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Ochwa v Hon. Ogwari (Election Petition Application 2 of 2023)

Court of Appeal · [2024] UGCA 53 · 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 the appeal dismissed with costs; the election petition appeal is allowed to proceed

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Holding

The court dismissed an application to strike out an election petition appeal for alleged non-service of the Notice of Appeal. It held that under Rule 78(2) of the Court of Appeal Rules a Notice of Appeal may be validly served at the address for service given in the High Court proceedings, even on an advocate not retained for the appeal. The respondent's agent left the documents with the applicant's former firm within time; that firm's deliberate refusal to accept service, claiming no instructions, was obstructionist and could not defeat service. With no affidavit in rejoinder, the respondent's account stood unchallenged, and the applicant's evasive conduct confirmed effective service. The application was dismissed with costs.

Facts

The applicant and respondent contested the parliamentary seat for Agule County Constituency, Pallisa District, in the 14 January 2021 general elections. The respondent was declared the winner. The applicant successfully petitioned the High Court at Mbale, which on 12 December 2022 nullified the election and ordered fresh elections. The respondent filed a Notice of Appeal and a letter requesting the record of proceedings on 19 December 2022 at the High Court and 20 December 2022 at the Court of Appeal registry. On 20 December 2022 the respondent's agent attempted to serve the applicant's former firm, M/s Okello Oryem & Co Advocates, which had been the address of service in the High Court; the firm declined to sign, claiming it had no instructions in the appeal, but the documents were left there. The applicant later evaded personal service. The applicant then applied to strike out the appeal for non-service within the prescribed seven days and filed no affidavit in rejoinder to the respondent's account.

Issues

  1. Whether the respondent failed to take the essential step of serving the Notice of Appeal upon the applicant within the time prescribed by the Rules of the Court of Appeal.
  2. Whether leaving the Notice of Appeal with the firm that was the address of service in the High Court, where that firm declined to accept it claiming no instructions, constitutes effective service under Rule 78(2).

Orders

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

Key headnotes

Civil Procedure — Service of Notice of Appeal — Service at the address for service given in the lower court
Under Rule 78(2) of the Court of Appeal Rules, a Notice of Appeal may be served at the address for service given in or in connection with the High Court proceedings, notwithstanding that it is the address of an advocate who has not been retained for the purpose of the appeal.
Civil Procedure — Service of process — Deliberate refusal of service by an advocate on record
An advocate who was on record as the address of service in the lower court cannot defeat service of a Notice of Appeal by declining to accept the documents on the ground that the firm has no instructions in the appeal; leaving the documents at that firm amounts to effective service, and such refusal is obstructionist conduct.
Evidence — Submissions from the bar — Factual assertions in written submissions unsupported by affidavit
Assertions based on an alleged set of facts contained in written submissions, if not supported by affidavit evidence, are not evidence and amount to testimony from the bar.
Evidence — Affidavit evidence — Effect of failure to file an affidavit in rejoinder
Where a party files no affidavit in rejoinder offering evidential rebuttal, the opposing party's version of events contained in its affidavit may be taken as unchallenged.

Legislation cited (12)

  • Parliamentary Elections (Interim Provisions) Rules SI 141-2 r.28
  • 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
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.43(1) and (2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.44
  • 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.82
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.88
  • 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. Obll Fred v Ocen Peter (Election Petition Applications No. 17 & 24 of 2017)
  • Bufingo Ayub & 3 Others v Abubakali Kikoba & 2 Others (Misc. Application No. 234 of 2023)
  • Uganda Revenue Authority v National Social Security Fund (Misc. Application No. 43 of 2023)
  • Walya 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.