[2022] UGCA 338

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

*(Coram: Egonda-Ntende, Muzamiru M. Kibeedi and Monica K. Mugenyi, JJA)*

### **ELECTION PETITION APPLICATION NO. 21 OF 2022**

(Arising from Election Petition Appeal No. 09 OF 2021)

# **KOMOL EMMANUEL APPLICANT**

#### **VERSUS**

**HON. LOKERIS SAMSON** ¹⁰ **RESPONDENT**

## **RULING OF THE COURT**

#### **Background:**

The facts leading to this application are that in the Parliamentary Elections which were held in Uganda on 14th January, 2021, the Applicant, the Respondent and others were candidates and contested for the Parliamentary seat of Dodoth East County Constituency in Kaabong District.

Upon conclusion of the election, the Returning Officer of the Electoral Commission declared the Applicant as the validly elected member of Parliament for Dodoth East County having secured a winning margin of 11 votes more than those obtained by the runner up, the respondent.

20 The respondent being dissatisfied with the outcome of the election lodged Election Petition No.01 of 2021 in the High Court of Uganda at Soroti. On 31s1 August 2021, the learned trial judge dismissed the Petition with costs following a preliminary objection successfully raised by the applicant. The respondent was dissatisfied with the decision of the trial court and appealed to the Court of Appeal, to wit: *Election Petition Appeal No.09 of 2021 (EPP No. 09 of 2021).*

25 On the 11th of February 2022, the applicant filed this application to have EPA No.09 of 2021 struck out. The application was brought by way of Notice of Motion under Rules 2(2), 43(1), (2)

*Page 1 of10*

& 82 of the Court of Appeal Rules, and Rules 30, 31 and 36 of the Parliamentary Elections (Election Petitions) Rules, S.l. No. 141 -2.

The grounds upon which the application is based are set out in the Notice of Motion as follows: -

## *1. That the Respondent has failed to take essential steps to prosecute his appeal*

- 30 **2.** *That the Respondent has failed to file a Record of Appeal and serve within the prescribed time required by law.* - **3.** *That this application has been filed without undue delay and is made in good faith to protect the interests of the Applicant; and* - *4. That it is just, fair, and equitable that this application be granted.* - 35 In support of the application, the applicant filed an Affidavit sworn by himself at Kampala on the 11th day of February 2022 and his Supplementary Affidavit sworn at Kampala on 1st March 2022 elaborating on the grounds of the application. The respondent opposed the application and filed an Affidavit in Reply sworn at Kampala on the 21st February 2022 by Atiba Solomon Olea. The Applicant filed an Affidavit in Rejoinder on 1st March 2022.

#### 40 **Representations:**

At the hearing, the applicant was represented by Ambrose Tebyasa, Evans Ochieng and Sandra Namigadde while the respondent was represented by Caleb Alaka and Kenneth Kakande. Both the Applicant and Respondent were present in Court.

#### **Applicant's Submissions:**

**45** In their Written submissions, Counsel for the applicant argued that the Respondent failed to take the essential steps to prosecute his appeal by not filing the Memorandum of Appeal within 7 days and by not filing the Record of Appeal within 30 days and serving the same onto the applicant within 7 days as required by the rules. That the said omissions rendered the appeal incompetent.

50 55 60 Counsel submitted that from the evidence submitted by the applicant in court, whereas the face of the Memorandum of Appeal bears the stamp of this Court indicating that the Memorandum of Appeal was received on the 8th day September 2021, no filing fees was paid by the respondent on or before that date. That the Court fees was paid on the 9th day of September 2021 as clearly discerned from the testimony of the Applicant in the Supplementary Affidavit deposed on 1st March 2022. And that it was the same date the Registrar endorsed the second court stamp acknowledging receipt of the fees of Ugx. 200,000/=. That, accordingly, the actual date when the said Memorandum of Appeal was properly before court was the 9th day of September 2021 when the fees was paid and not the 08lh of September 2021. Counsel argued that this was so because documents cannot be said to be validly be filed in Court until fees have either been paid. That the entry of the date of 08.09.2021 in the Receiving Stamp of Court on the face of the Memorandum of Appeal does not override the omission to pay fees before filing. For this submission, Counsel referred to the case of *UNTA Exports Ltd Vs Customs [1970] 1EA 648.*

The other step not taken by the respondent was non service of the Applicant with the Record of Appeal within 7 days as required by law. Counsel submitted that the claim by the Respondent in

- 65 the Affidavit in Reply that he attempted to serve Ambrose Tebyasa and Evans Ochieng, counsel for the applicant, on the 8th day of October 2021 but he did not find them, has no basis. That this is because the Respondent has not shown proof that they served on that day. Further, that the Respondent does not give reasons as to why they could not serve the lawyers on the subsequent days. - 70 Counsel concluded by saying that the respondent breached the duty imposed on him as an intending appellant to actively take the necessary steps to prosecute his/her intended appeal in time. Counsel submitted that the duty is even heavier in an election petition appeal to expeditiously pursue every step in the appeal which is by law required to be disposed of quickly. For this submission, Counsel referred to the case of *Kasibante Moses Vs Electoral Commission,* - 75 *Election Petition Application No. 7/2012.*

Counsel prayed that this court be pleased to adopt the same reasoning as in the *Kasibante case* (ibid) and strike out the appeal with costs to the Applicant.

#### **The Respondent's Reply:**

80 In their oral reply, Counsel for the respondent opposed the application. They submitted that the appeal was filed in time. That the Memorandum of Appeal and Record of Appeal were all filed in time and that the Court Stamps acknowledging their receipt are clear as to when each one of them was filed in court.

As far as service of the Record of Appeal upon the applicant is concerned, Counsel submitted that the Affidavit in Reply shows the details of when and how it was served on the applicant. That Counsel for the applicant were able to file their Written Submissions in the main appeal

85 because they were duly served.

Counsel ended by praying that the application be dismissed with costs.

#### **Resolution:**

90 We have carefully read and considered the pleadings as well as the submissions of Counsel in support of and against this Application.

Failure to take an essential step in the proceedings at all or taking the essential step outside the prescribed period are some of the instances set out in Rule 82 of the Judicature (Court of Appeal) Rules under which a person who was served a Notice of Appeal, like the applicant in the instant matter, can move this court to strike out an appeal. The Rule is couched as follows:

95 *"A person on whom a notice of appeal has been served may at any time, 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 above Rule, and the Judicature (Court of Appeal) Rules in general, are applicable to applications which arise from an election appeal by virtue of Rule 36 of the Parliamentary Elections (Election Petitions) Rules, S.l. No. 141-2, which provides as follows:

#### *"36. Procedure generally.*

*Subject to such modifications as the court may direct in the interests of justice and expedition of the proceedings, any rules regulating the procedure and practice on appeal from decisions of the High Court to the Court of Appeal in civil matters shall apply to appeals under this Part ofthese Rules."*

Also see: *Bakiite Leonard Vs Ampaire Kizito Nseko & 2 Ors, EPA No. 027 Of 2022* (Unreported) *and The Electoral Commission Vs Mwosuko Jacob EPA No. 42 of 2022* (Unreported)

110 The essential steps which the respondent is alleged to have failed to take in prosecuting Election Petition Appeal No.09 of 2021 are three namely:

- **1.** Filing of the Memorandum of Appeal out of time - **2.** Failure to file the Record of Appeal; and - 3. Failure to serve the Record of Appeal on the applicant. - 115 We shall now proceed to analyse the evidence in respect of the three complaints as below:

#### **Filing the Memorandum of Appeal:**

The Ruling of the Trial Court dismissing the Petition was delivered by Hon. Lady Justice Anna Bitature Mugenyi on the 31st August 2021. The respondent filed the written Notice of Appeal in Soroti High Court on 02nd September 2021. Under Rule 30(b) of the Parliamentary Elections (Election Petitions) Rules, where an intending appellant has given **a** Written Notice of Appeal, he/she is obliged to file the Memorandum of Appeal *"within* 7 *days after notice was given".*

The law as to the computation of the 7 days' period is that the date on which the Notice of Appeal was filed is excluded. *See Section 34 (1) (a) of the Interpretation Act, Cap. 3, and Kasibante Moses Vs Electoral Commission, (Op cit)*

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125 130 In the instant matter, the Notice of Appeal having been filed on the 02nd September 2021, the 7 days' period prescribed for filing the Memorandum of Appeal expired on 09th September 2021. The Received Stamp of this Court appearing on the face of the Memorandum of Appeal indicates that the document was received by the Registrar of this Court on 08lh September 2021. This was within the period prescribed by the law. The second Stamp of this Court on the same Memorandum of the Appeal indicates that the Court Fees for the filing of the Memorandum of Appeal was paid on 09th September 2021. This was the last day for filing the Memorandum of Appeal.

In the premises, we find that the Memorandum of Appeal was not filed outside the time prescribed by the Rules.

#### 135 **Non-filing and non -service of the Record of Appeal:**

*■1*

In the Notice of Motion and the Supporting Affidavit of the Applicant filed in the Registry of this Court on 11th February 2022, the two complaints about the Record of Appeal were to the effect that the respondent failed to file the Record of Appeal and serve it on the applicant within the time prescribed by law. The applicant deponed that when he and his Counsel checked the Registry of this court on 08th February 2022, they established that indeed there was no copy of the Record of Appeal on the Court File.

On the other hand, in the Respondent's Affidavit in Reply filed in Court on 21s1 February 2022, the Respondent denied the claim of failure to file the Record of Appeal. He even attached to the Affidavit the cover pages of Volumes 1, 2 and 3 of the Record of Appeal bearing the Received Stamp of this court indicating the 08th of October 2021 as the date on which the three volumes of appeal were received by this court.

In the Applicant's Affidavit in Rejoinder, there was no contest as to the authenticity of the Court Received Stamps and signatures appearing on the said attachments. The Applicant simply made a blanket statement that it was false for the Applicant to claim that the Record of Appeal was filed in court within the prescribed period. And in his submissions, Counsel for the applicant

*Page 6 of10*

sought to cast doubt about the filing date of 08lh October 2021 by wondering why the Record that was filed at such time was never served on the applicant or a copy of the same was not on the court file when the applicant and his Counsel checked from the Registry.

155 160 165 Under Rule 31 of the Parliamentary Elections (Election Petitions) Rules, the appellant must lodge with the registrar the Record of Appeal within 30 days after the filing of the Memorandum of Appeal. We are satisfied, on a balance of probabilities, by the evidence of the respondent in this matter, especially the copies of the Record of Appeal attached to the Respondent's Affidavit in Reply, that he filed the Record of Appeal on 08th October 2021. The Memorandum of Appeal in the instant matter having been filed on 08th September 2021, the filing of the Record of Appeal was done on the last day prescribed by the law for filing the Record of Appeal. The fact that the applicant and one of his lawyers did not find a copy of the Record of Appeal on the Court files when they checked the Registry of this court on 08lh February 2022 cannot, by itself, be sufficient to be indicative of failure of the respondent to file the contested document. It might be indicative of the Registry staff having not properly filed the documents after receiving them from the respondent. A litigant has no control over how the Registry staff handle the documents after he/she has lodged the same with them. Rule 83(1 )(b) of the Rules of this court provides that a minimum of 6 copies of the Record of Appeal should be lodged in the Registry when instituting an appeal. In practice, this enables a litigant to retain copies of the Court documents they have lodged with the Registry of this court. The practice ensures checks and balances in cases of

170 misfiling or misplacement or even loss of the documents received by the Registry staff. The key consideration in the instant case has been that when the Respondent was challenged by the applicant as having not filed the Record of Appeal, he adduced evidence in his possession of the copies of the Record of Appeal bearing the Received Stamp of this court.

175 Accordingly, the ground of failure of the respondent to file the Record of Appeal within the time prescribed by law fails.

As regards the ground of non- service of the Record of Appeal, the timelines within which the service should be effected are set out Rule 88 of the Judicature (Court of Appeal) Rules. It provides as follows:

#### *"88. Service of memorandum and record of appeal*

**c**

- *1) The appellant shall, before or within seven days after lodging the memorandum of appeal and the record of appeal in the registry, serve copies of them on each respondent who has complied with the requirements ofrule 80 ofthese Rules.* - *2) The appellant shall also serve copies of the Memorandum of appeal and the record of appeal on any other party to the original proceedings if the court, at any time, on application or of its own motion directs, and within such time as the court may prescribe."*

From the above Rule, the respondents are categorized into two. Further, different timelines are prescribed for service of the Record of appeal depending on the category under which any particular respondent under consideration falls. The first category consists of respondents who "complied *with the requirements ofrule 80 of[the Rules ofthis court}'.*

Rule 80 the Rules of this Court provides as follows:

#### *"80. Respondent to give address for service*

- *1) Every person on whom ^a notice ofappeal is served shall* - *a) Within 14 days after service on him or her of the notice of appeal [lodge] in the appropriate registry, [and] serve on the intended appellant, notice of a full and sufficient address for service; and* - *b) within a further 14 days, serve a copy of the notice of address for service on every other person named in the notice of appeal as a person intended to be served.* - *2)* A *notice of address for service shall be substantially in Form E in the first schedule to these Rules and shall be signed by or on behalf of the person lodging it.* - *3) The lodging and service of an address for service shall not operate or be construed as an admission that the appeal is competent or a waiver of any irregularity"*

205 Said differently, the first category of respondents created under Rule 88 of the Rules of this court are those respondents who lodged their respective Notices of address for service and serve them on the intended appellant and the other persons named in the Notice of Appeal within 14

days of their receipt of service of the Notice of Appeal. This category of respondents is, under Rule 88(1) of the Rules of this court, entitled to be served the Record of Appeal within 7 days after its being lodged in the Court Registry by the appellant.

210 The second category of respondents created under Rule 88 of the Rules of this court consists of those respondents who did not file in court and serve their respective Notices of Address for service but were parties to the original proceedings.

\*

A

215 220 In his Written submissions, the applicant's counsel argued that the applicant ought to have been served within 7 days of the filing of the Record of Appeal, but that this was not done by the respondent herein. This argument is not based on the evidence in the instant matter and the law applicable to it. For the applicant to qualify for service within 7 days as claimed, he had an obligation to adduce evidence to show that he filed and served his Notice of Address of Service in accordance with the requirements of Rule 80 of the Rules of this Court. We have scrutinised the evidence of the applicant in this matter, and the record of appeal itself, and found no evidence to show that the applicant fulfilled the requirements of Rule 80 of the Rules of this Court.

225 230 However, there is no dispute that the applicant was a party to the original proceedings. This automatically brings him within the ambit of the 2nd category of respondents whose timelines for service of the Record of Appeal are governed by Rule 88(2) of the Rules of this court. Under this category, the timelines for service of the Record of Appeal by the appellant are set by court *"on application or of its own motion".* There is no evidence furnished by the applicant whatsoever of any court order or directions issued specifying the period within which the applicant should be served the Record of appeal. Fortunately, the applicant does not claim to have been prejudiced by the service of the Record of Appeal upon his Counsel on the 22nd of February 2022. Indeed, when the appeal, EPP No. 09 of 2022, was called for hearing on 31st March 2022, the applicant had already filed his Written Submissions in the matter.

Accordingly, the ground of late service of the record of appeal upon the respondent fails.

#### **Decision of Court:**

**K**

Having evaluated the evidence in this matter and the law applicable to it, we hereby dismiss the application with costs to the respondent.

The effect of this Ruling is that we shall now go ahead to dispose of the appeal on its merits at a date to be subsequently notified to the parties.

We so order.

/V\0^ Signed, dated and delivered at Kampala this 2022. day **of**

EDRICK **EGONDA-NTENDE Justice of Appeal**

MUZAMIRU MUTANGULA KIBEEDI **Justice of Appeal**

**i**

MONICA KALYEGIRA MUGENYI **Justice of Appeal**