the parties submitted on this preliminary objection and I would take it that it was abandoned. I will proceed to determine the Application on its merits.

#### Issues.

Counsel for the parties framed the following issues and submitted on them. Court adopts these issues as they are;

- 1. Whether the Trial Magistrate had jurisdiction to issue the said Orders Vide *Election Petition No. 52 of 2021?* - 2. What remedies are available to the parties?

# **Decision of Court.**

- **1.** Whether the Trial Magistrate had jurisdiction to issue the said Orders Vide Election Petition No 52 of 2021? - 10. Revision is the process under which the High Court exercises its powers of supervision over Magistrates' Courts. Section 83 of the Civil Procedure Act (CPA) Cap 71 provides as follows:

"The High Court may call for the record of any case which has been determined under this Act *by any Magistrate's Court, and if that Court appears to have –*

- (*a*) exercised a jurisdiction not vested in it in law; - (b) failed to exercise a jurisdiction so vested; or - (c) acted in the exercise of its jurisdiction illegally or with material irregularity or injustice, *the High Court may revise the case and may make such orders in it as it thinks fit; but no such power of revision shall be exercised* – - (d) unless the parties shall first be given the opportunity of being heard; or (e) where, from $\frac{d}{dx}$ lapse of time or other cause, the exercise of that power would involve serious hardship to *any person".* - 11. In the instant case, the allegation by the Applicant is that the Trial Magistrate exercised a jurisdiction that was not vested in him so this Application is therefore within the ambit of Section 83 of the CPA and was properly brought before the High Court. - 12. The major complaint by the Applicant is that the Trial Court exercised jurisdiction not vested in it in law when the Trial Magistrate Grade One, His Worship Oburu Morris Ezra allocated the file to himself and proceeded with the hearing of the

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Petition. He passed Judgment on the 12th day of November 2021 in favour of the 1st Respondent and even declared her as the successful candidate.

- 13. That on the $3^{rd}$ day of February 2021, the $2^{nd}$ Respondent organized and conducted elections for the position of the Woman Councilor in Kakoma East Parish in Ssembabule District. At the conclusion of the voting process, the Applicant was lawfully declared as the winner for the position of the Woman Councilor Kakoma East Parish, having polled 214, votes against the 1st Respondent with 171 votes. - 14. That the $1^{st}$ Respondent being dissatisfied with the decision of the $2^{nd}$ Respondent decided to file a Petition Vide Election Petition No. 52 of 2021 in the Chief Magistrates Court of Ssembabule at Ssembabule against the Applicant and the 2nd Respondent on ground that she was the validly elected Woman Councilor for Kakoma East Parish in Sembabule District as the Applicant states the same under paragraph 12 of her affidavits in support of the Notice of Motion. The Trial Magistrate lacked jurisdiction to handle the Election Petition. - 15. Counsel for the Applicant cited Section 138 (2) of the Local Government Act Cap 243 which is to the effect that a person qualified to Petition under Sub - section $(3)$ who is aggrieved by the declaration of the results of a Councilor May Petition the Chief Magistrates Court having jurisdiction in the Constituency. That this Section was not adhered to in Election Petition No. 52 of 2021. That It was not the Chief Magistrate who heard and determined the Petition as required by the law. That It was the Magistrate Grade One, His Worship Oburu Morris Ezra who erroneously exercised jurisdiction which was not vested in his Court, that he determined the Petition and caused a miscarriage of justice. - 16. The Respondent's Counsel submitted that the Learned Grade One Magistrate had jurisdiction to entertain the petition and he so rightly did. - 17. Section 3 of the Local Government Act explains the structure of Local Governments under the District and what is relevant in this case is as follows:- - 3. Local Governments. - *(1) The system of Local Government shall be based on the District as a unit under which there shall be lower local governments and administrative units.* - *(2) The Local Governments in a District rural area shall be* – - 1. *(a) the District Council;* - 2. *(b) the Sub County Councils.*

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# 18. Section 23 of the same Act provides for the composition of the Local Government Council at Sub- County as follows: -

23. Lower Local Government Councils.

- (1) A sub -County Council shall consist of $-$ - 1. (a) a Chairperson, elected under Part $X$ of this Act; - *2. (b) one Councilor representing each Parish or part of a Parish in the Sub County;* - 3. *(c) two youth Councilors representing the youth in the Sub- County, one of whom shall be a female youth;* - 4. *(d) two Councilors with disabilities, one of whom shall be a female, representing persons with disabilities in the Sub - County; and* - *5. (e) Women Councilors forming one-third of the Council.* (Emphasis added).

## 19. Section 138 (2) of the Local Government Act Cap 243 provides that;

- 2. *a person qualified to Petition under Sub Section (3) who is aggrieved by the* declaration of the results of a Councilor may Petition the Chief Magistrate's Court *having jurisdiction in the Constituency.* (Emphasis added). - 20. Section 142 of the same Act, provides;

#### 142. Trial of election petition.

(1) *An election petition, filed under Section 138, 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.* (Emphasis added).

21. I take note of Section 168 of the same Local Government Act which provides that:-

"168. Election petition for a village, parish or county."

An election petition relating to elections at a village, parish or county shall be filed in the **Magistrate Grade I Court** having jurisdiction in that Constituency. "(emphasis mine)

22. In my view, the above provisions as stated are clear on which Court must handle the election petitions arising from the elections of Councilors at Sub-County level and that of Village, Parish or County. Whereas Section 168 is limited to only elections at Village, Parish and County level, Section 138 and 142 are in effect for the Sub - County Councilors, which include the parties in the present case, who were contesting for the position of Woman Councilor at Sub - County level as per the declaration form. This puts the petition out of Section 168 of the Local Government Act and apparently, election petitions for Woman Councilors is a preserve of the Chief Magistrate with jurisdiction to handle not a Magistrate One.

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SMANNAB

Much as S.138 (30 talks of petitioning the Chief Magistrate's Court having jurisdiction in that Constituency, it doesn't mean that if in that Chief Magistrate's Court there is no Chief Magistrate, such a petition can be heard by a Magistrate Grade One as was in this case. The Magistrate Grade One exercised jurisdiction that was not vested in him by law. What he should have done in those e circumstances was to refer the said matter to the Chief Registrar who would have assigned the Chief Magistrate to handle the said matter.

- 23. The law is that issues of jurisdiction are substantive and go to the core of a case. - 24. If a Court lacks jurisdiction over the subject matter in dispute, its judgment and orders, however precisely certain and technically correct, are mere nullities and not simply voidable. Such judgment and orders are of no legal consequence and may not only be set aside any time by the Court in which they were rendered but may be declared void in every Court in which they are presented. Similarly, jurisdiction cannot be conferred on a Court by consent of the parties, and any waiver on their part cannot make up for the lack of jurisdiction. See: Gabula vs Wakidaka, HCCA No. 29 of 2006 and Assanand & Sons (U) Ltd vs. East African Records Ltd (1959) E. A 360. - 25. In the case before me, and from the Affidavits of both parties and their submissions, the Applicant and the 1st Respondent contested for the position of a Woman Councilor Kakoma East Parish in Ssembabule District and the 2nd Respondent declared the Applicant as a winner; The 1st Respondent being dissatisfied with the decision of the $2nd$ Respondent filed a petition in the Chief Magistrates Court of Ssembabule at Ssembabule and His Worship Oburu Morris Ezra, a Magistrate Grade One nullified the election and declared the 1st Respondent as the winner. - 26. It is my finding, the Trial Magistrate Grade One did not have jurisdiction to determine that Petition as his jurisdiction in elections matters is governed by Section 168 of the Local Government Act which limits him only to elections at Village, Parish and County level, which renders the decisions, orders and all proceedings before him a nullity and of no effect, which was contrary to Section 138(2) and 142 of the Local Governments Act. The decision and orders of the Magistrate Grade One are hereby revised and set aside.

27. I will not delve into the other arguments concerning the elections as this is not an Appeal but a revision Application. Besides, the other matters are nonconsequential at this stage since jurisdiction overrides all other issues. In conclusion, I make the following orders: -

1. The Judgment and orders by the Learned Magistrate Grade One in Election Petition No.52 of 2021 dated $12/11/2021$ are revised and set aside.

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- 2. The $1^{st}$ Respondent is ordered to vacate her seat and the Applicant is the validly elected Woman Councillor for Kakoma East Parish in Ssembabule District - 3. The $2^{nd}$ Respondent is hereby notified of the Court's decision. - 4. The costs of this Application and the Petition in the lower Court shall be paid by the 1st Respondent to the Applicant.

Ruling signed and delivered by email this 25th day of April, 2024

LAWRENCE TWEYANZE JUDGE. 25th April, 2024.