Kabatsi v Kawooya and Another (Civil Application 30 of 2007) [2007] UGSC 27 (20 December 2007)

Full Case Text

## **THE REPUBLIC OF UGANDA**

## IN THE SUPREME COURT OF UGANDA **AT MENGO**

**CORAM:** J. W. N. TSEKOOKO – SINGLE JUDGE

# **CIVIL APPLICATION No.30 OF 2007**

#### JOY KABATSI KAFURA ::::::::::::::::::::::::::::::: APPLICANT

VS.

### 1. ANIFA KAWOYA BANGIRANA ::::::: RESPONDENTS 2. ELECTORAL COMMISSION

(Application arising from decision of Court of Appeal dated 5th October, 2007 in Civil Appeal Nos 3 and 4 of 2007)

#### RULING OF THE COURT

This ruling relates to a notice of motion filed by Joy Kabatsi Kafura, the applicant, under Rules 2(2), 5 and 42 of the Supreme Court Rules. By this motion, the applicant seeks for an Order to allow her time within which to file and serve a notice of appeal and subsequently a memorandum of appeal out of time. The notice of motion sets out five grounds and it is supported by an affidavit sworn by the applicant on 7th December, 2007.

In summary, both the notice of motion and the accompanying affidavit explain why the applicant was unable to file a notice of appeal and the intended appeal itself in accordance with the relevant law.

$\mathbf{1}$

Two respondents namely, Hon. Anifa Kawoya Bangirana and the Electoral Commission through its legal officers, have sworn respective affidavits in reply to the affidavit of the applicant. The two respondents in the affidavits opposed the application.

)

I will give a brief background to this matter. The applicant and the first respondent contested in Sembabule district for the Parliamentary seat of a woman member of Parliament on 23'd February, 2006. The second respondent declared the first respondent the winner. The applicant, who was dissatisfied with the results, lodged an election petition in the High Court at Masaka, The High Court allowed the petition and ordered a by-election. The first respondent appealed to the Court of Appeal which on the 5th October, 2007 allowed the appeal and set aside the judgment of the High Court and made an order dismissing the petition. The applicant was dissatisfied with the decision of the Court of Appeal. On 16th October, 2007 she filed in the Couft of Appeal a purported notice of appeal intending to appeal to this Court. On the same day she wrote a letter to the Registrar of the Court of Appeal asking for a copy of the proceedings of the Court of Appeal. According to her affidavit, the applicant and her previous lawyers laboured under the mistaken belief that the notice of appeal and the intended appeal were regulated by the Supreme Court Rules. It was after the decision'of this Couft in the case of Loi Kagen Kiryapawo & another Vs Gole Nicholas Davis (Civil Application No, 15 of 2007) was drawn to her attention that she decided to seek leave of this court first to validate her notice of appeal, to which I alluded earlier, and secondly, to be allowed to institute the appeal in accordance with the Parliamentary Elections (Election petitions) Rules (statutory Instrument 141-2). when the application came up for hearing before me on 18th December, 2OO7 , I pointed out to counsel the essence of our decision in the case of Xianawo and required them to address me on the issue of whether or not thb Parliamentary(Election petition) Rules(supra) especially part

iii thereof, apply to the Parliamentary Election Appeals to this Court. If it is as, we held in Kiryapawo decision, that the Rules apply, what were the merits or demerits in this application. Learned Counsel agreed that the ruling in the K[iapawo case, is authority for the proposition that election petition appeals to ^ this Court are regulated by Rules in Statutory Instrument 141-2 (SI 141-2).

Mr. Wakida who appeared for the applicant submitted that at the time when this Court delivered its ruling in Kiryapawo case, the time of seven days prescribed by SI. No. 141-2 within which to file a notice of appeal had expired and, therefore, the applicant could not have filed a notice of appeal as required by those Rules. Counsel submitted further, that the applicant and her previous counsel had been labouring under the mistaken belief that Election Petition appeals to this court were regulated by the Supreme Court Rules which give fourteen days within which to institute a notice of appeal and that this mistake (.iLI led to filing the notice ou/"of'Z days. He contended that the present application has merits which justify granting an order to validate the notice of appeal which was filed on 16th October, 2007 and also to allow the applicant to institute the intended appeal by 26h December,2007. He argued that Rule 36 of Statutory Instrument 141-2 permits this Court to entertain the application and to extend time under Rule 5 of the Rules of this Court. He argued that the mistake of the applicant's previous Counsel ought not to be visited on her.

Mr. Kenneth Kakuru, who appeared for the first respondent, opposed the application and prayed first that this application be struck out for being incompetent, or, in the alternative, that it be dismissed because the applicant has not shown exceptional circumstances to warrant the extension of time as f was the case in the Kjfaeawo case. Accordtng to learned counsel, Rule 36 of SI 141-2 would apply if the application had not been made under Rule 5 of the Supreme Court Rules. According to learned counsel, there are no exceptional circumstances shown by the applicant to justiff grant of extension of time in as

much as the applicant was represented by experience lawyers in the Court of Appeal while she is herself a lawyer.

0vre^ Mr. Okello Or,ryfr representing the second respondent, also opposed the . Mr. Kakuru. He ffi #llfo, "" application. He associated himself with the submissions of referred to Rule 19 of SI L4L-2 and contended that even applicant was guilty of dilatory conduct both in filing the notice of appeal as well as in filing this notice of motion.

In Kiryapawo ruling, this Court declared that the rules set out in SI l4l-2 are the rules which regulate the conduct of parliamentary election petitions and that those rules apply with necessary modification to election petition appeals filed in this Court. The Kiryapawo ruling was handed down by the Court immediately after the hearing of an application for extension of time. So the Court did not go into details of how the rules in SI 141-2 can be modified to apply to appeals to this Court.

Be that as it may, I am sitting as a single judge and therefore I need not say more about SI 141-2 thafiyvhat is necessary for this ruling. . All. I can say is that lk,opportrnity to amend part III of SI 141-2 was lost wneni\hutes Committee amended part U thereof by SI. 2006 No. 24.

Let me point out, if I may, that the current rules in SI 141-2 were promulgated in 1996 pursuant to the provisions of the Parliamentary Elections (interim Provisions) Statute, 1996. The statute and the subsequent parliamentary Elections Act, 2001 (PEA, 2001) did not provide for Election petition Appeals to this Court because the Statute made the Court of Appeal the final appellate Court in election petitions. Consequently and, quite understandably, SI 141-2 which was promulgated in 1996 after the Statute did not have any rule concerning any appeals to this Court. The PEA, 2001 which preserved the rules carried forward

the status quo in respect of appeals. It is the Parliamentary Elections Act of 2005 which in its Section 66 provided for election petition appeals to this Court. Since the Act came into force in November, 2005, there does not seem to have been any change in Paft III of SI 141-2. However, because of Section 101(3) of the 2005 Parliamentary Elections Act, read together with Section 66, I have no doubt that SI 141-2 applies to this application. Similarly because of Section 93 of the same Act it is my considered opinion that the Supreme Court Rules apply to this application.

Section 93 reads as follows:

- (1)The Chief Justice, in consultation with the Attorney General, may make rules as to practice and procedure to be observed in respect of any jurisdiction which under this Act is exercised by the High Court and also in respect of any appeals from the exercise of the jurisdiction. - (2)Without prejudice to subsection (1) any rules made under that subsection may make provision for- - (a)regulating the practice and procedure of the High Court the Court of Appeal and the Supreme Court for purposes of hearing and determining petitions under section 85 or as the case may be, for hearing and determining appeals from decisions of the High Court under that section; - (b)the practice and procedure to be observed in the hearing and determining of election petitions; - (c)service ofan election petition on the respondentl

- (d)priority to be given to the hearing of election petitions and other matters coming before the courts under this act. - (3)Rules made under thas section may, in the case of the High Court, the Court of Appea! and the Supreme Court, apply to the proceedings the rules of practice and procedure applicable to civil proceedings in the High Couft, the Court of Appeal or the Supreme Couft as the case may be, subject to such modifications as may be specified in the rules.

f, According to section 101 of the same Act,

(1)

(2)

(3) without rejudice to statuto rm or er document made or exasting under the Parliamentary Elections Act, 2001 and in force immediately before the commencement of this Act, shall, with the necessary modifications, continue in force until revoked or replaced under this Act. the provisions of the Interpretation Act, any

Clearly, therefore, there can be no doubt whatsoever that SI 141-2 was preserved. It is applicable to Election petition appeals to the Court of Appeal, Equally there can be no doubt whatsoever that because of the provisions of Rule 36 of the Instrument,the Supreme Court Rules apply together with SI 141-2 to the election appeals in this court and this is evident from Section 93(3Xsupra) read together with Rule 36.

As I pointed out to Counsel during the hearing of the application, Rule 36 makes Supreme Court rules applicable with necessary modification. The rule reads thus:-

"Subject to such modifications as the court may direct in the interest of justice and expedition of proceedings and rules regulating the procedure and practice on appeal from decisions of the High court to the Court of Appeal in civil matters shall apply to appeals under this part of these Rules"

By virtue of Section 66(3) the applicant has a right of appeal to this Court. Section 101(3) of the Act saves SI 141-2 which regulates election petitions and appeals. It is reasonable to infer that until the Chief Justice amends SI 141-2 or until he makes fresh rules under Section 93(1) of the Act, Part III of SI 141-2 must be read or interpreted as the rules which apply to election petition appeals in the Supreme Court with the necessary modification that eventually includes $\int$ The Supreme Court in appropriate places.

Mr. Okello Oreym appears to imply that Rule 19 of SI 141-2 would apply because it gives courts power to enlarge or abridge the time appointed by the rules. With respect I do not think so. That rule is found under part II of the rules which relates to conduct of the trial of a petition in the high court. As I stated earlier, because of Rule 36 of SI 141-2, it is the Supreme Court Rules which apply and in this case Rule 5 thereof gives requisite the authority for the Court to enlarge time.

Consequently I hold that the applicant correctly made the Notice of Motion under Rule 5 of the Rules of this Court since there is no rule in SI 141-2 which is directly applicable to the institution of such a motion.

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Therefore, I do not with respect accept the submission by Mr. Kakuru that the application is incompetent. Now the arguments advanced by Counsel for the applicant are that first the applicant and her previous lawyers were mistaken as to the law applicable to the institution of appeals to this Court. On the other hand counsel for the respondents assert that ignorance of the law is no defense and Mr. Oryem added that the applicant was guilty of dilatory conduct.

I will start with the last argument by Mr. Okello Oryem. If the applicant was of the view that it was the supreme court rules which were applicable, she certainly cannot be guilty of dilatory conduct. This is because the notice of appeal was filed within the 14 days prescribed by those rules (Rule 72).

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The only argument by counsel for the respondents is that the applicant cannot rely on ignorance of the law. However that too is affected by the fact of the absence of specific rules under sI 141-2 about appeals to this court.^. Therefore, while I agree that her ignorance .of the law is not a n rff"Hk for her application, I tf\ink that absence o@runtrules on election petition appeals to this court affect\$)hterestpf justice.'

Although a few election petition appeals have been filed in this court within the period prescribed by part III of statutory Instrument l1|-zl, it must be admitted that prima facie there are no rules regulating the filing of such appeals in the Supreme Court.

clearly therefore, the ignorance referred to by counsel for respondents in this application is not clear cut. ordinarily the relevant authority should have or ought to have either made new rules.or amended statutory Instrument 141-2 so as to bring it in tine with the new prLvisions introduced o; ;r;,ua';r-,; i;; (4) of section 66 of the partiamentary Etections Act, 200ffi#ffiH0"., a

this Court. I therefore think that the interest of justice would be best served by allowing this application. Accordingly, I allow the application.

- (a) The notice of appeal filed on $16^{th}/10/2007$ is hereby deemed to have been properly filed and served on the Respondents and it is validated. - (b) The applicant must institute the intended appeal by lodging the record of appeal within seven $(7)$ days from today. Obviously because of Rule 4(e) of SC Rules, the period 22nd to 26th December, 2007 will be excluded. - (c) Normally in this type of application, I would have awarded costs to the respondents. However, on the facts available, I order that the costs should abide the outcome of the intended appeal.

Delivered at Mengo this .20.1. day of December, 2007.

$\quad \ \ \textbf{C}$

J. W. N. TSEKOOKO JUSTICE OF THE SUPREME COURT

Present Mr. Wakida to the applicant Mr. L. Kakum to 150 Le Apowent Dreseit roth Dec 200