Khauka Sebbowa v Electoral Commission and Another (Election Appeal No. 23 of 2011) [2012] UGCA 58 (17 April 2012)

# THE REPUBLIC OF UGANDA

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

## ELECTION APPEAL NO.25 OF 2011

#### BETWEEN

5 KHAUKHA JIMMY SEBBOWA APPELLANT

AND

RESPONDENTS

ELECTORAL COMMISSION

MASABA AZIZ

CORAM:

I

t

10 HON. JUSTICE A. E. N. MPACI-BAHIGENINE, DCJ;

HON. JUSTICE M. S. ARACH AMOKO, JA

HON. JUSTICE REMMY KASULE, JA.

### RUTING OF THE COURT

This is an appeal from the judgement of Honourable Lady 15 Justice Margaret. C. Oguli Oumo dated 17.07.2011 dismissing Election Petition No.0024 0f 2011.

The appeal was premised on four (4) grounds, but when the same came up for hearing, counsel for both respondents raised 20 objection to the appeal contending that the same was incompetent as the appellant had no right in law to appeal to this court from the decision of the High court.

Since resolution of the issue of the competency of the appeal 25 would result in a final disposal of the appeal, one way or the other, court decided to dispose of this issue first.

Mr. Mutembule learned counsel for the second respondent, submitted that the petition in the court below had been 30 brought under section 15 of the Electoral Commission Act, and that under section 15 (4) of that Act, the decision of the High Court was final. Further, Article 64 (4) of the Constitution also made this appeal incompetent as the same made the decision of the High Court to be final.

1tr

Counsel for the second respondent, Mr. Okalang associated himself with the submissions made for the 1st respondent and he too praved that the appeal be struck out.

40 With regard to page 135 of the record of appeal, whereby the trial court is recorded as having granted leave to the petitioner/appellant to appeal the decision of the court of 17. O7.2011, counsel for both respondents submitted that this part of the record was a forgerv as the trial court never 45 entertained anv application for leave to appeal during the course of the trial and both responclents'counsel attended the trial proceedings throughout. Each one of them would thus be aware of anv such application having been made. Each one was not aware of such. The court record of proceedings also does 50 not show anv such application having been made.

Mr. Oging for the appellant, maintained that the appellant's appeal was competent by reason of articles 126 Ql (e), 139 and 287 0f the constitution and Rule 14 0f the Election Petition 55 Rules. He prayed court to hold that the appeal was competent and should be determined on its own merits.

ln resolving this issue it is necessarv to consider the background of this appeal.

J

60 The appellant and second respondent were candidates in an election of councillor for Mukhubu Ward, Wanale Division, Mhale Municipality, held on 02.03.2011. The appellant claims that, at first, he won this election with 522 votes against 5'17 for the second respondent. According to appellant, soon after the 65 declaration of results of the election, the stores of the 1't respondent, who conducted the election and who had custody of the election materials kept in those stores, were broken into by unknown persons and the election materials vandalized. The matter was reported to Mbale Police station and registered as 70 cRB 44l03/03t2011.

A few hours after the vandalizing of the 1st respondent's stores, the 2^d responclent petitioned the Returning Officer of 1st respondent, demanding a recount of votes of ZESUI (N-Z) polling 75 station. The appellant objected to this but the Returning Officer overruled the objection and went ahead with the recount of votes.

The recount resulted in a vote tie between the appellant and 80 second respondent, and in accordance with the law, the Returning Officer ordered a run-off election involving the

appellant and second respondent. The second respondent won this run-off election.

85 The appellant, petitioned the High Court through Election petition No.24 of 2011 disputing the vote recount, the holding of the run-off elections and prayed that the court declares him the directly elected councilor for MUKHUBU Ward, Wanale Division, Mbale municipality.

on 06.06.20'11, the learned trial judge, Lady Justice wlargaret C. oguli Oumo, held on the issue of preliminary objections by the respondents to the petition, that even though there was no decision of the Electoral Commission to be appealed from, since 95 there were irregularities and illegalities in the conduct of the recount and run-off elections, the petition was to be heard bV court and determlned on its own merits.

The court then proceeded to entertain the petition on its own 100 merits and on 18.07.2011 dismissecl the same with costs. The second responclent was declared to be the legallv elected

councillor for Mukhubu ward, wanale Division, Mbale Municipality, Mbale District.

105 The appellant appealed to this court against the decision of the trial judge of 18.07 .2011.

An appeal is the right of accessing a superior court and call upon it to reclress the error(s) made by the court(s) below it. 110 The overriding question in an appeal is whether the decision of the court from which the appeal originates is proper and right on the evidence and the law that the court(s) below had before it.

lls The right of appeal is a matter of substance and not of procedure. The right of appeal is a creation of statute and as such is a vested right which accrues to the parties from the date of institution of the suit. The source for the conferment of a right to prefer an appeal is the statute, but not the grant 120 of leave by the court: See The Code of Civil Proceclure - hdia volume l, 2oo7 reprint page 672. IN EAST AFRICAIII CON'MUNITY VS REPUBLIC T197OI EA 457 At Page 459, Sir Charles lllewbold, President of the then court of Appealstated:

125 'While we accept that the provisions conferring appellate juriscliction on this court shoalcl not be construed in a restrictive manner but rather in the most liberal manner, nevertheless the court can only exercise appeilate iuriscliction where that iuriscliction is given by the law of 130 Kenya."

The above principles apply to the case under consideration.

Article 64 (1) and (4) of the constitution provide:

- 135 ',64. Appeals from clecisions of the commission- - H) Any person aEgrieved by a decision of the Electoral Commission in respect of any of the complaints referred to in article 67fl) ff, of this constitution may appeal to the HiEh Court.

140 (2)

6)

## u) A clecision of the Higth court on an appeal uncler clause H) or 6) of this article shail be final."

Article 61(1xf) of the constitution provides, as one of the 145 functions of the Electoral Commission, to hear and determine election complaints arising before and during polling. Section 15(2) of the Electoral commission Act, cap.l\$o, also provides that an appeal shall lie to the High Court against a decision of the Commission confirming or rejecting the existence of an 150 irregularity. Section'15(4) of the same Act, is to the effect that on hearing a petition under subsection (2), the High court mav make such order as it thinks fit, and its decision shall be final.

With respect to counsel for the appellant, I am unable to read in 155 articles 126 Q) (e), 139 and287 of the Constitution any right of appeal being conferred to the appellant, to appeal against the decision of the learned trialjudge dated 18.07.2011.

Article 126 e) (e) enjoins courts of law to apply substantive 160 justice without undue regard to technicalities, article <sup>139</sup> provides for the jurisdiction of the High Court and article <sup>287</sup> makes Uganda to continue to be a partv to international agreements, treaties and conventions, that were in existence

and to which Uganda was a party, before the coming into force 165 of the 1995 constitution. None of these confers a right of appeal. They are thus irrelevant to the issue under consideration.

we therefore find and hold that the appellant is not vested 170 with a right by any law to appeal to this court against the decision of the learned trial High Court judge of 18.07.2011 made at Mbale in Election Pecition lvo-24 of 2077. This appeal is therefore incompetent. The same stands dismissed with costs.

## 175

Before taking leave of this case, we regret the attempt to try to convince court that the trial court granted the appellant leave to appeal by filing on record a purported order to that effect as part of the appellant's record: pages 134 and 135 thereof.

## 180

It is unfortunate that the court Registrar endorsed and stamped that Order, while the same had not been assented to by counsel for the respondents which was contrary to Order <sup>21</sup> Rule 6 of the Civil Procedure Rules, and apparently when the

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105 court record of the trial court did not show that any application for leave to appeal was ever made before the trialjudge. court registrars are thus called upon to ensure that the documents thev admit to be filed in courts as part of court records, and which thev sign and stamp, reflect what exactly has transpired 190 in court and are in compliance with the law.

As to practicing counsel, who are also officers of court, it is totally unacceptable that such documents should originate from or pass through them to be part of the court record.

I

Accordingly the Begistrar Court of Appeal, is directed to refer the matter of the genuineness of the Order comprised in pages 134 and 135 of the record of appeal in this appeal to the Law Council for appropriate investigation, and for possible 200 disciplinary action, against whoever advocate, will be found to have acted unprofessionally, depending on the outcome of the investigations. lt is so ordered.

Dated at Kampala this $\sqrt{2}$ dav Of $\mathcal{M}$ 2012.

Hon. Lady Justice A. E. N. Mpagi-Bahigeine

**DEPUTY CHIEF JUSTIC**

Hon. Lady Justice M. S. Arach Amoko

## JUSTICE OF APPEAL

Remmy. K. Kasute

JUSTICE OF APPEAL

220 Mr Simon Petés J Tusana hotoina banez 6 Mi agriq<br>Claired Councer for the appellow<br>Mr. Mutembuch Yusay for the second respondent<br>Mr. Fred Taxham for the Ter respondent<br>Ruling delivered $11$

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