Wakilii

Baguma v Kunihihira and Another (Election Petition Appeal No. 19 of 2021)

Court of Appeal · [2022] UGCA 217 · 2022 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from a High Court decision striking out an election petition on a preliminary objection
Decision
Striking out of the election petition set aside; petition remitted to the High Court for trial on its merits before another Judge

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the expiry of an advocate's practicing certificate does not ipso facto terminate his commission as commissioner for oaths under section 1(4) of the Commissioner for Oaths (Advocates) Act; an advocate ceases to practice only when suspended or struck off the Roll. The trial Judge therefore erred in finding the supporting affidavits defective. The Court further held that an invalid or absent principal affidavit does not automatically render an election petition defective, since allegations may be proved by other evidence under section 64 of the Parliamentary Elections Act. The appeal succeeded in part; the striking-out was set aside and the petition remitted for trial on its merits before another Judge.

Outcome

Striking out of the election petition set aside; petition remitted to the High Court for trial on its merits before another Judge

Facts

The appellant and the 1st respondent, along with two other candidates, contested for the position of Woman Member of Parliament for Kyenjojo District. The 2nd respondent (Electoral Commission) declared the 1st respondent the winner with 75,576 votes; the appellant came second runner-up with 51,965 votes, results gazetted in February 2021. The appellant petitioned the High Court at Fort-Portal alleging the 1st respondent lacked the required academic qualifications and that the election was marred by illegal practices and non-compliance with electoral laws. At the hearing, counsel for the 1st respondent raised a preliminary objection that the affidavits supporting the petition had been commissioned by an advocate lacking a valid practicing certificate, rendering them invalid. The trial Judge upheld the objection, found the affidavits invalid, declined to permit re-commissioning under section 14A of the Advocates (Amendment) Act, and struck out the petition with costs. The appellant appealed.

Issues

  1. Whether an advocate's commission as a commissioner for oaths ceases to exist upon the expiry of his or her practicing certificate, rendering an affidavit so commissioned invalid.
  2. Whether the trial Judge erred in declining to invoke section 14A of the Advocates (Amendment) Act to allow re-commissioning of the affidavits.
  3. Whether the absence or invalidity of the principal affidavit accompanying an election petition automatically renders the petition defective.
  4. Whether the dismissal of the petition with costs was justified.

Orders

  • This appeal succeeds in part.
  • The learned trial Judge's decision striking out Election Petition No.007 of 2021 with costs to the respondents is set aside.
  • The file should be remitted to the High Court for trial of the petition on its merits before another Judge.
  • Each party shall bear their own costs for this appeal.

Rules and key headnotes

Affidavits — Commissioner for Oaths — Effect of expired practicing certificate on commission
The expiry of an advocate's practicing certificate does not ipso facto terminate his or her commission as a commissioner for oaths under section 1(4) of the Commissioner for Oaths (Advocates) Act; an advocate ceases to practice only upon suspension or being struck off the Roll of Advocates, so an affidavit commissioned by an advocate whose certificate has merely lapsed is not invalid on that ground.
Election petitions — Principal affidavit — Whether invalid or absent affidavit renders petition defective
An invalid or absent principal affidavit accompanying an election petition does not automatically render the petition defective, because under section 64 of the Parliamentary Elections Act the allegations may be proved by other forms of evidence used in ordinary civil proceedings, such as oral evidence and witness statements.
Section 14A Advocates (Amendment) Act — Application to commissioning of affidavits
Section 14A of the Advocates (Amendment) Act covers only documents made and actions taken where an advocate-client relationship existed; as there is no advocate-client relationship in the commissioning of an affidavit, section 14A cannot be invoked to rectify an allegedly defective affidavit in support of a petition.
Definition of 'petition' — Scope of Election Petition Rules definitions relative to the Parliamentary Elections Act
The definition of 'petition' in Rule 3 of the Parliamentary Elections (Interim Provisions) (Election Petitions) Rules applies only within those Rules and cannot be stretched to govern the Parliamentary Elections Act, which has its own definition; therefore the requirement of an accompanying affidavit under the Rules does not import a precondition into the statutory definition of an election petition.

Legislation cited (15)

Cases cited (15)

  • Murisho Shafi and Others v Attorney General and Another (Constitutional Application No. 2 of 2017)
  • Suubi Kingamatama Juliet v Sentongo Robinah Nakasinye (Civil Appeal No. 92 of 2016)
  • Attorney General v AKPM Lutaaya (Civil Appeal No. 12 of 2007)
  • Joel Kato and Another v Nuulu Nakooga (Miscellaneous Application No. 4 of 2012)
  • Kabogere Coffee Factory v Hafi Twalibu (Civil Appeal No. 10 of 1993)
  • Professor Syed v The Islamic University of Uganda (Civil Appeal No. 47 of 1995)
  • Apama Amato v Obiga Kania and Electoral Commission (Election Petition No. 2 of 2021)
  • Hon. George Patrick Kassajo v Fredrick Ngobi Gume and Another (Election Petition Appeal No. 68 of 2016)
  • Nabukeera Hussein Hannifah v Kusasira Peace K. Mubiru and Another (Election Petition Appeal No. 67 of 2016)
  • Mohammed B. Kasaso v Jaspher Bugonda Sirasi Bwogi (Civil Appeal No. 42 of 2008)
  • Mulira Wanga Karim v Wakalanao Sam Paul (Election Application No. 9 of 2017)
  • Kyagulanyi Ssentamu v Yoweri T. Museveni and Others (Presidential Election Petition No. 1 of 2021)
  • Hon. Lokeris Samson v Komol and the Electoral Commission (Election Petition Appeal No. 9 of 2021)
  • Mugema Peter v Mudiobole Abed (Election Petition Appeal No. 30 of 2011)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)

Full judgment

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

Baguma v Kunihihira and Another (Election Petition Appeal No. 19 of 2021) [2022] UGCA 217 (5 August 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.