[1999] UGCA 61

## THE REPUBLIC OF UGANDA


# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## ELECTION PETITION APPEAL NO. 2/99

CORAM:

HON. MR. JUSTICE S. T. MANYINDO, DCJ HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA HON. MR. JUSTICE S. G. ENGWAU, JA

BESWERI LUBUYE KIBUKA................................. APPELLANT

#### **VERSUS**

ELECTORAL COMMISSION. ................................... DANIEL KIKOOLA. ..................................

(Appeal from a Ruling and Order of the High Court (Ntabgoba P. J) dated $10/2/99$ in Election Petition No.12/98.)

### JUDGMENT OF THE COURT

This is an appeal against the Ruling and order of the High Court dismissing the appellant's Election Petition No.12/1998 seeking to unseat the second respondent, Mr. Daniel Kikoola, from the office of District Chairperson of Kalangala District to which he had been elected on 19-4-1998 against the appellant, Mr. Besweri Lubuye Kibuuka.

The Kalangala District Council elections were held on 19/4/1998. The first respondent, the Electoral Commission declared the second respondent winner against the petitioner. The petitioner filed an election petition in the High Court on 14-5-98, challenging those results. The first respondent on being served with the notice and petition filed his answer on 28-5-98. The second respondent who was never served learnt of the petition and filed an answer under protest on 8-6-98, as he was affected by the petition.

$\mathbf{1}$

the petition was not set down for hearing within the prescribed time which would have been on or around 22-6-98. Instead, on 29-6-1998 the petitioner applied to court for leave to hear it during the High Court vacation which was due to commence on 15-7-98 and end on 15-8-1998. The application was heard on 21-7-1998 and granted on 4-8-1998. Though the petition was set down for hearing for 10th-14th August excluding 13th, it did not take off as counsel for the second respondent had just been served with some affidavits the previous day, and needed time to study and reply to them. It then became apparent that the time limit prescribed by section 143(2) Local Government Act for disposal of a petition was running out, the last day being 14-8-1998. It was at this juncture that learned Principal Judge referred the the matter to the Constitutional Court for directions as to whether he could exercise his residual or inherent powers to extend the time within which to dispose of the petition. The Constitutional Court in its judgment dated 23-12-1998, declared that the High Court had power under Rule 19 of the Parliamentary Elections (Election Petitions) Rules made applicable to section 143(2) by section 173 Local Government Act to extend the time. The record was remitted to the High Court for disposal of the matter including the application to extend the time on merit. The High Court, after entertaining the application, declined to grant the extension of time on two grounds, namely:-

- Service of the petition had not been effected on the second 1. respondent and, - The petitioner's counsel were guilty of dilatory conduct in 2. not fixing the hearing date in good time. The entire petition was thus dismissed on 10-2-1999. Hence this appeal. Three grounds were advanced, namely - That the learned Principal Judge erred in law and in fact in 1. dismissing the entire petition for lack of service on one respondent.

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The learned Principal Judge erred when he ruled that the petition was a nullity because there was no service on the second respondent when he had earlier ruled that the hearing could proceed regardless of service.

$2.$

The learned Principal Judge generally erred in law and fact in 3. failing to properly evaluate the record and the law of extension of time.

Regarding ground 1, Mr. Edmund Wakida assisted by Mr. Jacob Oulanyah for the petitioner submitted that the interpretation of the law by the learned Principal Judge that there can only be one statutory respondent, namely the winner of the election was erroneous as the law envisages other offences committed by other officials for which a petition can be nullified. He argued that the Court could have dismissed the petition as regards the second respondent who was not served but maintained it against the respondents who were served. In his view it was wrong for the learned Principal Judge to import words into the statute which were there to the effect that there was only one statutory not respondent. Mr. Kamuqisha Byamuqisha, learned State Attorney, disagreed with Mr. Wakida and pointed out that the learned Principal Judge was correct in that the winner of an election could not be left out of a petition as he is respondent No.1 and others can be added thereafter. He asserted that failure to involve the winner was fatal to the petition as he would be directly affected by the outcome. Mr. Rwaganika for the second respondent associated himself with the learned State Attorney's submissions.

The learned Principal Judge held as follows on the point:

"The statutory respondent is the second respondent in this suit. I do not think that court has any power at all to change a mandatory legislative provision such as s.142 of the Local Government Act by waiving the mandatory requirement as to the service of the notice and the copy of the petition attached."

Section 142 provides:

"142. Notice in writing of the presentation of a petition accompanied by a copy of the petition shall, within seven days after the filing of the petition be served by the petitioner on the respondent or respondents as the case may be."

A respondent is defined by Statutory Instruments 1996 No.27 the Parliamentary Elections (Election Petitions) Rules, Rule 3 to mean

"the person of whose election a complaint is made in a petition, and where the petition complains of the conduct of Commission or the Returning Officer, the includes the Commission or Returning Officer." **验之 建設工業** .14 page 255 para 446; and Also see Halsbury's Laws 3rd Young v Figgins (1868) 19 LT 499. $\mu$ think this is as plain as anything that the statutory respondent in this matter is the second respondent envisaged by s.142.

Regarding the issue of non-service on the second respondent, we do not consider it necessary to discuss in detail the arguments addressed to us by Mr. Wakida interesting though they were on the basis that failure to serve the second respondent was a mere irregularity which the second respondent had waived by filing an answer to the petition and generally bringing himself into the petition. Mr. Byamuqisha Kamuqisha, learned State Attorney briefly submitted that failure to serve the winner had the same effect as not suing him at all. He pointed out that service was a mandatory provision of the law. He stated that the second respondent had come into the proceedings under protest and counsel for the petitioner had promised to serve him but had never done so. He submitted that this was fatal to the petition.

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## The learned Principal Judge dismissing the petition said:

"It shows that as a matter of fact there could not be said to be a petition since no notice thereof had been given to the second respondent as is enjoined by s.142 of the Local Government Act. The illegality surely cannot be said to have been cured by the second respondent's answer that was filed in protest and much later than the time stipulated. If the court has no residual or inherent powers to enlarge a period of time laid down by statute neither has any of the parties to the proceedings to alter the time set down by Statute, therefore the second respondent could not have lawfully filed his response under s.142 of the Act on the date he filed it with protest. The petition was a nullity."

We think that the first point to consider is the object of service of process. It is of course to give notice to the party on whom it is made, so that he or she might be aware of and be able to resist, that which is sought against him, and where that has been done so that the court might feel perfectly confident that service had reached him, and that everything had been done that could be required - Kistler v Tettner (1905) 1 KB 45; Dymond v Croft 3 Ch. D. 512. "Service of process is required and goes to the root of our conceptions of the proper procedure in litigation." Craig v Kanssen (1943) 1KB 256.

From Mr. Wakida's arguments the question arises:-

Was non service on the second respondent a mere irregularity or something quite different and of a character which could be waived? Regrettably all the authorities cited by Mr. Wakida in support of his contention that the second respondent had waived service were not precisely in point as they turn on their particular facts and what is more important they all involve situations where service had been effected but was merely defective and the defect in each constituted an irregularity capable of being waived. They offer no

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useful quidance therefore as they did not reflect on the issue of non service. Nanjibhai Prabhudas & Co. Ltd v Standard Bank Ltd. (1968) E. A. 670; Fry v Moore (1889) 23 QBD 395.

However it is important to note that a waiver depends on the nature of the irregularity in the process. It has been held that -

"In order to establish a waiver you must show that the party ... has taken some steps which is only necessary or only useful if the objection has been actually waived or has never been entertained." Rein v Stein (1892) 66 LT 469 at

$471.$ The sum total of Mr. Wakida's arguments was to the effect that the second respondent had been offered by the court and had accepted adjournments to answer the petitioner's affidavits. In his view he was not now entitled to object to the irregularity. It is however on record that the second respondent's appearance was not unconditional or "gratis" but was under protest. His protest note dated 8th June 1998, addressed to the Deputy Registrar High Court; M/s Katende, Ssempebwa & Co. Advocates, and the Electoral Commission reads:

"The above Election Petition was filed by the applicant on 14th May 1998. According to the Rules of Procedure governing petitioners of this nature, Daniel Kikoola, the second respondent who is our client was supposed to be served with notice of the petition accompanied by a copy of the petition. The applicant, however did not and has not served the second respondent with the notice and petition up to today. Our client learnt of the petition against him by way of rumour and upon searching the High Court Civil Registry, is when he confirmed the existence of the application. He then proceeded to give us instructions to file an answer on his behalf and accompanying it with a protest letter which we hereby do. This is to place our client's protest on record for court's attention."

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Such notice is conceded by Mr. Wakida but he contends it was overtaken by subsequent events which amounted to a waiver. It is however important to note that entry of appearance under protest is the appropriate course to take where there is an objection to proceedings - Firth Sona v De Las Rivas & Anor (1893) 1QB 768. It preserves the defendant's right to object to the proceedings. It then becomes a question for the court to determine whether the protest is well founded and ought to prevail or whether the appearance ought to stand - Boyle v Sucker (1888) 39 Ch. D. 249. In his first ruling dated 12-08-98 the learned Principal Judge said -

"I allowed the petition to proceed because I thought that justice and not injustice, would be done to both sides to the petition."

He therefore allowed the appearance to stand despite lack of service.

However in his final Ruling of 10-2-1999, the subject of this appeal, the learned Principal Judge said, inter alia:

"It shows that, as a matter of fact, there could not be said to be a petition since no notice thereof had been given to the second respondent as is enjoined by s.142 of the Local Government Act. The illegality surely cannot be said to have been cured by the second respondent's answer that was filed in protest and much later than the time stipulated.

. . . . . . . . . . . . . . . . . . . . the petition was a nullity ......

I accordingly dismiss the petition with costs."

It has been held that failure to serve process where service of process is required renders null and void an order made against the party who should have been served. See Craig v Kanssen (1943) 1KB 256 where an order was obtained on an affidavit of service on the defendant which stated that the deponent had served on the defendant a true copy of the summons asking for the order by

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posting it in a prepaid envelope addressed to the defendant at an address which was alleged to be that of the defendant's place of business and residence. The address stated was not the address for service given in the action, and the defendant was not residing or carrying on business at the stated address and he never received the summons. In the same case it was held that a person who is affected by an order of the court which can properly be described as a nullity is entitled *ex debito justitiae* to have it set aside. It was further held that the court can set aside such an order in its inherent jurisdiction and it is not necessary to appeal from it. It was observed that it was impossible for the defendant to waive the defect, for the result of the non-compliance with the rule was that there was no writ on which the plaintiff was entitled to proceed (emphasis ours). By reason of non-service of the petition on the second respondent no action was in existence. Even if he had waived, no waiver can give validity to a nullity. Oulton v Radcliff (1873-74) 9 LRCP 189 at 193 per Keating J.

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This disposes of Grounds 1 and 2 of the appeal which must fail.

It is not necessary to deal with the issue of res judicata. We can hardly understand how it became necessary for Mr. Wakida to raise it. It was fully within the competence of the court to prevent an abuse of its process. The petition cannot stand. It is accordingly $l$ lie $v$ dismissed with costs.

There is a cross appeal on the question of the second respondent's costs. We think that this is a cross-appeal very properly made and for this reason, the costs so incurred by the second respondent in respect of bringing himself into the petition which affects him were incurred almost if not entirely in consequence of that unfortunate conduct of the petitioner. It seems to us right that the whole of the costs incurred since he learnt of the petition should be paid by the petitioner. Costs should inevitably follow the event.

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It is so ordered.

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S. G. Engwau<br>JUSTICE OF APPEAL

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