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Ochwa David v Hon. Ogwari Polycarp (Election Petition Application No. 2 of 2023)

Court of Appeal · [2024] UGCA 363 · 2024 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out an election petition appeal for failure to serve the notice of appeal within the prescribed time
Decision
Application to strike out dismissed with costs; the election petition appeal is allowed to proceed

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Holding

The Applicant sought to strike out the Respondent's election petition appeal for failure to serve the Notice of Appeal within seven days. The Court held that the assertion that service occurred late was unsupported by affidavit evidence and amounted to testimony from the bar. The Respondent's unchallenged affidavit showed the Notice was tendered to the firm that had been the Applicant's address of service in the High Court, which declined service without instructions. Under Rule 78(2), service may be effected on such a firm even where it has not been retained for the appeal. The Court found effective service, declined to strike out the appeal, and dismissed the application with costs.

Facts

The Applicant and the Respondent contested the parliamentary seat for Agule County Constituency, Pallisa District, in the January 2021 general elections, and the Respondent was declared the winner. The Applicant successfully petitioned the High Court at Mbale, which on 12 December 2022 set aside the election and ordered fresh elections. The Respondent filed a Notice of Appeal in the High Court on 19 December 2022 and a Memorandum of Appeal on 21 December 2022. On 20 December 2022 the Respondent's agent tendered the Notice of Appeal to the firm of M/s Okello Oryem & Co Advocates, the Applicant's address of service in the High Court proceedings, but the firm declined to sign or stamp, claiming it had no instructions for the appeal; the documents were left with the firm. Attempts to serve the Applicant personally were evaded. The Applicant filed this application to strike out the appeal for late service.

Issues

  1. Whether the Respondent served the Notice of Appeal upon the Applicant within the time prescribed by Rule 78(1) of the Court of Appeal Rules.
  2. Whether service of the Notice of Appeal on an advocate's firm that was the address of service in the High Court, but which had not been retained for the appeal, constitutes effective service under Rule 78(2).

Orders

  • The application to strike out Election Petition Appeal No. 04 of 2022 is dismissed with costs.
  • The Court declines to strike out Election Petition Appeal No. 04 of 2022.

Key headnotes

Civil Procedure — Service of Notice of Appeal — Rule 78(2) — Service on firm that was the High Court address of service
Where a person required to be served with a notice of appeal gave an address for service in connection with the High Court proceedings and has not given any other address, the notice of appeal may be served on that advocate's firm, notwithstanding that the firm has not been retained for the purposes of the appeal.
Evidence — Testimony from the bar — Assertions in written submissions unsupported by affidavit
Assertions of fact contained in written submissions that are not supported by affidavit evidence amount to testimony from the bar and do not constitute evidence.
Civil Procedure — Affidavit evidence — Effect of failure to file affidavit in rejoinder
Where no affidavit in rejoinder is filed to rebut a deponent's account, that account stands unchallenged and the opposing party's version of events may be taken as established.

Legislation cited (7)

  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.78(1)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.78(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.88
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.29
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.30
  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.36
  • Advocates (Professional Conduct) Regulations reg.2(1)

Cases cited (6)

  • Electoral Commission v George Willy Lufuga (Election Petition Application No. 17 of 2022)
  • Wilfred Niwagaba & Another v Protazio Begumisa (Election Petition Appeals No. 9 & 10 of 2022)
  • Hon. Dibi Fred v Ocen Peter (Election Petition Applications No. 17 & 24 of 2011)
  • Bufingo Agrub & 3 Others v Abubakali Kikoba & 2 Others (Miscellaneous Application No. 234 of 2023)
  • Uganda Revenue Authority v National Social Security Fund (Miscellaneous Application No. 43 of 2023)
  • Waira James Kyewalabye v Kubeketerya James (Election Application No. 38 of 2022)
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.