Hon. Ebil Vs Ocen (Election Petition Appeal No. Oo17 & 21 of 2017) [2017] UGCA 104 (29 November 2017)

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

ELECTION PETITION APPLICATION NO. 0017 AND 21 OF 2017

(Arising from election petition appeal no. 83 of 2016)

HON. EBIL FRED::::::::::::::::::::::::::::::::::::

#### **VERSUS**

OCEN PETER:::::::::::::::::::::::::::::::::::

# BEFORE: HON. JUSTICE S. B. K KAVUMA, DCJ HON. JUSTICE ELIZABETH MUSOKE, JA HON. JUSTICE CHEBORION BARISHAKI, JA

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### RULING OF S. B. K KAVUMA, DCJ (E) (DISSENTING)

I have read, in draft, the Ruling in this consolidated Application prepared by my sister *Lady Justice Elizabeth Musoke, JA*.

I agree with the background to the Application, the representation of the parties, the issue framed, evidence on record and the $20$ submissions of counsel for the respective parties as stated in that Ruling.

As to the reasoning and the conclusions reached in the Ruling, I hold a somewhat different view as I elaborate in the following few paragraphs of this Ruling, especially with regard to the striking/out of the Memorandum of Appeal filed on behalf of the responde

first in the High Court at Lira on the 19<sup>th</sup> August 2016 and $\mathsf{S}$ subsequently transmitted to this Court on the $1^{st}$ September 2016.

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The said Memorandum of Appeal found its way into this Court outside the time frame provided for in the law.

As agreed by the parties to the Application, the respondent filed a Notice of Appeal at the High Court at Lira on the 15<sup>th</sup> August 2016 $10$ within the time stipulated by law. Thereafter, a Memorandum of Appeal was filed in the same Court on the 19<sup>th</sup> August 2016, still within the time stipulated by law.

The said Notice of Appeal and the Memorandum of Appeal were availed to this Court as part of the Record of Proceedings filed into $15$ it on the 1<sup>st</sup> September 2016. The Memorandum of Appeal was, therefore, clearly filed outside the timelines set by law.

The justification for the respondent herein to have the time within which to file his Memorandum of Appeal extended and to have the one on Record validated is "misinterpretation" of Rule 30(b) of the 20 Parliamentary Elections Rules by the former counsel of the respondent.

Both the former and the present counsel for the respondent concede that there was such a *misinterpretation* of the law. Further justification of the Application is based on the that the $25$ respondent had instructed two counsel to represent him and that after doing that, he did not have to bother following up the conduct of his Appeal.

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The conceded *misinterpretation* of the law by counsel for the $\overline{5}$ respondent is most unfortunate as, in my view, it borders close to a plea of a defence of a mistake of law in which the said former counsel and the respondent himself seek refugee. The former counsel for the respondent are very well grounded in law, with an impressive record of practicing law, including representing litigants $10$ in Election Petition matters, prior to their taking instructions from the respondent in the instant Application. This fact is one I take judicial notice of. To my mind, the fact that the applicant instructed two counsel to handle his intended appeal should not be cause for his relaxation from the vigilant pursuit or monitoring of the $15$ progress of his Appeal.

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Further, the respondent himself is no stranger or new comer to the noble quest for elective leadership positions at both the District and the National levels as a District Chairperson and as an aspiring Member of Parliament. This is a another fact I take judicial notice of. For both positions, the respondent has always been found well qualified by possessing, inter alia, qualifications of an advanced level standard of education or its equivalent. He is, therefore, not a man one would put in the category of unknowledgeable people or novices in politics that may not be acquainted with the law and practice of elections in this Country.

Election litigation is a unique type of litigation governed by a special legal regime characterized by, interalia, the necessity for strict observance and adherence to the law applicable to them by all

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concerned. The timelines stipulated in the said law are to be strictly $\mathsf{S}$ observed and followed by all, the applicant and his former counsel That law imposes a very high duty, not only to his inclusive. counsel, former counsel inclusive, but also on the respondent as an active player and stakeholder in the elections in which he chose to participant. $10$

See Kasibante Moses Vs Electral Commission, Election Petition **Application No. 07 of 2011** where this Court held:

"In case of an election petition appeal, the intending appellant has even a higher duty to expeditiously pursue every step in the appeal so that the appeal is disposed of quickly. This is so because Section 66 (2) of the Parliamentary Elections Act and Rule 33 of the Parliamentary Elections (Election Petitions) Rules enjoin this court to hear and determine an appeal expeditiously and may, for that purpose, suspend any other matter pending before it. Rule 34 requires this court to complete the appeal within thirty (30) days from lodging the record of appeal, unless there are exceptional grounds. Time is thus of the essence in election petition appeals."

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- See also The Electoral Commission & Hon. Moses Ali versus $\mathsf{S}$ Piro Santos Eruga Civil Application No. 22 of 2011, where this Court cited with approval and quoted from the **Kenya High Court** case of Muiya Vs Nyagah and others [2003]2 EA 616 (HCK) at page 621 as below - "......... Elections are serious matters of a state $10$ As elections are held, the with its citizens. outcome announced, the electorate must know their political leader quickly and assuredly. There must be limited or no uncertainty about Roles of elected representatives are many this. 15 and diverse vis-a-avis their electors. To perform the roles well the elected must be sure of his post and the elector of his leader. And the sooner the better to give that certainty. So either the election is accepted at once or if challenged, that $20$ challenge must be move along to the end swiftly enough to restore certainty. And for that, election petitions are governed by this Act with its rules in a very strict manner. Election petition law and the regime in general, is a unique one and only $25$ intended for elections. It does not admit other laws and procedures governing other types of

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disputes, unless it says to itself. Here it spells out family and clearly that a petition must be presented and served within 28 days of the publication of election results. Anything outside that time is invalid and this one here is thus <pre>invalid."(Sic)</pre>

I find these authorities most pertinent and relevant to the situation before us in the instant Application.

The duty on the parties and their counsel is, for this country, in accordance with both the letter and the spirit of the Constitution, the Parliamentary Elections Act and the Rules applicable to $15$ elections which call for expeditious prosecution of all election and election related litigation.

Given that the filing of the Memorandum of Appeal was, as admitted by counsel for the respondent, done in the wrong court, the High Court at Lira, which had no jurisdiction in the matter, $20$ that Memorandum of Appeal is void and with no legal consequence. It is illegal and a nullity, which, in my view, cannot be turned into a legality. Logically therefore, even when the same Memorandum of Appeal was transmitted to this Court from the High Court at Lira, it remained tainted with that illegality and nullity. Nothing legal, in $25$ my view, can be built on or around such an illegality and a nullity. There is, therefore, in my view, nothing to validate. See Sanjay

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Tanna & Another Vs Ofwono Yeri Apollo, Court of Appeal $\mathsf{S}$ Election Application No. 08 of 2006.

As for the extension of the time within which to file a proper Memorandum of Appeal, I find no evidence on record, in the particular circumstance of the instant Application, to support a finding of a sufficient reason to explain the applicant's failure to $10$ take the necessary steps relevant to this Application and his Appeal within the time stipulated by law. Such reason must be convincing and supported by cogent evidence. See Kasibante Moses vs **Electoral Commission** (supra). I find none, of such, in the instant Application. 15

It is not enough for the respondent to argue that if the Application to extend the time within which to file the Memorandum of Appeal and to validate the one on Record is granted, the respondent would Such lack of prejudice should not, not suffer any prejudice. necessarily, be an excuse for the lapse of a defaulting party or $20$ his/her counsel especially where he/she has exhibited dilatory conduct or inordinate delay.

Such dilatory conduct and inordinate delay by, or on, behalf of the respondent, despite his having filed in Court an Application to have time within which to file a Memorundum of the distinguishes this Application from **Sanjay Tanna** (Supra).

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According to the undisputed evidence on record, when counsel for the applicant was served with the impugned Memorandum of

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Appeal, such service was accepted under protest on account of the $\mathsf{S}$ same having been filed and served out of time. By that fact alone, the respondent was put on Notice that all was not well with his Memorandum of Appeal. Interestingly, it took the respondent and his counsel eight, (8) months to file his Application for extension of the time within which to file the Memorandum of Appeal and to $10$ validate that which is now on Record. Even then, this was after the respondent had filed his own Application to have the Appeal, struck out on account of the respondent's failure to take an essential step in the prosecution of the same. I am persuaded by the contention by counsel for the applicant that such, is clear evidence of dilatory 15 conduct by the respondent and the filing of the Memorandum of Appeal in issue, belatedly, was an afterthought on his part.

Unlike in Sembatya Edward Ndawula Vs Alfred Muwanga, Election Petition Application No. 0022 of 2016, I am unable to say that the respondent herein did all that he could, to have his $20$ Appeal properly prosecuted and that he was a serious and vigilant litigant.

In the particular circumstances of this Application, I am unable to discharge the applicant from the high duty he shared with his former counsel to see that all the necessary steps to ensure $25$ proper and expeditious prosecution of his Appeal are taken in a timely manner and that all the necessary documents are prepared and filed in the proper court seized with jurisdiction.

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Before I take leave of this matter, I wish to observe, as I indeed $\mathsf{S}$ hereby do, that there appears to be some difference in approach to the interpretation of some of the provisions governing election and election related matters, as revealed by the authorities considered in the instant Application, especially with regard to the extension of time for taking essential steps in the prosecution of such matters. $10$ This may result into some uncertainty in court's approach in that area. It may, in my view, be worthwhile for the Court, constituted by at least five (5) Justices, in an appropriate case in the near future, to consider possible harmonization of its differing approaches, of course subject to law, for better guidance to $15$ litigating parties in this important area of election and election related litigation.

As for the instant Application, as a result, of what is stated hereinabove, I would disallow the respondent's Application to extend the time within which to file a Memorandum of Appeal and to validate the one on Record. I would allow the Applicant's Application to have the respondent's Appeal No. 83 of 2016 struck out with costs to the applicant.

### I would so order.

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Since, however, my sister Lady Justice Elizabeth Masoke, JA and $25$ my brother His Lordship Cheberion Barishaki, JA are of a contrary view and are in the majority, the respondents' Application succeeds and is hereby allowed in the terms proposed in the Majority Ruling.

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$\sqrt{2017}$ It is so ordered. $\ldots$ day of. Dated at Kampala this.. S. B. K Kavuma,<br>DCJ (E) $\mathbf{r}$

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