Wotsuna Masaba Joseph Vs. Wonazofu Simon Peter & Anor (Election Pet. No. 14 of 2011) [2011] UGHC 104 (28 July 2011)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MBALE

ELECTION PETITION NO.14 OF 2011

WOTSUNA MASABA JOSEPH :::: PETITIONER

VERSUS

1. WONAZOFU SIMON PETER

2. THE ELECTORAL COMMISSION :::: RESPONDENTS

BEFORE: HON. MR. JUSTICE MIKE J. CHIBITA

JUDGMENT

This is a petition filed by Wotsuna Masaba James challenging the results of the Local Government Council V elections of Bulambuli District held on 23^rd February, 2011. The Electoral Commission declared the 1^st respondent, Wonanzofu Simon Peter as the winner. The petitioner was runner up and two other candidates brought up the rear.

The petition is for orders that the 1^st respondent was not validly elected as Chairman LC 5 for Bulambuli District and that the election of the 1^st respondent as Chairman LC 5 for Bulambuli District be annulled and a bye election be conducted in the said District.

Finally the petitioner prays that the costs of the petition be provided for.

The grounds of this petition are briefly that there was non-compliance with the provisions of the Local Government’s Act and Parliamentary Elections Act relating to conduct of a free and fair election, which affected the results of the elections in a substantial manner.

Also that the 1^st respondent was personally aware of the above anomalies which were done with his knowledge and/or consent and further that the 1^st respondent benefitted from the same.

Finally, that all the above illegal practices and offences were committed by the 1^st respondent and/or his agents and supporters with his knowledge, consent or approval and that the 1^st respondent is liable for all these offences and illegal practices.

The petition was accompanied by the affidavit of the petitioner together with several other supporting affidavits.

The 1^st respondent denied all the allegations in his answer to the petition which was supported by his affidavit and those of several others.

The 2^nd respondent did not file a reply claiming that the petitioner has never served them with the petition.

The petitioner was represented by M/s Musamali Martin, the 1^st respondent by M/s Higenyi, Ngugo and Wadamba Advocates while the 2^nd respondent was represented by Mwasa Jude.

When the matter first came up for mention on 9^th May, 2011 the parties agreed on a timetable for filing and serving pleadings, filing joint scheduling notes and hearing dates which were scheduled for 20-21^st June, 2011.

When the matter came up for hearing on 20^th June, 2011, Counsel for the petitioner and for the 2^nd respondent were present together with the petitioner and 1^st respondent. The 1^st respondent informed court that his lawyers were unable to attend because their car had broken down in Mbiko on the way to the hearing.

Counsel Musamali for the petitioner informed court that the matter could not proceed because he had been served late and needed more time to file a rejoinder. He also informed court that a joint scheduling memorandum had not been filed either. He prayed that the memorandum be filed on 29^th June, 2011 and that the parties be allowed to file written submissions thereafter.

Written submissions are not the preferred mode of operation of the court but because of the fact that time was being wasted by prayers for filing replies and rejoinders and in a bid to accommodate counsel’s request, court agreed to the filing of written submissions.

It was agreed that the petitioner would file and serve written submissions by 7^th July, 2011. Respondents were then to file and serve replies by 15^th July, 2011 and any rejoinders would be filed and served by 21^st July 2011.

At this same hearing, Counsel for the petitioner raised the issue of not having been served by the 2^nd respondent. 2^nd respondent’s Counsel for his part made a counter accusation of not having been served by the petitioner in the first place. Court advised the parties to rectify any anomalies related to service of process within the timetable agreed upon, accordingly.

Court finally asked counsel to comply with the timetable and informed them that judgment would be delivered on 29^th July, 2011.

On 13^th July, 2011 both Counsel for the respondents wrote to the Registrar, Mbale High Court informing her that the petitioner’s written submissions had not been served on them as yet. Secondly, that Counsel for the petitioner had belatedly served the 2^nd respondent with affidavits in rejoinder after the scheduling and filing of conferencing notes. The 2^nd respondent’s letter was copied to Counsel for the petitioner.

On 15^th July, 2011 the 1^st respondent’s written submissions were received but the content was devoid of reference to the petitioner’s written submissions, which they contended had not been served on them up to that date!

The Registry in Mbale informed me that on 19^th July, 2011 a copy of the petitioner’s written submissions were brought but because they were outside the time within which they should have been filed the Registry declined to formally receive them.

It is alleged that the same had been filed and received at the Registry of the High Court in Kampala bearing a date of 4^th July, 2011. The Mbale High Court registry was promised that a letter would follow explaining why the submissions were filed in Kampala and not Mbale.

There is no record of this letter that was promised. It has not been written and/or received. Neither is there a response to any of the respondent’s letters alleging none service of the petitioner’s submissions. There is no affidavit of service showing that the respondents were served either. There is no request to serve out of time. There is nothing.

I am at a loss as to why the petitioner’s counsel decided to file written submissions in Kampala High court instead of Mbale where the petition was filed and was being heard. Though that infraction could be overlooked there is no explanation or justification for failure by the petitioner to serve written submissions on the respondents.

Yet the timetable was agreed on in the presence of the petitioner and his lawyer. The agreement clearly indicated that the submissions would be filed and served. The petitioner failed to serve the respondents as agreed and as required by law. There is no explanation as to why this failure occurred.

It is evident from all indications therefore that the petitioner and/or his counsel have failed, refused or neglected to fulfill their obligations to move the petition forward. They have handled the petition in a surprisingly casual manner.

They have blatantly flouted the directives of court and court is left with no alternative but to bring the petition to an end with costs to the respondents. This is in accordance with section 143 Local Governments Act, section 63 (4) (a) of the Parliamentary Elections Act and rule 17 of the Election Petition (Petition Rules) Regulations.

The petition is accordingly dismissed with costs to the respondents.

…………………………………… 29.07.2011

JUSTICE MIKE J. CHIBITA DATE

JUDGMENT READ AND DELIVERED IN THE PRESENCE OF:

1. PETITIONER: WOTSUNA MASABA JAMES

2. COUNSEL FOR PETITIONER: MARTIN MUSAMALI

3. RESPONDENTS: NAKANDI EVARITA

4. COUNSEL FOR RESPONDENTS: ABSENT

5. COURT CLERK: GRACE KANAGWA

BY: JUSTICE MIKE J. CHIBITA…………………… DATE: 29.07.2011