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Besweri Lubuye Kibuuka v Electoral Commission and Another (Election Petition Appeal No. 2 99)

Court of Appeal · [1999] UGCA 79 · 1999 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from a ruling and order of the High Court dismissing an election petition
Decision
Appeal dismissed; election petition remained dismissed as a nullity for non-service on the winning candidate

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Holding

The Court of Appeal held that service of the notice and petition on the winning candidate is a mandatory requirement under section 142 of the Local Government Act, and that failure to serve the statutory respondent rendered the petition a nullity. Non-service was not a mere irregularity capable of waiver; because the second respondent appeared only under protest, his participation did not validate the proceedings. No waiver can give validity to a nullity. The appeal was dismissed with costs, and the cross-appeal on the second respondent's costs was allowed, the petitioner being ordered to pay the whole of those costs.

Facts

Kalangala District Council elections were held on 19 April 1998, and the Electoral Commission declared the second respondent, Daniel Kikoola, the winner against the petitioner. The petitioner filed an election petition in the High Court on 14 May 1998 challenging the results. The first respondent was served and filed an answer. The second respondent, who was never served, learnt of the petition and filed an answer under protest on 8 June 1998. The matter encountered delays and a reference to the Constitutional Court on the power to extend time under section 143(2) of the Local Government Act. The Constitutional Court held that the High Court had power to extend time and remitted the matter. The High Court declined to extend time and dismissed the petition on 10 February 1999 on grounds of non-service on the second respondent and dilatory conduct of the petitioner's counsel.

Issues

  1. Whether the election petition could be dismissed for lack of service on the second respondent (the winning candidate).
  2. Whether the second respondent waived the irregularity of non-service by filing an answer and participating in proceedings under protest.
  3. Whether the High Court erred in failing to properly evaluate the law on extension of time.

Orders

  • Grounds 1 and 2 of the appeal fail.
  • Appeal dismissed with costs.
  • Cross-appeal on the second respondent's costs allowed.
  • Petitioner to pay the whole of the costs incurred by the second respondent since he learnt of the petition.

Key headnotes

Election Petitions — Service of Notice and Petition — Mandatory Requirement under Local Government Act s.142
Service of the notice and a copy of an election petition on the respondent, including the winning candidate as the statutory respondent, is a mandatory requirement under section 142 of the Local Government Act, and the court has no power to waive it.
Service of Process — Non-Service as Nullity — Distinction from Curable Irregularity
Failure to effect service where service of process is required renders the proceedings a nullity, not a mere irregularity; such a defect is distinct from defective service of process that has in fact been effected and cannot be cured by waiver.
Waiver — Appearance under Protest — No Waiver Can Validate a Nullity
A party who enters appearance under protest preserves the right to object to the proceedings, and no subsequent conduct amounting to waiver can give validity to proceedings that are a nullity for want of service.

Legislation cited (5)

  • Local Government Act s.142
  • Local Government Act s.143(2)
  • Local Government Act s.173
  • Parliamentary Elections (Election Petitions) Rules (S.I. 1996 No. 27) Rule 3
  • Parliamentary Elections (Election Petitions) Rules Rule 19

Cases cited (10)

  • Young v Figgins (1868) 1 Sf LT 499
  • Kistler v Tettner (1905) 1 KB 45
  • Dymond v Croft (1876) 3 Ch D 512
  • Craig v Kanssen (1943) 1 KB 256
  • Nanjibhai Prabhudas & Co Ltd v Standard Bank Ltd [1968] EA 670
  • Fry v Moore (1889) 23 QBD 395
  • Rein v Stein (1892) 66 LT 469
  • Firth v De Las Rivas (1893) 1 QB 768
  • Boyle v Sucker (1888) 39 Ch D 249
  • Pulton v Radcliff (1873-74) LR 9 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.