The Court of Appeal has ruled that in future, lawyers who refuse to receive court documents on behalf of their clients should be held personally accountable for their decision and pay costs in such cases.
This land mark decision was made on Friday by a panel of three Court of Appeal Justices comprised of Elizabeth Musoke, Muzamiru Mutangula Kibeedi and Monica Mugenyi, in an election appeal filed against Bunya East Member of Parliament James Kubeketererya.
The victory of Kubeketerya is being challenged by Waira James Majegere.
Following the January 2021 elections, the Electoral Commission declared Kubeketererya, a candidate of the National Resistance Movement as the winner of Bunya East elections with 16,641 votes against Majegere’s 10,250 votes who came second in a race of ten candidates.
Not happy with the results, Majegere petitioned the High Court in Jinja on grounds that Kubeketerya falsified results, rigged elections, and also intimidated voters among other grounds.
However, Justice Issa Sserunkuuma dismissed the application on grounds that Majegere didn’t provide enough evidence to support his claims. The Justice ruled that the declaration of result forms, tally sheets and return forms, and transmission of results presented by Majegere couldn’t be admitted as evidence because they had not been validated as per the Evidence Act.
He appealed in the Court of Appeal through his lawyers led by Steven Kalali seeking to overturn Sserunkuma’s decision.
But Majegere also filed an application seeking to extend time within which to file his appeal on grounds that he delayed to get the typed copy of proceedings from the High Court and also that he had tried to serve Kubeketerya a copy of the appeal in vain.
The court heard that Kubeketerya dodged service until the mandatory seven days of service elapsed.
The law requires a person filing an election appeal to do so and serve respondents in the case within seven days. The second respondent in the case is the Electoral Commission which was served on time.
But Majegere’s lawyer Kalali argued that Kubeketerya kept dodging them by declining to receive the appeal and sometimes asked them to serve him through his lawyer Asuman Nyonyintono, who also said he had no instructions from Kubeketerya to receive the appeal.
The court heard that the lawyers of Wagabaza and Company Advocates together with Musuuza and Company Advocates who had represented Kubeketererya at the High Court also refused to receive on his behalf for lack of instructions.
But in their ruling, the Justices have allowed Majegere’s application for extension of time and indicated that the challenge of service of the court documents in this case was aggravated by the refusal of the advocates who represented Kubeketerya in the High Court and their staff to accept service of the Notice of Appeal and the Memorandum of Appeal allegedly because “they had no instructions from the client to accept service.”
“Curiously, the Advocates who claimed to have no instructions to receive service of the Court documents are the same Advocates who represented the 1st respondent/Kubeketerya during the hearing of these three applications and the Appeal itself,” said the panel of Justices.
The Justices have added that to permit Advocates to refuse service of the Court documents under the guise of “I have received no instructions ” is bound to frustrate the operations of the Court of Appeal.
“It is bound to contribute to the increase of the case workload currently being experienced by this court through filing of unwarranted or otherwise avoidable applications related to service of documents of the appellate process”, said the Justices.
They added that “the fact that we have had to first deal with two applications about this subject of service of documents before proceeding to deal with the substantive appeal is clear testimony of this courts workload would have been reduced and the justice dispense more expeditiously if it was not for some of these glaring misconceptions on the part of counsel for failure to advice their clients appropriately.”
To support their decision, the Justices have ordered the Registrar of the Court of Appeal to serve copies of this ruling onto the Attorney General of Uganda, the Director of the Law Development Center, the President of the Uganda Law Society and the Secretary of the Law Council so that they can in turn disseminate it to their Advocates.
The Justices have also directed the Registrar to post a copy of this ruling onto the WhatsApp Groups of the Advocates of the Court of Appeal and the High Court.
A number of cases have in the recent past been dismissed for failure to serve the parties like in the case of Sulaiman Kidandala against Muhammad Ssegirinya arising from Kawempe North elections and the case of Fred Nyanzi Ssentamu against Muhammad Nsereko, the Kampala Central Member of parliament.
