Kirya Grace Wanzala v Lufafa and Another (Election Petition Application 20 of 2016) [2016] UGCA 92 (15 November 2016)

# **THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 20 OF 2016 (ARISING OUT OF ELECTION PETITION NO.016 OF 2016)**

**KIRYA GRACE WANZALA APPLICANT**

#### **VERSUS**

# **1. NELSON LUFAFA**

#### **RESPONDENT 2. ELECTORAL COMMISSION**

#### **BEFORE: HON. JUSTICE ELIZABETH MUSOKE**

#### **RULING**

This application was brought under the provisions of section 98 of the Civil Procedure Act, section 33 of the Judicature Act and rules 4, 43 and 44 of the Judicature (Court of Appeal Rules) Directions SI 13-10. It is for orders that the applicant be granted extension of time within which to file a memorandum of appeal and the record of appeal, arising out of Election Petition No. 16 of 2016.

# Background to **the application**

The applicant and the 1st respondent participated in the General Elections held on 18th February, 2016, where they contested for the position of Member of Parliament for Butembe Constituency in Jinja District. The 2nd respondent declared the 1st respondent as the validly elected Member of Parliament. The applicant challenged the outcome of the election and lodged a Petition in the High Court contending that the 1st respondent was at the time of nomination and election not qualified to stand for the office of Member of Parliament, and seeking for the cancellation/nullification of the results of the election.

On the 22nd July, 2016, the High Court dismissed the petition and upheld the declaration of the 1st respondent as the validly elected Member of Parliament of Butembe Constituency. The applicant then filed a Notice of Appeal and apparently the same was served upon the respondents.

,However, the applicant has to date not filed a memorandum of appeal and record of appeal in this Court.

On the 12th August, 2016, the applicant filed this application for extension of time within which to appeal and to file the record of appeal. The application is based on grounds that:-

- 1. The failure to file the memorandum of appeal and record of appeal was due to the delay by the High Court to avail the applicant with certified copies of the proceedings and the judgment within the prescribed time for filing the memorandum and record of appeal. - 2. The applicant has been vigilant in pursuing the appeal. - 3. The intended appeal raises serious points of law requiring judicial interpretation and determination. - 4. The applicant shall be prejudiced if the application is not granted.

The 1st respondent filed an affidavit in reply sworn by Wanume Ivan, an Advocate with the Firm of Advocates representing the 1st respondent, stating inter alia that:-

- 1. The typed and certified copy of the Judgment was ready by the 4th August, 2016, even before the applicant had applied for the typed and certified copy of the proceedings. - 2. The record of proceedings was certified and ready for collection on the 30th August, 2016, but the same has never been collected from Court by the applicant to date. - 3. The applicant has not been vigilant and his conduct has been dilatory. - 4. There are no special circumstances to warrant the extension of time within which to file a memorandum of appeal and the record of appeal.

Lule Kennedy Ben, an Advocate with the Firm of Advocates representing the 2nd respondent deponed an affidavit in reply on behalf of the 2nd respondent. Briefly, he stated as follows:-

- 1.- Upon the applicant's failure to file the record of appeal and the memorandum of appeal within the stipulated time, the 2nd respondent filed an application to strike out the Notice of Appeal vide Election Petition Application No. 17 of 2016. - 2. The application to strike out the applicant's Notice of Appeal is pending hearing and the present application is intended to defeat the above stated application. - 3. There was no legal basis for the delay by the applicant to take essential steps in the prescribed time. - 4. The applicant should have applied to peruse the Court file rather than to request for a typed copy of the proceedings. - 5. The applicant received a certified copy of the judgment on the 4th August, 2016, but has to date not filed a Memorandum of Appeal.

In rejoinder to the affidavits in reply deponed on behalf of the 1st and 2nd respondents, the applicant stated that he had been vigilant in trying to obtain the certified copy of the proceedings from the High Court; he was not aware of the existence of Election Petition Application No. 17 of 2016 and had never been served with the same and that by the time he was availed with the copy of the Judgment on the 4th August, 2016, the time within which to lodge the Memorandum of Appeal had already lapsed.

# **Representation:-**

The applicant was represented by Mr. Lubega Segona, respondent was represented by Mr. Julius Galisonga respondent was represented by Mr. Musa Sekana. while the 1st and the 2nd

At the hearing of the application, the Court ordered the parties to file written submissions within given time frames. While counsel for the applicant and the 2nd respondent filed written submissions respectively, no submissions were made/filed by or on behalf of the 1st respondent.

#### **Applicant's submissions:-**

Counsel for the applicant submitted that the failure by the applicant to file the memorandum of appeal within the prescribed time was caused by the delay on the part of the High Court in availing the relevant documents that

were vital in enabling him to file the appeal. Counsel made reference to the affidavit of the applicant in support of the application where he stated that he had applied to the High Court for the certified copies of the Judgment and record of proceedings. Further, that the applicant had thereafter and on several occasions, visited the High Court to follow up on the progress of the matter but was always informed by the Court officials that the file was still in the possession of the trial Judge.

Counsel relied on *Electoral Commission Versus Bigirwa Bernadette , Election Petition Application No.12 of 1997,* and submitted that the delay on the part of the High Court to avail the Judgment and the record of proceedings to enable the applicant to lodge the appeal within the prescribed time was sufficient cause to justify the grant of this application for extension of time. It was his contention that the applicant could not be able to effectively formulate grounds of appeal without a copy of the Judgment and the proceedings.

#### **Respondent's submissions:-**

In reply, counsel for the 2nd respondent submitted that the laws upon which this application was based were only applicable to ordinary appeals where time was not of the essence. In counsel's view, to apply the said laws to election petitions would amount to defeating the special procedures applicable to election matters and where the issue of time was highly of importance.

Counsel further submitted that this application was brought in bad faith with the intention of defeating the respondent's application to strike out the appeal which was filed prior to the filing of the present application; and that the effect of allowing this application would be to render the respondent's application to strike out the appeal nugatory. Counsel contended that considering that the grounds for extension of time were the same grounds in opposition of the application to strike out the appeal, it would only be fair to hear the application to strike out the notice of appeal first since it was filed first.

Counsel further submitted that while the applicant confirmed that he received a copy of the Judgment on the 4th August, 2016, the application for extension of time was filed on 12th August, 2016. Further, that the applicant had to date not filed a memorandum of appeal though belatedly as was usually done in other cases. Counsel contended that the applicant had not proved that he had taken any necessary steps to obtain a copy of the Judgment and the certified typed proceedings from the 28th July, 2016 until the 4th August, 2016.

It was Counsel's further submission that any vigilant intended appellant could have asked to peruse the Court file in order to formulate grounds of appeal. However, the applicant herein had not demonstrated interest and vigor in pursuit of the appeal. Counsel relied on *Nalugo Mary Margaret Ssekiziyivu Versus Bakaluba Mukasa Peter, Court ofAppeal Civil Reference No.79 of2011,* where it was held that the reason advanced in support of an application for extension of time must be cogent and touching on the inability to take an appropriate step. Counsel submitted that in the present application, there was no credible reason advanced for the failure to file the memorandum of appeal. Further, that at the time of filing this application, the time within which to file the record of appeal had not yet expired and the application was merely speculative.

It was counsel's submission that the applicant had not given any sufficient reason for his failure to file the record of appeal considering that the record of proceedings was ready as of the 30th August, 2016, yet no appeal had been filed to date.

## **Court's consideration**

I have considered the evidence on record in support of and in opposition to this application, as well as the submissions of counsel for the applicant and the 2nd respondent respectively.

From the record, Judgment in Election Petition No. 16 of 2016, was delivered on the 22nd July, 2016, and on the 23rd July, 2015, the applicant lodged a Notice of Appeal in the High Court. Rule 30 of the Parliamentary Elections (Election Petitions) Rules, requires that a memorandum of appeal

in election appeals is to be lodged within seven days after the Notice of Appeal has been filed, while rule 31 requires the filing of the record of appeal within 30 days after the filing of the memorandum of appeal. In the present case, it is not in dispute that the memorandum of appeal and the record of appeal have never been filed to date.

The evidence of the 2nd respondent reveals that prior to the filing of this application, the respondents had filed an application to strike out the Notice of Appeal filed by the applicant vide Election Petition Application No.17 of 2016. Counsel for the 2nd respondent was of the view that if this application for extension of time was to be determined first, it would render the application to strike out the Notice of Appeal nugatory.

In determining the above issue, I find the decision in *Wakayima Musoke Nsereko Versus Hon. Kisule Robert Ssebunya, Court of Appeal Miscellaneous Application No.lO of2016,* instructive. In addressing <sup>a</sup> preliminary point of law on a similar issue, court observed as follows:

*"The issue for determination by this Court is whether a single judge can proceed to hear an application for extension of time when there is a pending application to strike out a Notice ofAppeal and intended appeal to be determined by the full bench.*

*The facts of this matter are similar to those in GODFREY MAGEZI & ANOTHER VS SUDHIR RUPARELIA, MISC APPLICATION NO. 6 OF 2003, SUPREME COURT, where a single judge of the Supreme Court dismissed a similar application on ground that as a single judge, he could not hear an application for extension of time when another application for striking out the appeal was still pending before a full bench. The matter went before the full bench on an application by application, (sic). There is therefore no doubt this Court is competently constituted to hear the application for extension oftime, even though there is a pending application for striking out the appeal. Iaccordingly overrule the preliminary objection and order the matterproceeds for hearing on the merits".*

" 'I agree with the above finding and find that the filing of an application to strike out the Notice of appeal / appeal by the respondents did not bar the - applicants from lodging an application for extension of time within which to file a memorandum of appeal and record of appeal. Besides, I am of the opinion that it is fair that the application for extension of time ought to be heard first considering that the grant of the application for striking out the Notice of Appeal could have the effect of rendering the former application nugatory. In addition, there was no proof that the applicant had been served with the application in Miscellaneous Application No.17 of 2016, and was aware of the same before the filing of the present application.

In view of the above, I shall address the present application in substance.

Rule 5 of the Judicature (Court of Appeal) Rules provides that the Court may for sufficient reason, extend time for the doing of any act authorized by the rules. In *Nalugo Mary Margaret Sekiziyivu Versus Bakaluba Mukasa Peter, Court ofAppeal Civil Reference No.79 of 2011,* it was held that the reason advanced must be one that is cogent and touching on the inability to take an appropriate step.

In the present case, the reason advanced by the applicant for failure to lodge the memorandum of appeal and the record of appeal within the stipulated time was apparently due to the delay on the part of the High Court in availing the applicant with the certified copy of the proceedings and the Judgment. From the record, by letter dated 27th July, 2016, and filed in the High Court on the 28th July, 2016, counsel for the applicant filed a letter requesting for the typed copy of the proceedings and the Judgment. In the said letter, it was stated that the efforts to be availed with a copy of the Judgment had been futile as apparently, the Judgment was still being proof read. On the 4th of August, 2016, the applicant was availed with the copy of the Judgment, and this was the last day within which a memorandum of appeal ought to have been filed.

On the 11th August, 2016, the applicant filed another letter requesting for the typed and certified record of proceedings. By letter dated 1st September, 2016, the Registrar of the High Court wrote to counsel for the

• - , applicant informing them that the record of proceedings was ready and certified as of the 30th August, 2016. It was also the applicant's evidence *"* that he had made several visits to the Court in an endeavor to follow up on the matter but was on all those occasions informed that the record of proceedings and the Judgment were not yet ready.

I have taken into consideration the submission of counsel for the 2nd respondent that had the applicant been vigilant in pursuing the matter, he could have requested to peruse the Court file so that he could be able to formulate grounds of appeal therefrom. Further, that upon obtaining the Judgment, the applicant ought to have based on the same to file a memorandum of appeal instead of filing an application for extension of time. I however doubt if <sup>a</sup> Court file would be readily available for access by the public at a time during which the High Court is itself preparing the record of proceedings. The applicant may therefore not be blamed for not taking that route of seeking to peruse the court file. In any case he is entitled to the court proceedings not mere perusal of the court file. Further, I find that <sup>a</sup> Judgment which was later availed could not be sufficient in enabling the applicant to file his appeal.

From the record, the Judgment was availed on the last day within which the memorandum of appeal ought to have been filed, and the record was available as of the 30th August, 2016, which was way beyond the stipulated time within which the record of appeal ought to have been filed. In my view, the failure to file the memorandum and record of appeal within the stipulated time could rightly be attributed to the Court officials. The Court in *Wakayima Musoke Nsereko Versus Hon. Kisule RobertSsebunya (Supra),* while citing *Bhatt Versus Tejwart Singh [1962] EA 497,* stated that errors or mistakes of court officials have been held sufficient grounds for granting extension of time to file an appeal out of time.

While it is true that the purpose for the stipulations of time within electoral laws are meant to ensure expeditious disposal of election matters, it would be an injustice to deny the applicant an extension of time to pursue his appeal owing to acts which were out of his control and which were attributable to delays on the part of Court.

*i* have also taken into consideration the submission of counsel for the <sup>2</sup>nd respondent that at the time of filing this application, the time within which - to file the record of appeal had not yet expired and the application was merely speculative. However, rule 5 of the rules of this Court states that the time may be extended whether before or after the time stipulated. I find that the applicant had the right to lodge this application regardless of the fact that the time within which to file the record of appeal had not yet expired.

Accordingly, this application for extension of time is allowed for the above reasons. Considering that the High Court communicated that the record of appeal was ready as of the 30th August, 2016, the applicant is ordered to file his memorandum of appeal and the record of appeal within 7 days from the date hereof.

Costs shall abide the outcome of the appeal.

Dated at Kampala this 2016. day of

*'*

Hon. Lady Justice Elizabeth Musoke,

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