Wakilii

Ochwa David v Ogwari Polycarp and Another (Election Petition Appeal No. 16 of 2021)

Court of Appeal · [2022] UGCA 389 · 2022 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the High Court decision dismissing an election petition as incompetent
Decision
Appeal succeeded; dismissal of Mbale Election Petition No. 4 of 2021 set aside and matter remitted to the High Court for trial on the 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 election petition accompanied by an affidavit commissioned by an advocate lacking a valid practising certificate is not incompetent, since the requirement for an accompanying affidavit is created only by the Rules, and the petition itself stated the grounds and facts. The invalidity of the affidavit is a mere irregularity curable under Article 126(2)(e) and section 14A of the Advocates Act. The trial judge erred in dismissing the petition and in refusing rectification. The appeal succeeded; the dismissal was set aside and the matter remitted for trial on its merits, with each party bearing its own costs.

Outcome

Appeal succeeded; dismissal of Mbale Election Petition No. 4 of 2021 set aside and matter remitted to the High Court for trial on the merits

Facts

The appellant, the 1st respondent and four others contested the Member of Parliament seat for Agule County Constituency, Pallisa District, in the general elections held on 14 January 2021. The Electoral Commission declared the 1st respondent the winner with 7,190 votes against the appellant's 6,908 votes, and gazetted him as elected. The appellant petitioned the High Court in Mbale Election Petition No. 4 of 2021, alleging the election was not conducted in accordance with constitutional and electoral law principles. At the hearing, counsel for the 1st respondent raised a preliminary objection based on a supplementary affidavit annexing a letter from the Chief Registrar indicating that the Commissioner for Oaths, Raymond Owokukiroru, who commissioned the affidavit supporting the petition, did not possess a valid practising certificate at the time, having obtained it ten days later on 19 March 2021. The trial judge found the affidavit invalid, held the petition incompetent, declined to allow rectification under section 14A of the Advocates Act, and dismissed the petition with costs.

Issues

  1. Whether grounds of appeal that contained narrative and argument contravened rule 86(1) of the Court of Appeal Rules and should be struck out.
  2. Whether the preliminary objection regarding the invalidity of the commissioning advocate's practising certificate was purely a point of law.
  3. Whether the trial judge erred in admitting the 1st respondent's supplementary affidavit after affidavit evidence had closed, and whether he was biased.
  4. Whether the appellant was denied a fair hearing by not being given opportunity to respond to the supplementary affidavit.
  5. Whether an election petition is rendered incompetent where the accompanying affidavit is commissioned by an advocate without a valid practising certificate.
  6. Whether the trial judge ought to have allowed the appellant to rectify the defective affidavit under section 14A of the Advocates Act.

Orders

  • Ground 10 struck out for contravening rule 86(1) of the Rules of the Court.
  • Ground 1 struck out as abandoned by the inclusion of ground 2.
  • Grounds 2, 4, 5, 6 and 7 dismissed.
  • Grounds 8 and 9 allowed.
  • The decision of the trial judge dismissing Mbale Election Petition No. 4 of 2021 with costs is set aside.
  • The file is remitted to the High Court for trial of the petition on its merits, with the appellant given time to rectify the defect in the accompanying affidavit if the court deems it necessary to proceed by affidavit.
  • Each party shall bear their own costs of the appeal.

Rules and key headnotes

Civil Procedure — Grounds of Appeal — Rule 86(1) Court of Appeal Rules — Argumentative and Narrative Grounds
A ground of appeal must concisely specify the points alleged to have been wrongly decided, without argument or narrative; a general ground that fails to specify any point wrongly decided offends rule 86(1) and is liable to be struck out, but a ground that clearly identifies the point in dispute is not struck out merely because it also contains some factual detail.
Civil Procedure — Preliminary Objection — Pure Point of Law — Requirement of Uncontested Facts
A preliminary objection consists of a pure point of law argued on the assumption that the facts pleaded by the other side are correct; where its determination requires evaluation of evidence beyond uncontested facts in the pleadings, it is improperly raised, but where the underlying facts are admitted and need no further proof, the objection may be disposed of as a point of law.
Civil Procedure — Judicial Bias — Test for Apparent Bias
Bias is not established merely because a judge makes one ruling favourable and another unfavourable to a party on different sets of facts; the test is whether a fair-minded and informed observer would conclude there was a real possibility of bias, and errors of judgment do not amount to bias where reasons for each decision are given.
Electoral Law — Election Petitions — Accompanying Affidavit — Effect of Defect on Competence of Petition
The requirement that an election petition be accompanied by an affidavit is a creature of the Election Petition Rules, not the Parliamentary Elections Act; where the petition itself sets out the grounds and facts, an affidavit commissioned by an advocate without a valid practising certificate is a mere irregularity that does not render the petition incompetent, and the defect may be cured under Article 126(2)(e) of the Constitution.
Electoral Law — Election Petitions — Evidence — Viva Voce Testimony under Section 64 Parliamentary Elections Act
Section 64 of the Parliamentary Elections Act preserves the practice of summoning and examining witnesses as in civil proceedings, and prevails over rule 15(1) of the Election Petition Rules to the extent of inconsistency by virtue of section 18(4) of the Interpretation Act; accordingly, where the affidavit accompanying a petition is defective, the petitioner may adduce evidence viva voce.
Statutory Interpretation — Advocates Act s.14A — Protection of Litigants from Consequences of Advocate Practising Without Certificate
Section 14A(1)(b) of the Advocates Act protects litigants from the consequences of an advocate practising without a valid certificate, imposes no time limit on curing such defects, and requires only that an application to correct be made within a reasonable time; a court should allow rectification of the defect and dispose of the matter on its merits rather than dismiss it.

Legislation cited (36)

Cases cited (21)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Attorney General v Florence Baliraine (Civil Appeal No. 78 of 2003)
  • Sitenda Sebalu v Sam K. Njuba (Election Petition Appeal No. 26 of 2007)
  • Kamba Saleh Moses v Namuyangu Jennifer (Election Petition Appeal No. 27 of 2011)
  • Pontrilas Investments Ltd v Central Bank of Kenya & Another (Reference No. 8 of 2018)
  • Mutembuli Yusuf v Nagwomu Moses Musamba & Electoral Commission (Election Petition Appeal No. 43 of 2016)
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Another (Civil Appeal No. 4 of 1981)
  • Solomon Ossiya v Koluo Joseph Andrew & Electoral Commission (Election Petition No. 2 of 2021)
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 69
  • Major General D. Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • R v. Bertram [1989] OJ No. 2133 (QL)
  • R v. S, Supreme Court of Canada, [1997] 3 SCR 484
  • Theodore Ssekikubo & 4 Others v Attorney General & 4 Others (Constitutional Appeal No. 1 of 2015)
  • Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye & Another (Election Petition Appeal No. 92 of 2016)
  • Bakunda Darlington v Dr Kinyatta Stanley & Another (Civil Appeal No. 27 of 1996)
  • Returning Officer Iganga District v Haji Muluya Mustaphar (Civil Appeal No. 13 of 1997)
  • Professor Syed Huq v Islami University in Uganda (Civil Appeal No. 47 of 1995)
  • Essaji v Solanki [1968] EA 218
  • Kananura Andrew Kansiime v Richard Henry Kajjura (Civil Reference No. 15 of 2016)
  • The Secretary of State for Trade and Industry vs. Langridge (1991) 3 All ER 591
  • Amama Mbabazi v Yoweri Kaguta Museveni & 2 Others (Presidential Election Petition No. 1 of 2016)

Full judgment

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Ochwa David v Ogwari Polycarp and Another (Election Petition Appeal No. 16 of 2021) [2022] UGCA 389 (25 April 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.