Muliro v Wakalawo (Election Petition Application No.9 of 2017) [2017] UGCA 11 (12 May 2017)
Full Case Text
### THE REPUBLIC OF UGANDA
### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
## **ELECTION APPLICATION NO. 9 OF 2017**
MULIRO WANGA KARIM....................................
### **VERSUS**
WAKALAWO SAM PAUL ....................................
CORAM: HON. MR. JUSTICE KENNETH KAKURU, JA *(Single Justice)*
**RULING OF THE COURT**
The applicant brought this application by way of notice of motion under Rules 2 (1), 5, 43 and $44(1)$ of the Rules of this Court seeking the following orders.
- 1. Time within which to file and serve the Memorandum of Appeal be extended. - 2. The Costs of and incidental to this application abide the result of the intended appeal.
The grounds for the application set out in the motion as follows:-
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a) The Applicant dissatisfied with the Judgment of the HON. MR. JUSTICE HENRY I. KAWESA, delivered on the 14th day of December 2016 instructed his lawyers at the time Musamali & Co Advocates to Appeal against his Judgment.
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b) The Applicant through his lawyers Eric-Kiingi & Co Advocates lodged and filed the Notice of Appeal in the High Court on the 21st day of December 2016 and $22^{nd}$ day of December 2016 in the Court of Appeal.
c) Consequently the Applicant served the Notice of Appeal on to the Respondent's Advocates Nabende Advocates. Consequently the Applicant served the Notice of Appeal on to the Respondent's Advocates Nabende Advocates.
d)As a matter of procedure the Applicant was met to file and serve the Memorandum of Appeal within Seven (7) day after service of the Notice something that never materialized for want of a Certified Copy of the Judgment.
e) Without the Certified Copy of the Judgment, the Applicant's new lawyers could not formulate the grounds of Appeal to Constitute the Memorandum of
f) The record of proceedings of the High Court was also not ready the Applicant's new Advocates to prepare the intended Appeal.
g) The Respondent will not be prejudiced by the grant of this Application for extension of time within which to file and serve the Memorandum Appeal.
$h)$ That it will be just and equitable if this Application
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i) This Honourable Court is vested with wide and unfettered discretion to extend time within which a Memorandum of Appeal can be filed and served.
# $j)$ It is in the interest of justice that this Superior Court grants this application for the ends of justice to he met.
The motion is accompanied by an affidavit deponed to by the applicant expounding on the grounds set out therein. The respondent in reply to the application filed an affidavit, the relevant parts of which state as follows:-
- 3. THAT the Applicant being dissatisfied with the Judgment instructed his lawyers at the time Musamali & Co Advocates to Appeal against the said Judgment. - 4. THAT the aforementioned lawyers dragging their feet in regard to the Applicant's instructions, the Applicant instructed Eric-Kiingi & Co Advocates to take charge of the Appeal. - 5. THAT through his lawyers Eric-Kiingi & Co Advocates the Applicant lodged and filed a Notice of Appeal in the High Court on the $22^{nd}$ day of December 2016 and 22<sup>nd</sup> day of December 2016 in the Court of Appeal. [A Copy of the Notice of Appeal is hereto attached marked $"A''$ - 6. THAT consequently the Applicant served the Notice of Appeal on to the Respondent's Advocates Nabende Advocates. - 7. THAT as a matter of procedure the Applicant was met to file and serve the Memorandum of Appeal within
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Seven (7) day after service of the Notice something that never materialized for want of a Certified Copy of the Judgment and record of proceedings from Court.
When this application came up for hearing learned counsel **Mr. Arthur Kirumira** appeared for the applicant while **Mr. Nabende Isaac** appeared for the respondent. Both parties were present.
It was submitted for the respondent that under Rules $2$ and $5$ of the Rules of this Court, this Court has a power to extend time where sufficient reason is shown. Counsel submitted that in this particular case the applicant was prevented from filing and serving a memorandum of appeal herein within time for sufficient reason. He relied on the grounds in the motion and its accompanying affidavit to argue that the appellant's counsel who had represented him at the High Court had failed to exercise due diligence in prosecuting the appeal having been duly instructed.
Further, that upon the applicant realising that the time for filing a notice of appeal was about to expire he instructed the present Advocates M/S Eric -Kiingi & Company Advocates to pursue the appeal. Upon instructions the said law firm filed a notice of appeal on $21^{st}$ day of November 2016 and lodged a copy thereof at the registry of this Court on $22^{nd}$ day of December 2016.
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Having filed the notice of appeal within the prescribed time, counsel went head to have it served upon the respondent within the prescribed seven days.
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- Counsel submitted that the applicants' advocates were thereafter unable to file a memorandum of appeal within the prescribed $10$ time, because the High Court had failed to avail them with certified copy of the Judgment and a record of proceeding. In absence of a copy of the Judgment counsel argued, the lawyers could not formulate the grounds of appeal. Further that the record of proceedings were also not ready. He asked Court to $15$ find that it was just and equitable to allow this application and that the respondent would not be prejudiced by the granting of the orders sought. - Mr. Nabende learned counsel for the respondent opposed the $20$ application. He relied on the affidavit in reply to argue that the application had no merit. He contended that the applicant was not being truthful when he stated that he failed to get a certified copy of Judgment from which this appeal arises. - Counsel pointed out that a certified copy of the Judgment was available on 28<sup>th</sup> February 2017 and by that time the record of the High Court proceedings was also ready and available at the High Court. Counsel argued that the reason for the respondent and his counsel's failure to file the memorandum of appeal
within the prescribed time could only be attributed to their own dilatory conduct. He asked Court to dismiss this application.
I have listened to both counsel carefully and perused the Court record.
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In an application of this nature it is incumbent upon the applicant to satisfy Court that sufficient reasons exist for grant of extension of time. I must point out that for the onset that, this is an electoral matter and is therefore subject, first and foremost to Electoral Laws. The Court of Appeal Rules only apply with necessary modifications. While applying the Rules of this Court to a matter such as this, Court must always keep in mind the provisions and the spirit of the Parliamentary Elections Act and the Rules made thereunder. Paragraph 7, 8 and 9 of the applicant's affidavit in support of the motion states as follows:-
- 7. THAT as a matter of procedure the Applicant was met to file and serve the Memorandum of Appeal within Seven (7) days after service of the Notice something that never materialized for want of a Certified Copy of the Judgment and record of proceedings from Court. - 8. THAT I am reliably informed by my lawyers Eric-Kiingi & Co Advocates that without the Certified Copy of the Judgment and record of proceedings of the High Court, the said new lawyers could not formulate the grounds of Appeal to Constitute the Memorandum of Appeal.
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9. THAT I am further informed by my said lawyers that without a record of proceedings of the High Court they could not proficiently prepare my intended Appeal.
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The applicant does not appear to be telling the truth in paragraph 7 above, because a certified copy of the Judgment dated 14th December 2016 and certified on 28<sup>th</sup> February 2017 is attached to the affidavit in reply.
Therefore a copy of the Judgment was available as early as 28<sup>th</sup> February 2017. Had the applicant been vigilant he would have obtained it and would have filed the memorandum of appeal immediately thereafter.
Up todate neither the memorandum of appeal nor the record of appeal has been filed in Court. Counsel for the applicant contends he could not have filed the same without an order of this Court extending the time. I find no merit in this argument as *Rule 13* of the Rules of this Court provides as follows;-
13. Acceptance of documents lodged out of time.
- The registrar or the registrar of the High Court, $(1)$ as the case may be, shall not refuse to accept any document on the ground that it is lodged out of time but shall mark the document with the words "lodged out of time" and inform the person lodaina it accordingly. - When a document is accepted out of time by the $% \left\vert \mathcal{A}\right\vert$ $(2)$ registrar of the High Court, he or she shall inform the reaistrar.
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The applicant would upon lodging at the registry of this Court the memorandum and record of appeal applied for consequential extension of time and regularizing the late filing of those documents. He did not do this. Had he done so, he would have opportunity to peruse the provided this Court with an memorandum of appeal in order to ascertain whether or not it raised any valid issues for determination on appeal, especially since this is second appeal which must only relate to issues of law. Again had the memorandum and record of appeal been filed already, this Court would have had the assurance that the grant of the orders sought would not delay the hearing of the appeal any further.
Counsel for the applicant has not indicated how much more time the he requires to file the memorandum of appeal. Apparently he does not seem to have prepared a draft.
Be that as it may, Section 83 of the Court of Appeal Rules provided a procedure for filing appeals at this Court in ordinary civil appeal. It stipulates as :-
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**"83.**
(1) Subject to rule 113 of these Rules, an appeal shall be instituted in the court by lodging in the registry, within sixty days after the date when the notice of appeal was lodged—
(a) a memorandum of appeal, in six copies, or as the registrar shall direct;
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(b) the record of appeal, in six copies, or as the *registrar shall direct:* (c) the prescribed fee; and $(d)$ security for the costs of the appeal.
(2) Where an application for a copy of the proceedings in the High Court has been made within thirty days after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the High Court as having been required for the preparation and delivery to the appellant of that copy.
(3) An appellant shall not be entitled to rely on subrule (2) of this rule, unless his or her application for the copy was in writing and a copy of it was served on the respondent, and the appellant has retained proof of that service."
The above procedure is not applicable in election petition $25$ appeals. The law applicable to appeals to this Court from all matters arising from Parliamentary Elections Act (17 of 2005) PEA is the Parliamentary Elections Act Statutory Instrument No. 141-2 *Rules* 28 to 36.
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#### It provided as follows:-
# "28. Applications
This part applies to appeals to the Court of Appeal from decisions of the High Court on determination of election petitions.
# 29. Notice of appeal
Notice of appeal may be given either orally at the time Judgment is given or in writing within seven days after the judgment of the High Court against which the appeal is being made.
### 30. Memorandum of appeal
A memorandum of appeal shall be filed with the Registrar-
(a) in a case where oral notice of appeal has been $(a)$ given, within fourteen days after the notice was given:
(b) in case where a written notice of appeal has $\frac{1}{2}$ been given, within seven days after notice was given.
#### 31. Record of appeal
The appellant shall lodge with the Registrar the record of appeal within thirty days after the filing by him or her of the memorandum of appeal.
32. Chief Justice may give such directions of appeal
The Chief Justice may give such directions as may be necessary as to how the record of appeal shall be produced expeditiously.
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is −
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### 33. Expeditious hearing by appellate court
The Court shall proceed to hear and determine an appeal under these Rules expeditiously and may for that purpose, suspend any matter pending before the Court.
## 34. Time limit for hearing appeals
Unless the Court extends the time on exceptional grounds, the hearing of an appeal shall be completed within thirty days from the lodging of the record of appeal.
# 35. Service on commission and returning officer.
Unless the Commission and the returning officer are parties in the appeal, the Registrar shall cause to be served on them all documents served on parties to the appeal.
## **36. Procedure generally**
Subject to such modifications as the Court may direct in the interest of justice and expedition of the proceedings any 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."
The above Rules do not provide for an automatic extension of time
upon a request for certified Judgment and Proceedings.
Even if Rules $83(2)$ of the Rules of this Court was applicable which is not the case, the applicant would not have been able to rely on it as the certified copies of the Judgment and proceedings
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in this case were ready as early as $28^{th}$ February 2017, and he $\mathsf{S}$ still failed to appeal within the stipulated seven days from that date.
In a recent decision of the full bench of this Court **Abiriga** Ibrahim vs Musema Mudathir Bruce Court of Appeal $10$ (Election Application No. 24 of 2016) (Unreported), was faced with a similar matter. In that case the applicant had filed a memorandum of appeal on the $5<sup>th</sup>$ of July 2016. The last date for filing that appeal was 1<sup>st</sup> July 2016. The memorandum of appeal in that case was filed only 4 days out of the time prescribed by $15$ the law. This Court held as follows in its unanimous decision at page 15-16 of the Judgment:-
> "This Court holds that computation of time follows the specific legislation in election matters and that is Rule 30 of the Parliamentary Elections (Interim Provisions) Rules SI 141-2. This Rule provides that; a Memorandum of Appeal shall be filed with the Registrar in a case where a written notice of appeal has been given within seven $(7)$ days after the notice was given.
In the instant application, since the Notice of Appeal was given on the 24th June 2016, the 7 days expired on the 1st of July 2016 and the respondent should have filed the Memorandum of Appeal within that time.
We accept the contention of counsel for the applicant $30$ that an intending appellant ought to actively take the necessary steps to prosecute his/her intended appeal.
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We therefore hold that the respondent was not diligent as the law requires of an intending appellant in an Election Petition Appeal. We are unable to exercise our discretion otherwise in view of the clear provisions of the law relating to time within which to file the memorandum of appeal.
In conclusion and for the reasons given above, we allow the Application and find that the appeal as filed is incompetent. It is accordingly struck out."
In the application before me, Judgment was delivered on the 14<sup>th</sup> $15$ day of December 2016. The notice of appeal was filed at the High Court on 21<sup>st</sup> December 2016 and lodged at the Court of Appeal registry the next day. The memorandum of appeal ought to have been lodged by the 28<sup>th</sup> day December 2016. Up todate it has not been filed. $20$
I find that the applicant and his counsel were guilt of dilatory conduct and gross negligence that is inexcusable.
In Kirya Grace Wazala vs Daudi Migereko and another (Election Reference Appeal No 39 of 2012.) This Court stated $25$ that:
> "I do not take this simply as the mistake or tardiness of $\mathcal{L}$ the counsel but, I must say that the applicant himself contributed to this mistake and he was negligent, not serious and is therefore guilty of dilatory conduct. You cannot sit on your rights even when you see a real threat
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at your nose. I see no where in his affidavit where he put pressure on his counsel upon learning of the striking out application or even the conferencing directions for striking out his application. if he never got to know about them then surely he was negligent and he slept and was leaving everything to his counsel. He has not demonstrated that he was on toe with his advocate in ensuring that everything was being done diligently. I shall therefore want to distinguish this applicant from on who is vigilant."
I entirely agree with the above statement. Parties cannot just hide behind the curtain and allege that it was the fault of counsel. It may as well be so, in many instances, but it is not so in electoral matters. In elections, time is of the essence right from date of registration of voters, display of voter's registers, nomination of candidates, voting, declaration of results and so on. All electoral activities follow a strict timeline. A person, who has participated in this whole process such as the applicant, cannot be heard to say that he was unaware of strict time frame set by the law for hearing and determination of his appeal. He ought to have known and he ought to have been more diligent and vigilant. His conduct was dilatory and grossly negligent.
I find no merit in this application whatsoever as it is frivolous and vexatious and ought to be dismissed. I hereby dismiss it with
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costs to the respondent. Having held so, I find that no appeal lies $\overline{5}$ and therefore strike out the notice of appeal from the Court record.
It is so ordered.
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**Dated** at **Kampala** this....................................
HON. KENNETH KAKURU **JUSTICE OF APPEAL**