Aaubuka v Onek & 2 Others (Election Petition Appeal 1 of 2001) [2002] UGCA 7 (3 April 2002)

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ CORAM: HON. MR. JUSTICE S. G. ENGWAU, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

ELECTION APPEAL NO. 1 OF 2001

AAUBUKA OKULLO JALLON ANTHONY ::::::::::::::::::::::::::::::::::::

VERSUS

- ONEK OBALOKER HILLARY 1. - THE RETURNING OFFICER $2.$ - KITGUM DISTRICT

THE ELECTORAL COMMISSION $3.$

$10$

[{Arising from the judgment of the High Court (Kania J) in Election Petition No. 5 of 2001]

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RULING OF THE COURT

This is an oral application for extension of time for filing a record of proceedings out of time.

The following are the facts leading to the application. The appellant, AAubuka Okullo Jallan Anthony was a parliamentary candidate for the parliamentary seat of Lwumo county constituency, in Kitgum District. The election was held on 26^th June 2001. The first respondent, Onek Obaloker Hillary, was declared the winner of the election. Dissatisfied with the election results, the appellant filed a petition in the High Court against the first, second and the third respondents. The judgment dismissing the appellant's petition was delivered by the High Court on 26-10-2001. The appellant filed a notice of appeal in the High Court on 2^nd November 2001. He filed a memorandum of appeal in the Court of Appeal on 8^th November 2001 and the record of appeal on 19th February 2002.

The appeal was fixed for hearing on 19-3-2002 at 2.30pm. Before the hearing commenced, Mr. Patrick Mugisha, learned counsel for the appellant, made an oral application for extension of time to file a record of proceedings out of time. Counsel based his application on rules 4, 42 (3) (a) of the Rules of this Court. Counsel conceded that the time in which the record of appeal had been filed in this court was out of the time stipulated in Rule 31 of the Parliamentary Elections (Elections Petition) Rules 1996

$10$

Mr. Madrama, learned counsel for the first respondent, opposed the application. He contended that the appeal is incompetent as counsel for the appellant had conceded. He contended that the application for extension of time to file the record of appeal was being made in an unusual manner. He submitted that an application for extension of time should be a formal application supported by affidavit evidence. The application is to be made before a single judge according to rule 52 of the Rules of this Court. He prayed this court to dismiss the oral application with costs. Mr. Okello Oryem, learned counsel for the second and third respondents, associated himself entirely with the submissions of Mr. Madrama.

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In reply, Mr. Mugisha contended that rule 52 (d) of the Rules of this Court emPowers this court to extend time in a case like this orre where it is foulrd at tht time of trial thzrt tl-re appeal was filecl out of time. 'l'he application can tlrcn be mark' itrforrially durirrg the lrcaring of the aPPc-at-

It is agrecd by all partics tltat the record of trpPeal was filed out of tinrt, arrtl we also agrec. Rule 31 of the Parliarnetrtary Electiorrs (Election Petitions) Rule-s, 1996' (Statutoty lnstrument No' 27 o[ 1996) provides:-

"31. The appellant shatl lodge with the llegistrar the record of appeal within thirty days after the filing by him or her of the memorandum of aPPeal."

Thc. app'rellant filed thc rccorc'l of appeal irr tlris court on I9tl' February 2002, whet'cas hc hat'l filecl the tnemoratldum of appeal in tlris Court on 8'h Novcnrber 2002. This was clearly out of the thirty day's period stipulated by Rule 31 of the Parliamentary Elections (Elections Petitions) Rules 1996.

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Tl.re issue to be determinec'l is whether this court has the Powers to grant the oral application for extension of time within which to file the record of appeal as prayed for by counsel for the appellant'

Rule 4 of The Court of Appeal Rules provides:-

'4. The Court may, for sufficient reason, extend the time limited by these Rules or by any decision of the Court or of

the High Court for the doing of any act authorised or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to the time as so extended."

We agree with Mr. Mugisha's contention that this rule allows extension of time even where an act has already been done. See; Shanti V Handocha and Others [1973] E. A 207. However, before this court grants extension of time proper procedure must be followed. In our view, rule 42(3) (a) of the Rules of this Court, which counsel for the appellant has relied upon covers informal applications made during the course of the hearing.

We agree with Counsel for the respondents that applications for extension of time as provided by rule 52 of the Rules of this Court are made before a single judge. Counsel for the appellant has prayed this court to grant extension of time on the basis of rule 52(2) (d) of the Rules of this Court which provides:-

$10$

"This rule shall not apply

- (a) ... ... ... ... ... ... ... ... ... . - (b) ... ... ... ... ... ... ... ... ... . - (c) ... ... ... ... ... ... ... ... ... . - (d) to an application made as ancillary to an application under paragraph (a) or (b) or made informally in the course of hearing, including an application for leave or

to extend time if the proceedings are found to be deficient in the matters in the course of hearing."

This rule, in our view, would be applied by this Court in exceptional circumstances and only where the applicant adduces evidence before court to prove that he/she "for sufficient reason" should have time extended. In his application, counsel did not adduce any evidence before us to that effect.

As the court has no evidence to act upon, the oral application for $10$ grant of extension of time to file a record of appeal has no merit. It is accordingly dismissed. In the result, the appeal before us is incompetent and is accordingly struck out with costs to the respondents.

Dated at Kampala this....................................

trum fr L. E. M. MUKASA-KIKONYOGO, DEPUTY CHIEF JUSTICE

> source S. G. ENGWAU, JUSTICE OF APPEAL

CMARIL. C. N. B. KITUMBA JUSTICE OF APPEAL

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