Spenser George William v Abbas Agaba and Another (Election Petition Application 4 of 2017) [2017] UGCA 138 (5 May 2017)

Full Case Text

## **5 THE REPUBLIC OF UGANDA**

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**i1 I**

## **IN THE COURT OF APPEAL OF UGANDA AT KAMPALA**

## **ELECTION PETITION APPLICATION NO.04 OF 2017**

# **SPENCER GEORGE WILLIAM APPLICANT**

## **VERSUS**

### **10 ABBAS AGABA MUGISHA**

**THE ELECTORAL COMMISSION RESPONDENT CORAM: HON. MR. JUSTICE BARISHAKI CHEBORION, JA**

## **(SINGLE JUSTICE)**

#### **RULING**

15 The applicant, the 1st respondent and others participated in the General National Parliamentary Elections held on the 9th day of March 2016 where they contested for the position of Member of Parliament for Kitagwenda County Constituency.

**20** petition in the High Court of Uganda at Fort Portal contending that the election was not conducted in accordance with the principles laid down by the law. Parliament. The applicant being dissatisfied with the result lodged a The 1st respondent was declared as the validly elected Member of

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5 On the 4th day of June 2016, Justice E. K Kabanda dismissed the petition with costs to the respondents and upheld the election. The applicant then commenced an appeal.

Parliamentary Elections (Interim Provisions) (Election Petitions) Rules SI 10 141-2, Rules 2 (2), 5, 43(1) & (2) and 44 of the Rules of this Court. It seeks for orders that the time within which to lodge a Record of Appeal in Election Petition Appeal No.06 of 2016 be extended and the costs of this Application be provided for. This application is brought under the provisions of R.36 of the

The Application is premised on several grounds which are contained in the 15 Notice of Motion and in the affidavit in support deponed on 29th December 2016 by the applicant. Briefly the grounds are that:-

- 1. The applicant is an appellant in Election Petition Appeal No.06 of 2016 which was properly filed and is pending hearing before this Honorable Court. - 20 2. The Notice of Appeal, Letter requesting for proceedings and the Memorandum of Appeal were filed and served on the respondents well within the stipulated time. - 3. The applicant was prevented by sufficient cause from filing and serving the Record of Appeal within the statutorily required 30 days 25 and this is because the applicants applied for the certified Record of Proceedings and judgment from the High Court at Fort Portal on the 7th ofJune 2016 but the same were not availed to the applicant until after the expiry of 30 days, within which the appellant was supposed

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to file the Record of Appeal. 5

- 4. More so, the applicant's lead advocate Mr. Johnson Musana who had personal conduct of the matter and who had instructions to follow up the process of obtaining the proceedings passed on. - 5. The Record of Appeal could not be filed without the applicant being 10 availed certified copies of the Record of Proceedings, judgment which was availed on the 19th December 2016 along with a certificate of 19th December 2016 that was brought to the attention of the applicant on the 19th December 2016 after frantic efforts as the Court did not 15 communicate to the applicant in time about the availability of the certified record of proceedings and judgment. correctness duly signed and sealed by the Registrar on - 6. The application has been brought without any delay. - 7. The applicant now requires an order granting extension of time if the Record of Appeal is to be validly filed before Court, otherwise the 20 appeal will be liable to be struck out unless the order sought is granted. - 8. Having lodged an appeal, the applicant is likely to suffer irreparable loss if this application is not granted, yet the appeal has veiy high chances of success. - 25 9. It is only fair, just, equitable and in the interest of justice that this application is allowed since the failure to file a Record of Appeal in time was not due to any fault of the applicant.

- 5 In reply, the respondents opposed the application in 2 affidavits in reply forth the following grounds in opposition; a returning officer employed by the second respondent. The affidavits set one deponed by Agaba Abbas Mugisha and the second by Namara K. Abas

- 10 false and contain material inaccuracies and inconsistencies and ought to be struck out with costs. That the Notice of Motion and the affidavit in support thereof are - ii. That this application is flawed and a fraud since the memorandum of appeal which was purportedly filed on 10th June 2016 was infact signed by the lawyers on the 13th ofJune 2016. - 15 iii. That the respondents have never been served with a notice of appeal, memorandum of appeal as required by law. letter requesting for certified record of proceedings and the - iv. That despite the notice of appeal being filed on 7th June 2016 and the registrar signing it on 8th June 2016, the applicant never took the 20 essential steps to serve it according to the laid down procedure. - v. That since the applicant had two lawyers, there is no sufficient cause for failing to file and serve the Record of Appeal within the statutory time fixed by the law. - vi. That the applicant is guilty of dilatory conduct and it is in the 25 interest ofjustice that this application be dismissed with costs. - vii. That it is legal, fair, just and equitable that this Honorable Court rejects and strikes out this application for fundamentally offending the courts rules of procedure.

5 No affidavit in rejoinder was filed by the applicant.

At the hearing of the application, the applicant was represented by Mr. Ngaruye Ruhindi Boniface while the 1st respondent was represented by Mr. Abbas Nsamba and the 2nd respondent by Mr. Samuel Kiriaghe.

Counsel for the applicant submitted that whereas judgment was delivered 10 on the 4th of June 2016, the notice of appeal and the memorandum of appeal were filed on 7th June 2016 and 13th June 2016 respectively well within the time stipulated by law. On the 6th of June 2016, the applicant wrote a letter to the registrar requesting for the certified record of proceedings and judgment.

15 Counsel submitted that there was never any communication from Court availed on the 19th of December 2016 way after the time required by law to file the record of appeal had expired and further submitted that the applicant's lead counsel Mr. Johnson Musana who was pursuing the **20** matter fell sick and later died which also affected the matter. He submitted that there was sufficient cause for Court to grant extension of time within which to file the record of appeal. He relied on *WANUME V UGANDA REVENUE AUTHORITY (2011) HCB VOL 1 PAGE 49* regarding the availability of the record of appeal and that the same was

Counsel raised concern with the affidavits in reply filed by the respondents. **25** Regarding the affidavit of Agaba Abbas Mugisha counsel argued that he was served on the 15th of March 2017 but the same had not been dated and it is trite law that once an affidavit is not dated, it is rendered defective. He relied on *TEDDY NAMAZZI V ANNE SIBO (1986) HCB 58.* Page | 5

- 5 Regarding the affidavit of Namara K. Abas, counsel submitted that the said prayed that Court strikes out these affidavits, grants the application and costs be in the cause. affidavit did not bear the signature of the Commissioner for Oaths. He - Counsel for the 1st respondent opposed the application and submitted that **10** the applicant was at the lower Court represented by two law firms that is M/S Ngaruye Ruhindi, Spencer and Co. Advocates and M/S Musana and Co. Advocates and that if the death of Mr. Musana was the cause of the delay to have this Appeal filed in time, then the applicant would have instructed his second lawyer to pursue the Appeal. Further that the death **15** extension. of Mr. Musana was not sufficient reason for this Court to grant an

Counsel submitted that the applicant was not vigilant enough to pursue his Appeal. Further that the letter requesting for the certified record of proceedings and judgment was written on the 6th of June 2016 and the 20 Registrars Certificate was granted 6 months after on the 19th of December 2016 with no follow up from the applicant which proved total lack of interest from the applicant.

Regarding the affidavit of Agaba Abbas Mugisha, counsel submitted that this was a defect that was curable. He relied on *Rtd Dr. Kizza Besigye v*

25 *Yoweri Kaguta Museveni Supreme Court Election Petition No.0001 of 2001.*

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**5** Counsel contended that the 1st respondent had never been served with a notice of appeal and prayed that this application be dismissed with costs.

For the 2nd respondent, it was submitted that the application and the affidavit in support thereof contain falsehoods. He invited Court to look at ground 2 of the application that states that the notice of appeal, letter 10 requesting for proceedings and the memorandum of appeal were filed and served on the respondents well within the stipulated time. He submitted that the same were never served on the 2nd respondent.

Counsel submitted that the applicant has not showed any sufficient cause for failure to take an essential step and the intended appeal lacks merit. He 15 prayed that this Honorable Court dismisses this application with costs.

In rejoinder, Mr. Ngamye submitted that the 1st respondent's argument extension of time within which to file a record of appeal was wrong because the deceased was the lead counsel in that matter and his death affected the **20** quick flow of events. Counsel further submitted that M/S Ngaruye Ruhindi, Spencer & Co. Advocates was involved in this matter in the lower Court but he was not counsel in personal conduct of this matter in the by then but rather Mr. Busingye Victor. that the death of Mr. Musana was not sufficient reason to grant an

Counsel argued that the allegations by the respondents that the Notice of **25** Appeal, letter requesting for certified record of proceedings and judgment and memorandum of appeal were never served were premature because the respondents would have filed an application under Rule 82 of the Rules of this Court to have the appeal struck out. He further submitted that all the Page | 7 not done due to the aforementioned reasons. Counsel reiterated his earlier prayers that the application be allowed and costs be in the cause. essential steps had been taken except filing the record of appeal which was

I have read and considered the pleadings as well as submissions of counsel for the applicant, the 1st respondent and the 2nd respondent for and against 10 this application.

Before I delve into the merits of this application, I wish to address the issue of the affidavits in reply that were filed by the respondents. Counsel for the applicant submitted that the affidavit of Agaba Abbas Mugisha had not been dated and the affidavit of Namara K. Abas did not bear the signature 15 of the Commissioner for Oaths. In reply counsel for the 1st respondent submitted that these defects were curable.

**Section 5 of the Commissioners for Oaths (Advocates) Act CAP 5** provides that:

*"Every Commissionerfor Oaths before whom any oath or affidavit is taken or* **20** *made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made"*

**In COL (RTD) DR. KIZZA BESIGYE V YOWERI MUSEVENI KAGUTA AND THE ELECTORAL COMMISSION SUPREME COURT ELCTION PETITION NO.l OF 2001,** *Court held that election petitions are very important and*

25 *therefore Courts should take a liberal view ofthe affidavits so that a petition is not defeated on technicalities. "*

**5**

5 I agree with the conclusion that election petitions are very important therefore a liberal view of the affidavits should be taken by Courts so that a petition is not defeated on technicalities.

The defects in the two affidavits are therefore curable.

**Rule 2(2) of the Judicature (Court of Appeal) Rules** which vests inherent **10** powers in this Court to make such orders as are necessary to meet the ends ofjustice provides thus:

*inherent power of the Court, or the High Court, to make such orders as may be necessary for attaining the ends ofjustice or to prevent abuse of the "Nothing in these Rules shall be taken to limit or otherwise affect the*

**15** *process of any such Court, and that power shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be exercised to prevent abuse ofthe process of any Court caused by delay."*

**Rule 5 of the Judicature (Court of Appeal) Rules** gives Court discretion

20 for sufficient reason to extend time limited by the Rules for doing any act authorized by the Rules whether before or after the expiration of that time and whether before or after the doing of the act.

**PROPERTIES LTD SCCA NO.l OF 2001** interpreted Rule 4 (now Rule 5) 25 of the rules of this Court that the rule envisages four scenarios in which extension of time for the doing of an act so authorized or required, may be granted, namely - The Supreme Court in **CRANE FINANCE CO. LTD V MAKERERE**

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- 5 **(a)** before expiration of the limited time; - **(b)** after expiration of the limited time; - **(c)** before the act is done; - (d) after the act is done

In the instant application, the applicant wrote **10** the 6th of June 2016 requesting for the certified Record of Proceedings and long after the 30 days required by law to lodge a Record of Appeal had expired. a letter to the registrar on judgment and the same were not availed until the 19th of December 2016

**Rule 31 of the Parliamentary Elections (Election Petition) Rules, 15** requires the Respondent to file the Record of Appeal within thirty (30) days after the filing of the Memorandum of Appeal.

The principles under which Courts discretion to extend time can be exercised where set out in **SHANTI V HINDOCHA AND OTHERS [1973] E. A 207 AT 209** where the Court held that an application for extension of 20 time was different from that of an application for leave to appeal. The former is concerned with showing sufficient reason why the applicant should be given more time. In addition he has to show that the delay has not been caused or contributed to by dilatory conduct on his part.

Counsel for the applicant submitted that the delay in the filing of the 25 record of appeal was caused by Court officials who delayed in availing the record of proceedings to the applicant and the passing on of Mr. Johnson Musana who was the lead counsel in this matter.

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**5 Rule 2 of the Parliamentary Elections (Election Petitions) (Production of Records of Appeals) Direction, SI 141-4,** provides for the expeditious production of the Record of Appeal. The said rule requires the trial Court to expeditious production of the Record of Appeal. ensure that the proceedings are typed and produced in time for the

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10 V **HON. KASULE ROBERT SSEBUNYA COURT OF APPEAL MISCELLANEOUS APPLICATION NO. 10 OF 2016,** Court stated that *"errors or mistakes of Court officials have been held to be sufficient groundsfor granting extension oftime to an applicant to file his or her appeal out oftime ifthe delay was duly attributable entirely to* 15 *the Courts".* In **WAKAYIMA MUSOKE NSEREKO**

In the instant application, the applicant had taken all other essential steps to file his appeal. Judgment was delivered on the 4th of June 2016, the notice of appeal and the memorandum of appeal were filed on 7th June 2016 and 13th June 2016 respectively well within the time stipulated by **20** law. On the 6th of June 2016, the applicant applied for the certified record of proceedings and judgment and the same were not availed until the 19th of December 2016 long after the 30 days required by law to lodge a record of appeal and secondly the death of the then applicant's lead counsel Mr. **25** such the applicant could not file the record of appeal within the time frame envisaged by the law. Johnson Musana (RIP) seems to have paralyzed the appeal process and as

I am satisfied that the applicant took all the necessary steps to obtain the certified record of proceedings and Judgment from Court however Court Page | 11

availed the same on 19th December 2016 long after the time for lodging the record of appeal had passed.

In UTEX INDUSTRIES LTD V ATTORNEY GENERAL SCCA NO.52 OF 1995, Court held that "thus to avoid delays rules of Court provide a timetable within which certain steps ought to be taken. For any delays to be excused, it must be explained satisfactorily."

This Court finds that the failure of the lower Court to avail the applicant with the certified copy of proceedings and judgment and the passing on of Mr. Johnson Musana (RIP) who was lead counsel in this matter were sufficient grounds to warrant Court to exercise its power to extend time within which to lodge the Record of Appeal.

In conclusion and for the aforementioned reasons, the application for extension of time within which to lodge the Record of Appeal is granted to the applicant.

Each party shall bear its own costs

$10$

I so order. 20 Dated this 2017. day of ..

$25$ HON. MR. JUSTICE BARISHAKI CHEBORION, JA

Kirlallo

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