Lubyayi Kisiki v Kagimu (Election Application 1 of 2003) [2003] UGCA 18 (19 September 2003)

## THE REPUBLIC OE UGANDA

### IN TUB. COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE G. M. OKELLO, JA HON. JUSTICE A. TWTNOMUJUNI, JA HON. JUSTICE C. K. BYAMUGISHA, JA

#### ELECTORAL APPLICATON NO. Ol OF 2003

**<sup>15</sup>** LUBYAYIEDDIKJSIKI... APPLICANT

# VERSUS

KAGIMU MAURICE PETER. RESPONDENT **.20**

(Application arising out of Election Appeal No.06 of 2003)

#### RULING OF THE COURT

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This is an application by Notice of Motion. It is stated to be brought under Section '12 of the Judicature Act, Rules 1(3), 35 and 42 of the rules of this court., Thelapplication is for orders:-

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an order that each party bears his own costs be .substituted therefore. That the order giving costs to the respondent both in that court and the court below be set aside and "1.

- 2. That the costs of the application be granted to the applicant. - 3. That the courts grant further of other orders as shall to the court be just."(sic)

Briefbackground to this application is as follows

The applicant and the respondent contested Parliamentary Elections for Bukomansombi Constituency in Masaka District. The elections were held on 26th June 2001 and the applicant was declared the winner. Th respondent petitioned the High Court to nullify the results on the grounds that the applicant was not qualified to be a Member of Parliament and had been nominated on the basis of invalid papers which he presented to UNEB and the Electoral Commission claiming that he had the equivalent academic qualification to the 'A' Level Certificate. The High Court nullified the election on that ground and this court upheld the nullification on appeal.

The applicant filed this motion which seeks to move this Court to revisit its judgment dated 25th October 2002 on the grounds that it was misled by the respondent.

The motion is supported by an affidavit sworn by the applicant on 6th January, 2003 whose main averments are as follows:-

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That I am a male adult Ugandan ofsound mind and the applicant hereinabove. "1.

- That I have perused the affidavits of the respondent $2.$ sworn on 27<sup>th</sup> July, 2001 as well as 14<sup>th</sup> September, 2001 and mine sworn on 7<sup>th</sup> August, 2001 and I verily understand their contents. Copies thereof are attached and marked "A", "B" and "C" respectively - $3.$ That I am informed by my advocate, Mr. Byamugisha and I verily believe him that the respondent did not tell the truth to court when he alleged that I am not qualified after allegedly obtaining a copy of my certified documents from UNEB and omitting to rely on them but chose to rely on annexture P1 which was filed with the petition on 31<sup>st</sup> July, 2001 long before the respondent got a copy from UNEB. - $4.$ That the judgment of the court basically faulted UNEB for equating my documents without certified copies hence failing to follow its own procedure and I deserve not to be condemned to costs for what is purely a fault of UNEB.

5. That court awarded costs to the respondent both in this court and in the court below.

6. That I am informed by my advocate and I verily believe that the respondent is not entitled to costs against me because he misled court and because court faulted UNEB and not me.

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- *7.* That the court was not unanimous in dismissing my appeal and I am informed by my said advocate which information I verily believe that I deserve not to be penalised in costs since the appeal raises novel points of law and fact of public importance. - 8. That this application accords with the interests of justice and seeks to correct an error apparent on the face ofthe record. - 9. That I swear this affidavit in support of my application to review and set aside the majority judgment of the court in as far as it awarded costs of the appeal to the respondent."

**15** The motion states further that on top of the affidavit of the applicant, the application is also based on "oral and/or documentary evidence" to be read and/or relied upon at the trial hereofwhich is generally that:

- **<sup>25</sup>** Commission and not from UNEB. **"1.** on a a wrong That the majority learned Justices of Appeal relied technically (sic) and came to a wrong conclusion that the documents the applicant presented to UNEB were the same as Exhibit Pl against the overwhelming evidence to the contrary and concession by counsel for the respondent that the Exhibit Pl was obtained from Electoral - 2. That the respondent went to court to seek justice but came with dirty hands in that he allegedly got

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copies of the document presented to UNEB by the applicant but chose to rely on documents got from Electoral Commission and thereby misled the court to come to a wrong decision and occasioned a miscarriage ofjustice.

- That the learned Justices of Appeal, having faulted UNEB for failure to rely on its own procedure which decision (faulting UNEB was not even unanimous) they ought to have condemned the applicant to costs when the applicant was not party to the said procedure. - **4.** The applicants as well as the appeal raised novel issues of law and fact the applicant merits to be exonerated from paying costs."

on Mr. Kamugisha Byamugisha, learned counsel, appeared for the applicant. The gist of his argument was that at the trial ofthe petition in the High Court and on appeal in this Court, the respondent misled both courts into relying a document (known as exhibit Pl), which was obtained by the respondent from the Electoral Commission and was not certified. In his view, the courts should have relied on certified documents the applicant had presented to UNEB. He invited us to find that we were misled into a wrong decision which we should correct (reverse seems more appropriate) and hold that it was the applicant who should have been awarded costs in both this Court and the High Court.

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Mr. Elias Lukwago, learned counsel for the respondent submitted that what the applicant was asking this court to do could not be done within this courts powers under rules 1(3), 35 and 42 ofthe rules ofthis court and he invited us to dismiss the application with costs.

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Rules 1(3) and 34 of the Supreme Court Rules, which are similar with our rule 1(3) and 35, have been considered by the Supreme Court in many cases such as:- Non-Performing Assets Recovery Trust vs. General Parts (TO Ltd, Civil Application No.8 of 2001 (SC) unreported; UDB vs. Oil Seed (TJ) Ltd, Civil Application No.15 of 1997 (SCXunreported); Roko Construction Company vs. Uganda Cooperative Transport Union, Civil Application No.32 of 1972 (SC)funreported) to mention only few.

**15** In Uganda Development Bank vs. Oil Seed (~U) Ltd (supra) the Supreme Court set out the principles governing the exercise of jurisdiction under those rules as follows

> *"The principles which emerge from these decisions upon which this court will exercise jurisdiction to correct errors in its decisions can be summarised asfollows:-*

> > *(l)The court has inherent jurisdiction to recall its judgments in order to give effect to its manifest intention or what clearly would have been the intention of the court had some matter not been inadvertently omitted but the court will not sit on appeal against its own judgment in the same proceedings;*

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- *(2) Slip orders may be made to rectify omission resultingfrom thefailure ofcounsel to make some particular application;* - *(3)A slip order will only be made where the court is fully satisfied that it is giving effect to the intention of the court at the time when judgment was given or in the case of <sup>a</sup> matter which was overlooked, where it is satisfied beyond reasonable doubt, as to the order which it would have made had the matter been brought to its attention.*

*In orderfor the applicant to succeed in this application, the grounds in support ofthe application must come within the ambit of the above principles. The applicant must prove that there -was a clerical or arithmetic mistake in the judgment or any error arising from an accidental slip or omission which did not give effect to the intention of the court when itpassed thejudgment"*

**20** (unreported). These principles were recently applied by this court in the case of Amama Mbabazi vs. Musinguzi Ganga James, Civil Application No.19 of 2002

**25** The main issue which must be decided first in this application is whether it can be entertained within the ambit ofthe above principles.

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Briefly the applicant is asking this court to do the following:-

- (a) Hold at this stage that the respondent lied to the High Court. - (b) Hold that the trial court and this court relied on false evidence. - (c) Hold that the petition should have been decided in favour of the applicant. - (d)Award the applicant costs in the High Court and in this Court, including costs ofthis application. - **10** In our judgment, the effect of this motion is to request this court to reverse itself. With respect, this court has no jurisdiction to do that.

**15 20** Mr. Kamugisha Byamugisha failed to point out to us what this court had inadvertently omitted or overlooked that he wanted us to correct. All the documents the applicant submitted to UNEB and to the Electoral Commission as proof of his qualifications and eligibility to be a Member of Parhament were carefully evaluated by both courts and rejected as invalid. The decision of this court was deliberate and final. This application is therefore misconceived and it is accordingly dismissed with costs to the respondent.

**/ f ,7** Dated at Kampala this day of 2003. **<sup>T</sup>**

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**25** Hon. Justice G. M. Okello JUSTICE OF APPEAL

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$\iota\overline{\omega}$ Hon Justice A. Twinomujuni<br>JUSTICE OF APPEAL $\mathsf{S}$

$\ddot{\phantom{a}}$ Hon. Justice C. K. Byamugisha<br>JUSTICE OF APPEAL

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