Muriisa v Ruyondo & Anor. (Election Petition Application No. 266 of 2011)

Court of Appeal · [2012] UGCA 25 · 2012 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to strike out a notice of appeal and election petition appeal for failure to take essential steps within time.

Decision

Application to strike out the notice of appeal and appeal dismissed; appeal to proceed

The full judgment

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Holding

The Court of Appeal dismissed an application to strike out an election petition notice of appeal and appeal. The Court found, on the evidence, that the notice of appeal was lodged in the High Court at Mbarara on 6 October 2011 within time, a matter already settled in an earlier application. On the balance of probabilities it preferred the respondent's affidavit of service showing the record was served within seven days. The Court held that applying by letter for the record of proceedings under rule 83(2)–(3) is not mandatory, but merely permissive where late delivery would otherwise prejudice the appellant. Certified copies of the judgment and proceedings dated 13 October 2011 sufficed to show the appeal documents were in order. The application was dismissed with costs abiding the appeal.

Facts

In March 2011 the applicant and the respondent contested for the seat of LCIII Chairperson, Buremba Sub-county, Kazo, Kiruhura District. The Electoral Commission declared the respondent the winner and gazetted him. The applicant petitioned the High Court at Mbarara (Election Petition No. 10 of 2011) and, on 30 September 2011, the court set aside the election and ordered a bye-election. The respondent filed a notice of appeal. The notice of appeal was lodged in the High Court at Mbarara on 6 October 2011 within the statutory time. The memorandum of appeal was filed on 11 October 2011 and the typed, certified record of proceedings and judgment were available on 13 October 2011. The record of appeal was served on the applicant's counsel; the parties disputed the date and validity of service. The applicant brought this application contending the respondent had missed essential steps in prosecuting the appeal, including late filing and service, failure to apply for the record of proceedings, and absence of a Registrar's certificate of correctness.

Issues

Whether the respondent missed an essential step in the appeal process so as to justify striking out the notice of appeal and the appeal.
Whether the notice of appeal was lodged within time in the High Court at Mbarara.
Whether the record of appeal was served within the seven days required by rule 88(1) of the Court of Appeal Rules.
Whether it was mandatory to apply by letter for the record of proceedings and whether the record was duly certified by the Registrar.

Orders

Application dismissed.
Costs of the application to abide the results of the appeal.

Key headnotes

Election Appeals — Striking Out Notice of Appeal — Essential Steps under Court of Appeal Rules r.82 and r.84

An application under rule 82 to strike out a notice of appeal or appeal succeeds only where no appeal lies or some essential step in the proceedings has not been taken or has not been taken within time; where the notice and record were lodged and served within the prescribed periods, the application fails.

Election Petition Appeals — Time for Lodging Notice of Appeal — Parliamentary Elections (Election Petitions) Rules 1996 r.29

A notice of appeal in an election matter may be given orally at the time judgment is given or in writing within seven days after the High Court judgment; a notice lodged within that period is valid.

Appeals — Application for Record of Proceedings — Rule 83(2)–(3) Court of Appeal Rules — Whether Mandatory

Applying by letter for a copy of the record of proceedings under rule 83(2) and (3) is not mandatory; it merely affords an appellant the benefit of excluding time taken to prepare the record, and an appellant confident the record will be ready in time need not apply.

Affidavit Evidence — Proof of Service — Resolution of Conflicting Affidavits on Balance of Probabilities

Where affidavits of service conflict, the court resolves the issue on the balance of probabilities, preferring the stamped and properly endorsed document over one bearing inconsistencies and unsupported by the original.

Legislation cited (16)

Parliamentary Elections (Election Petitions) Rules 1996 r.29
Parliamentary Elections (Election Petitions) Rules 1996 r.30
Parliamentary Elections (Election Petitions) Rules 1996 r.31
Parliamentary Elections (Election Petitions) Rules 1996 r.32
Local Government Act Cap. 243 s.172
Rules of the Court of Appeal r.2(2)
Rules of the Court of Appeal r.43
Rules of the Court of Appeal r.44
Rules of the Court of Appeal r.76(1)
Rules of the Court of Appeal r.78
Rules of the Court of Appeal r.80
Rules of the Court of Appeal r.82
Rules of the Court of Appeal r.83
Rules of the Court of Appeal r.84
Rules of the Court of Appeal r.87(8)
Rules of the Court of Appeal r.88(1)

Cases cited (1)

George Ruyondo v Muriisa Nicholas (Election Application No. 39 of 2011)

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