THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

ELECTION PETITION APPLICATION NO.07 OF 2012

(Arising from Election Petition Appeal No.47 of 2011)

CORAM:   HON. LADY JUSTICE C.K. BYAMUGISHA, JA

                   HON. JUSTICE S.B.K. KAVUMA, JA

                   HON. JUSTICE REMMY KASULE, JA.

KASIBANTE MOSES :::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

ELECTORAL COMMISSION::::::::::::::::::::::::RESPONDENT

RULING OF THE COURT

The applicant applies to have Election Petition Appeal No.47 of 2011 to be struck out.  The application is brought under Rules 43 (1) (2), 44 and 82 of the Court of Appeal Rules and Rule 30 of the Parliamentary Elections (Election Petitions) Rules.

The grounds of the application are that the respondent failed to file a Notice of Appeal within the prescribed seven (7) days after the delivery of the High Court Judgement, failed to lodge in court a Memorandum of Appeal within seven days after the Notice of Appeal had been filed, and also failed to lodge a Record of Appeal within thirty (30) days after filing the Memorandum of Appeal.  In effect the applicant contends that the Respondent has failed to take essential steps to appeal and prosecute Election Petition Appeal No.47 of 2011.

The application is supported by an affidavit of the applicant dated 20.02.2012.

The respondent opposes the application and for that purpose filed in court an affidavit in reply dated 28.03.2012, deponed to by one Enock Kugonza, the respondent’s legal officer.  Through this affidavit the respondent sets out the grounds for opposing the application.

At the hearing, the applicant was represented by learned counsel Chrysostom Katumba, while Counsel Tom Magezi appeared for the respondent.

Though the parties never framed any issues at conferencing, in the view of this Court, from the pleadings and the conference notes of the respective parties, the issue for determination is whether or not the respondent has failed to take any essential step(s) to prosecute Election Petition Appeal No.47 of 2011.

The facts leading to this application are that on 18.02.2011 Parliamentary elections conducted by the respondent were held in Uganda.  The applicant and one Honourable Katongole Singh Marwaha and others were candidates and contested the Parliamentary seat of Rubaga North Constituency, Kampala capital city.

On 20.02.2012 the Respondent declared the applicant winner of this election.  The runner up, Honourable Katongole Singh Marwaha, dissatisfied with the result, and pursuant to the electoral law, applied for a recount on 22.02.2011.  The Chief Magistrate’s Court, Mengo, allowed the application, and a recount was conducted on 28.02.2011 at the said court premises.  After the recount, on 01.03.2011 the respondent declared and gazetted Hon. Katongole Singh Marwaha as the winner of the election.  On 30.03.2011 the applicant, disputing the result of the election after the recount, petitioned in the High Court, Kampala, through Election Petition No.23 of 2011.  The Election Petition was heard and determined by the High Court (Musoke-Kibuuka, J.) in favour of the applicant on 24.10.2011.  The respondent appealed to this court against the judgement of the High Court by lodging Election Appeal No.47 of 2011.

The case of the applicant is that under Rule 29 of the Parliamentary Elections (Election Petitions) Rules, a written Notice of Appeal has to be filed within seven (7) days after delivery of the Judgement being appealed against.  In this case, the respondent filed the Notice of Appeal on 31.10.2011, being eight (8) days from the 24.10.2011 the date of delivery of judgement.

The said Notice of Appeal, applicant further contends, was served on his lawyers on 08.11.2011, again a day later than the stipulated period of seven days contrary to Rule 78 of the Court of Appeal Rules.

As to the Memorandum of Appeal, it is submitted for applicant that the same was filed in court out of time since Rule 30 of the Parliamentary Elections (Election Petitions) Rules requires that the same has to be filed within seven (7) days after the Notice of Appeal has been given.  In this case the Notice of Appeal having been filed in court on 31.10.2011, the seven (7) days expired on 07.11.2011.  Yet, the Respondent filed the Memorandum of Appeal on 08.11.2011, a day out of time of the filing of the Notice of Appeal.

In respect of filing the Record of Appeal, it was contended for the applicant, that the respondent had not applied to be supplied with the High Court record of proceedings of the High Court for the purpose of preparing the record of  appeal.  The High Court had communicated that the record of proceedings was ready by the 13.12.2011 and on 16.01.2012 the same had been forwarded to the Court of Appeal.  Inspite of this readiness of the court proceedings of the High Court, the respondent had failed to file in court a record of appeal, even as by the time of hearing of this application.

Finally, it was submitted for the applicant that the respondent had at no time applied to Court for any extension of time in respect of taking any essential step.

The respondent, on the other hand, maintained that he had taken the necessary essential steps.  The Notice of Appeal had been lodged in time for the day of delivery of Judgement had to be excluded in computing the seven (7) days from 24.10.2011.  This also applied to lodgement of the Memorandum of Appeal.

Respondent’s counsel invited us, that if we were to find that the Notice and/or the Memorandum of Appeal, or one of them, had been filed late, then this was not in ordinate delay and was excusable under Article 44 which makes the right to a fair hearing non-derogable.  The respondent should also be heard in appeal.  Further, Article 126 (2) (e) enjoins court not to give undue regard to technicalities at the expense of justice.  A delay of one day should therefore not result in extinguishing the respondent’s appeal.  Also Rule 26 of the Parliamentary Elections (Election Petitions) Rules bars proceedings of a petition being defeated by any formal objection or by the miscarriage of a notice.

Respondent’s counsel relied on the Kenyan case of Kenya Court of Appeal Civil Application No.72 of 1999: CECILIA GATHONI HARUN V GEORGE KABUGU, where the court disregarded an inordinate delay of 143 days of lodging the record of appeal on the premise that no real prejudice was suffered by the Respondent and that the applicant ought to be given a chance to have a final say in the highest court.  Counsel invited us to accord the same treatment to the respondent in this Application.

He further submitted with regard to the assertion that the respondent had failed to file a record of appeal in court in time, that the record of appeal was not available to the Respondent within the prescribed thirty (30) days of the filing of the memorandum of appeal through no fault of his own.  The record of appeal only became available to him on 06.01.2012, way outside the thirty (30) day period.  The Registrar, High Court, had also compiled and certified the record and forwarded the same to the Court of Appeal Registry without any notification being made to the respondent.

As to the law applicable, this application is brought under Rule 82 of the Rules of this Court, among others.  This Rule provides:-

“A person to whom a notice of appeal has been served may at anytime, either before or after the institution of the appeal, apply to the court to strike out the notice of appeal or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time.”

The Rule provides for two instances where a person served with a Notice of Appeal can move court to strike out the Notice of Appeal or the appeal itself.  The first, is where, according to the one served with the Notice of Appeal, no appeal lies.  The second is where the person served claims that the intending appellant has not taken an essential step at all in the proceedings, or has taken the same but outside the time prescribed by the rules:  See Court of Appeal Election Petition Application No.24 of 2011: Bakaluba Mukasa Peter & Another V Nalugo Mary Margaret Sekiziyivu.

Taking an essential step is the performance of an act by a party, whose duty is to perform that fundamentally necessary action demanded by the legal process, so that, subject to permission by court, if the action is not performed as by law prescribed, then whatever legal process has been done before, becomes a nullity, as against the party who has the duty to perform that act.

It is now settled as the law that it is the duty of the intending appellant to actively take the necessary steps to prosecute his/her intended appeal.  It is not the duty of the court or any other person to carry out this duty for the intending appellant.  Once judgement is delivered, the intending appellant has to take all the necessary steps to ensure the appeal is being in time See: UTEX INDUSTRIES LTD VS ATTORNEY GENERAL: CIVIL APPLICATION NO.52 OF 1995 (SC) and S.B. KINYATTA & ANOTHER VS SUBRAMANIAN & ANOTHER: CIVIL APPLICATION NO.108 OF 2003 (COURT OF APPEAL).

In case of an election petition appeal, the intending appellant has even a higher duty to expeditiously pursue every step in the appeal so that the appeal is disposed of quickly.  This is so because Section 66 (2) of the Parliamentary Elections Act and Rule 33 of the Parliamentary Elections (Election Petitions) Rules enjoin this court to hear and determine an appeal expeditiously and may, for that purpose, suspend any other matter pending before it.  Rule 34 requires this court to complete the appeal within thirty (30) days from lodging the record of appeal, unless there are exceptional grounds.  Time is thus of the essence in election petition appeals.

Rule 29 of the Parliamentary Elections (Election petitions) Rules requires that a Notice of Appeal be filed within seven days after the judgement of the High Court against which the appeal is to be made.

Judgement in Election Petition No.25 of 2011 was delivered on 24.10.2011 and the respondent to this application filed the Notice of Appeal on 31.10.2011.

The language of Rule 29 of the Parliamentary Elections (Election Petitions) Rules is to the effect that the Notice of Appeal, when in writing, is to be given:

“within seven days after the Judgement of the High Court against which the appeal is being made.” (Emphasis is by this court).  The ordinary dictionary meaning of the word “after”, among other meanings, is “subsequent in time to” or “at a later time than” See: The Free Dictionary by FARLEX, 2012.

It follows therefore that, in terms of Rule 29, in case of a written Notice of Appeal, the same is to be filed seven days excluding the date of delivery of judgement.

The law as to computation of time, election petitions inclusive, also supports the above conclusion.  Section 34 (1) (a) of the Interpretation Act, Cap.3, provides that in computing time for the purposes of any Act, a period of days from the happening of an event or the doing of any act shall be deemed to be exclusive of the day in which the event happens or the act or thing is done.

Also Rule 36 of the Parliamentary Elections (Election Petitions) Rules, allows the rules of procedure and practice on appeal from decisions of the High Court to the Court of Appeal in civil matters to apply to Election Petition  Appeals, subject to such modifications as this court may consider necessary in the interests of justice and expedition of the proceedings.  Therefore under this authority, resort can be made to Rule 4 of the Judicature (Court of Appeal Rules) Directions.  Rule 4 (a) of these Rules is a repeat of the already referred to Section 34 (1) of the Interpretation Act.  The Rule provides:

“4.    Computation of time.

Any period of time fixed by these Rules or by any decision of the court for doing any act shall be reckoned in accordance with the following provisions:-

1. A period of days from the happening of an event or the doing of any act or thing shall be taken to be exclusive of the day on which the event happens or that act or thing is done;”.

The legal position is therefore that the date of delivery of judgement is excluded when computing the seven (7) days within which a written Notice of Appeal has to be filed in court.

It follows therefore that the respondent’s notice of appeal which was lodged in court on 31.10.2011, when judgement had been delivered on 24.10.2011 was lodged within the prescribed time of seven (7) days, thus in compliance with Rule 29 of the Parliamentary Elections (Election Petitions) Rules.

As to service of the Notice of appeal by the respondent upon the applicant, the evidence that there is, according to annexure “A” of the applicant’s affidavit in support of the motion, is that the applicant’s lawyers acknowledged receipt of the Notice of Appeal on 08.11.2011.  The respondent has not adduced specific evidence as to when, earlier than 08.11.2011, the Notice of Appeal was served upon the applicant’s lawyers, or when the same was collected from the Court Registry for service upon the applicant.  The burden is upon the respondent to satisfy court that the Notice of Appeal was served upon the applicant in time.  On the basis of the evidence that is before court, excluding the 31.10.2011 when the Notice of appeal was lodged in court, court finds that service of the Notice of appeal upon the applicant on 08.11.2011, was a day out of time of the seven days prescribed by Rule 78 (1) of the Judicature (Court of Appeals) Rules.

Rule 30 enjoined the respondent to file a Memorandum of Appeal with the Registrar of this Court, in case where a written notice of appeal had been given, which was the case in this application, within seven days after notice had been given.

Taking the 31.10.2011 as the date when the Notice of Appeal was filed in court, thus the date when the notice of appeal was given, the seven (7) days, excluding 31.10.2011, expired on 07.11.2011.  This is the last date when the Memorandum of appeal ought to have been filed in court.  Its being filed in court on 08.11.2011 was therefore out of time by one day contrary to Rule 30 of the Parliamentary Elections (Election Petitions) Rules.

Rule 31 of the Parliamentary Elections (Election Petitions) Rules, required the respondent to file the record of appeal within thirty days after the filing of the Memorandum of Appeal.

The evidence that there is on record is that since 08.11.2011 when the Memorandum of appeal was filed up to by the time of hearing of this application on 10.04.2012, the respondent had not filed a record of appeal in court.  He had even never written to court and served a copy to the opposite party, requesting to be supplied with a certified copy of the court proceedings for the purpose of preparing the record of appeal to be filed in court.  Yet, according to the evidence before court, certified copies of proceedings and judgement were ready and had been forwarded to this court by the trial court by the 16.01.2012. 

This court is unable to accept the submission of learned counsel Tom Magezi for the respondent, that the record of appeal was not available to the respondent within the prescribed period of thirty (30) days through no fault of the respondent, and that even by the 16.01.2012, when certified copies were forwarded to this court, the respondent was not so made aware by the Registrar.  We wonder how the respondent expected to be made aware of the readiness of the record when the respondent never even wrote to the trial court requesting to be supplied with such a record.

The respondent’s submission that because there was a notice of appeal on record showing the address of the respondent as one interested in the appeal, and that this fact ought to have made the court Registrar to notify the respondent of the readiness of the court proceedings has no validity in law whatsoever.  It was the duty of the respondent, as the intending appellant, to actively take the necessary steps to prosecute the intended appeal.

We also note that at no time did the respondent apply to court, for any valid reasons or at all, for extension of time either to serve the Notice of appeal out of time, or to file the Memorandum or the record of appeal, out of time.  We conclude from all this that the respondent was all along not keen on pursuing the appeal with the necessary vigour and diligence that the law demands of an intending appellant in an election petition appeal.

We accordingly allow the application and strike out Election Petition Appeal No.47 of 2011.

We further order that the respondent pays the costs of the application to the applicant.

Dated at Kampala this ……30^th….day of ……April…….2012.

Hon. Lady Justice C.K. Byamugisha

JUSTICE OF APPEAL

Hon. Justice S.B.K. Kavuma

JUSTICE OF APPEAL

Remmy. K. Kasule

JUSTICE OF APPEAL