Male Wilson v Kayondo Fred and Another (Election Petition Appeal No. 47 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal held that where affidavits supporting an election petition were commissioned by a Commissioner for Oaths lacking a valid practising certificate, the defect is curable. Section 14A(1)(b)(ii) of the Advocates (Amendment) Act protects an innocent litigant from an errant advocate and imposes no time restriction on applying to rectify. The trial Judge erred by striking out the petition rather than granting time to file fresh affidavits, and inconsistently condemned the appellant's affidavits while condoning equally defective ones by the respondent. The appeal succeeded; the petition was reinstated and remitted for hearing on the merits before a different Judge.

Outcome

Appeal allowed; trial court order set aside; election petition reinstated and remitted to the High Court for hearing on the merits before a different Judge

Facts

Wilson Male and five other candidates contested the directly-elected Member of Parliament seat for Mukono South Constituency in elections held on 14 January 2021. Fred Kayondo, the 1st respondent, was declared winner by the Electoral Commission. Male lodged a petition to nullify the election, alleging inconsistencies and illegalities. At the hearing, the 1st respondent raised a preliminary objection that the affidavits supporting the petition had been commissioned by a Commissioner for Oaths (Aogon Fabian) who held no valid practising certificate at the material time. The trial Judge upheld the objection, ruled the affidavits invalid and the petition incompetent and incurably defective, and struck it out with costs. The appellant had recommissioned the affidavits and refiled his pleadings without altering content, and sought leave to rectify, but the trial Judge declined. The appellant appealed, arguing the defect was curable under section 14A of the Advocates (Amendment) Act and Article 126 of the Constitution, and that the trial Judge condoned equally defective pleadings by the respondents.

Issues

1. Whether an election petition supported by affidavits commissioned by a Commissioner for Oaths who lacked a valid practising certificate is incompetent and incurably defective.
2. Whether the appellant was entitled to the protection of an innocent litigant under section 14A of the Advocates (Amendment) Act to rectify the defective affidavits.
3. Whether the trial Judge erred in striking out the petition without allowing time to file fresh affidavits.

Orders

• The order of the trial Judge dismissing the petition is set aside.
• Election Petition No. 001 of 2021 is remitted to the High Court to be determined on its merits before a different Judge.
• Each party shall bear its own costs in this court and in the court below.

Rules and key headnotes

Legislation cited (13)

• Constitution of Uganda Article 126(2)(e)
• Advocates Act Cap 267 s.14
• Advocates Act Cap 267 s.56(1)
• Advocates (Amendment) Act s.14A(1)(b)(ii)
• Commissioners for Oaths (Advocates) Act s.4(3)
• Advocates (Professional Conduct) Regulations reg.31(1), reg.11, reg.14
• Parliamentary Elections Act s.50
• Parliamentary Elections (Interim Provisions) Rules SI 141-2 rule 3(c)
• Parliamentary Elections (Interim Provisions) Rules SI 141-2 rule 4(8)
• Parliamentary Elections (Interim Provisions) Rules SI 141-2 rule 15(1)
• Parliamentary Elections (Interim Provisions) Rules SI 141-2 rule 26
• Judicature (Court of Appeal Rules) Directions SI 13-10 rule 30
• Judicature (Court of Appeal Rules) Directions SI 13-10 rule 32(1)

Cases cited (16)

• Kizza Besigye v Yoweri Kaguta Museveni (Election Petition No. 1 of 2001)
• Kizza Besigye v Yoweri Museveni (Election Petition No. 1 of 2005)
• Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 22
• NEC v Mukisa Foods (Civil Appeal No. 42 of 1997)
• Wanambwa Milton v Wanjusi Wasieba & EC (Election Petition Appeal No. 1 of 2005)
• Namuju Dionizia Cissy & EC v Martin Kizito Sserwanga (Election Petition Appeal No. 52 of 2016)
• Prof Syed Huq v The Islamic University in Uganda (Supreme Court Civil Appeal No. 47 of 1995)
• Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye (Election Petition Appeal No. 92 of 2016)
• Uganda Railways Corporation v Ekwaru & Ors [2008] HCB 67
• Makula International v Cardinal Nsubuga & Anor [1982] HCB 11
• Omusotsi v The Returning Officer Mumias East Constituency & Ors (Election Petition No. 9 of 2017)
• Ochwa David v Ogwari Polycarp & EC (Election Petition Appeal No. 16 of 2021)
• Kibulwe Simon & 2 Ors v Paul Mbazzi Kiggye & 2 Ors (Originating Summons No. 10 of 2018)
• Pandya v R [1957] EA 336
• Okeno v Republic [1972] EA 32
• Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)

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