Wakilii

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

High Court · [1996] UGHC 63 · 1996 Preliminary Objections Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition with three preliminary objections raised by petitioner seeking to strike out respondents' replies
Decision
All three preliminary objections dismissed; first and second respondents retain locus standi; leave to appeal granted to petitioner on first objection

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed all three preliminary objections. A joint reply by a Returning Officer and the Interim Electoral Commission is competent. Fees were duly paid upon filing the first respondent's reply. An Advocate commissioning an Affidavit under the Commissioners for Oaths Act does not require a valid Practising Certificate at the time of commissioning, as the commission derives authority from the Commissioners for Oaths Act and does not terminate upon expiry of a Practising Certificate.

Outcome

All three preliminary objections dismissed; first and second respondents retain locus standi; leave to appeal granted to petitioner on first objection

Facts

The petitioner filed an election petition. At commencement of hearing, petitioner's counsel raised three preliminary objections seeking to strike out respondents' replies. The first objection alleged that the first respondent's Affidavit was commissioned by an Advocate whose Practising Certificate had expired. The Ag. Chief Registrar confirmed that Alexander Womutuba commissioned the Affidavit on 9 August 1996 but only renewed his certificate on 28 August 1996. The second objection alleged non-payment of the mandatory Shs. 50,000 fee at the time of filing the first respondent's reply. The first respondent produced a receipt showing payment on the same day of filing. The third objection challenged the joint reply filed by the Attorney General on behalf of the second and third respondents, arguing the Returning Officer should have filed separately.

Issues

  1. Whether the first respondent's reply should be struck out because the Affidavit accompanying it 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 null and void in relation to the second respondent.

Orders

  • All three preliminary objections dismissed.
  • The first respondent's reply is valid and competent.
  • The joint reply of the second and third respondents is valid and competent.
  • Costs of the hearing of these objections to abide by the final result of the petition.
  • Leave granted to 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 Replies — Returning Officer and Electoral Commission
A joint reply by a Returning Officer and the Interim Electoral Commission to an election petition is competent where the Returning Officer is appointed by and acts as the representative of the Commission, and no provision of law prohibits joint replies.
Election Petitions — Filing Fees — Requirement for Simultaneous Payment
The mandatory filing fee for a reply to an election petition must be paid at the time of filing the reply, and non-payment renders the reply incompetent.
Affidavits — Commissioning by Advocate Without Valid Practising Certificate
An Advocate commissioning an Affidavit acts under the Commissioners for Oaths Act and not the Advocates Act. A commission issued under the Commissioners for Oaths Act does not automatically terminate upon expiry of the Advocate's Practising Certificate, and an Affidavit commissioned by an Advocate whose certificate has expired is not thereby rendered incompetent.
Advocates — Practising Certificate — Effect of Expiry on Commissioner Powers
An Advocate whose Practising Certificate has expired does not cease to practise within the meaning of section 2(4) of the Commissioners for Oaths Act. Ceasing to practise envisages final closure, retirement, being struck off the roll, or suspension, not temporary disability arising from non-renewal of a certificate.
Affidavits — Nullification — Protection of Innocent Litigants
An innocent litigant who has had his documents commissioned by an Advocate whose Practising Certificate has expired should not bear the consequences of the Advocate's misdoing where the litigant had no means of discovering the defect and the Advocate was not his counsel or the drafter of the documents.

Legislation cited (15)

Cases cited (12)

  • Alfred Olwara v Uganda Central Co-operative Union Ltd (Civil Application No. 25 of 1992)
  • Kabogere Coffee Factory Ltd. Vs Haji Ttedbu Kigorogo (1993) VI KALR 5
  • Kiwuba Kaggwa v Rasod Adam Khan (Miscellaneous Civil Application No. 223 of 1996)
  • Begumisa Gregory Basigara v Hon. Kahinda Otafiire and Others (Election Petition No. 23 of 1996)
  • Bakinda Darlington v Dr. Kinyatta B.E.S. and Frank Ntabo (Election Petition No. 18 of 1996)
  • Joseph Kakooza v Tony Wasswa (High Court Civil Suit No. 411 of 1987)
  • Aristella Kabwimurikya Vs John Kasigga (1978) H.C.B. 251
  • Kiwanuka Nsereko Vs Returning Officer and Nsarbu Nsubuga, Rev. Order No. 3 of 1994 (unreported)
  • Bwokino Masigirya v Returning Officer, Palisa and Others (Election Petition No. 33 of 1996)
  • Jesse Gulyetonda v Henry Moganwa Kajura and Others (Election Petition No. 19 of 1996)
  • Sparling Vs Breton V. C. W. 1866 P. 64 at P. 67
  • Holdgate Vs Slight 21 LJ (Q.B.) 74

Full judgment

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Dr. Engineer Bategana Katwiremu v Mushemeza and Others (Election Petition 1 of 1996) [1996] UGHC 63 (3 October 1996)
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.