Wakilii

Dr. Engineer Bategana Katwiremu v Elijah Dickens Mushemeza and Others (Election Petition 1 of 1996)

High Court · [1996] UGHC 101 · 1996 Preliminary Objections Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objections to election petition reply
Decision
Preliminary objections dismissed; election petition to proceed with all respondents having locus standi

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held: All three preliminary objections dismissed. A joint reply by the Attorney General on behalf of the Returning Officer and Interim Electoral Commission is valid under election petition rules. Fees of Shs. 50,000 were properly paid with the first respondent's reply. An affidavit commissioned by an advocate whose practising certificate had expired remains valid because the authority to commission documents derives from the Commissioners for Oaths Act, not from possession of a current practising certificate, and the commission does not automatically terminate when a certificate expires.

Outcome

Preliminary objections dismissed; election petition to proceed with all respondents having locus standi

Facts

The petitioner brought an election petition following parliamentary elections. When the matter came before the High Court at Mbarara, petitioner's counsel raised three preliminary objections by leave of court. The objections sought to strike out the first respondent's reply on grounds that the commissioning advocate's practising certificate had expired and the mandatory filing fee had not been paid, and to strike out the second and third respondents' joint reply as invalid. The first respondent's reply was filed on 9 August 1996, accompanied by an affidavit commissioned by Mr. Alexander Womutuba of Kayondo & Co. Advocates. The Ag. Chief Registrar confirmed by correspondence that Womutuba's practising certificate was not renewed until 28 August 1996, 19 days after he commissioned the affidavit. The court registry recorded that fees of Shs. 50,000 were paid on 9 August 1996 when the reply was filed. The second respondent (Returning Officer, Bushenyi District) and third respondent (Interim Electoral Commission) filed a joint reply through the Attorney General.

Issues

  1. Whether the first respondent's reply should be struck out because the affidavit was commissioned by an advocate whose practising certificate had expired
  2. Whether the first respondent's reply should be struck out for failure to pay the mandatory fee of Shs. 50,000 at the time of filing
  3. Whether the joint reply filed by the Attorney General on behalf of the second and third respondents was valid or should be struck out as null and void in relation to the second respondent

Orders

  • All three preliminary objections dismissed.
  • Costs of the preliminary objections to abide by the final result of the petition.
  • Leave granted for the petitioner to appeal to the Court of Appeal in respect of the ruling on the first objection.

Rules and key headnotes

Election Petitions — Joint Reply by Returning Officer and Electoral Commission — Validity
A joint reply filed by the Attorney General on behalf of both the Returning Officer and the Interim Electoral Commission to an election petition is valid and competent under the Parliamentary Elections (Election Petitions) Rules 1996, as a Returning Officer is appointed by and acts as the agent of the Commission, and no provision of law prohibits a joint reply.
Election Petitions — Filing Fees — Payment at Time of Filing
The mandatory fee prescribed by Rule 8(3)(b) of the Parliamentary Elections (Election Petitions) Rules 1996 must be paid at the same time as filing a reply to an election petition; failure to pay the fee renders the reply incompetent, but where the court registry records payment on the date of filing and issues a receipt, the fee requirement is satisfied.
Affidavits — Commissioning by Advocate without Current Practising Certificate — Distinction between Advocates Act and Commissioners for Oaths Act
An advocate's authority to commission affidavits derives from a commission issued under the Commissioners for Oaths (Advocates) Act Cap. 53, not from possession of a current practising certificate under the Advocates Act 1970; a commission under section 2 of the Commissioners for Oaths Act does not automatically terminate when a practising certificate expires and only terminates when the advocate ceases to practise as defined in section 2(4), which refers to final closure, retirement, or being struck off the roll, not temporary non-renewal of a certificate.
Affidavits — Validity of Affidavit Commissioned by Advocate whose Practising Certificate has Expired
An affidavit commissioned by an advocate whose practising certificate has expired remains valid and competent because section 5(1) of the Commissioners for Oaths (Advocates) Act Cap. 53 provides that a commissioner may administer oaths and take affidavits by virtue of the commission itself, not by virtue of possession of a valid practising certificate; to hold otherwise would visit injustice on an innocent litigant who has no means or duty to verify the status of a commissioning advocate's certificate.
Advocates — Practising without Certificate — Legal Consequences Limited to Advocate
Neither the Advocates Act 1970 nor the Commissioners for Oaths (Advocates) Act Cap. 53 provide that documents commissioned by an advocate without a current practising certificate are null and void; Parliament created an offence under section 14 of the Advocates Act for practising without a certificate, and the legal consequences should be limited to the advocate personally rather than invalidating documents to the prejudice of innocent clients who bear no fault and have no duty to verify the advocate's certificate status.

Legislation cited (14)

Cases cited (12)

  • Kiwanuka Nsereko v Returning Officer and Nsarbu Nsubuga (Revision Order No. 3 of 1994)
  • Bookino Otongirya v Returning Officer, Palisa, Chairman Interim Electoral Commission and Kafiire Reiner Juliet (Election Petition No. 33 of 1996)
  • Alfred Olwara v Uganda Central Co-operative Union Ltd (Civil Application No. 25 of 1992)
  • Kabogere Coffee Factory Ltd v Haji Tedebu Kigoongo (1993) VI KALR 5
  • Kiyimba Kaggwa v Rasool Adam Khan (Misc. Civil Application No. 223 of 1996)
  • Begimisa Gregory Basigara v Hon. Kahinda Otafiire and Others (Election Petition No. 23 of 1996)
  • Bakinda Darlington v Dr. Kinyatta and Frank Ntabo (Election Petition No. 18 of 1996)
  • Joseph Kakooza v Tony Wasswa (High Court Civil Suit No. 411 of 1987)
  • Aristella Kabwinukya v John Kasigwa (1978) HCB 251
  • Jesse Gulyetonda v Henry Mogamwa Kajura and Others (Election Petition No. 19 of 1996)
  • Sparling v Breton V. C. W. 1866 P. 64
  • Holdgate v Slight 21 U (Q.B.) 74

Full judgment

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Dr. Engineer Bategana Katwiremu v Elijah Dickens Mushemeza and Others (Election Petition 1 of 1996) [1996] UGHC 101 (3 October 1996)
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