Wasieba Wanjusi v Kamana Wesonga (Election Petition No. 2/96) [1996] UGHC 85 (18 October 1996)


IN THE HIGH COURT OF UCANDA

## AT MBALE

## ELECTION PETITION NO. 2/96

SYLVESTER WASIEBA WANJUSI ......... APPLICANT (MEMBER OF PARLIAMENT)

## **VERSUS**

KAMANA WESONGA EDWARD ............ RESPONDENT

BEFORE: THE HON. MR. AG. JUSTICE AUGUSTUS KANIA

## RULING:

This application by the third Respondent to the Election Petition No. 2/96, Hon. Sylvester Wasieba Wanjusi is brought under Order 48 Rules 1 & 3 of the Civil Procedure Rules, Section 10: f the Civil Procedure Act, Sections 40 (c), (d) 42 and 90 of the Parliamentary Elections (Interim Provisions Statute and Rule 17 of the Parliamentary Elections (Election Petitions) Rule: 1996. It is supported by two affidavits of Hon. Sylvester Wasieb: Wanjusi dated 25th September and 3rd October, 1996 and that of Sam Serwanga dated 27th September, 1996. It seeks that the Petition of the Respondent/Petitioner be dismissed with costs on grounds that the Petitioner should not have hought the petition as a losing candidate as he had not been validly nominated a candidate. The affidavit of Kamana Wesonga Edward in reply was filed in opposition to the application.

Mr. Matsiko learned Counsel for the applicant submitted that the purpose of this application is to challenge the capacity of the respondent/petitioner in which he shallenged the election of the applicant/ respondent. He contended that the respondent/petitioner could not petition against the applicant as a candidate who had lost elections because he was never a candidate in the elections that were conducted in Bubult West Constituency as he had not been validly nominated as a candidate in compliance with the provisions of section $4\mathcal{C}(a)$ of the Parliamentary Elections (Interim Provisions) Statute 1996. He pointed out that a person can only be validly nominated a candidate under the Statute if he is nominated by two registered voters and such nominations is supported by at least ten registered voters in the Constituency where such person seeks to be candidate by them appending their signatures to the nomination papers.

To give a validity to a person's nomination as a candidate, Mr. Matsiko argued the provisions of Section 40 must be complied with before a person can be regarded as having been nominated a candidate.

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The learned Counsel for the applicant submitted, and it is contained in the averment of the affidavit of the applicant dated 3rd October, 1996, that the nomination paper of the respondent/ petitioner was not signed by two registered voters as required by Section 40 of the Statute. It was argued that the signing of the nomination paper by ten persons supporting the nomination could not cure such invalidity.

Counsel also made reference to the annexture to the applicant's affidavit dated 25th September, 1996 which is also a nomination paper in respect of the candidature of the respondent. He submitted that though the names of Phillip K. Mutete and Francis W. Wasibala were stated as of persons who made the nominations of the petitioner/ respondent as a candidate, the said wo persons did not sign the nomination papers as required by law. It was also pointed out that though a person's nomination should be supported by at least ten registered voters in the constituency where a person seeks to be $u$ candidate, the nomination in the instant case was supported by only eight persons according to the nomination paper attached to the aff.davit of Hon. Sylivester Wanjusi Wasieba dated 25th September, 1996 and marked annexture "2", and that it was not authenticated on Oath as required by Section 40 (d) of the Parliamentary Elections (Interim Provisions) Statute, 1996. This non compliance with the provisions of Section 40 meant the petitioner/respondent was not nominated a candidate as by the terms of Section 42 of the Statute such non compliance renders a nomination invalid. Consequently the Petitioner/Respondent could not patition as a candidate who had lost elections since he was not a candidate in the first place. According to Mr. Matsiko, the patitioner/ respondent could petition as an ordinary registered voter in Bubule West Constituency under Section 90 (2) (b) of the Statute. He contended that the fact that the applicant never lodged a complaint about the candidature of the petitioner/respondent before the elections could in no way validate his invalid candidature which was invalid ab imtio. He finally invited Court to strike out the affidavit in reply for not disclosing the source of the deponent's information, allow this application and to dismiss the petition with costs.

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Mr. Rwigwegi, learned Counsel for the Petitioner/Respondent submitted that this application is incompetent because none of the laws under which it is brought confers on any of the parties hereto. the right to bring it. It was his contention that it is tantamount to a cross-petition for which no provision is made under the Statute. It was his view that instead it could have been properly incorporated in the applicant's reply to the petition or brought orally way of a preliminary point. He argued that by its nature the application revolved around the interpretation of Section 41 and 42 of the Interim Provisions of the Parliamentary Elections Statute 1996. Mr. Ringwegi contended that whereas Section 41 (3) gives the Returning Officer the power to refuse the nomination of a candidate, Section 41 (4) imposes a duty on him/her to announce the name of every candidate who has been duly nominated and that the Petitioner/ Respondent's name had been so announced. He pointed out that Section 44 of the Statute gives the right to registered voters to inspect any nomination papers in respect of candidates and that Section 45 gives powers/right to registered voters to lodge complaints against the decisions of the Returning Officer under Section 41 (4). He submitted that the applicant having failed to exercise his rights under Section 44, before the elections, it is now naive to question the candidature of the Petitioner/Respondent after he had gone through the exercise of compaigning and had been voted for.

Responding to the affidavit of Sam Serwanga, he pointed out that it is ridiculous that the Interim Electoral Commission that declared the Respondent/Petitioner a losing candidate now does not regard him to be a candidate at all. Learned Counsel submitted that since one of the Nomination Papers produced had eight names and the other ten names as of persons who had supported the nomination of the petitioner/ respondent, it was possible the election authorities considered the one bearing the correct number of ten persons. He also contended the fact that the Nomination Papers relied on by the applicant were not authenticated on Oath did not mean others not before Court were not authenticated. Mr. Rangwegi invited me to strike out the application with costs.

Having carefully heard the submissions by both Counsel and having read the three affidavits in support the application and that in reply, I shall first deal with the question as to whether this application is properly before me.

Mr. Ringwegi argued that this application is improperly before this Court, because the laws under which it is brought do not confer on any of the parties hereto the right to make such an application. I have looked at the parliamentary Elections (Interim Provisions) Shatute 1996 and the Parliamentary Elections (Election Petitions) Rules 1996 but I have not come across an express provision which confers the right on parties hereto to make an application of this nature. Rule No. 17 of the Parliamentary Elections (Election Petitions) Rules seems to offer a solution. It provides as follows:-

"17. Subject to the provisions of these Rules, the practice and the procedure in respect of a Petition shall be regulated as nearly as may be in accordance with the Civil Procedure Act and the Rules made under that Act relating to the trial of a suit in the High Court, with such modication as the Court may consider necessary in the interest of justice and the expedition of the proceedings."

The effect of these provisions is that, in situations like the present, where no practice or procedure as to how to make an application is provided for either the Parliamentary Elections (Interim Provisions) Statute or the Rules made thereunder, the party interested in making such an application has to revert to the Civil Procedure Act and the Civil Procedure Rules. The Civil Procedure Rules provide the practice and procedure for making various applications but don't cover all conceivable situations. These situations not catered for specifically by the C. P. R. are collectively provided for under Order 48 Rule 1.

> "1. All applications to the Court save where otherwise expressly provided for under these Rules shall be by Motion and shall be heard in open Court."

With these provisions in mind I am of the view that this application is properly brought under Order 48 Rules 1 and 3, Rule 17 Parliamentary Elections (Election Petitions) Rules and the other enabling laws cited at the head of the Motion.

Having said that I now turn to the merits of the application based on the affidavit filed and the submissions of both learned Counsel. The nomination of a candiate for election under the Parliamentary Elections (Interim Provisions) Statute 1996 is governed by Section 40. The parts of the same, relevant to the instant application are herein below set out:-

$"40.$ (1) Nomination of a candidate shall be made on nomination day by any Two registered voters tendering to the returning officer the following:-

- (a) a nomination paper in duplicate in the prescribed form containing a statement under oath by the person seeking nomination specifying - - (i) the name, age, address and occupation of the person seeking nomination; - (ii) the address designated by the person seeking nomination for service of process and papers under this Statute; - (iii) the name and address of a person appointed official agent by the person seeking nomination. - (b) a statement signed by the person named under sub paragraph (111) of paragraph (a) of this sub section stating that he or she has accepted the appointment as agent for the candidate. - (c) the names and signatures of a minimum of ten persons who are registered voters in the Constitutency where the person seeks nomination as a candidate supporting the nomination and each of the persons so signing shall state in Nomination Paper his or her village, occupation and personal voter registration number and:

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- (d) a statement under eath stating: - (i) that the person seeking nomination is a citizen of Uganda; - (ii) that that person is eighteen years or above and - (iii) that the person named in the Nomination Paper who is seeking nomination consents to the nomination and is not disqualified to stand as a candidate by this Statute or any other law in force in Uganda."

Under Section 42 (a) of the Statute non compliance with the provisions of Section 40 (1) above has the effect of rendering a person not to be regarded as duly nominated a candidate for a Constituency and of rendering the Nomination Paper of such a person void.

"42. A person shall not be regarded as duly nominated. for a Constituency and the Nomination Paper of any person shall be regarded void if -

(a) the person's Nomination Paper was not signed and countersigned in accordance with Sub section (1) of Section 40."

The question to be answered at this stage is whether the nomination Paper tendered to the Returning Officer in respect of the candidature of the Petitioner/Respondent complied with the provisions of Section 40 (1) of the Parliamentary Elections (Interim Provisions) Statute 1996.

I scrutinised the certified copies of the Nomination Paper in respect of the Nomination of the Petitioner/Respondent as a candidate for Bubulo West Constituency which were attached to the affidavit of Hon. Sylvester Wasiebe Wanjusi dated 25th September, and 3rd October, 1996 and marked ANNEXTURES "Z" and "Y" respectively. I also looked at the original Nomination Paper in respect of the same. which were availed by Mr. Matsiko to Mr. Ringwegi as well.

At the end of it all I made the following findings of fact on ANNEXTURE Z:-

- (a) The two persons who were stated to have nominated the Petitioner/Respondent had their names written in the space, provided but did not append their signatures to the names. - (b) The persons who supported the nomination of the Petitioner/Respondent were only eight as apposed to the Minimum number of ten required by Section 40 (1) (c). - The Petitioner/Respondent did not sign the instrument $(c)$ appointing his official candidate. - (d) The Petitioner/Respondent appointed as his official egens one Kamana Wesonga E. Voter Registration No. 12634660 and the appointment was accepted by one Mutete Phillip who was not the appointed agent in any event. - (e) the oath unthenticating statement under Section 40 (1) (a) of the Statute and the consent to the Nomination as a candidate weth and work and/or declared before a Commissioner for Oaths or a person authorised to administer an Oath.

A scrutiny of ANNEXTURE Y had the same features except that there were no names of the two persons tendering the Nomination Paper to the Returning Officer and an apparent redeeming difference in that the Nomination was supposed to have been supported by at least ten registered voters of the constituency as required by Section 40 (1) (c) of the Statute.

Except for having correctly given the name, age, address and occupation of the Petitioner/Respondent the Nomination Paper in respect of the Nomination of the Petitioner/Respondent as a candidate in Bubulo West Constituency has not complied to the provisions of S. 40 (1) of the Statute. It is a complete departure from the requirements in Section 40 (1) (a), (b) and (c).

The persons stated to have nominated the Petitioner/Respondent did not sign against their names on Annexture Z and their names are not contained on Annexture Y. On both certified copies of the Nomination Paper the Petitioner/Respondent did not sign the instrument by which he appointed his official agent Kamana Wesonga E. The said appointment was accepted by one Mutete Philip who was not the one appointed official agent. At first I got the impression perhaps the petitioner/respondent had appointed himself his own official agent. I only changed my mind on realising that whereas the voter registration number of the person purported appointed official agent was 12634660 that of the petitioner was stated to be 34660. The oath authenticating statement under Section 40 (1) and that part of the Nomination Paper relating to the Petitioner/Respondent's contains the Petitioner/Respondent's contains the Petitioner/Respondent's contains the Petitioner/Respondent's contains the Petitioner/Respondent's contains the consent to being nominated were not sworn before the Commissioner for Oaths or a person authorised to administer an oath or a declaration.

All in all the Nomination Paper which was tendered to the Roturning Officer in respect of the candidature of the Petitioner/ Respondent was a complete departure from the provisions of Section 40 (1) of the Statute. This departure constituted substantial and material non compliance with the statutory provisions. Neither by the affidavit of the Petitioner/Respondent nor by submissions of his Counsel has this non compliance been denied.

Section 41 (2) (c) enjoins the Returning Officer not to refuse to accept any nomination paper,

> "(c) On account of any (other) imperfection in the Nomination Paper if the Returning Officer is satisfied that there has been substantial compliance with this Statute."

The above provision is applicable where there has been substantial compliance but not where nearly every entry on the Nomination Paper is wrong as in the present. The fate of a Nomination Paper that does not comply substantially seems to be settled by the Provisions of Section 42 ( $\alpha$ ) of the Parliamentary Elections (Interim Provisions) Statute which are in the following terms:-

$m_{42}$ . A person shall not be regarded as duly nominated for a Constituency and the nomination paper of any person shall be regarded as void if -

(a) That person's nomination paper was not signed in accordance with sub-section (1) of Section $40.$

Our Courts have held that, the word "shall" is not mandatory and that whether it is mandatory or not can be determined from the way it is couched and used. See Opoya Vs. Uganda (1967) E. A. 752.

In Election Petition 1/1996 Piro Santos Eruaga Vs. Stephen Besweri Akabway, S. P. Oboth, Moses Ali. When Okello J. was considering Rule 5 (6) of the Parliamentary Elections (Election Petitions) Rules 1995 which has the word shall used in a similar manner, like in Section 42 (a) of the Statute, relied on Opoya vs. Uganda (Supra) and held that the words were unequivocally mandatory. I respectly agree with the interpretation of the law and hold that the provisions of Section 42 (a) are unambigously mandatory. What this means is that non compliance with the provisions of Section 40 (1) of the Statute has no other result but to render the Nomination Paper of such a person and consequently his nomination as a candidate void.

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Considering my findings above that the Nomination Paper in respect of the candidature of the Petitioner/Respondent did not comply with the provisions of Section 40 (1) and considering the unambigous wording of Section 42 (a). I find and hold that the Petitioner/Respondent was not duly nominated as a candidate for Bubulo West Constituency on the 20th May, 1996 and that the Nomination Paper in respect of his Candidature was void. For all purposes he was not nominated a candidate.

Mr. Ringwegi, learned Counsel for the Petitioner/Respondent, argued that the Returning Officer and the Interim Electoral Commission having regarded and declared the Petitioner/Respondent a candidate all along and having allowed him to compain and be voted for, it was naive and ridiculous to say he was never nominated a candidate. This laxity on the part of the Returning Officer and the Interim Electoral Commission in allowing the Petitioner/Respondent to go through the grueling electoral process when he was not validly nominated under Section 40 (1) of the Section must no doubt have caused him hardship and inconvenience.

Their ommission in my view could in no way validate a candidature which was void as a direct result of the failure of the Petition to comply with the Statutory Provisions.

Mr. Ringwegi further contended that the applicant ought to have exercised his rights under Section 44 or registered voter in the Constituency to inspect the Nomination Paper filed in respect of the Potitioner before elections. If he was disatisfied he could then lodge a complaint. It was his view that the applicant could not now so late in time raise the matter of the candidature of the Petitioner/Respondent. This argument is attractive but it seems to observe the investment point that it was incumbent on the Petitioner to see to it that he was validly nomenwood in accordance with the Statute. As Section 44 of the Statute does not forbid an interested party from raising the matter of a person's candidature even after elections, I am of the view that the applicant is perfectly in order to have questioned the validity of the nomination of the Petitioner at this stage.

I agree with Mr. Matsiko that the Petitioner/Respondent not having been duly nominated, could not petition against the applicant as a losing candidate, in the elections that took place in Bubulo West Constituency as he had no capacity to petition. If he had wanted to petition he should have chosen the more ardous and the more circuitous route of petitlaning as a registered voter in Bubulo West Constituency supported by the signature of not less than five hundred registered voters as such in Bubulo West Constituency as provided for in Section 90 2(b) of the Parliamentary Elections (Interim Provisions) Statute.

In the result this application is allowed with costs to the applicant and Election Petition No. 27of 1996 is struck out with costs to the Respondent therein for having been brought by the Petitioner as a losing candidate under Section 90 (2) (a) of the Parliamentary Elections (Interim Provisions) Statute when he had not been validly nominated a candidate.

> AUGUSTUS KANIA $\frac{AG. \quad J \quad U \quad D \quad G \quad E}{18/10/96}$