THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
CORAM: Hon. Justice Tsekooko, single Judge of the Supreme Court.
CIVIL APPLICATION No. 5 OF 2008
IDDI KISIKI LUBYAYI :::::::::::::::::::::::::::::: APPLICANT
SSEWANKAMBO MUSA KAMULEGEYA :::::: RESPONDENT
[Application arising from decision of the Supreme Court dated
5th February, 2008 in Civil Application No. 26 of 2007]
This is a ruling on objections raised by counsel for the respondent.
This matter has a chequered history. Let me produce first the orders for which the applicant, Idd Kisiki Lubyayi prayed, in the notice of motion. I shall then give its background before making an order I consider to be proper after consideration of counsel’s arguments.
In the notice of motion, the applicant sought for two main orders couched in these words–
Time of the institution of the appeal arising out of ………………………. Election Petition Appeal No. 8 of 2006 be extended.
The Notice of Appeal filed by the applicant arising out of Election Appeal No. 8 of 2006 (Idd Kisiki Lubyayi Versus Ssewankambo Musa Kamulegeya) struck out by this Honourable Court be validated/reinstated.
On 23rd February, 2006, Idd Kisiki Lubyayi, the applicant, together with one Kagimu Kiwanuka Maurice contested for the Parliamentary seat of Bukomansimbi Constituency and the former was declared the winner. The respondent in this application who was only a registered voter successfully petitioned the High Court against the election of the applicant. The High Court set aside the election. The applicant thereafter unsuccessfully appealed to the Court of Appeal against the decision of the High Court. On 22nd February, 2007, he insitituted a Notice of Appeal against the decision of the Court of Appeal. On the same day his counsel, Messrs Birungi & Co., Advocates, wrote to the Registrar of the Court of Appeal requesting for certified copies of the proceedings and the judgment of the Court of Appeal before he could institute the appeal.
Apparently, on 24th July, 2007, the Registrar of the Court of Appeal wrote to Messrs Birungi & Co. Advocates, advising that proceedings were ready. Indeed Annexture “D” to the Respondent’s affidavit in reply shows that the Advocates received a copy of those proceedings and the judgment on the 1st August, 2007. However, they did not institute the appeal during the rest of 2007. Because of the delay to file the appeal, counsel for the respondent filed Civil Application No. 26 of 2007 asking this Court to strike out the Notice of Appeal. That motion was fixed for hearing by the full court on 5th February, 2008. This appears to have prompted the applicant to take action. Before the hearing date, the applicant instituted the appeal in this Court on 1st February, 2008. However, on the 5th February, 2008, Civil Application No. 26 of 2007 was heard by the full court and the Notice of Appeal was struck out. Consequently the applicant instituted Civil Application No. 3 of 2008 and Civil Application No. 5 of 2008 seeking for leave to be allowed to file a fresh Notice of Appeal out of time or alternatively asking the court to validate the Notice of Appeal which had been struck out on 5th February, 2008.
Civil Application No. 3 of 2008 came up before me for hearing on the 14th February, 2008. There were problems. But by agreement of both parties, the application was withdrawn with leave of court. Subsequently application No. 5 of 2008 was fixed for hearing today.
The file was brought to me last week for directions about fixing it for hearing. I noted that this is an election matter where the law requires courts to proceed to hear such matters expeditiously. Initially I thought that the order sought under prayer (b) presented problems which could be appropriately determined by the full court. Currently one member of the court is on his annual leave and so the motion cannot be heard by the full court. However a single judge could, under Rule 50(1) hear the motion at least in so far as the prayer (a) is concerned. So as I was available this week, I ordered for the motion to be fixed before me for hearing especially as regards the pray for an order for extension of time under paragraph (a) of the motion.
When the matter was called up for hearing, Mr. Lukwago, counsel for the respondent, raised two main points of objections to the competence of the application. The first point of objection is that paragraph (b) of the Notice of Motion renders the motion incompetent by praying for this Court to validate or reinstate a Notice of Appeal which was struck out by the full court. He argued that the proper procedure should be for the applicant to move full court to set aside its order striking out the Notice of Appeal and this would be done by the full court. The second point of objection is that this application has been overtaken by events, namely, that the pleadings show that the Bukomansimbi seat has been declared vacant by the Clerk to Parliament and the process for nomination is in progress in the field. So he prayed that the application should be struck out with costs.
Mr. Tumwesigye, counsel for the applicant, contended that the Notice of Motion has not been overtaken by events because under Section 95(3) of the PEA, 2005, a parliamentary seat cannot be declared vacant until an appeal is finally disposed of. He appears to believe that the appeal filed on 1st February, 2008 was not affected. He further contended that annexture “A”, the letter by which the Clerk to Parliament informed the Electoral Commission that Bukomansimbi seat is vacant is illegal or irregular since the appeal has not been disposed of by this Court. He further contended that counsel for the respondent acted irregularly when on the 8th February, 2008, he wrote a letter to the Clerk asking that the seat be declared vacant. He also contended that the Clerk to Parliament acted without receipt of authoritative information from this Court on the status of the appeal. He again contended that in relation to the appeal and by 5th February, 2008 there were still pending in this Court Civil Applications No. 3 of 2008 and No. 5 of 2008. So the appeal had not been finally disposed of. When court inquired of him whether he still wanted to press for prayer (b) of the Notice of Motion, bearing in mind the provisions of Rule 50 of the Rules of this Court, learned counsel argued that if the application to extended time is granted, the grant is retrospective in operation. When I pointed out that a single judge cannot seat in appeal against the decision of a full court, Mr. Tumwesigye then applied under Rule 50(1) of the Rules of this Court for the application to be adjourned for hearing by the full court. He then asked that I should intervene and ask the Electoral Commission to stop the process now taking place in the field regarding holding a bye election.
Mr. Lukwago, in rejoinder, clarified that annexture “A” (which is a letter by the Clerk to Parliament) shows in its second paragraph that the Clerk to Parliament acted on the ruling of this Court which he had received on 7th February, 2008 and not on the letter from Mr.