Wakilii

The Returning Officer,Iganga District and Another v Haji Muluya Mustaphar (Civil Appeal No 13 of 1997)

Court of Appeal · [1997] UGCA 7 · 1997 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from a High Court judgment determining a parliamentary election petition
Decision
Appeal allowed; High Court judgment set aside; petition rendered incompetent

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Cited — treatment unverified cited in 6 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal held that section 96(1) confers no right of appeal against an interlocutory decision in an election petition, but the trial here had been completed on the merits so the appeal was competent. On the merits, the court held that the Advocates Act and the Commissioners for Oaths (Advocates) Act must be read together: an advocate who fails to obtain a practicing certificate in a given year ceases to practice and his commission terminates. An affidavit commissioned by such an advocate is invalid. As the supporting affidavit was commissioned by an advocate without a 1996 practicing certificate, the petition was incompetent. The appeal was allowed and the High Court judgment set aside.

Facts

The respondent, having lost the parliamentary election in Bunya East Constituency, petitioned against the successful candidate, alleging the candidate lacked the minimum educational qualifications, that elections were marred by malpractices, and that he was not duly nominated. The petition was supported by the respondent's affidavit sworn on 26 July 1996 before Mr. Akampurira, stated to be a Commissioner of Oaths. The appellants raised a preliminary objection that the affidavit was commissioned by an advocate who did not hold a valid practicing certificate for 1996. The trial judge overruled the objection, held that the Advocates Act and the Commissioners for Oaths (Advocates) Act were to be interpreted separately, and proceeded to hear and allow the petition, setting aside the election on grounds that the elected candidate lacked the required educational qualifications and was not duly nominated. The appellants appealed.

Issues

  1. Whether an appeal lies to the Court of Appeal against an interlocutory decision of the High Court in an election petition under section 96(1) of the Parliamentary Elections (Interim Provisions) Statute 1996.
  2. Whether an affidavit commissioned by an advocate who lacks a valid practicing certificate is valid.
  3. Whether the petition was competent in light of the supporting affidavit.

Orders

  • Appeal allowed.
  • Judgment and orders of the High Court set aside.
  • Each party to bear its own costs in the Court of Appeal and in the court below.

Key headnotes

Election Petitions — Right of Appeal — Interlocutory Decisions under Statute s.96(1)
Section 96(1) of the Parliamentary Elections (Interim Provisions) Statute 1996 confers no right of appeal against an interlocutory decision; an appeal lies only against the determination of the High Court on the hearing of an election petition once the petition has been finally determined.
Related Statutes — Reading Statutes Together — Advocates Act and Commissioners for Oaths (Advocates) Act
The Advocates Act and the Commissioners for Oaths (Advocates) Act are intimately interrelated and must be read and interpreted together; an advocate who fails to obtain a practicing certificate in a given year ceases to act as an advocate and his commission under the Commissioners for Oaths (Advocates) Act thereby terminates.
Affidavits — Validity — Commissioning by Advocate Without Practicing Certificate
An affidavit sworn before an advocate who is not in possession of a valid practicing certificate is invalid, and a petition supported by such an affidavit is incompetent.
Precedent — Stare Decisis — Court of Appeal Decisions Binding on High Court
Decisions of the Court of Appeal are binding on the High Court; a trial judge errs in law by declining to follow a binding Court of Appeal decision on the validity of affidavits commissioned by advocates without practicing certificates.

Legislation cited (9)

  • Parliamentary Elections (Interim Provisions) Statute 1996 s.96(1)
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.93(2)
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.42
  • Parliamentary Elections (Election Petitions) Rules 1996 r.13(1)
  • Parliamentary Elections (Election Petitions) Rules 1996 r.13(2)
  • Commissioners for Oaths (Advocates) Act Cap 53 s.2(1)
  • Commissioners for Oaths (Advocates) Act Cap 53 s.2(4)
  • Advocates Act
  • Civil Procedure Rules Order 40

Cases cited (3)

  • Bakunda Darlington v Kinyatta and Another (Civil Appeal No. 27 of 1996)
  • Margaret Zziwa v Catherine Naava Nabagesera (Parliamentary Election Petition Miscellaneous Application No. 9 of 1996)
  • Kabogere Coffee Factory v Haji Twalibu Kigongo (Supreme Court Civil Appeal No. 10 of 1993)
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.