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Ossiya Solomon Alemu v Koluo Joseph Andrew and Another (Election Petition Appeal No. 15 of 2021)

Court of Appeal · [2022] UGCA 382 · 2022 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Election petition appeal from a High Court ruling striking out the petition on a preliminary objection
Decision
Appeal substantially allowed; High Court ruling striking out the petition set aside and the petition remitted for re-trial before a different Judge.

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Holding

The Court of Appeal held that an election petition supported by an affidavit commissioned by an advocate without a valid practicing certificate is not incompetent. Reading section 14A of the Advocates (Amendment) Act 2002, the Commissioners for Oaths (Advocates) Act and Article 126(2)(e) of the Constitution together, such documents are not invalidated and innocent litigants must be allowed to cure the defect. The trial Judge erred in striking out the petition as a fatal technicality. The defect was curable; election petitions, being matters of public interest, should be determined on merit. The appeal succeeded on the substantive grounds, the petition was reinstated and remitted for a fresh trial before a different Judge.

Facts

On 14 January 2021 the Electoral Commission conducted parliamentary elections for Toroma County Constituency. Koluo Joseph Andrew was declared winner with 9,179 votes; Ossiya Solomon Alemu came second with 8,013 votes. The result was gazetted on 17 February 2021. Ossiya filed Election Petition No. 2 of 2021 in the High Court at Soroti alleging the elections were not conducted in accordance with electoral law and that illegal practices and offences including bribery, undue influence, sectarianism and defamation were committed. At the hearing the respondents raised preliminary objections, including that the petition was not validly filed because the supporting affidavit had been commissioned by an advocate, Mr. Owakukiroru Raymond, who had not renewed his practicing certificate for 2021. The trial Judge upheld this objection, held there was no petition before her, struck it out and awarded costs to the respondents, prompting this appeal.

Issues

  1. Whether an election petition accompanied by an affidavit commissioned by an advocate without a valid practicing certificate is incompetent.
  2. Whether the trial Judge erred in declining to apply section 14A of the Advocates (Amendment) Act 2002 and Article 126(2)(e) of the Constitution to cure the defective affidavit.
  3. Whether the validity of the affidavit was a pure point of law or a question of mixed law and fact requiring evidence.
  4. Whether the trial Judge erred in awarding costs against the appellant.
  5. Whether the Court of Appeal could determine the respondent's grounds for affirming the decision which the trial Court did not decide.

Orders

  • Grounds 1, 2, 3, 4, 5 and 6 of the appeal succeed.
  • Ground 7 of the appeal fails.
  • Grounds 1, 2 and 3 of the 1st respondent's notice of grounds for affirming the decision fail.
  • The matter is remitted to the High Court for a re-trial on its merits before a different Judge.
  • Costs shall abide by the outcome of the hearing of the petition in the High Court.

Key headnotes

Election Petitions — Supporting Affidavit Commissioned by Advocate Without Practicing Certificate — Competence of Petition
An affidavit commissioned by an advocate who lacks a valid practicing certificate, though irregular, does not invalidate the document, and an election petition accompanied by such an affidavit is not thereby rendered incompetent.
Mistake of Counsel — Defective Affidavit — Curing Defect Under Section 14A Advocates (Amendment) Act 2002
Section 14A of the Advocates (Amendment) Act 2002 protects innocent litigants from the lapses of their advocates; where a defect arises from an advocate's want of authority, the litigant must be allowed time to make good the defect rather than have the case dismissed.
Article 126(2)(e) — Substantive Justice — Technicalities in Election Petitions
Courts must take a liberal view of affidavits in election petitions and administer substantive justice without undue regard to technicalities; striking out an election petition for a technical defect in the commissioning of its supporting affidavit offends Article 126(2)(e) of the Constitution.
Affidavits in Election Petitions — Additional Affidavits Filed Before Scheduling Conference
Additional affidavits in election petitions may be filed at any time after the petition or answer provided they are filed before the scheduling conference, and their reception occasions no prejudice to the opposing party.
Appellate Jurisdiction — Grounds for Affirming Decision — Matters Not Determined by Trial Court
The appellate jurisdiction of the Court of Appeal in election matters is confined to issues determined by the High Court on hearing the petition; the Court cannot decide grounds for affirming a decision that the trial Court expressly declined to determine, as that would amount to exercising original jurisdiction.

Legislation cited (21)

  • Parliamentary Elections Act 2005 s.60
  • Parliamentary Elements Act 2005 s.60(3)
  • Parliamentary Elections Act 2005 s.66(1)
  • Parliamentary Elections Act 2005 s.66(2)
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.3(c)
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.4(8)
  • Parliamentary Elections (Interim Provisions) (Election Petitions) Rules r.27
  • Parliamentary Elections (Election Petitions) Rules r.5
  • Advocates (Amendment) Act 2002 s.14A
  • Advocates (Amendment) Act 2002 s.14A(1)(b)
  • Advocates Act s.11(2)
  • Commissioners for Oaths (Advocates) Act Cap 5 s.1(4)
  • Commissioners for Oaths (Advocates) Act Cap 5 s.6
  • Illiterates Protection Act Cap 78 s.3
  • Illiterates Protection Act Cap 78 s.4
  • Oaths Act Cap 19
  • Constitution of Uganda Article 126(2)(e)
  • Civil Procedure Act s.27
  • Court of Appeal Rules r.30(1)
  • Court of Appeal Rules r.92(1)
  • Court of Appeal Rules r.92(3)

Cases cited (27)

  • Sitenda Sebalu v Sam K. Njuba and the Electoral Commission (Election Petition Appeal No. 26 of 2007)
  • Pontrilas Investments Ltd v Central Bank of Kenya & Anor (Reference No. 8 of 2017)
  • Mutembuli Yusuf v Nagwomu Moses Musamba & the Electoral Commission (Election Petition Appeal No. 43 of 2016)
  • Suubi Kinyamatama Juliet and Others v Ssentongo Robina and the Electoral Commission (Election Petition Appeal No. 92 of 2016)
  • Hon. Nakatte Lillian Segujja and Anor v Nabukenya Brenda (Election Petition Appeal No. 17 and 21 of 2016)
  • Kamba Saleh Moses v Namuyanga Jennifer (Election Petition Appeal No. 27 of 2011)
  • Returning Officer, Iganga District v Hajji Muluya Mustaphar (Civil Appeal No. 13 of 1997)
  • Hon. George Patrick Kassaja v Fredrick Ngobi Gume & Anor (Election Petition Appeal No. 68 of 2016)
  • Nabukeera Hussein Hannifah v Kusasira Peace K. Mubiru & Anor (Election Petition Appeal No. 67 of 2016)
  • Mbayo Jacob Robert v Electoral Commission and Talansya Sinani (Election Petition Appeal No. 7 of 2006)
  • Mohammad B. Kasasa v Jasphar Buyonda Sirasi Bwogi (Civil Appeal No. 42 of 2008)
  • Muliro Wanga Karim v Wakalawo Sam Paul (Election Application No. 9 of 2017)
  • Tamale Julius Konde v Ssenkubuge Isaac (Election Petition Appeal No. 75 of 2016)
  • Namujju Dionizia Cissy and Anor v Martin Kizito Sserwanga (Election Petition Appeal No. 62 of 2016)
  • Nsubuga Silvest Ssekutu v Kalibbala Charles and Anor (Election Petition Appeal No. 70 of 2016)
  • Hon. Kipoi Tonny Nsubuga v Ronny Waluku Wataka and 2 Others (Election Petition Appeal No. 7 of 2011)
  • Selle and Another v Associated Motor Boat Company Ltd and Others (1968) EA 123
  • Fr. Narsensio Begumisa & 3 Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Col (Rtd) Dr. Kizza Besigye v Yoweri Museveni Kaguta and the Electoral Commission (Election Petition No. 1 of 2001)
  • Makula International v His Eminence Cardinal Nsubuga (Civil Appeal No. 4 of 1981)
  • Attorney General v AKPM Lutaaya (Civil Appeal No. 12 of 2007)
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Essaji v Solanki (1968) EA 218
  • Rita Nantayi v Ali Sekanjako (Miscellaneous Application No. 333 of 2014)
  • Sitenda Ssebalu v Sam K. Njuba and the Electoral Commission (Election Appeal No. 6 of 2009)
  • Kabogere Coffee Factory v Haji Twalib Kigongo (Civil Appeal No. 10 of 1993)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 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.