Wakilii

Bitahwa Nyine Samson v Ishanga Ndyanabo Longino (Election Petition Appeal No. 14 of 2002)

Constitutional Court · [2002] UGCC 4 · 2002 Preliminary Objection Upheld — Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Oral preliminary objection to the competence of an election petition appeal from the High Court
Decision
Appeal dismissed with costs to the respondent on the preliminary objection

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court upheld a preliminary objection to the competence of an election petition appeal. The decision appealed from was in favour of both the respondent and the Electoral Commission, but the appeal named and was served on the respondent alone. The court held it was the appellant's duty to certify the record of appeal correct and reflect all parties; it was not for the court or the respondent to amend it. Following the holding in Ahmad Bin Ahmed Kassim Kusais v Syed Abdulla Fadhul, it would be incompetent to proceed against the respondent without joining the Electoral Commission, and a joinder application made out of time could not be granted. The appeal was dismissed with costs.

Outcome

Appeal dismissed with costs to the respondent on the preliminary objection

Facts

The appellant and the respondent contested the position of Chairperson of Bushenyi District Council in the elections held on 14 February 2001. The respondent was declared the winner by the Electoral Commission. The appellant filed Election Petition No. 1 of 2002 challenging the result. The respondent applied to dismiss the petition, and the Electoral Commission was joined as a party to that application in the High Court. On 31 May 2002 the trial judge dismissed the matter on the ground that it had been filed out of time. The appellant appealed, naming only the respondent. The record of appeal, certified correct by the appellant's counsel, did not reflect the Electoral Commission as a party, although the decision appealed from was in favour of both the respondent and the Electoral Commission.

Issues

  1. Whether the appeal was competent when it was filed against the respondent only, the decision appealed from being in favour of both the respondent and the Electoral Commission.
  2. Whether the Electoral Commission could be joined as a party to the appeal at the hearing stage in the exercise of the court's inherent powers.

Orders

  • Preliminary objection upheld.
  • Appeal dismissed with costs to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Competence — Necessary parties — Decision in favour of two parties
Where the decision appealed from is in favour of two separate parties, an appeal that is filed and served against only one of them is incompetent, and it would be an injustice to proceed against that party without joining the other.
Civil Procedure — Record of appeal — Certificate of correctness — Duty of the appellant
The duty to certify that the record of appeal is correct and reflects all parties lies on the appellant; it is not for the court or the respondent to amend the record to include an omitted party.
Electoral Law — Election petition appeals — Joinder of party out of time
An application to join a party to an election petition appeal made after the time for appealing against that party has expired comes too late and cannot be granted, and joining the party at that stage would be a great departure from the rules of procedure.

Legislation cited (5)

  • Rules of the Court r.101(b)
  • Rules of the Court r.75(d)
  • Rules of the Court r.86(8)
  • Rules of the Court r.1(3)
  • Rules of the Court r.22

Cases cited (2)

  • Ahmad Bin Ahmed Kassim Kusais v Syed Abdulla Fadhul [1958] E.A. 60
  • Besweri Lubuye Kibuka v Electoral Commission and Daniel Kikoola (Election Petition Appeal No. 9 of 1999)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bitahwa Nyine Samson v Ishanga Ndyanabo Longino (Election Petition Appeal No. 14 of 2002) [2002] UGCC 4 (16 September 2002)
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.