Wakilii

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

Court of Appeal · [2022] UGCA 125 · 2022 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court decision dismissing an election petition as incompetent
Decision
Appeal allowed; High Court dismissal set aside and petition remitted to High Court for trial on the merits with leave to rectify the affidavit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that although the affidavit accompanying an election petition, commissioned by an advocate without a valid practising certificate, was invalid, the petition itself was not incompetent because the grounds and facts were fully set out in the petition and could be proved viva voce under section 64 of the Parliamentary Elections Act. The absence of a valid accompanying affidavit was a mere irregularity curable under Article 126(2)(e) of the Constitution and section 14A of the Advocates Act. The trial judge erred in dismissing the petition and refusing to allow rectification. The appeal succeeded and the matter was remitted for trial on the merits.

Outcome

Appeal allowed; High Court dismissal set aside and petition remitted to High Court for trial on the merits with leave to rectify the affidavit

Facts

The appellant, 1st respondent and four others contested the parliamentary seat for Agule County Constituency, Pallisa District in the general elections held on 14 January 2021. The 1st respondent was declared winner with 7,190 votes against the appellant's 6,908 votes. The appellant petitioned the High Court in Mbale Election Petition No. 4 of 2021 challenging the conduct of the election. At the hearing, counsel for the 1st respondent raised a preliminary objection, supported by a second supplementary affidavit annexing a letter from the Chief Registrar showing that the advocate who commissioned the affidavit in support of the petition, Mr Raymond Owokukiroru, did not hold a valid practising certificate at the time, having obtained it days later. The trial judge admitted the affidavit, treated the objection as a pure point of law, held the supporting affidavit invalid, ruled the petition incompetent, declined to allow rectification under section 14A of the Advocates Act, and dismissed the petition with costs.

Issues

  1. Whether the preliminary objection that the affidavit accompanying the petition was commissioned by an advocate without a valid practising certificate was purely a point of law.
  2. Whether the trial judge erred in allowing the 1st respondent to file a second supplementary affidavit after affidavit evidence had closed.
  3. Whether the trial judge was biased in admitting the 1st respondent's affidavit while expunging the appellant's late-served affidavit.
  4. Whether the appellant was denied a fair hearing by not being able to respond to the supplementary affidavit.
  5. Whether the trial judge ought to have called for affidavit evidence from the Chief Registrar and Commissioner for Oaths.
  6. Whether an election petition is incompetent where the accompanying affidavit was commissioned by an advocate without a valid practising certificate.
  7. Whether the defect could be cured under section 14A of the Advocates Act and Article 126(2)(e) of the Constitution.

Orders

  • The decision of the trial judge dismissing Mbale Election Petition No. 4 of 2021 with costs to the respondents is set aside.
  • The file is remitted to the High Court for trial of the petition on its merits and the appellant be 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

Electoral Law — Election Petitions — Competence of Petition Where Accompanying Affidavit Invalid
An election petition is not rendered incompetent merely because the accompanying affidavit was commissioned by an advocate without a valid practising certificate, where the grounds and material facts are fully set out in the petition itself; the missing affidavit is a mere irregularity, not a fatal defect.
Evidence — Affidavits — Commissioning by Advocate Without Practising Certificate
An affidavit commissioned by an advocate who does not hold a valid practising certificate is invalid, but the defect may be cured under section 14A of the Advocates Act and Article 126(2)(e) of the Constitution by allowing the litigant time to make good the defect.
Civil Procedure — Preliminary Objections — When Objection is a Pure Point of Law
A preliminary objection is a pure point of law disposable at the outset only where it rests on uncontested facts in the pleadings; where its determination requires evaluation of evidence beyond such facts, the point should be determined after consideration of the evidence.
Electoral Law — Evidence — Viva Voce Testimony Under Parliamentary Elections Act
Section 64 of the Parliamentary Elections Act permits evidence to be adduced viva voce, and where the affidavit accompanying a petition is defective, the petitioner may give oral evidence; the mandatory affidavit-only procedure in rule 15(1) of the Election Petition Rules cannot supersede the Act.
Civil Procedure — Judicial Bias — Test for Apparent Bias
A judge who makes two differing rulings on distinct sets of facts and provides reasoned justification for each does not thereby exhibit bias; the test is whether a fair-minded and informed observer would conclude there was a real possibility of bias.
Civil Procedure — Grounds of Appeal — Rule 86(1) Court of Appeal Rules
A ground of appeal must concisely specify the point alleged to have been wrongly decided without argument or narrative; a ground that fails to identify any specific error and is used as a general fishing expedition offends rule 86(1) and will be struck out.
Statutory Interpretation — Mandatory vs Directory Provisions — Breach Treated as Irregularity
Breach of a procedural or formal statutory requirement may be treated as a mere irregularity where the departure is trivial, no substantial prejudice is suffered, and holding it mandatory would cause serious inconvenience or defeat the overall purpose of the enactment.

Legislation cited (31)

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 v Namuyangu Jennifer (Election Petition Appeal No. 27 of 2011)
  • Pontrilas Investments Ltd v. Central Bank of Kenya & Another, East Africa Court of Justice Ref 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)
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Ssekikubo & Others v Attorney General & Others (Constitutional Appeal No. 1 of 2015)
  • Solomon Ossiya v Koluo Joseph Andrew & Electoral Commission (Election Petition No. 2 of 2021)
  • 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 Islamic University in Uganda (Civil Appeal No. 47 of 1995)
  • Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye & Another (Election Petition Appeal No. 92 of 2016)
  • 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 v. Langridge (1991) 3 All ER 591
  • Amama Mbabazi v Yoweri Kaguta Museveni & 2 Others (Presidential Election Petition No. 1 of 2016)
  • R v. Bertram [1989] OJ No. 2133 (QL)
  • R v. S, Supreme Court of Canada, [1994] 3 SCR 484

Full judgment

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Ochwa v Ogwari and Another (Election Petition Appeal No. 16 of 2021) [2022] UGCA 125 (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.