[2024] UGCA 222

# THE IIEPUBLIC OF TIGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA ELECTION PETITION APPEAL NO. OOI OF 2022 (ARISING OUT OF ELECTION PETITION NO.0l OF 2022)

NAKWI'DDE IIAITIIIE-I' APPI'LLANT

## VI'II,StIS

# I. MUWONGE ANDREW

2. ELECTORAL COMMISSION.................. ..... RESPONDENTS

[Appeal from the decision of Hon. Mr. Justice Alex Mackay Ajiji, delivered on the l4th July 2022 at Mukonol

# COITAM: HON. MR. JUSTICE GEOFFREY KIRYABWIRE. JA HON. MR. JUSTICE MUZAMIRU KIBEEDI. JA HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE. JA

## . IT IDG M IiNT oI.' TH Ii ('oU II'I'

## INTR()DTICTION

This appeal arises from Misc. App. No. 02 of 2022 (arising from Election Petition No.l of 2022) that was jointly liled by the Respondents which sought to strike out the Election Petition No. 0l of 2022 on accounl of late service by the Appellant.

## BACK(;ROI. INI)

This Appeal arises from by-elections for the position of District Chairperson of Kayunga Dislrict which were held on l6th December 2021 . The Electoral Commission conducted the said byelections. Six candidates contesled in the elections. including Harriet Nakwedde (Appellant) and Muwonge Andrew ( I st Respondent).

1l

On the I 7th day of December, 2021, the Electoral Commission declared results of lhe by-election and retumed Muwongc Andrew of the National Resistance Mov€ment Party, as thc validly elected LCV Chairperson having polled 3 1,830 votes. l'he other candidates in the race polled the ibllowing votes: Harriet Nakwedde (hereinafter the Appellant) 31.308 Votes. Musisi Bonifacc Bandikubuli 470 votes. Kamoga Jamilu 279 votes, Waddimba Anthony 158 votes and Nyanzi Majid 1287 votes.

The Appettant, aggrieved by the election oulcome, filed Election Petition No.0l of 2021 on 3'd January 2022, chatlenging the election ofthe l'1 Respondent as lhe LC V Chairperson, Kayunga District.

The Respondents jointly subsequently llled Misc. App No. 02 of 2022 (arising fiom Election Petition No.0l of 2022) seeking lbr orders that Election Petition No. 0l of 2022 be struck out with costs, on the grounds that it was served upon them out of time. The Appellants on the other hand. through an Alfidavit in Reply stated that the Petition was filed well within the time prescribed by law.

Justice Ajiji Alcx Mackay, ruling on thc l4'h July 2022. struck out E,lection Petition No. I ol2022 on the grounds that the Notice ofPresentation oflhe Petition was rendered a nullity lor late scrvice. He thus declared the I'r Respondent as the validly elecled LCV Chairperson ofKayunga District. Being dissatisfied with the said Ruling, the Appcllant lodged this Appeal in lhis Court.

## GI'.oTINDS 0F APPI.]AL

The lollowing are the grounds of'appeal in this matter:

- l) The Leorned Triol Judge erred in law ondfttct when he held lhat lhe Appellanl served the l't Respondent wilh lhe Notice of Presenlatiou of Petition and the Petition three da1's oat of time ond the 2"d Rcspondenl four do1's oul of tinte. - 2) The Learned Trial Judge erred in lax, andfacl when he held that lhefiling ofa Petition is signified by placing n receiving stamp of courl o lhe nolice of Presentolion of Petition antl Pelilion. - 3) The Letnted Trial Judge erred in lon, and foct when he heltl tltdl lhe ,rolice of Presenlotion of petiliot, otrd lhe petition having baenJiled on the 3"t day ofJonuo4'2022, tchich wos endorsetl on lhe lAt'do1'of January 2022 and served on the l't Applicanl and lhe 2"'t Applica,rl on ll,e l3 ^tond I4 ^tday ofJnlpnTy Tespectivel! nere served oul of time. - 4) The leorned Triol Judge crued in law andftcl tvhen he held tl,ol the lole service of the nolice of presentation of pefitio,t and Pelition rendered the sanrc o nullitl'. - 5) The leorned Trial Judge erued in law andfocl x'hen hefailed to evoluole lhe et'idence on reutnl lhtts orriving ot the nrong cotrclusion thol lhe,totice ofpresenlolion ofpclition and petilion n'cre a nullill'.

#### **ISSUES FOR DETERMINATION**

The following issues from the grounds were formulated by the 1^st and 2^nd Respondents for determination:

- 1. Whether or not the Trial Court is vested with powers to extend time fixed by the statute or an Act of Parliament? - 2. Whether or not the Appellant complied with the timelines in as far as service of the Notice of Presentation of the Petition and the Petition are concerned?

#### REPRESENTATIONS

Jonathan Erutu Advocate appeared for the Appellants while Counsel Eric Sabiiti and Anthony Bazaira Advocates appeared for the 1^st and 2^nd Respondents respectfully.

With leave of Court, Counsel for both the parties filed and adopted their written submissions in respect of the Appeal,

#### **DUTY OF THE COURT**

This is a first appeal and this Court is charged with the duty of reappraising the evidence and drawing inferences of fact as provided for under Rule $30(1)(a)$ of the Judicature (Court of Appeal Rules) Directions SI 13-10. This Court also has the duty to caution itself that it has not seen the witnesses who gave the testimony first hand. On the basis of its evaluation this court must decide whether to support the decision of the High Court or not as decided in Akol Hellen Odeke v Okodel Umar Election Petition Application No.06 0f 2020 which cites, Pandya vs R. [1957] EA 336 and Kifamunte Henry vs Uganda Supreme Court Criminal Appeal No.10 of 1997.

In this matter, Grounds 1 and 2 and then grounds 3, 4 and 5 have been resolved jointly.

### Ground 1

The Learned Trial Judge erred in law and fact when he held that the Appellant served the 1^st Respondent with the Notice of Presentation of Petition and the Petition three days out of time and the 2^nd Respondent four days out of time.

And

## (lround ²

Thc Lcarncd 'I'rial Judge erred in lalv and fact rvhcn hc held that thc filing of a I'etition is significd hy placing a rccciving stanlp of court on thc noticc of Itresentation of l'etition and Petition.

## Submissions of the Appellant

Counsel tbr the Appellanl submitted that alpage293 ofthe Rccord ofAppeal, the trial Judge found that the process server had received the Notice of Presentation ol'tlle Petition and Petition within the prescribed time. Counsel further submitted that the trial Judge held that having received the document on that same date, the process server should have proceeded 10 serve them on the Applicants on the same day. He however served the Respondents out of time.

Counsel then posited the question, whcn does the time for serving the Petition start running? That is the date the Notioe of Presentation of Petition and the Petition, are signed and endorsed by the Registrar ofCourl; or the date il is lodged and stamped in the Cou( Registry. He concluded that the time for serving the Petition starts running at the timc the Registrar ofthat Court endorses the Notice of Presentation. This is bccause the said Notice o1'Prescntation is a Court Notice to the Respondents and it is just extracled by the Petitioner and not drawn by her as the Petition is. Counsels argued that his submission was premised on the notion that a Notice of Presentation being a court document gets ils lil-e from the endorsement of'ths same by the Registrar.

Counsel submitted in conclusion that. without the seal of Court, the Notice ol Presentation is ^a mere piece of paper, and cannot possibly be served on the other party. Counsel contended that, the time within which to file a pleading was frozen even whcn the Petition was received by the Court, the Appellant thus had to wait for the Court to endorse the Notice ofPresentalion ofPetition belore serving the same.

Counsel prayed that lhis Court be please to tlnd that the l-eamed Trial Judge erred in law and fact when he held that the Appellant served the I't Respondent with the Notice of Presentation of Petition and Petition three days out of time and the 2"d Respondent, four days out of lime.

Counsel further prayed that Court found that the Trial Judge erred in Law and Fact when he held that the liling of a Petition is signified by placing a receiving stamp of Court on the Notice of Presentation of Petition and Petition.

### Submissions of the Respondent

Counsel for the Respondent submitted that the five grounds of Appeal were the same and intenelated and thus chose to argue them concurrently and divide them into two issues.

Counsel lbr the Respondent submitted that the Respondent did not comply with the time lines and that Court was not vested with the jurisdiction to extend the timelines fixed by the Local Government Act. Counsel ref'erred to the Atlldavit ol Benon Kirigoola. a process server ol M/S Lukwago and Co. Advocates, u'ho at paragraph 2, deponed that on the l0s ol'January 2022. he received copies of the Notice of Prescntation and Petitioncr ol Election Petition No. I of 2022 lbr service upon the Applicants. Counsel submilted that lhe process server received them on time. but served the Respondents out oftime. Counsel further submitted that under Section l4l ol'the Local Governmcnl Act, the election petition is to bc served within 7 days from filing.

The Respondents subnritted in conclusion that the Appellant received the Petition lbr scrvice on time. but deliberately relused 1o serve within the prescribed time.

Funhermore. Counsel lbr the Respondent submitted that acknowledgemenl of receipt of the Petition by Courl does nol extend the timeliame within which one has to serve the Notice oi the Presenlation ol Petition to the Respondents. Service of the Petition within 7 days is a mandatory requirement. Counsel argued that a petitioner is required to comply with the statutory timelines and failure to do so, goes to the root olthe case and is therefore f'atal to the Petition.

## Courts findings

We have perused the submissions of both Counsel and the authorities provided lbr we are which we are grateful.

We have also considered the Supreme Court case of Global Capital Save 2004 Limited and Another v Okiror and Another (Administratrix of the estate of the late Okiror), (Civil Application No.57 of202l); in which the competence ofthe notice ofappeal was challenged on the ground that it had been served out of time. The question the Court was invited to determine was; when is thc process of lodgement of a notice ol'appeal is deemed to be concluded. Hon. Jusrice Chibita Mike, JSC held that:

" ...il is sule to suy that lhe process of.filling the Notice of Appeul started on the 7th t,ith lhe paymcnt of the requisite .fbes, rcceiving and stamping lhe documents v,ith the court slump ond culminated in the.linal act of being dated and signed by the Regiislrcrr as duly lodged on the 9'h o.fJuly 2020. The date that is of the essence therefbre, is the ./inal date of the process, which in thc instqnt clse is the 9tt' ofJuty 2020."

Counsel for the Appellant thus argued that the dale in the said case (Global Capital Save 2002 Limited supra) started running from the date when registrar duly endorsed on the same, not the time it was tiled.

On the other hand, Counsel ibr the Respondents argued that case of Global Capital Save 2004 Ltd (supra) is distinguishable as far as it dealt with stay ofexeculion application timeframes whose

sl

law regime is wholly alien to the LCV elections law regime. The Local Government Act couches the 7-day period in mandatory terms and it does not vest any court with residual powers to amend or alter the same. The more reason elections have a special legislation in conduct and trial of electoral related matters.

We further addressed ourselves to the case of **Equity Bank Uganda Limited and 2 others v** Simbamanyo Estates Ltd and Another Civil Application No. 709 of 2022, where Hon. Justice Cheborion Barishaki held that: -

"it is quite apparent from the decision that the duty of the aggrieved party is limited to filing the notice of appeal and having it received by the Court. The process of dating and signing is the mandate of the Registrar over which the party filing has no control."

We also addressed ourselves to the holding in the case of Electoral Commission v Watira (Election Petition Application No.4 of 2022) wherein Hon. Lady justice Luswata JA, held that:

"The law as well explained by my brother Madrama is that lodging of documents under the PE Act, Parliamentary Elections (Interim Provisions) Rules, and Judicature (Court of Appeal Rules) Directions, goes beyond a mere placing of the documents in the Court Registry and procuring a received stamp from the registry staff. The Advocate or litigant concerned must ensure that they are properly lodged before the Registrar and the Registrars seal received. Even then, it remains squarely the duty of the Registrar to endorse or seal all pleadings received at the registry. In practice, such endorsement is made only after hearing the date for the action, in this case the appeal, is obtained. This could explain why the application which was filed on $20/10/2021$ , was formally lodged on $21/3/2022$ , five months later. It would not be judicious to blame the applicant or their counsel for that long lull of delay."

Counsel for the Appellant thus referred this Court to the Latin maxim "lex non cogit ad" *impossibillia*", that the law does not compel a man to do that which he cannot possibly perform. That is to say, that the Appellant cannot compel the Registrar of Court to endorse the Notice of Presentation of Petition, which is a court document and had to wait until the same were signed and endorsed by her. Counsel prayed that this Court find that the Trial Judge erred in law and fact in finding that that Appellant served the Respondents out of time.

Be that as it may, we have further addressed our minds to the remainder of the decision by, Lady Justice Luswata in of **Electoral Commission v Watira** (Supra). It was further held:

"... Having said so, I maintain my decision above. The crux of the matter in this case is that the applicant's counsel failed to file the memorandum and record within the time set by statute. In such a case, the acts of those advocates who erred are visited on the applicant, their client. By failing to take the necessary step, the applicant forfeited his right to appeal the ruling of the Learned Judge."

6 | Page Further. with regard to timely service of Notice ofPetition on the Respondent, Section l4l ofthe Local Government Act provides: -

" Nolice in wriling o/ thc presanlalion of a petition ut'contpanied b1, u copy o/'the pttition .shall \*'ithin seten cluys u./ier./iling of thc petition, be scn'ed br- lhe petitioner on the rcspondenl or re.rporulenls, as lhe case may be. "

In the instant case, the Respondent filed this petition on 3'd January, 2022, but only servcd the same on the Applicants on I 3th January, 2022 utd l4th January. 2022. This was 3 days out of time for the I 'r Respondent and 4 days out of time for the 2nd Respondcnt, as evidenced by their Allldavits in Support at pages 235-236 ofthe Record of Appeal.

In response to the Appellants arguments. the Respondent argued that the Court does not have the power to extend/enlarge time. This court is mandated to comply with strict timelines set by law for doing any acl given importance ofelections. (service ofpetitions inclusive) as was the case in Kyagulanyi Ssentamu Robert versus Yoweri Museveni Tibuhabura Kaguta and 2 Others M. A. No.0l of 2021, arising from Presidential Election Petition No. 0l of 2021, Supreme Court ol Uganda. at page 35, u,here it was held that:

"lt should hov'eter bc etnphasized thut once a purty submils him/ hersef to t he.iurisdiction ol this courl under Arlicle 101 o.f the Constitulion, he / she is obliged to comply v)ith thc parqmelers stated thereunder as thera orc no exceplions provided under thal (.'onslil ulionol provision. Like ve hqve indicated be.fore, lhis currt 7 is mundated to comply t'ilh lhe slrict timelines provided for uruler Article 101 ofthe Constitution. lt cannot do olhentise as hus no pov'ers to tkt so. Consequently, the applicant had no alternative but to manuge lhe prot'ess ol./iling his petilion u,ithin the timefrarne provided under the law."

In the recent Court ofAppeal decision ofByakatonda Godfrel,versus Kamahingo Emmanuel & Another, Election Petition Appeal No. 4512021, at page 31, Hon. Justice Madrama (JA as he then was), while discussing extension of time limited by the statute, held as lbllows: -

"ln lhe premises, the High Conrt hod no rcsidual or inherent .iurisdiction to exlend linte limiled by seclion I3lt of thc Local Government Acl ./br the filing ol a petition by cxercise o/- enubling rules made undcr thc Parliamcnlury Elections Act. 7'he procecdings sttbscquenl to thc exlension of time are null and void and ofno legal effbct. I trould in the circumslances slrike out lhis oppeal u,ith no orders u"s to costs on o point of lov, and strika out lhe pelilion in rhc High courl v'ith cosls."

In spite of the facts ol'the Byakatonda (Supra) case being diI1'erent liom the current case, the principles arc similar. This ground therefore fails because. we take the view on the existing authorities that when a petition is a nullity lbr being served out of time then the Court has no Jurisdiction to enlarge time within which to serve the Petition. This is because the Local Government Act under Sections I 3 8 and I 4l do not provide fbr exceptions on service or extension of time to serve.

We accordingly resolve both thesc grounds in thc negative.

Grounds 3, 4 and 5 were handled together as follows

## Ground 3

The Learned Trial Judge crred in larv and fact whcn hc held that the noticc of Presentation of petition and the petition having been filed on the 3'd day of January 2022, which was en<lorscd on the lOrh day of January 202,2 and sorved on the I't Applicant and the 2"d Applicant on the l3rh and l.lth dal of January respectivcll rl ere scn'ed out of time.

## And

# (iround {

The learned Trial Judgc crred in law and fact when he hcld that thc latc service of the noticc of prescntation of petition and l'ctition rendercd thc samc a nullitl'.

And

# Ground 5

The learned Trial Judge erred in latv and fact tvhcn hc failcd to el'aluate the evidence on record thus arriving at thc wrong conclusion that thc noticc of prcsentation of petition and pctition ncrc a nullitl'

### Submissions of thc Appellant

Counsel submitted that at page 297 of the Record of Appeal. the lrial Judge hcld that the requirement to serve the Nolice of Prescntation of Pelition within 7 days alier filing the same is ^a mandatory requirement and lailure to comply renders the Petition a nullity. He lurther submitted that thc holding was guide by the decision olKyagulanyi Ssentamu Robcrt v Yoweri Museveni and 2 others Suprcme Court Misc Applic No.0l of 2021where the Court held that the Applicant has to manage the timc sel by Article 104 ol'1he Constitution.

Counsel referred 1o the authority of Byakatonda Godfrey v Kamihingo Emmanuel and Anothcr, Election Pctition No. 45 of2021 relied on by the Trial Judge at page 295 ol'the record ofappeal. stating thal it was substantially diflerent from the instant matter. In the Byakatonda case (supra). the leamed T'rialjudge had extended the tinre within which to file a Petition, after the time lbr filing the same had lapsed and this court lbund that il was not within their powcrs to do thc same.'l'he instant matter was peculiar. as the Appellant filed the instant Petilion. However, before hearing the same, the Respondents filed an Appeal challenging the same on the ground of late servict: of the same.

Counsel argucd that Sections 62 of the Parliamentary Elections Act,2005 is Pari-Materia with Section l4l of the Local Governments Act and would mean that the word 'shall' in the Act was not mandatory and Service of the Notice of Presentation of'Petition and the Petition having been Iiled on the 3'd of January. 2022. which was endorsed on the lOrh of January 2022 and served on the I 'r Respondenl and 2"d Respondent on the I 3th and I 4ft day of January respectively was nol in error.

Counsel prayed that Court find that the trial Judge erred in law and fact when he lbund that the late service ofthe Notice ofPresentation of Petition and Petition rendered the same a nullity.

### Submissions of the Respondent

Counsel argued that. the requirement of service was a statutory one. This being a matter of law. failure to comply with it goes to the root ofthe case and is fatal to the Pelition as a whole.

Under The Local Government Act, the 7-days period is coached in mandatory terms and it doesn't vest the court with residual powers to amend or alter the same. This is why elections have special legislation relating to the conduct and trial ofelectoral related matters.

## Courts findings

This ground relates to the timeliame for serving a Petition under the Local Covemment Act. A review of thc cases in this area shows that the question of time for the service of the Petition is fairly well settled.

In the case of Serunjonji Charles Musoke versus Amooti Nyakana Godfrey & Electoral Commission, Election Petition No. 29 of 2006. court discussed the provisions of Section l4l ol' the local Governments Act and the said decision states thal Section l4l of the Local Govemment Act which is mandatory requires sen'ice lo be etfected upon the opposite party within seven (7) days of filing the petition.

Furthennorc. in the decision ol this Court in Mbabali Jude l'ersus Electoral Commission, EPA No.3/2006, pages 3-4. in the lead Judgment ol'G. M Okello, JA. it was held as lbllows: -

"...1 occept thctl position. Sectktn 62 of lhe Parliamcntury Eleclions Act and Rule 6(l) ol lhe Parliamcnlary Eleclions (Election Petitions) Rulcs 1996 enjoin the Petilioner or hisi her odvocutc tvilhin seven days o11nr.rr,,rf the petilion lo serve each respondenl a notice in writing of lhe presentation d-the pelilion occompunied h1, a copy o/ the petilion. Requirement ofservice is thera/bre, a statulor! onc."

We continue to hold the view in the case of Mbabali Jude (Supra) and distinguish the Supreme Court case of Global Capital Save 2004 Ltd (Supra) as far it dealt with the usual stay ofexecution applications in civil matters which are dit-fbrent LCV elections. Elections have a special legislation aimed at expediting the trial of electoral related matters. That is why the 7-day timeframe under the Local Govemment Act for service is couched in mandatory terms.

Ilowever. in the current case, the Appellant did nol comply with these mandatory statutory timelines.

This ground therefore fails by reason of the failure to comply with timelines.

### Costs

Costs in a Petition such as this are governed by Section 143 ofthe Local Govemment Act and Section 27 of the Civil Procedure Act. Cost are in the discretion ofthe Court and as a general rule cost will follow the event. In lhis matter the results olthe election were very close and in our view it was justifiable for the unsuccessful party to investigate them through a court of law. l{owever mandatory provisions of the law were not lbllowed which was a failure of her lawyers and it would be unreasonable to penalise the Appellant for this.

We accordingly exercise our discretion and decide that it is in the interest ofJustice that each party bear their own costs.

### Final llcsu lt

- ^I. 1'his appeal is dismissed. - 2. Partics bear lheir own costs.

#### \\'c so Ordcr

10 I

Dated at Kampala this 23 Day of August $\cdots \cdots \cdots \cdots \cdots \cdots \cdots 2024.$


HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JA

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