Electoral Commission v Watira Wilson (Election Petition Application No. 4 of 2022) [2022] UGCA 133 (6 May 2022)

## THE REPUBLIC OF UGANDA,

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA (CORAM: CHEBORION, MADRAMA AND LUSWATA JJA) ELECTION PMTION APPLICATION NO 04 OF 2022

## ARISING FROM ELECTION PENTON APPEAL NO 49 OF 2O2I

# ARISING FROM HIGH COURT EPECTION PETITION NO OI2 OF 2021

## BETWEEN

ELECToRAL CoMMTSSI0N) APPLICANT

AND

WATTRA WTLSoN) RESPONDENT

# RULING OF CHRISTOPHER MADRAMA, JA

The appticant fited this apptication under the provisions of the rule 43 (l) & (2) and 82 of the Judicature (Court of Appeat Rutes) Directions and rules <sup>31</sup> & 36 of the Parliamentary Etection (Etection Petitions) Rutes for orders that Etection Petition Appeal No 49 of 2l struck out and for costs of the application and the appeat to be borne by the respondent.

The grounds of the apptication are that there is no valid appeat on record by the respondent. Secondty, the respondent failed to take an essential step in the proceedings and thirdty the respondent did not file a memorandum of appeal within the prescribed time.

The apptication is supported by the affidavit of Sabiiti Eric, an advocate emptoyed by the appticant.

The respondent Mr. Watira Witson had filed Etection Appeat Miscetlaneous Apptication No 08 of 2021 for orders that the time within which to fite and serve the Memorandum of Appeat and Record of Appeat in Election Petition No 012 ot 2021 be extended. Secondty, that the tate fiting and service of the

memorandum and record of appeaI be vatidated. Lastty for costs of the application to be provided for in the cause. ln my ruling in Election Miscellaneous Apptication No 08 of 2021, the apptication was disattowed with costs. The effect of the ruting in that apptication is that there is no valid appeal in this court on the ground that the memorandum of appeat and the record of appeal were filed out of time.

Having dismissed the respondent's apptication for extension of time to file the memorandum of appeal out of time or to validate the late fiting of the memorandum of appea[, this apptication has by defautt being a[[owed.

I would in the premises make an order that Etection Petition Appeat No 49 of 2021 be struck out with the costs of the apptication and the appeal to be borne by the respondent to this application.

| Dated at Kampala the | GE<br>day of | 2022 | |----------------------|--------------|------| | Christopher Madrama | | |

Justice of Appeat

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## THE REPUBLIC OF UGANDA,

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA (CORAM: CHEBORION, MADRAMA AND LUSWATA JJA) MISCELLANEOUS APPLICATION NO 08 OF 2O2I ARISING FROM ELECTION PETITION APPEAL NO 49 OF 2O2I ARISING FROM HIGH COURT ELECTION PETITION NO OI2 OF 2O2I BETWEEN

WATTRA WILSON) APPLICANT

### AND

- . WAKTMONA DAVID WANENDEYA) I - . ELECTORAL COMMISSION) RESPONDENTS 2

## RULING OF LUSWATA KAWUMA, JA

- tll I have had the opportunity to read in draft the judgment of my brother, Madrama, JA. This application hinged on eleven grounds. Grounds 1,3,4, and 5 stood out that the applicant was for sufficient reason prevented from taking the essential step to file and serve the notice and memorandum of appeal in time. I am in agreement with the decision of my brother Justice Christopher Madrama that the applicant's advocates were guilty of dilatory practice when they failed to file the memorandum and record of appeal within the time allowed by statute. - 12) In addition to that decision, my brother Justice Madrama made significant reference to the time lines given to the Court of Appeal in election litigation. It is provided in Section 66 Parliamentary Elections Act (hereafter PE Act) that

(t) A person aggrieved by the determination of the High Court on hearing an election petition may appeal to the Court of Appeal against the decision.

(2) The Court of Appeal shall proceed to hear and determine an appeal under this section within 6 months from the date of filing of the appeal and may for that purpose suspend any matter pending before it.

I agree then that extensions that would place the appeal beyond that statutory period, are a violation of that specific provision. However, there is indeed a problem which may have been overlooked by the legislature and may require remedial actions by the Court. I will elaborate

- The law as well explained by my brother Justice Madrama is that lodging of $[3]$ documents under the PE Act, Parliamentary Elections (Interim Provisions) Rules, and Judicature (Court of Appeal Rules) Directions, goes beyond a mere placing of the documents in the Court registry and procuring a receiving stamp from the registry staff. The Advocate or litigant concerned must ensure that they are properly lodged before the Registrar and the Registrar's seal received. Even then, it remains squarely the duty of the Registrar to endorse or seal all pleadings received at the registry. In practice, such endorsement is made only after a hearing date for the action, in this case the appeal, is obtained. This could explain why the application which was filed on 20/10/2021, was formerly lodged on 21/3/2022, five months later. It will not be judicious to blame the applicant or their counsel for that long lull of delay. - Again, once a Registrar has received due notice that an intending appellant $[4]$ requires certified copies of the judgment/ruling and proceedings, they must act upon that request in haste, and in line with the spirit of election litigation, that requires expediency in all steps taken. Indeed, according to the Parliamentary Elections (Election Petitions) (Production of Records of Appeal) Directions SI 114-4, a secretary to the Judge or any other person in charge of preparing a record, must put aside all other pending work until preparation of the proceedings is completed. They may need to work beyond working hours. For that reason, the Court must facilitate such person with all necessary equipment and stationary to ensure that the record is ready in time as required by Rule 2 of the Election Petition (Interim Provisions) Act. In the same vein, Judges are enjoined to institute a method by which typing of the records begins and continues during the course of hearing the petition. - Registrars and the Courts in general should not abdicate that important duty. $[5]$ - Having said so, I maintain my decision above. The crux of the matter in this $[6]$ case is that the applicant's counsel failed to file the memorandum and record

within the time set by statute. In such a case, the acts of those advocates who erred, are visited on the applicant, their client. By failing to take the necessary step, the applicant forfeited his right to appeal the ruling ofthe Learned Judge.

Dated, signed and delivered at <sup>a</sup>thi&,\* rt1 <sup>2022</sup> EVA K. L A Justi Appeal

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Cheborion Barishaki, Christopher Madrama & Eva Luswata, JJA)

## **MISCELLANEOUS APPLICATION NO.8 OF 2021**

## ARISING FROM ELECTION PETITION APPEAL NO.49 OF 2021

#### ARISING FROM HIGH COURT ELECTION PETITION NO.012 OF 2021 10

#### **BETWEEN**

WATIRA WILSON::::::::::::::::::::::::::::::::::::

#### AND

#### 1. WAKIKONA DAVID WANENDEYA

2. ELECTORAL COMMISSION:::::::::::::::::::::::::::::::::: 15

#### RULING OF CHEBORION BARISHAKI, JA

I have had the benefit of reading in draft the ruling in the above application prepared by my learned brother Justice Christopher Madrama, JA and I agree with the analysis and conclusion reached.

I also agree with the proposed orders regarding costs. 20

Since Eva Luswata, JA also agrees, this application is dismissed with costs.

It is so ordered.

Dated at Kampala this $\begin{array}{c} \includegraphics[width=0.1\textwidth]{images/1000000000000000000000000000000000000$ .. 2022.

**Cheborion Barishaki**

**JUSTICE OF APPEAL**

$\mathsf{S}$