Bitahwa Nyine Samson v Ishanga Ndyanabo Longino (Election Petition Appeal No. 14 of 2002)
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
- 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.
- 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
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
The original judgment as reported. Read the original PDF before relying on any passage.