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Lubuye Kibuuka v Kikoola and Another (Election Petition Appeal No. 12 1998)

Court of Appeal · [1999] UGCA 61 · 1999 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from a High Court ruling dismissing an election petition
Decision
Appeal dismissed; the election petition stands dismissed with costs and the winner remains in office

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Holding

The Court of Appeal held that the winner of an election is a mandatory statutory respondent under section 142 of the Local Government Act, and failure to serve him with notice and a copy of the petition rendered the petition a nullity as against him and fatal to the entire petition. The second respondent's entry of appearance under protest preserved his objection and did not amount to a waiver of service; in any event no waiver can give validity to a nullity. The appeal failed on grounds 1 and 2, and the court found it unnecessary to determine the extension-of-time issue. The petition was dismissed with costs and the cross-appeal on the second respondent's costs was upheld.

Facts

Kalangala District Council elections were held on 19 April 1998 and the Electoral Commission declared the second respondent, Daniel Kikoola, winner against the appellant, Besweri Lubuye Kibuuka. The appellant filed an election petition in the High Court on 14 May 1998 challenging the result. The Electoral Commission was served and filed its answer, but the second respondent was never served. He learnt of the petition by rumour, confirmed it on searching the court registry, and filed an answer under protest on 8 June 1998, after the statutory time. The petition was not set down within the prescribed time. The matter was referred to the Constitutional Court on the question of extending time, then remitted to the High Court. The High Court declined to extend time and dismissed the petition on two grounds: that the petition had not been served on the second respondent, and that the petitioner's counsel were guilty of dilatory conduct.

Issues

  1. Whether the entire election petition was properly dismissed for lack of service on one of the respondents.
  2. Whether the absence of service on the second respondent (the election winner) was a mere irregularity capable of being waived or a fatal nullity.
  3. Whether the High Court erred in declining to extend time and in failing to properly evaluate the record and the law on extension of time.

Orders

  • Grounds 1 and 2 of the appeal dismissed.
  • The petition dismissed with costs.
  • Cross-appeal on the second respondent's costs upheld; the whole of the costs incurred by the second respondent since he learnt of the petition to be paid by the petitioner.

Key headnotes

Election Petitions — Statutory Respondent — Mandatory Service on Election Winner
The winner of an election is the statutory respondent under section 142 of the Local Government Act, and the mandatory requirement to serve notice and a copy of the petition on him cannot be waived by the court.
Service of Process — Non-Service Distinguished from Defective Service
Failure to effect service where service is required renders any order made against the unserved party a nullity; this is distinct from defective service, which constitutes a mere irregularity capable of being waived.
Appearance Under Protest — Waiver of Service Objection
Entry of appearance under protest is the appropriate course where there is an objection to proceedings, and preserves the party's right to object; such conditional appearance does not amount to a waiver of the requirement of service.
Nullity — Effect of Waiver
No waiver can give validity to a nullity; where non-service has rendered proceedings a nullity, even waiver by the affected party cannot cure the defect.

Legislation cited (5)

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

Cases cited (7)

  • Young v Figgins (1868) 1 LT 499
  • Kistler v Tettner (1905) 1 KB 45
  • Dymond v Croft 3 Ch. D. 512
  • Craig v Kanssen (1943) 1 KB 256
  • Nanjibhai Damodar Thomas & Co Ltd v Unas Bank Ltd (1958) E.A. 570
  • Fry v Moore (1889) 23 QBD 391
  • Outon v Radcliff (1873-74) LR 9
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.