Bitahwa v Ishanga (Election Petition Appeal 14 of 2002) [2002] UGCC 2 (16 September 2002)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

#### CORAM: HON. MR. JUSTICE G. M. OKELLO, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

### ELECTION PETITION APPEAL NO. 14 OF 2002

#### BITAHWA NYINE SAMSON ::::::::::: **::::APPELLANT VERSUS**

ISHANGA NDYANABO LONGINO::::::::::::::::::::::::::::::::::

{Appeal from the decision of the High Court at Mbarara (Mugamba, J) dated 31-5-2002 in Civil Miscellaneous Application No. 36 of 2002 arising from Election Petition No. 1 of 2002}

## RULING OF THE COURT

This is a ruling on an oral preliminary objection regarding the competence of this appeal.

The following is the background to the objection. Bitahwa Nyine Samson, hereinafter to be referred to as the appellant and Ishanga Ndyanabo Longino, hereinafter to be referred to as the respondent, were the contestants for the position of Chairperson of Bushenyi District Council for the elections which were held on 14th February 2001. The respondent was declared the winner by the Electoral Commission. The appellant filed Election Petition No. 1 of 2002 seeking to challenge the declared result. On 15th April, 2002 M/s Babigumira & Co. Advocates, counsel for respondent filed an application by Notice of Motion seeking

to have the petition dismissed. On 23/512002 Ms Christine Kahwa, leamed counsel for the Electoral Commission, made an oral application to court to have the Cornrnission joined as a party to the application. The application rvas granted. Counsel for the Electoral Commission and the respondent rnade subrnissions on the motion. On 3I '' May 2002 the leamed trial judge made a ruling dismissing the appellant's appeal on the ground that it had been filed out of time. Dissatisfied rvith the ruling, the appellant filed this appeal against the respondent.

l0 When the appeal came before us for hearing on g/912002, Mr. Blaze Babigumira, learned counsel for the respondent, sought leave of court under rule l0l (b) of the Rules of this Court to raise orally a preliminary objection regarding the competence of the appeal. The court granted him Ieave-

SubrnittinBfhe prelimi,ary objection, Mr. Babigumira conrended that the appeal was incompetent because it was filed only agai'st the respondent whereas the judgment fi'om which the appeal arose was in favour of both the respondenl and the Electoral Cornmission. Counsel argued that the appeal was against the entire decision that declared the petition time barred. The Electoral Comrnission and the respondent were separate and independent parties. The judgment u,as in rem and rvas against the whole u,orld. According to counsel, the present appeal rvould sel-ve no purpose as long as the .iudgment in favour of'the Electoral cornrnission stands. counsel further subrnitted that the present appellant has all tl.re time been aware that the Elcctoral Courmission is a party to the judgnrent. When Ms Kahrva applied to join the Lllectoral Commission as party to rhe motion, the appellant's counsel u,as present and did not object to the application.

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Mr. Babigumira relied on Ahmad Bin Ahmed Kassim Kusais V Syed Abdulla Fadhul [l958] E. A. 60.

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Mr. Ngaruye Ruhindi, leamed counsel for the appellant, disagreed. He submitted that the whole record of proceedings shows only the names of the appellant and the respondent as parties. According to Rule 75 (d) of the Rules of this Court the heading of the notice of appeal must be the same as the heading of the proceedings appealed from. Counsel argued d that the duty was on the respondent to amend the record to include the Electoral Commission as a party to the proceedings. Counsel stated from bar that the Electoral Commission had been served with the notice of appeal and the record of appeal. He prayed court to invoke its inherent powers under Rule I (3) of the Rules of this court and join the Electoral Commission as a pafty for the proper detennination of the appeal. In counsel's view, no injustice would be caused if the commission is joined as party to the appeal.

In reply, counsel for the respondent submitted that it was neither the duty q. of the court nor that of counsel for the respondent to amend the record and show that the Electoral Commission was a pafty to the proceedings in the court below. On the contrary, it was incumbent on the appellant's counsel to cer1if, that the record of proceedings filed in this court was correct. He submitted that the Electoral Comn.rission could not be joined as party to this appeal because it was too late. The appeal against the Commission should have been filed within thirty days after filing the memorandum of appeal He relied on Besweri Lubuve Kibuka Vs Electoral Commission and Daniel Kikoola, Election Petition Appeal No. 9 of 1999 (un reported)

scourt notes that the whole decis lon the appellant is challengin instant appeal is in favour of both the respondent and the Erectoral Commission. The Electoral Cornrnission was joined as a party to the motion that sought to have the appear dismissed but no amendment to reflect the additional party was made. when the apperant fired the record of appeal the duty was upon hirn to make sure it was correct and that all the parties were reflected

l0 Rule 86 (8) of the Rules of this court provides as follows: ;, "Each copy of the record of appeal shall be ".iiinBa to rr" ,ri,:,.-iill: corrcct by the appellant or by any person entitled under, rule 22 to appeal on his or hcr behalf."

The certificate of correctness of the record of appeal which appear in the record of proceedings of this appeal was signed by counsel for the appellant. Mr. Nganuye,s arguments regarding the amendment of the record of proceedings by either the court or counsel for the respondent are, therefore, untenable.

In Ahmad Bin Ahmed Kassim Kusais V Sved Abdulla Fahdlal (Supra) the respondent R sued the appellant A and another defendant B to recover a sum of money. According to the pleadings the claim was against one or the other in the alternative. R succeeded against A. A filed an appeal against R and served the notice of appeal on R and B. However, B was not named in the record of appeal and was not served with the record of appeal. A preliminary objection by counsel for R that grave injustice would be done to B if the appeal was prosecuted appeal was accordingly without B be de a party was upheld. The lng ma

dismissed. We respectfully agree with the holding in that case and we wish to follow it. In the instant appeal the judgment effected the It would be Electoral Commission as well as the respondent. incompetent to proceed with the appeal against the respondent without joining the Electoral Commission.

Counsel for the appellant made an application to Court to use its inherent powers to join the Electoral Commission as party. This court is unable to grant the application for the following reasons. Firstly, the appellant was aware that the Electoral Commission was a party to the decision he wished to appeal against but did not join it as a party. Secondly, the application is made out of time. The authority of Besweri Lubuye Kibuka V Electoral Commission and Daniel Kikoola (supra) is binding on us. In that case it was held that by reason of non service of the petition to the second respondent in time no action existed against both respondents.

We note counsel's attempt to distinguish the authority from the present appeal on the ground that the Electoral Commission has already been served with the notice of appeal and the record of appeal. However, we are not persuaded by the arguments, as they were statements from the bar unsupported by evidence.

We are of the considered view that even if there was evidence to support counsel's claims, granting his application to join the Electoral Commission as a party to the appeal would amount to great departure from the rules of procedure. The Electoral commission was not party to the appeal.

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We find that the preliminary objection has merit. It is, therefore allowed.

In the result this appeal is dismissed with costs to the respondent.

Dated at Kampala this. 1611 Dated at Kampala this. day of Defitem 500,2002.

G. M. OKELLO,

JUSTICE OF APPEAL

una APPEAL

Crep trumba ! C. N. B. KITUMBA JUSTICE OF APPEAL

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