THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MASAKA

MISC. CAUSE. NO. 008 OF 2016

GERTRUDE NAKABIRA LUBEGA.................................................................APPLICANT

VERSUS

HON MUYANJA MBABAALI...........................................................................RESPONDENT

RULING

BEFORE: HON. LADY JUSTICE MARGARET TIBULYA.

This is a ruling on an application for extension of time within which the applicant can file an election petition. The grounds upon which the application is based are;

1. The applicant was prevented from filling an election petition in time against the respondent due to inadvertent oversight of her former counsel.
2. That an election petition concerns the public interest and it is just and equitable that any allegation of electoral malpractice is subjected to a fair trial and determined on merit.
3. That the respondent shall not suffer any injustice if an election petition n is filed to determine the authenticity or validity of his academic qualifications.
4. That the application has been brought without any undue delay.

The back ground

On 6th November 2015 the applicant filed Civil Suit No. 78 of 2015 for a declaration that the respondent lacks the minimum academic qualifications to be nominated/elected as a Member of Parliament and a declaration that a mature age certificate is not equivalent to, or a substitute for an ‘A’- level certificate. The suit was fixed for hearing on the 12th February 2016, but the trial judge was indisposed. The matter was adjourned to 15th April 2016. In the meantime the general elections were held an the applicant contested and lost the Bukoto South (Lwengo District) Constituency seat to the respondent.

When the case came up for hearing on the 15th and 19th April 216 preliminary objections including the fact that the suit had been overtaken by events since the respondent had already been elected were raised. The preliminary objects were upheld and the suit dismissed.

By the time the matter was disposed of the 30 days within which to file a petition had lapsed, hence this application.

The arguments

For the applicant, Counsel Asuman Basalirwa submitted that the failure to file the petition in time was occasioned by her lawyer’s inadvertent oversight when failed to withdraw the civil suit and instead file a petition which was the only logical step to have been taken after the respondent was elected and declared a winner. The inadvertent oversight of those lawyers should not be visited on her. He relied on Horizon coaches Ltd Vs. Edward Rurangaranga & Mbarara Municipal Council, S/C Civil Appeal 18 of 2009 for that submission. 

Counsel further argued that it is just and equitable to grant the application because it concerns public interest, the academic qualifications of a Member of Parliament. Further that the application has been brought without undue delay and no injustice will be suffered by the respondent if the petition is filed since it will only afford him an opportunity to disprove his critics.

Counsel cited SITENDA SSEBALU Vs.  SAM NJUBA & E.C, Civil Appeal 26 of 2007, for the argument that in setting up an elaborate system for judicial inquiry of alleged electoral malpractices it was the intention of the Legislature to ensure that such allegations are subjected to a fair and determined on merit, which is also in public interest. He submitted that the court should not lock out the petitioner on account of technicalities or timelines set by the law.

Opposing the application Caleb Alaka for the respondent raised the following points of law.

1. The application is grossly misconceived,
2. It is barred in law,
3. It is frivolous and vexatious,
4. It is an abuse of court process.

On the issue of the legal bar, he pointed out that S. 60 (3) of the Parliamentary Elections Act   fixes the time for filing of election petitions, and that in MAKULA INTERNATIONAL Vs. CARDINAL NSUBUGA 1982 HCB 11 at 14, “A court has no residual or inherent jurisdiction to enlarge a period of time laid down by statute”

Counsel Alaka submitted that SITENDA SSEBALU Vs SAM NJUBA & E.C (supra) did not depart from Makula international. He said that in SITENDA SSEBALU (Supra) there was no service of notice of presentation of the petition within 7 days as required by S. 62 of the Parliamentary Elections Act. The interpretation of S. 60(3) of the Parliamentary Elections Act was not in issue and there was no decision on that section.

He continued that Ss. 62 and 93 of the Parliamentary Elections Act should be read together. The relevant Rules don’t replicate S. 60(3) yet Rule 6 replicates S. 62 of the Parliamentary Elections Act. This means that it was not the intention of the Legislature to give the court discretion to

extend the time in S 60 (3).  The Supreme Court only considered at Rule 19. The rules set the time for the service of Notice which is the time the court may extend. Neither S.93 nor the Rules talk about the issue of enlargement of the time within which to file a petition. The time in S. 60 (3) can only be extended by Parliament but not the court.

Moreover, counsel argued, there are no special circumstances for the applicant’s failure to file the petition in time.  

On the alleged inadvertent oversight of the applicants counsel, Mr. Alaka pointed out that civil suit 78 of 2015 related to the respondent’s nomination or election as the NRM flag bearer. Her previous counsel’s instructions were to seek an order to cancel the respondent’s election as the NRM flag bearer. There is no indication that she instructed them to file a petition. Instructions are not imagined. This fact distinguishes this case from the HORIZON (supra). The pleadings in this case have not disclosed that counsel got instructions and failed to execute them. The applicant knew about the gazette of March 2016 and she even attached it to her application.  There was dilatory conduct on her part. She has been involved in several elections and has been an MP. She is not a lay person. She therefore sat on her right which is dilatory conduct on her part.

The application has been brought 93 days after the gazette and 28 days after dismissal of civil suit No. 78 of 2015. In election matters time is of essence. The doctrine of Laches operates in this context to election petitions. She does not come to court with clean hands. The application is an after thought and an abuse of court process and not in public interest. The court should not allow to be abused.  

Counsel Asuman Basalirwa reiterated that in SEBALU (supra) the Supreme Court went over and above the issue of service of notice of petition and discussed the implication of the use of the word “shall” in Statutes; i.e., whether it is mandatory or directory, and concluded that in the instant case, given that election petitions are sui generis, the use of the word ‘shall’ is directory.

Counsel Basalirwa contested the argument that in SEBALU a petition had been filed and that therefore, the extension of time that was being made was with reference to the petition unlike this case. He argued that S. 98 of the CPA is elastic and that the court can invoke it in the interest of justice. It is not true that the time being sought can only be provided by the legislature. The SEBALU case and S. 98 of the CPA empower the court to extend the time.

On the argument that civil suit 78/2005 only concerned NRM primary elections and as such the previous counsel were not instructed in this case, counsel drew the courts attention to the first prayer in the plaint. It was not only for the NRM elections but any subsequent elections where ‘A’- level is required. Prayer‘d’ also covers MP elections. If the court had affirmed the complaint the respondent would not have been elected.  

On the argument that the applicant is guilty of dilatory conduct, he pointed out that the ruling in the civil suit was delivered on 27th April 2016 and this application was filed on 4th May 2016, just 8 days, and not 28 days later as Counsel Alaka had said.

I have had an anxious consideration of the arguments raised by both counsel and reviewed the relevant laws and the authorities that were cited.

The main issue raised by this case is whether the court has discretion to extend the time in S. 60(3), i.e. whether the provision that; “Every election petition shall be filed within thirty days after the day on which the results of the election is published by the commission in the Gazette” is absolute to the extent that non-compliance with the time-line set in the section is a bar to filing an election petition.

I did not understand SITENDA SSEBALU Vs.  SAM  NJUBA  & E.C (supra) to have expounded such principle. In the context of the Statutory timelines and on the specific issue of whether a court has power to extend time set by Statute, the Court while considering the whole of Part X of the P.E.A (of which S. 60 (3) is part), said that the purpose and intention of the Legislature was to ensure, in the public interest, that disputes concerning election of peoples representatives are solved without undue delay. It was the view however that that was not the only purpose and intention of the legislature. The court pointed out the public interest of having such allegations subjected to a fair trial and determined on merit.

SEBALU is clear that the provisions in Part X of the P.E.A which include S. 60 (3) are not cast in stone. It is therefore not true as counsel for the respondent argued that this application is grossly misconceived, barred in law, frivolous, vexatious and an abuse of court process. The public interest of having cases heard on merit must be balanced with the interest of having them disposed of expeditiously, meaning that the court retains discretion to extend the time set in S. 60 (3) of the P.E.A. The court is therefore only required to evaluate the evidence relating to special circumstances warranting the extension of time.

In this case the main argument was that the applicant’s lawyers failed her. The fact that the applicant instructed her lawyers to file a suit against the respond cannot be doubted. Counsel for the respondent argued that those instructions related to issues of nomination and/or election for NRM flagship and not to filing a petition, meaning that she has never instructed the lawyers to file the petition. The fact, however, that the issue under inquiry related to the academic qualifications, the same complaint she seeks to raise in the intended petition aptly answers the respondents concern.

The applicant instructed her previous counsels to lodge a complaint in court. How they did that depended on their professional judgment. As we are to learn, they adopted a strange and suspicious procedure which resulted in the dismissal of the case.

On the authority of Horizon coaches Ltd Vs. Edward Rurangaranga & Mbarara Municipal Council (supra), their misjudgment must not be visited on her.

The only other argument against the positive exercise of discretion is that the applicant is guilty of dilatory conduct. The argument however seems to have been based on wrong computation of the time. 

All factors considered, I am satisfied that this is a proper case in which the court should exercise its discretion to extend the time within which to file a petition. The applicant is given two weeks to file and serve the petition on the respondent.

Costs to be in the cause.

Margaret Tibulya

Judge

22nd June 2016.

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