Wakilii

Nyakecho Annet v Electoral Commission and Another (Election Petition Appeal No. 14 of 2021)

Court of Appeal · [2022] UGCA 378 · 2022 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition appeal from High Court ruling dismissing the petition on a preliminary objection
Decision
Appeal partly allowed; trial court orders set aside and the election petition remitted for fresh hearing before another High Court judge.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal in part. While the objection to the validity of the affidavit was a question of law that could be raised at any time, the Chief Registrar's letter relied upon was an uncertified, contested copy admitted without affording the appellant a right to rebut, contrary to natural justice, and was declared void. The Court held that an advocate present on the Roll does not cease to practice as a commissioner for oaths merely because a practicing certificate was not renewed for a new year; only striking off, suspension or removal terminates the commission. The affidavit was therefore valid. The petition was ordered to be heard afresh and the costs award against the appellant was set aside.

Outcome

Appeal partly allowed; trial court orders set aside and the election petition remitted for fresh hearing before another High Court judge.

Facts

The appellant, the second respondent and others contested the Member of Parliament seat for Tororo North County Constituency in the 14 January 2021 parliamentary elections conducted by the Electoral Commission. The second respondent polled 9,674 votes and the appellant 9,563 votes, and the second respondent was declared duly elected. The appellant filed an election petition in the High Court challenging the results. At the commencement of the hearing on 10 September 2021, counsel for the second respondent raised a preliminary objection that the petitioner's sole supporting affidavit had been commissioned on 10 March 2021 by advocate Owakukiroru Raymond, who according to a letter attributed to the Chief Registrar had only been issued a practicing certificate on 19 March 2021. The trial judge upheld the objection, held the affidavit invalid and dismissed the petition with costs as incompetent. The appellant appealed.

Issues

  1. Whether the objection that the affidavit supporting the petition was commissioned by an advocate without a valid practicing certificate was a point of law that could be raised at any time of the trial.
  2. Whether the Chief Registrar's letter was properly admitted into evidence and whether the appellant was denied the right to be heard.
  3. Whether the trial judge erred in failing to apply section 14A of the Advocates Act and Article 126(2)(e) of the Constitution to order re-commissioning of the affidavit.
  4. Whether an advocate who has not renewed a practicing certificate after the grace period ceases to be a commissioner for oaths and thereby renders an affidavit commissioned invalid.
  5. Whether the trial court erred in awarding costs against the appellant.

Orders

  • The orders of the trial Judge in Election Petition No. 03 of 2021 are set aside.
  • Election Petition No. 03 of 2021 shall be heard afresh before another Judge of the High Court.
  • Appeal allowed with costs here and below, subject to the concerned advocates forfeiting fees relating to the badly drafted memorandum of appeal.
  • Ground 9 struck off the memorandum of appeal for being too general.

Rules and key headnotes

Election Petitions — Preliminary Objections — Validity of Supporting Affidavit as a Point of Law
An objection that the affidavit supporting an election petition was commissioned by an advocate not properly licensed at the material time is a pure point of law that may be raised at any stage of the proceedings without leave or formal application, and the court may resolve it without delving into the merits of the petition.
Public Documents — Certified Copies — Admissibility of Chief Registrar's Letter
A letter from the Chief Registrar concerning an advocate's practicing status is a public document; only a certified copy, not a mere or unsigned copy, is admissible under sections 64(4), 75 and 76 of the Evidence Act, and an uncertified contested copy is of no evidential value.
Natural Justice — Right to be Heard — Admission of Contested Evidence
Where evidence pivotal to a decision is introduced from the Bar without proper admission and a party is denied the opportunity to rebut it, the decision offends the rules of natural justice and is void and unlawful.
Commissioner for Oaths — Effect of Non-renewal of Practicing Certificate on Commission
An advocate whose name remains on the Roll does not cease to practice merely because a practicing certificate has not been renewed for a new year; a commission to act as commissioner for oaths terminates only where the advocate is struck off, suspended, or removed from the Roll, and an affidavit commissioned in such circumstances is valid.
Advocates Act s.14A — Remedial Protection of Clients — Inapplicability to Commissioning of Oaths
Section 14A of the Advocates Act protects clients from acts of advocates in legal practice and does not extend to the distinct function of commissioning oaths, which is governed by the Commissioner for Oaths (Advocates) Act; accordingly the remedial provision cannot be invoked where an advocate merely commissioned an affidavit.
Costs — Judicial Discretion in Election Litigation of National Importance
Costs in election litigation are a matter of judicial discretion exercised to indemnify the successful party while ensuring that aggrieved parties are not unjustifiably deterred from seeking redress in a matter of great national importance; where a costs award rests on wrongly admitted evidence it will be set aside.
Memorandum of Appeal — Drafting Requirements — Specificity of Grounds
A memorandum of appeal must, under Rule 86(1) of the Court of Appeal Rules, set forth grounds concisely under distinct heads without argument or narrative; grounds couched in general terms offend the law and may be struck out.

Legislation cited (31)

Cases cited (29)

  • National Insurance Corporation v Pelican Air Services (Civil Appeal No. 13 of 2003)
  • Sietco v Noble Builders (U) Ltd (Supreme Court Civil Appeal No. 31 of 1995)
  • Attorney General v Florence Baliraine (Civil Appeal No. 79 of 2003)
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (Civil Appeal No. 2 of 1998)
  • Kamba Saleh Moses v Namuyangu Jennifer (Election Petition Appeal No. 27 of 2011)
  • Sitenda Sebalu v Sam K. Njuba (Election Petition Appeal No. 26 of 2007)
  • De Souza v Tanga Town Council [1961] EA 377
  • Suubi Kinyamatama Juliet v Sentongo Robinah Nakisirye (Election Petition Appeal No. 92 of 2016)
  • Gadaffi Nassur v Ssekabira (Election Petition No. 16 of 2021)
  • Samuel Sidoro v Abibu Buga Khemis Awadi (Election Petition No. 5 & 6 of 2020)
  • Essaji v Solanki [1968] EA 218
  • Ossiya Solomon v Koluo Joseph Andrew (Election Petition No. 2 of 2021)
  • Kifamunte v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Kamurali Jeremiah v Nathan Byanyima (Election Petition No. 002 of 2021)
  • Ochwa David Vs. Ogwari Polycarp & Electoral Commission
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696
  • Musoke Mike v Kulumba James (Revision Application No. 09 of 2019)
  • Kiiza v Kabakumba Masiko (Election Petition No. 44 of 2016)
  • Winifred Komuhangi Masiko V. Bamukwatsa Betty aka Muzanira Betty & Anor
  • Ridge v Baldwin [1964] AC 40
  • Prof Syed Huq v Islamic University in Uganda (Supreme Court Civil Appeal No. 47 of 1995)
  • Kabogere Coffee Factory v Haji Twalib Kigongo (Supreme Court Civil Appeal No. 10 of 1993)
  • Otim Nape George William v Ebil Fred (Election Petition No. 17 of 2011)
  • Returning Officer Iganga District v Hajji Muluya Mustapha (Election Petition Appeal No. 13 of 1997)
  • George Patrick Kassaja v Frederick Ngobi Gume (Election Petition Appeal No. 68 of 2016)
  • Freda Nanziri Kase Mubanda v Mary Babirye Kabanda (Election Petition Appeal No. 38 of 2016)
  • Akuguzibwe v Muhumuza Mulimira (Election Petition Appeal No. 22 of 2016)
  • Apollo Kantinti Vs Sitenda Sebalu
  • Besigye Kizza v Museveni Yoweri Kaguta (Presidential Election Petition No. 1 of 2001)

Full judgment

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

Nyakecho Annet v Electoral Commission and Another (Election Petition Appeal No. 14 of 2021) [2022] UGCA 378 (18 June 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.