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The returning officer Kampala District Area and 2 Others v Nabagesera (Civil Appeal 39 of 97)

Court of Appeal · [1997] UGCA 15 · 1997 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to raise a preliminary objection without leave during hearing of an election appeal
Decision
Application rejected; appeal ordered to proceed to hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal refused the respondent's request for leave under Rule 101(b) to raise a preliminary objection seeking to strike out the appeal without a prior formal application under Rule 81. The reasons advanced — that matters appeared on the record, that no evidence was required, and that the objection touched jurisdiction — were held insufficient. The respondent had enough time to comply with Rule 81 and failed without good cause. Granting the application would be highly prejudicial to the appellants, who had no notice, and there was no material before the court on which to act. Given the statutory duty to determine election appeals expeditiously, the application was rejected and the appeal ordered to proceed.

Outcome

Application rejected; appeal ordered to proceed to hearing

Facts

During the hearing of an election appeal arising from Election Petition No. 11 of 1996, counsel for the respondent intimated that he wished to make a preliminary objection that would dispose of the appeal. Counsel for the appellants pointed out that Rule 101(b) of the Court of Appeal Rules prohibited such an objection unless leave was granted, and that leave required the court to be satisfied as to why the objection was not raised earlier under Rule 81. The respondent's counsel gave three reasons: that the matters appeared on the face of the record; that a formal application would waste the court's time as only matters of law were involved; and that the objection was important as it touched jurisdiction and showed there was no appeal to hear. Counsel for the appellants argued that granting leave would be prejudicial as they had no notice. The court considered the reasons and found them insufficient.

Issues

  1. Whether the respondent's counsel should be granted leave under Rule 101(b) to raise a preliminary objection not raised earlier in accordance with Rule 81 of the Court of Appeal Rules.
  2. Whether sufficient reason existed for an extension of time to make a formal application to strike out the appeal under Rule 81.

Orders

  • Application to raise the preliminary objection rejected.
  • The appeal proceeds.
  • Costs to be in the cause.

Rules and key headnotes

Appeals — Preliminary Objections — Leave Required under Rule 101(b) of the Court of Appeal Rules
A preliminary objection seeking to strike out an appeal may not be raised at the hearing unless the court grants leave under Rule 101(b), and such leave will only be granted where the court is satisfied of convincing reasons why the objection was not raised earlier by formal application under Rule 81.
Appeals — Extension of Time — Good Cause where Party Had Time to Comply
Leave to raise an objection out of time will be refused where the applicant had sufficient time to comply with the applicable rule and failed to do so without good cause, and where granting the application would be highly prejudicial to the opposing party who had no notice.
Election Appeals — Expeditious Determination under Statutory Time Limits
Under section 96(2) of the Parliamentary Elections (Interim Provisions) Statute and Rule 34 of the rules made thereunder, the court is enjoined to hear and determine election appeals expeditiously and within a set time limit, which militates against delaying the hearing to entertain belated objections.

Legislation cited (4)

  • Parliamentary Elections (Interim Provisions) Statute No.4/1996 s.96(2)
  • Court of Appeal Rules r.101(b)
  • Court of Appeal Rules r.81
  • Court of Appeal Rules r.34

Full judgment

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

The returning officer Kampala District Area and 2 Others v Nabagesera (Civil Appeal 39 of 97) [1997] UGCA 15 (3 November 1997)
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.