The returning officer Kampala District Area and 2 Others v Nabagesera (Civil Appeal 39 of 97) [1997] UGCA 15 (3 November 1997)

### THE REPI,JBLIC OF UGANDA

o

# IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

# CORAM: G. M. OKELLO. J. A.. M. KIREru. J. A.. AND A. TWINOMUJLINI. J. A.

CIVIL APPEAL 39 ABC/97 (Arising out of Elect. Petition No. 11/96)

#### BETWEEN

| THE RETURNING OFFICER KAMPALA DISTRICT EL AREA | APPELLANT | |------------------------------------------------|-----------| | INTERIM ELECTORAL COMMISSION | APPELLANT | | MARGARET ZZIWA | APPELLANT | | | |

AND

CATHEzuNE NAAVA NABAGESERA RESPONDENT

# RT]LING QF THE COURT:

When this case came up for hearing on appeal, Mr. Matovu counsel for the respondent intimated that he wanted to make a preliminary objection that would dispose of this appeal. Mr. Kihika counsel for the lst appellant on behalf of lst and 2nd appellants pointed out that Rule 101(b) of this Courts Rules prohibited such objection unless leave of the court was granted. In order for such leave to be granted by this court, it must be satisfied of the reasons why the objections could not have been be raised earlier in accordance with Rule 81 of the Court Rules. We therefore asked Mr. Matovu to give us reasons why he had not acted in accordance with rule 81.

Mr. Matolu gave three reasons:-

1. That all the matters to be raised appear on the face of the

I

record of the aPPeal'

T

2. He did not want to waste courts time by making formal application especially when there was nothing requiring evidence and that what was involved were only matters of law'

o

3. That the objection was very impo(ant as it did not only touch on the jurisdiction of this court to hear the appeal but also that he proposed to show there was no appeal to hear at all in the first place'

Mr. Kihikaforthelstand2ndappellantsrepliedthatRule8lwasputinplacesothatthe court can on a formal application consider reasons why a notice of appeal or an appeal should be struck out. He submitted that it was the duty of counsel to raise the objections at the earliest time when any such defects are in the notice of appeal' In order to raise this on the hearing, there had to be convincing reasons why it was not made earlier' All the three reasons counsel for respondent had given were not good and in fact clearly show why he shouldhavecompliedwithrule8l. Hesubmittedthatifgranteditwouldbehighly prejudicialtotheappellantsastheyhadnonoticeofitandhadnothadtimetoconsiderits merits. Heprayedthattheapplicationbedismissed. Mr. Babigumirafor3rdappellantwith leave of court associated himself with Mr. Kihika's submission and added there was no material on which this court could act to grant this application'

InreplyMr. Matovustatedthatiftheconcernofcounselfortheappellantswasthe elementofsurprise,hewouldconcedecostsandwouldnothaveobjectionforan adjournment to enable them to prepare. He prayed in the alternative that he be granted time to make a formal aPPlication.

After careful consideration of the reasons given as to why counsel for respondent did notcomplywiththeprovisionofRule8lofthiscourtsrules,wefindnomeritsinthis

application. The respondent r had enough time to comply with that rule. The application seeks to strike out an appeal which is not a simple matter and that is why rule 81 is in place. The reasons he advanced for being granted leave under Rule l01Q clearly showed that if counsel for the respondent was sincere he should have acted under rule 81 of the rules. We agree with counsel for the appellants that granting this application at this stage would be highly prejudicial and there is no material before this court on which we could justifiably a/ grant it. We do not f,rnd sufficient reason for extension of time for a formal application to be made under rule 81 at this stage when the respondent had enough time to do so and has failed without good cause. It should be noted that under 5.96(2) of the Parliamentary Elections (Interim Provisions) Statute No.4/1996, this court is enjoined to hear and determine an appeal like this one expeditiously. Rule 34 of the rules made under this Statute emphasises that point by setting a time limit requiring such appeal to be completed within 30 days from lodging of the record of appeal unless exceptional grounds are given. We see no good cause to delay the hearing of this appeal. This application is therefore rejected and the appeal proceeds. The costs shall be in the cause.

B\*LL/ "-< Knq."t' h--'-- Z. J /\*7 cf r9-'4-'t4 0?".

G\*t\,'r.-\-^--{ G. M. OKELLO

ta

JUSTICE OF APPEAL

M. KIREJU

JUSTICE OF APPEAL

NO NI JLISTICE

o