Wakilii

Gaddafi Nassur v Sekabira and Anor (Election Petition No. 16 of 2021)

High Court · [2021] UGHCCD 53 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Oral application for leave to re-administer oath on affidavits filed in support of election petition
Decision
Petitioner granted leave to cure defect in affidavits by re-administering oath before licensed commissioner

Observed later treatment

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Holding

Held that section 14A of the Advocates (Amendment) Act 2002 protects innocent litigants from defects caused by unscrupulous advocates. Where affidavits have been commissioned by an advocate without a valid practicing certificate, the court may grant leave to have the oath re-administered before a properly licensed commissioner, provided the defect is discovered and rectified promptly. Such an application does not constitute an amendment to the petition.

Outcome

Petitioner granted leave to cure defect in affidavits by re-administering oath before licensed commissioner

Facts

The Petitioner filed an election petition on 18 March 2021 supported by affidavits, four of which were commissioned on 15 March 2021. Through a letter from the Chief Registrar dated 24 August 2021, it was discovered that the advocate who commissioned the affidavits did not hold a valid practicing certificate at the time, as her certificate had been renewed only on 16 March 2021. On the day of scheduling the matter, counsel for the Petitioner sought leave to have the defect cured by re-administering the oath before another properly licensed commissioner. The 1st Respondent opposed, arguing the application was irregular, out of time, and a disguised attempt to amend the petition.

Issues

  1. Whether the court has power under section 14A of the Advocates Act to allow re-administration of oaths on affidavits that were commissioned by an unlicensed advocate.
  2. Whether the application to re-administer the oath constitutes a disguised attempt to amend the petition out of time.

Orders

  • Application allowed.
  • Petitioner granted leave to have the oath re-administered to the four deponents before another commissioner who is licensed to practice as an advocate.
  • The contents of the said affidavits should not be varied.
  • The affidavits must be filed and served upon the opposite counsel not later than 1st September 2021.
  • No order as to costs.

Rules and key headnotes

Electoral Law — Election Petitions — Procedural Requirements — Defective Affidavits — Power to Cure Defects
Section 14A of the Advocates (Amendment) Act 2002 protects innocent litigants from defects caused by advocates without valid practicing certificates, and a court has power to permit re-administration of an oath where affidavits were commissioned by an unlicensed advocate, provided the defect is rectified promptly upon discovery.
Civil Procedure — Defective Pleadings — Cure of Defects — Leave to Re-administer Oath
Where affidavits in support of a petition have been commissioned by an advocate without a valid practicing certificate, the matter should not proceed with defective pleadings, but time should be given to the innocent litigant to rectify the error by re-administering the oath before a properly licensed commissioner without varying the contents of the affidavits.
Evidence — Affidavits — Commissioning by Unlicensed Advocate — Effect and Remedy
An affidavit commissioned by an advocate without a valid practicing certificate is defective, but where the defect is discovered, the innocent litigant may apply to have the oath re-administered before a properly licensed commissioner as a means of rectifying the defect, and such rectification does not constitute an amendment to the pleadings.

Legislation cited (2)

Cases cited (6)

  • Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye and Another (Election Petition Appeal No. 92 of 2016)
  • Prof. Syed Huq v Islamic University of Uganda (Supreme Court Civil Appeal No. 47 of 1995)
  • Hard Rock Quarry Uganda Ltd Vs Commissioner Land Registration & Anor.
  • Citizens Alert Foundation (CAF) Ltd and 4 Others v Attorney General and 3 Others (Miscellaneous Application No. 135 of 2021)
  • Kyagulanyi Ssentamu Robert v Yoweri Kaguta Museveni and 2 Others (Supreme Court Miscellaneous Application No. 01 of 2021)
  • Obiga Mario Kania v Electoral Commission and Another (Election Petition Appeal No. 4 of 2011)

Full judgment

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

Gaddafi Nassur v Sekabira and Anor (Election Petition No. 16 of 2021) [2021] UGHCCD 53 (31 August 2021)
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.