Sitenda Sebalu v Sam Njuba and Another (Election Petition Appeal No. 07 of 2007) [2007] UGCA 82 (1 November 2007)

# THE REPUBLIC OF UGANDA

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# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. JUSTICE Q. M. OKELLO, JA <sup>V</sup> HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA

### ELECTION PETITION APPEAL NO.07 OF 2007

### SITENDA SEBALU APPELLANT

# VERSUS

### 1. SAMNJUBA

RESPONDENTS 2. THE ELECTORAL COMMISSION

> [Appeal from the ruling and orders of the High Court of Uganda sitting at Kampala (Hon. Mwangusya, J) dated 26th February 2007in Miscellaneous Application No.333 of 2006 arising from Election Petition No.25 of 2006]

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#### JUDGMENT OF THE COURT:

June 2007 the parties to this appeal filed a memorandum containing common position of brief facts of this appeal which gives the background to the appeal. The Memorandum stated: On the 22nd

> ^Election Petition No. 25 of 2006 was filed by the appellant on 18lh May, 2006 at Kampala High Court contesting the results of the elections for member of Parliament for Kyadondo East Constituency. The Is'

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. respondent was declared the winner of the election. The Election Petition, by the appellant was supposed to be filed and served on the respondents within 7 days as required by S.62 of the Parliamentary Elections Act but he did not do so. The appellant filed Miscellaneous Application No.333 of 2006 seeking enlargement of time ' but the application was dismissed, hence this appeal."

**10** In the same conferencing memorandum, the parties agreed on the following issues:

- Whether the appellant has a right to appeal. **(\*)** - Whether or not court had no jurisdiction to extend time within which to serve Notice of Presentation of the Petition (ii) under S.62 of Parliamentary Election Act. - (iii) If so, whether the appellant adduced 'special circumstances to be granted extension of time within which to serve the • notite on the respondents." - **20** At the hearing of the appeal, the appellant was represented by Mr. Chris Bakiza and Mr. Justin Semuyaba and Mr. Yusufu Nsibambi and Ms Maureen Asiimwe represented the <sup>1</sup>st respondent. Mr. Henry Oryein, a Senior State Attorney ofthe 2nd respondent represented it.

**<sup>25</sup>** ISSUE NO. <sup>1</sup>

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This is whether the appellant had a right of appeal to this, court. Mr. «■ ' Bakiza argued this issue. He submitted that the appellant had a right of appeal by virtue of section 66 of the Parliamentary Elections Act [PEA] and articles 86(2) and 140(2) of the Constitution.

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Learned counsel conceded that Miscellaneous Application No.333 of 2006 from which this appeal, arises was an interlocutory application. However, he submitted that the decision finally determined the right of the parties in'Election Petition No.25 of 2006 and the appeal to this Court was against a final decision of the High Court and the right to appeal tothis Court was automatic. 'Hie respondents did not agree. They pointed out the fact that the appellant's application for extension of time was dismissed on 26lh February 2006. He filed a Notice of Appeal on 28lh February 2006. At that time, the main petition i.e. Petition No.25 of 2006 was still pending. It was eventually dismissed on 30lh March 2006. In their view, the Notice of /Xppcal that initiated this appeal was filed when the petition was still pending and therefore, the dismissal was an interlocutory order. The appeal was incompetent because the appellant needed to obtain leave of the court which he neither applied for nor obtained. They relied on the case of Margaret Zz.iwa vs Catherine Naava Nabagesera, Election Appeal No.39/1997 (CA).

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**20 25** *We* hold the view that the ruling of the High Court dated 26lh February 2006 on Miscellaneous Application No.333 of 2006 was not on an Interlocutory matter. The matter canvassed in that application did not arise during.the hearing of Election Petition No.25 of 2006. In fact the petition was not yet legally filed. The application was to get an extension of time to regularise the petition which the appellant realised was not yet valid because notice of presentation of that petitiori was not given to the respondent as required by section 62 of the Parliamentary Elections Act. The effect of the ruling was to totally extinguish whatever benefit he hoped to gain if the court had allowed an extension of time to serve the respondent with the notice of presentation of the petition. The ruling effectively struck out Election Petition No.25 of 2006. The decision

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conclusively determined the fate of the Election Petition. After the decision, there was nothing left for determination by the court. The formal striking out of the petition by the same judge on 30<sup>th</sup> March 2006 was merely the formalisation of a foregone conclusion. We hold, therefore, that the appellant had a right of appeal. Whether the appeal had any merit, however, will be determined during the discussion of the $2<sup>nd</sup>$ issue in this appeal which follows now.

#### **ISSUE NO.2**

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This is whether or not court had jurisdiction to extend time within which to serve a notice of presentation of the petition under section 62 of the Parliamentary Elections Act. Mr. Chris Bakiza for the appellant contended that though section 62 of the Parliamentary Elections Act is in mandatory terms that service of notice of presentation of the petition must be effected on the respondent within 7 days from the date of filing the same in court, yet court had wide discretion to enlarge the time under Rule 19 of the Parliamentary Elections (Election Petitions) Rules. That rule states:-

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#### "Enlargement or abridgement of time.

The court may of its own motion or on application by any party to the proceedings, and upon such terms as the justice of the case may require, enlarge or abridge the time appointed by the Rules for doing any act if, in the opinion of the court, there exists such special circumstances as make it expedient to do so."

He cited the cases of:

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➤ Katumba Byaruhanga vs. Kiwalabye Civil Appeal No.2 of 1998

> Edward Kamana Wesonga vs Interim Electoral Commission, Election Petition No.17 of 1997

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- > Besweri Mugoya Kibuka vs Another, Constitutional Petition No.8 of 1998. Electoral Commission and - **5** to support his submission that in appropriate cases, courts have applied rule 19 of the Parliamentary (Elections) Rules to enlarge time fixed by section 62 ofthe Parliamentary Elections Act.

In reply, counsel for the respondents contended that the High Court was right to hold that it had no jurisdiction to extend the time for serving the petition under section 62 of the Parliamentary Elections Act. They argued that section 62 was mandatory that service had to be done within 7 days from the date of filing the petition and the Act did not provide any way of escape. The provision had to be complied with. They argued that court hdd-no power to extend time fixed by statute. They cited the following authorities in support oftheir arguments:-

- > Makula International Ltd vs Cardinal Nsubuga & Anor. [1982] HCB11.

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- **<sup>20</sup>** > Nelson San de **VS** The Electoral Commission Ndugo Miscellaneous Application No.210 of 210. - > Mbabali Jude vs Electoral Commission, Election Appeal No.3 of2006. - > Sermujogi vs Nyakana and the Electoral Commission, Election Petition No.29 of 2006.

Regarding the applicability of rule 19 of the Parliamentary Elections [Election Petition] Rules, they submitted'that the rule was only applicable **>.** where the petition was properly filed and the time to be extended was

fixed by the rules and not statute as in this case. Their prayer was that the petition be dismissed with costs to the respondents.

In dealing with this issue, the learned trial judge handled it as follows:-

"This brings me to the most crucial issue of this application which is as to whether or not the failure by the petitioner to serve the Notice of Presentation of the Petition renders the petition incompetent.

In this respect I will cite the provision of S.62 of the Parliamentary Elections Act which sets the period:-

> 'Notice in writing of the presentation of petition accompanied by a copy of the petition shall, within seven days after the filing of the petition, be served by the petitioner or the respondent or respondents, as the case may be.'

The provision is in mandatory terms and it is reproduced in the Parliamentary Elections (Election Petitions) Rules $S.1 - 141 - 1$ in rule 6(1) which states as follows:-

'Within seven days after filing the petition with the registrar, the petitioner or his or her advocate shall serve on each respondent notice in writing of the presentation of the petition, accompanied by a copy $\frac{1}{2}$ of the petition.'

Rule 19 of the Parliamentary Elections (Election Petitions) Rules under which this application is brought states as follows:-

'The court may if its own motion or an application by any party to the proceedings, and upon such terms as the justice of the case may require, enlarge or abridge the time appointed by the rules for doing any act if, in the opinion of the court, there exists such circumstances as make it expedient to do so'.

Ordinarily courts allow extension of time within which a specific step or action is supposed to be taken. This, however, appears to apply to rules of procedure of the

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court for example under the Civil Procedure Act and the Civil Procedure Rules made under the Act and not time limit set by Statute, see the cases of Paul Erongot vs NPART Uganda, Court of Appeal Misc. Application No. 17/97; Adonia vs Mutekanga 1970 E. A. 429 where Spry JA stated that:-

> 'The High Court is a court of unlimited jurisdiction, except so far as its limited by statute,' and the case of MAKULA INTERNATIONAL LTD VS HIS EMINENCE CARDINAL NSUBUGA $AND$ ANOTHER [1982] HCB 11' where the Court of Appeal for Uganda the predecessor to the present Supreme Court had this to say:- (sic)

> A court has no residual or inherent jurisdiction to enlarge a period of time laid down by a statement and therefore Judge's order extending the time which to appeal... was without jurisdiction, was a nullity, and would be set aside.'

So quite clearly a distinction has to be made as to whether the time limit is set by a Statute or Rules of Courts. According to P. G. Osborne's Concise Law Dictionary 5<sup>th</sup> Edition page 285 'Rules made under the authority of an Act of Parliament have statutory effect. So both $S.62$ of the Parliamentary Act and rule $6(1)$ made under it have Statutory effect and which means that this court has no jurisdiction to extend the time fixed by that Statutory Authority."

We agree with the learned trial judge that:-

(a) The law applicable to the manner in which notice of presentation of an election petition on an intended respondent is effected is section 62 of the Parliamentary Election Act and rule 6 of the Parliamentary Elections [Election Petition] Rules.

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- (b) In both' laws, the requirement that notice of presentation must be done within seven days from the date of filing the petition are expressed in mandatory terms. - (c) Rule 19 of the Parliamentary Elections [Election Petition] Rules applies to where the time fixed is fixed by rules made.'under the Act and cannot apply to time fixed by statute as in section 62 ofthe Act.

We would also add that since notice of presentation of the petition was never given as prescribed, the petition became null and void and cannot be revived under rule 19 of the Rules, even if that rule was applicable, which we have held it is not: See Bwesweri Lubuyc Kiwanuka vs Electoral Commission, Electoral Petition Appeal No.2 of 1999 where this court held that failure to serve the petition on the respondent meant in effect that no action was in existence.

We have carefully perused the authorities cited to us by counsel of both parlies. Wc have not been able to find anything therein to persuade us to cast any doubt on the accuracy of the above finding by the trial judge. We do not find any fault with his holding that the High Court or indeed any other court has no jurisdiction to extend time fixed by Statute. He was, therefore, right to dismiss Miscellaneous Application No.333 of 2006.

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> This issue is whether, if this Court found that the High Court had jurisdiction to extend the time for serving the presentation of the petition on the respondent, the appellant adduced special circumstances to be

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granted the extension. In light of our findings on issue No.2 that the Court had no jurisdiction, this issue does not arise.

In the result, we uphold the ruling of the learned trial judge and dismiss this appeal with costs to the respondents.

Dated at Kampala this.................................... .2007.

**CONTRACT**

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Hon. Justice G. M Okello, JUSTICE OF APPEAL

unu Hon. Fistice A./Twinomujuni JUSTICE ØFAPPEAL

ted Cal Hon. Justice C. N. B. Kitumba JUSTICE OF APPEAL $25$