Kawooya v Bangu and Another (Civil Application 4 of 2007) [2007] UGSC 25 (29 March 2007)

Full Case Text

### T'TIE IIDPIIRLIC OF UGAND

IN TIIE SL|PRE|IIE COURT OF LIG.. INDA

#### ,4T,ITEIiGO

## CIVIL APPLICATION NO 1/2007

## BETI|EEN

# .\tt,\lllll) K.{\\'oo\',\ K \L Gl-l

APPI,IC--..\NT

#### AND

BANGUAGGREYFRED } THE ELEC'I'ORAL CON{l\l lSSI0rr- } : : : : :: :: ::: :: ::: :

ITESPONDENTS.

## III.'I-ING OF TIIE COTIR'T

This is an application by Notice of motion for an order that time within which to file and serve a notice of appeal against the judgment of the Court of Appeal dated ll'h Januaty 2007 be extended. The application is brought under Rule 5 of the Supreme Court Rules and is supportr;d by the affidavit of the applicant sworn on l9'h March 2007. The application is opposed by both respondents who have filecl two affldavits in reply. For the l" respondent, the affidavit irr reply is sworn by the first respondent himself on 21" March 2007. For the 2'd respondent, the affidavit in reply is sworn by Mr. Philip Mwaka, a Senior State Attorney, and is dated 21" March 2007.

The brief background to the application is as follows: The applicant was elected LC. V Chairman of Kamuli District at a general election in 2006. That election result was successfully challenged by the l" respondent in the High Court at Jinja on the grounds that the applicant did not possess the requisite academic qualifications to be elected LC. V chairman. The election was therefbre nullified.

Thereafter, the applicant instructed his lawyers to challenge the decision of the High Court in the Court of Appeal. This was done under election Appeal No5 of 2006. The Court of Appeal also dismissed the applicant's appeal. He then states that he instructed his lawyers, M/s Kituma - Magala & Co. Advocates to challenge that decision.

The said lawyers filed an application to the Court of Appeal for review and correction of the judgment under the slip Rule under application No. 3 of 2007. The Court of Appeal dismissed that application on l5'h March 2007.

The applicant then changed Advocates and the new Advocates advised him that the frrst lawyers had followed a wrong procedure in applying lbr a review of the judgment. The correct procedure,

the, advised, was to tile an appeal in the Supreme Court. But by that time the time for filing a notice of appeal had expired - hence this application.

Mr. Didas Nkurungiza, u,ho appeared for the applicant, submitted very strongly on two main grounds. First, he asserted that the thilure to file thc Notice of Appeal in time was because of the mistake of the applicant's Advocates in filing wrong proceedings in the Court of Appeal which mistake should not be visited on the applicant who was not a lawyer. He cited a number of authorities notably JOSEPH MULUTA - SYLVANO KATAMA, S. C. C. A 2 OF 1999 AND KARIA - l's- ATTORNEY GENERAL, S. C. C. A. I of 2003 in support of the proposition that a mistake by counselwill not be allowed to prejudice an applicant in the consideration and grant of an extension of time. He therefore submitted that the lawyers having madc the mistake of proceeding under the slip Rule, should not be a bar to granting to the applicant an extension within which to file a Notice of Appeal. Secondly, Mr. Nkurunziza, submitted that contrary to the contentions of the respondents in their affidavits in reply that there was no right of appeal to the Supreme Court. in fact there was a right of appeal for District Chairpersons against whom the High Court and Court of Appeal had decided. In support of his argument, he cited section

138(l) of the Local Governments Act which provides for Petitions against the election of a District Chairperson to go to the High Couft, and 138(2) which provides for other councillors to file in the Chief Magistrates' Court. He then cites section 145 on appeals, laying emphasis on section 145(2). His argument is that Section 145(2) does not apply to appeals of District Chairpersons because of the use of the words "in case of a subsequent appeal" in that sub-section. To him, it means that there is an omission in not specifically providing that even appeals of District chairpersons to the Court of Appeal must be heard in the manner provided by section 145(2) i.e. for court to "proceed to hear and determine an appeal undev this section within three months after the day on which the petiiion was filed and may, for the purpose, suspend any other motter before it."

'fo him, therefore, this omission is cured by invoking section 172. Once this is invoked, then section 66 of the Parliamentary Elections Act would apply. He does not say which particular subsection of section 66 would apply.

He further argued that r.,t^ler the Judicature Act, section 6(l) an appeal lies as of right to the Supreme Court. He therefore urged court to find that therc was a right of appeal to the Supreme Court,

and that the applicant had been prevented by sufficient reason, i.e. the mistake of his counsel, from filing a notice of appeal in time. He prayed that the appli:ation be allowed and costs be in the cause.

ln reply to these submissions both Mr. Nsubuga and Mr. Okello Oryem for the l" and 2"d respondents respectively, argued that the application was bad in lau'. frivolous and vexations and an abuse of due process whose main objective was to delay justice to the l " respondent. Mr. Nsubuga submitted, citing section 145(1) and 145(3) of the Local Gover:ments Act that the Court of Appeal was the final appellate court in Local Council election matters and there was no right of appeal to the Supreme Court. He argued that sections 138(1), 145(l) and 145(3) read together completely rule out any right of appeal to the Supreme Court. To him section 145(2) merely creates a time frame within which the High Court and Court of appeal as appellate courts may dispose of Election Appeals. It does not create jurisdiction for the Supreme Court as a right of appeal is not crea'ed by implication, but must be created by express provisions of the law. The following cases were cited in support of that contention:

l. Attorney General -Vs- Shah [1971] EA 50

- MATEN-DEGYERE & OTHERS -Vs- KASIKURA & OTHERS Supreme Court Civil Application No. 8/91 2 - Sanga-Vs- Baya [973]EA 312. J

Mr. Nsubuga together with his co-counsel Mr. Malinga, further contended that in fact the applicant had fully consulted with his lawyers and concurred in the steps they had taken to file an application for review,. He had filed an affidavit in support of his application. He could therefore not now argue that he was prevented by the mistake of his lawyers. The1, contended that in fact the previous lawyers must have known that there was no right of appeal to the Supreme Court, hence their course of action. Therefore, counsel submitted, there was no sufficient cause for court to extend the time. Ile cited the following authorities in support: (l) BHAICHAND BHAGWANJI SHAN -l's-JAMNADAS & CO. LTD fi9591 EA 838 for the proposition that extension of time should not result in a manifest denial of justice, hence the need fbr an applicant to show sufficient reason; (2) FLORENCE NABATANZI \_VS- NAOME BUSOBEDDE S. C. C. A 6 of 1987 in support of the proposition that where the applicant and his/her counsel have not been diligent in handling an intended appeal, an extension of time may be denied.

Mr. Okello Oryem representing the 2"d respondent, submitted along the same lines as Mr. Nsubuga with regard to jurisdiction. But he also strongly argued that the matter of election petitions and appeals resulting rhere from are dealt with by specific legislation and therefbre the provisions of the Judicature Act cannot be invoked to defeat specific legislation. He also did not think that the applicant's previous counsel had made any mistake. They just could not have appealed to the Supreme Court. The applicant could not be divorced from this course of action with his lawyers as he had fully participated in it. He cited MANSILKHAL RAMJI KARIA -Vs- ATTORNEY GENERAL & 2 OTHERS, S. C. C. A 0I/2003 for the proposition thar the court, in establishing whether there is sufficient reason, can take into consideration such facts as the involvement of the applicant in his own case. Matters Iike his swearing of an affidavit would be taken into account.

In my view, this application primarily rests on whether the applicant has a right of appeal to the Supreme Court. Mr. Nkurunziza's argument is quite novel, but I do not think that he managed to prove his contention that there is a right of appeal to the Supreme Court in an appeal matter regarding the election of a District chairperson.

I agree with counsel for the respondents that jurisdiction of the court is not a matter for implication but must be prescribed by law. This was the position of the law as stated in the case of ATTORNEY GENERAL -Vs- SHAH (supra) and affirmed by this court in the recent case of **BAKU RAPHAEL OBUDRA AND** $V_{S-}$ **ATTORNEY OBIGA KANIA** GENERAL, **CONSTITUTIONAL APPEAL NO.1 OF 2005 (unreported).**

In the BAKU case the main issue was whether the Supreme Court had jurisdiction in Parliamentary Election Appeals, given the provisions of then section 67 of the Parliamentary Elections Act, and Article 140 of the Constitution. Section $67(3)$ provided that: "The decision of the Court of Appeal in an appeal under this **section is final.**" This prevision is on all fours with section $145(3)$ of the Local Government Act which states:

"The decision of the Court of Appeal in an appeal under this section shall be final." Article 140 provided as follows:-

> $(140(1))$ where any question is before the High Court for determination under clause 1 of article 86 of this Constitution, the High Court shall proceed to hear and determine the question expeditiously and may, for the purpose, suspend any other matter pending before it.

(2) This article shall apply in a similar manner to the Court of Appeal and the Supreme Court when hearing and determining appeals on questions referred to in clause(1) of this article."

The appellants argued that because there was reference to the Supreme Court in Article $140(2)$ that implied that there was jurisdiction for the Supreme Court. They then went further to argue that section $67(3)$ of the Parliamentary Elections Act was null and void for being inconsistent with the Constitution.

This Court rejected those arguments. Oder, JSC (RIP), citing Article 132 of the Constitution, Section 4 of the Judicature Act and the case of Attorney General –Vs- Shah, stated thus:

> "In my opinion, clause $(2)$ of article 132 recognised the long standing legal principle that appellate jurisdiction is a creature of statute. There is no such thing as an inherent appellate jurisdiction. Section 4 of the Judicature Act, makes similar provisions: "An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law." The decision in the case of Attorney General $-V$ s- Shah was consistent with that principle."

Odoki, C. J, concurring with Oder, JSC, had this to say:

"It is trite law that there is no such thing as inherent appellate jurisdiction. Appellate jurisdiction must be specifically created by law. It cannot be inferred or implied. In my view, Article 140 of the Constitution is

## too vugue to confer appellate jurisdictton on the Supreme Court in election petitions"

Four other Justices of the Supreme Court concuned in this decision, with only one dissenting.

In the instant case, there is not even a reference to the Supreme Court in section 145(2) of the Local Govemments Act that Mr. Nkurunziza seeks to rely on. His argument is that since section 16O is silent on how the appeal filed from the High Court to the Court of Appeal is to be handled, this is a matter not provided for. Therefore it has to be covered by section 66 of the Parliamentary Act by virtue of Section 172 of the Local Governments Act. I do not agree with this argumert. It is a most obligue way of inferring jurisdiction for this court, Even if one were to accept this argument. then one would apply it to the most relevant part of section 66; i.e. section 66(2) which provides:

> "The Court of Appeal shall proceed to hear and determine an appeal under this section expeditiously and may, for t,.at purpose, suspend any other matter pending before it."

This does not confer an appellate jurisdiction, and does not affect the operation of section 145 (3) of the Local Governments Act. There is no way one can then invoke section 66(3) of the Parliamentary Elections Act which specifically confers

jurisdiction on the Supleme Court in respect of Parliamentary Election appeals.

The reason why this provision cannot be invoked is because of the clear provisions of section 145(l) and 145(2) of the Local Governments Act.

Section 145(l) states thus:-

'(1) A perso,, aggrieved by the determination of a lower court on hearing an election petition may appeal to the High Court QR Court of Appeal against the verdict. "(emphasis added).

It will be noted that section 138(1) already provides for an aggrieved candidate fbr chairperson to petition the High Court. Section 145 dealing rvith appeals now prescribed for an appeal to the Court of Appeal. Section 145(2) in my view, merely provides for the manner and the trme scale in which appeals are to be handled be it in the High Court or Court of Appeal. It does not, and cannot possibly be construed to confer jurisdiction on the Supreme Court. If any part of section 66 of the Parliamentary Elections Act were to be invoked, then it should be section 66(2). Mr. Nkurunziza sought to apply the whole of section 66 without

explaining what he would then do with section 145(3) of the Local Government Act which states:

## "The decision of the Court of Appeal in an appeal under this section shall be Jinal."

Again it has to be noted that the Legislature amended the Parliamentary Elections Act to specifically prescribe jurisdiction for the Supreme Court b;' repealing Section 67(3) and enacting Section 66(3). The Legislature left Section 145(3) of the Local Governments Act in place. Had the legislature wanted to confer jurisdiction on the Supreme Court in matters of Local Council V elections, it would have specifically provided so. Until the legislature specitically prescribed so, the law remains that there is no right ofappeal to Supreme Court for an aggrieved candidate for LC. V election appeals. I therefore find no merit in Mr. Nkurunziza's argument.

Mr. Nkurunziza also sought to invoke section 6 of the Judicature Act in order to find jurisdiction for the Supreme Court in Election appeals of this nature. In my view, that argument is also misconceived. Section 6 of the Judicature Act clearly deals with appeals in civil cases. Election appeals are specifically provided for in specific legislation like the Parliamentary Elections Act and the Local Governments Act. Section 4 of the Judicature Act states:-

> "An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as are prescribed by the Constitution, this Act or any other law."

In my view, section 6 which deals with appeal in civil matters is irrelevant to this matter and does not apply.

I think this disposes of the application as it is futile to proceed to consider the merits for extension of time for filing a notice of appeal.

In the result, the applicatio" is dismissed with costs.

t-Dated at Mengo this ..'7.fl.. .. ..day of 2007.

t,.

Bart M. Katureebe Justice of The Suoreme Court