Wakilii

Hon. Lokeris v Komol and Another (Election Petition Appeal No. 9 of 2021)

Court of Appeal · [2022] UGCA 183 · 2022 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court ruling dismissing an election petition on a preliminary point of law
Decision
Appeal allowed in part; trial court orders set aside and matter remitted to the High Court for fresh trial before another judge on its merits.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that an advocate's commission as a Commissioner for Oaths is not automatically terminated by the expiry of the advocate's annual practising certificate; it ends only on ceasing to practise. The trial judge therefore erred in holding the appellant's principal affidavit invalid and dismissing the petition on that ground. The Court further held that an invalid principal affidavit does not automatically render an election petition defective, since allegations may be proved by other evidence under section 64 of the PEA. However, section 14A of the Advocates Act does not cure defective commissioning of affidavits. The appeal succeeded on ground one only; the matter was remitted for fresh trial.

Outcome

Appeal allowed in part; trial court orders set aside and matter remitted to the High Court for fresh trial before another judge on its merits.

Facts

The appellant, the first respondent and two others contested the seat of Member of Parliament for Dodoth East County Constituency, Kaabong District, in the general elections held on 14 January 2021. The first respondent was declared the winner by a margin of 11 votes (7,903 to the appellant's 7,892), with results gazetted on 17 February 2021. The appellant filed an election petition in the High Court at Soroti challenging the result on grounds of non-compliance with electoral laws and alleged illegal practices. At the hearing, the respondents raised a preliminary objection that the principal affidavit accompanying the petition had been commissioned by an advocate, Komakech Geoffrey, whose practising certificate had expired at the material time. The trial judge upheld the objection, held the affidavit invalid, declined to allow the appellant to file fresh affidavits on the basis that this would amount to filing a petition outside the 30-day statutory period, and dismissed the petition with costs.

Issues

  1. Whether an affidavit commissioned by an advocate whose annual practising certificate had expired is invalid.
  2. Whether an invalid or defective principal affidavit accompanying an election petition automatically renders the petition itself defective and liable to dismissal.
  3. Whether the trial court could permit the appellant to rectify the defective commissioning of the principal affidavit after the 30-day limit under section 60 of the Parliamentary Elections Act.
  4. Whether the trial court erred in awarding costs against the appellant.

Orders

  • Appeal allowed in part.
  • Orders of the trial court set aside.
  • Case remitted to the High Court for trial by another judge on its merits.
  • Each party to bear its own costs in the Court of Appeal.
  • Costs in the lower court to abide the outcome of the trial on the merits.

Rules and key headnotes

Commissioners for Oaths — Validity of Commission — Effect of Expiry of Practising Certificate
The expiry of an advocate's annual practising certificate under section 11 of the Advocates Act does not ipso facto terminate the advocate's commission as a Commissioner for Oaths, which continues until revoked by the Chief Justice or terminated on the holder ceasing to practise as an advocate under section 1(4) of the Commissioners for Oaths (Advocates) Act.
Election Petitions — Principal Affidavit — Effect of Invalidity on Competence of Petition
An invalid or defective principal affidavit does not automatically render an election petition under section 60 of the Parliamentary Elections Act defective; the allegations may be proved by other forms of evidence permitted in ordinary civil proceedings under section 64 of the Act.
Definition Clauses — Scope of Definition in Subsidiary Rules
The definition of 'petition' in the Election Petition Rules to include the accompanying affidavit applies only within those Rules and cannot be stretched to the Parliamentary Elections Act, which contains its own definition of 'election petition'.
Advocates — Protection of Clients — Scope of Section 14A of the Advocates Act
Section 14A of the Advocates Act, which protects clients from defects caused by an advocate practising without a valid certificate, covers pleadings, contracts, documents and actions taken within an advocate-client relationship, and does not extend to the commissioning of affidavits by a Commissioner for Oaths.
Election Petitions — Preliminary Objections — Duty of Trial Court to Consider Merits
In parliamentary election disputes, a trial court disposing of a matter on a preliminary point of law ought to proceed to also consider the merits of the case, so that the appellate court can conclusively resolve the dispute in one go and ensure expeditious disposal.

Legislation cited (17)

Cases cited (14)

  • Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye (Election Petition Appeal No. 7 of 2016)
  • Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye (Election Petition Appeal No. 92 of 2016)
  • Professor Syed Huq v Islamic University in Uganda (Civil Appeal No. 47 of 1995)
  • Dr. Stephen Chebrot Chemoiko v Sovekwo Kenneth (Election Petition Appeal No. 56 of 2016)
  • Kasaala Growers Co-operative Society v Kakooza (Civil Application No. 19 of 2010)
  • Ikiror Kevin v Orot Ismael (Election Petition Appeal No. 105 of 2016)
  • Akugizibwe Lawrence v Muhumuza David (Election Petition Appeal No. 24 of 2016)
  • Otim Nape George William v Ebil Fred (Election Petition No. 17 of 2011)
  • Kabogere Coffee Factory v Haji Twahibu Kgongo (Civil Application No. 10 of 1993)
  • Bakunda Darlington v Dr. Kinyatta Stanley (Civil Appeal No. 27 of 1996)
  • The Returning Officer, Iganga District v Haji Muluya Mustaphar (Civil Appeal No. 13 of 1997)
  • Kamurali Jeremiah Birungi v Nathan Byanyima (Election Petition No. 2 of 2021)
  • Pandya v R [1957] EA 336
  • Executive Director of NEMA v Solid State Limited (Civil Appeal No. 15 of 2015)

Full judgment

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

Hon. Lokeris v Komol and Another (Election Petition Appeal No. 9 of 2021) [2022] UGCA 183 (1 July 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.