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Lubuye Kibuuka v Kikoola and Another (Election Petition Appeal No. 2 99)

Court of Appeal · [1999] UGCA 60 · 1999 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from a High Court ruling dismissing an election petition
Decision
Appeal dismissed; election petition held to be a nullity for non-service on the statutory respondent

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Holding

The Court of Appeal dismissed the appeal, holding that service of an election petition on the respondent under section 142 of the Local Government Act is a mandatory requirement going to the root of the proceedings. The winner of the election is the statutory respondent and failure to serve him rendered the entire petition a nullity. The second respondent's appearance under protest did not amount to a waiver, and in any event no waiver can give validity to a nullity. Grounds one and two of the appeal failed, the petition could not stand, and it was accordingly dismissed with costs.

Facts

Kalangala District Council elections were held on 19 April 1998, with the Electoral Commission declaring Daniel Kikoola the winner over Besweri Lubuye Kibuuka. Kibuuka filed an election petition on 14 May 1998 challenging the result. The Electoral Commission, having been served, filed its answer on 20 May 1998. The second respondent, Kikoola, was never served but learnt of the petition by rumour and after a court registry search filed an answer under protest on 8 June 1998. The petition was not set down within the prescribed time. After a referral to the Constitutional Court on the question of extending time, the matter was remitted to the High Court, which declined to extend time on the grounds that the second respondent had not been served and the petitioner's counsel were guilty of dilatory conduct. The High Court dismissed the entire petition on 10 February 1999, holding that absence of service rendered the petition a nullity.

Issues

  1. Whether the High Court erred in dismissing the entire election petition for lack of service on one of two respondents.
  2. Whether the failure to serve the second respondent (the election winner) was a mere irregularity capable of being waived, or rendered the petition a nullity.
  3. Whether the petition could be maintained against the served respondent while being dismissed against the unserved respondent.

Orders

  • Grounds 1 and 2 of the appeal fail.
  • The petition cannot stand and is dismissed with costs.
  • The cross-appeal on the second respondent's costs is upheld; the whole of the costs incurred by the second respondent since learning of the petition to be paid by the petitioner.

Key headnotes

Electoral Law — Election Petitions — Mandatory Service on Respondent
Service of notice of an election petition on the respondent within seven days after filing, as required by section 142 of the Local Government Act, is mandatory; the winner of the election is the statutory respondent who must be served.
Civil Procedure — Service of Process — Effect of Non-Service
Failure to effect service of process, where service is required, renders null and void any order made against the party who should have been served, and the resulting absence of jurisdiction cannot be remedied as a matter of waiver.
Civil Procedure — Waiver — Appearance Under Protest
An appearance entered under protest preserves the party's right to object to the proceedings and does not constitute waiver of defective or absent service; in any event, no waiver can give validity to a nullity.
Electoral Law — Election Petitions — Nullity for Non-Service
Where the statutory respondent in an election petition is not served, no action comes into existence and the entire petition is a nullity that cannot be maintained against any party.

Legislation cited (5)

  • Local Government Act s.142
  • Local Government Act s.143(2)
  • Local Government Act s.173
  • Parliamentary Elections (Election Petitions) Rules Rule 3
  • Parliamentary Elections (Election Petitions) Rules Rule 19

Cases cited (7)

  • Young v Figgins (1868) 1 LT 499
  • Kistler v Tellner (1905) 1 KB 45
  • Dymond v Croft 3 Ch. D. 512
  • Craig v Kanssen (1943) 1 KB 256
  • Nanjibhai Thomas & Co Ltd v National Bank India (1958) E.A. 570
  • Fry v Moore (1889) 23 QBD 391
  • Oulton v Radcliff (1873-74) 9 LR CP 189
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.