Apama Amato v Obiga Kania and Anor (Election Petition No. 2 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The High Court struck out an election petition on the ground that the supporting affidavit was commissioned by an advocate without a valid practicing certificate. The court held that such an affidavit is invalid and cannot support a petition. The defect cannot be cured by constitutional provisions on substantive justice nor by allowing re-commissioning, as this would amount to filing a new petition outside the statutory time limits. Costs were awarded to both respondents.

Outcome

Petition struck out with costs to respondents

Facts

The petitioner challenged the election of the first respondent as Member of Parliament for Terego East Constituency on grounds that the first respondent lacked the requisite academic qualifications. The petition was supported by an affidavit deposed by the petitioner on 15 March 2021 and commissioned by Daisy Patience Bandaru on the same date. The first respondent raised a preliminary objection that Bandaru had not renewed her practicing certificate for 2021 at the time she commissioned the affidavit. Evidence showed that Bandaru last renewed her practicing certificate on 9 September 2020 and only renewed it again on 7 June 2021, well after she commissioned the petitioner's affidavit. The petitioner argued that the defect could be cured or that Bandaru's acts were saved by statute.

Issues

1. Whether an affidavit commissioned by an advocate without a valid practicing certificate is valid and can support an election petition.
2. Whether the defect in commissioning can be cured by invoking Article 126(2)(e) of the Constitution or by allowing the petitioner to re-commission the affidavit.
3. Whether Section 14A of the Advocates (Amendment) Act saves the acts of an advocate practicing without a valid practicing certificate.

Orders

• Preliminary objection upheld.
• Election petition struck out.
• Costs of the petition awarded to both respondents against the petitioner.

Rules and key headnotes

Legislation cited (14)

• Parliamentary Elections Act No. 17 of 2005 s.60
• Parliamentary Elections (Interim Provisions) Rules S.I 141-2 Rule 3(c)
• Parliamentary Elections (Interim Provisions) Rules S.I 141-2 Rule 4(8)
• Parliamentary Elections (Interim Provisions) Rules S.I 141-2 Rule 26
• Commissioner for Oaths (Advocates) Act Cap 5 s.1(4)
• Commissioner for Oaths (Advocates) Act Cap 5 s.2(4)
• Commissioner for Oaths (Advocates) Act Cap 5 s.6
• Advocates Act Cap 267 s.11
• Advocates Act Cap 267 s.14
• Advocates Act Cap 267 s.15
• Advocates Act Cap 267 s.18
• Advocates (Amendment) Act No. 27 of 2002 s.14A
• Constitution of Uganda Article 126(2)(e)
• Civil Procedure Act s.27

Cases cited (11)

• Abdu Ddamulira v MSS Xsabo Power Ltd (Miscellaneous Application No. 046 of 2021)
• The Returning Officer, Iganga District and Another v Haji Muluya Mustaphar (Civil Appeal No. 13 of 1997)
• Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye (Election Petition Appeal No. 92 of 2016)
• Mafabi Aisha Nabulo v Wamala Namboozo Florence and EC (Election Petition No. 018 of 2021)
• Otim Nape George William v Ebil Fred and EC (Election Petition No. 017 of 2011)
• Ritah Natai v Ali Sekanjako (Miscellaneous Application No. 333 of 2014)
• Kabogere Coffee Factory v Haji Twalibu Kigongo (Supreme Court Civil Appeal No. 10 of 1993)
• Bakunda Darlington Vs Dr. Kinyata & Anoother (supra)
• Professor Syed Hug v The Islamic University of Uganda (Supreme Court Civil Appeal No. 47 of 1995)
• Hon. Lokeris Samson v Komol Emmanuel and EC (Election Petition No. 01 of 2021)
• Kamurali Jeremiah Birungi v Nathan Byanyima and EC (Election Petition No. 002 of 2021)

The original judgment as reported. Read the original PDF before relying on any passage.