Electoral Commission and Another v Hon. Lanyero Molly (22 of 2022; 33 of 2022; 44 of 2022; Consolidated Election Petition) [2022] UGCA 336 (23 May 2022)

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CONSOLIDATED ELECTION PETITION APPLICATIONS NO. 44; NO. 33 OF 2021 & NO. 22 OF 2022

*(Arising out ofElection Petition Appeal No. 26 of2021) (Arising out ofElection Petition No. ¹ of2021)*

1. THE ELECTORAL COMMISSION VS HON. LANYERO MOLLY

2. HON. LANYERO MOLLY VS ELECTORAL COMMISSION

3. ACORA NANCY AND ELECTORAL COMMISSION VS HON.

¹⁰ MOLLY LANYERO

CORAM: HON. JUSTICE GEOFFREY KIRYABWIRE, JA

HON. JUSTICE STEPHEN MUSOTA, JA

HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA

RULING OF COURT

15 20 This ruling is from consolidated Election Petition Miscellaneous Applications No. 22, 33 and 44 of 2022. Miscellaneous Application No. 44 of 2022 was filed by Hon. Molly Lanyero against the Electoral Commission seeking that the lodgment of Election Petition Appeal No. 26 of 2021 be validated and/or time enlarged: Election Petition Application No. 22 of 2022 The Electoral Commission Vs Hon. Lanyero Molly was filed by the Electoral Commission against Hon. Lanyero Molly seeking that the appeal be struck out on account of failure by the respondent to take an essential step in the prosecution of the appeal. Miscellaneous Application No. 33 of 2022 was filed by Page 1 of 9

Acora Nancy against Hon. Lanyero Molly seeking that Election Petition No. 26 of 2021 be struck out.

For clarity, these applications shall be considered concurrently but we shall start with the application for validation.

⁵ Background

Hon. Lanyero Molly, Acora Nancy and four others were candidates for the Parliamentary Elections for Woman Member of Parliament for Lamwo District held on 14th January 2021. The Electoral Commission returned and declared Acora Nancy as the winner of the election with 17,064 votes and the applicant, Hon. Lanyero Molly with 12,862 votes. The applicant, being dissatisfied with the election of the 1st respondent filed a Petition in the High Court that was heard inter parties and the petition was dismissed with costs on 20th August 2021.

15 20 On the same day, the applicant filed a notice of appeal with a letter requesting for proceedings which was served on the respondent on 30th September 2021, 3 days after they ought to have been served on the other parties under the law. The Applicant then filed a Memorandum of Appeal on 28th September 2021, ¹ day after it was supposed to have been filed and the Record of Appeal on 23rd November 2021, 25 days after it was supposed to be filed.

On 11th February 2022, the 2nd Respondent filed Election Petition Application No. 22 of 2022 under Rules 2(2), 43(1) and (2), 78(1) and 82 of the Court of Appeal Rules and Rules 29, 30 and 31 of the

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Parliamentary Elections (Interim Provisions (Election Petitions) Rules seeking orders to strike out the applicant's Notice of Appeal and served the Applicant on 18th February 2022. The Applicant, having been served the Application, filed this other Application for validation of Election Petition Appeal No. 26 of 2021.

Representation

At the hearing of the application, Mr. Edwin Tabaro and Peter Nyero Lukwiya appeared for the Applicant while Mr. Okello Alfred Oryem and Godfrey Bolis Anyuru appeared for the 1st Respondent. Mr. Osman Ezale appeared for the 2nd Respondent.

Applicant's submissions on Application for validation

Counsel submitted that the rationale for an application ofthis nature was laid out in The Executrix of the estate of Christine Mary N. Tebajjjukira and another Vs Noel Grace Shalita Civil Application

15 No. 3 of 1988 in which Odoki, JSC (as he then was) held that the legal effect of extending time for filing is therefore to validate or excuse the late filing of documents. The applicant need not file fresh documents if those already filed are complete and in proper form.

Counsel argued that whereas the Notice of Appeal was served out of time, it was an oversight by counsel and the clerking personnel who failed to align the schedules. He further argued that none of the parties have been prejudiced by the late filing and prayed that the appeal be determined on its merits. Further, that the administration ofjustice would normally require that the substance of all disputes

should be investigated and decided on their merits and that errors should not necessarily debar a litigant from the pursuit of his rights unless the other party will be greatly prejudiced. Counsel prayed that this court grants the appellant leave to validate the service of the Notice of Appeal, Record and Memorandum of Appeal in the interest ofjustice.

1st Respondent's submissions

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The 1st Respondent's counsel relied on the affidavit in support of the Notice of Motion in Miscellaneous Application No. 33 of 2022 which was filed by Acora Nancy against Hon. Lanyero Molly seeking that Election Petition No. 26 of 2021 be struck out for having been filed out of time. Counsel did not file any submissions in regard to Miscellaneous Application No. 44 of 2021.

2nd Respondent's submission

15 20 Counsel for the second respondent submitted that it is evidently clear that from the time the Judgment was delivered, the Applicant failed to take the necessary steps to duly present and prosecute her appeal apart from lodging a Notice of Appeal and the letter requesting for proceedings. The Applicant failed to serve the same on the 2nd respondent within the prescribed 7 days as required by Rule 78(1) of the rules ofthis court. That it is settled law that in Election Petitions, the intending Appellant has a heavier duty to be more keen and vigilant to commence the appeal.

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Counsel relied on the decision in Kasibante Moses V Electoral Commission Election Petition Application No. 7 of 2012 in which this court held that it is now settled law that it is the duty of the intending Appellant to actively take necessary steps to prosecute his/her intended appeal. It is not the duty of court or any other person to carry out this duty for the intending appellant. Election Petition Appeals are special proceedings with special laws and rules of procedure which must be strictly adhered to.

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10 15 20 Counsel argued further that the Applicant cannot call in to her aid any provisions of the law including Article 126 (2) (e) of the 1995 Constitution which many defaulting litigants normally seek to invoke. He relied on the decision in Ibrahim Abiriga Y. A vs Musema Mudathir Bruce Election Petition Application No. 24 of 2016 where the intending Appellant had filed a Notice of Appeal 4 days outside the stipulated 7 days. The Court of Appeal while quoting the decision in Utex Industries V Attorney General S. C. C. A No. 52 of 1995 held *inter alia* that Article 126 (2) (e) of the Constitution is not a magical wand in the hands of defaulting litigants. That an intending appellant more particularly in election petitions has a heavier duty to take all necessary steps in commencing and prosecuting the intended appeal.

Counsel submitted that the Application for validation does not disclose any sufficient grounds explaining why the applicant herein failed to take the essential steps and prayed that this court strikes out the appeal with costs to the respondents.

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/ Consideration by court

This ruling arises out of three consolidated Election Petition Applications first to strike out the appeal and secondly to validate and/or thirdly to extend time within which to file the appeal. This court in David Kabunga Vs Leonia Karyeija and 2 others Misc. Application No. 54 of 1998, held that if there is an existing application to extend time the court does not normally strike out the appeal but would prefer to allow the application for extension of time to be heard first before striking out the motion. We shall thus determine the application for validation first.

Rule 29 of the Parliamentary Elections (Interim Provisions) (Election Petition) Rules SI 141-2 provide that; a notice to appeal may be given either orally or at the time judgment is given or in writing within 7 days after the judgment of the High Court against which the appeal is being made.

Rule 30 provides that the Memorandum of Appeal shall be filed with the Registrar in a case where oral Notice of Appeal has been given within the 14 days after the notice was given.

20 The applicant herein filed a Notice of Appeal with a letter requesting for proceedings on the day the Judgment was delivered on 20th of September 2021 and the same was served on the Respondent on 30th September 2021, 3 days after they ought to have been served under law. The Applicant then filed a Memorandum of Appeal on 28th September 2021, ¹ day after it was supposed to have been filed and the Record of Appeal on 23rd November 2021, 25 days after it was

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supposed to be filed. The Applicant's contention is that this was a mistake of counsel and the clerk who filed out of time.

We take the view that being an election petition appeal, the Applicant ought to have known that an election dispute is a matter of great public importance which has to be decided expeditiously and in accordance with specific rules. We agree with the 1st and 2nd Respondent's counsel that it would be erroneous to rely on Article 126 (2) (e) of the Constitution as a shield to failure to comply with the rules of procedure in election matters. In George Omara Vs

10 Charles Andiro Abacacon Election Petition Appeal No. 106 of 2016, it was held that it is now settled law that it is the duty of the intending appellant to actively take necessary steps to prosecute his/her intended appeal.

15 20 We are of the view that allowing an intending Appellant to take his or her time to file the record of appeal outside the time set by the law without providing exceptional circumstances to do so would defeat the purpose of the time frame under the Parliamentary Elections Act. Further, 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.

We find that the behavior of the Applicant in this case offends the rules of filing election petition appeals. We also find that this is not a fit and proper case to validate an appeal or to enlarge time because no sufficient cause has been shown to warrant extension of time. The Applicant did not take the necessary steps in filing the court

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documents within the time frames stipulated by law. There is evidence that the lawyer acted with dilatory conduct. Accordingly, the applicant in Miscellaneous Application No. 44 of 2022 has failed to show exceptional circumstances that would persuade this court to validate the appeal.

The application to validate the appeal is therefore dismissed with each party baring its own costs.

Consequently, the Applications in Miscellaneous Application No. 22 of 2022 and Miscellaneous Application No. 33 of 2022 are allowed with each party bearing its own costs.

Election Petition Appeal No. 026 of 2021 is hereby struck out for being incurably defective for having been filed out of time, with each party bearing its own costs.

¹⁵ 2022 Dated this day of


Hon. Justice Geoffrey Kiryabwire, JA

Hon. Justice Stephen Musota, JA

Hon. Justice Christopher Gashirabake, JA