Wakilii

Ossiya v Koluo and Another (Election Petition No. 2 of 2021)

High Court · [2021] UGHCEP 40 · 2021 Petition Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging Parliamentary election result for Toroma County Constituency, struck out on preliminary objection
Decision
Election petition struck out as incompetent

Observed later treatment

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Holding

An election petition accompanied by an affidavit commissioned by an advocate without a valid practising certificate is incompetent and must be struck out. The grace period for renewal of practising certificates extends only to 1 March of each year, not 31 March. An advocate whose practising certificate has expired after the grace period ceases to be a commissioner for oaths and cannot validly commission affidavits. Such invalidity is fatal to the petition and cannot be cured under Article 126(2)(e) or Section 14A of the Advocates (Amendment) Act 2002.

Outcome

Election petition struck out as incompetent

Facts

The petitioner challenged the Parliamentary election result for Toroma County Constituency held on 14 January 2021, in which the 1st respondent was declared winner with 9,179 votes against the petitioner's 8,013 votes. The petition was filed on 15 March 2021 alleging electoral malpractices. The 1st respondent raised a preliminary objection that the petition was incompetent because the petitioner's supporting affidavit had been commissioned on 10 March 2021 by an advocate whose practising certificate had not yet been renewed. The advocate's application for renewal was lodged on 5 March 2021 and the certificate was issued on 19 March 2021. The commissioning therefore took place after the statutory grace period for renewal had expired on 1 March.

Issues

  1. Whether the election petition was validly filed when the supporting affidavit was commissioned by an advocate without a valid practising certificate
  2. Whether the court has power to cure an invalid affidavit under Article 126(2)(e) of the Constitution or Section 14A of the Advocates (Amendment) Act 2002

Orders

  • Petition struck out.
  • Costs awarded to the respondents.

Rules and key headnotes

Electoral Law — Election Petitions — Validity — Affidavit in Support — Commissioning by Advocate Without Valid Practising Certificate
An election petition must be accompanied by a valid affidavit in support as required by Rule 4(8) of the Parliamentary Elections (Interim Provisions) Rules. An affidavit commissioned by an advocate without a valid practising certificate is invalid, and the petition founded on such an affidavit is incompetent and must be struck out.
Civil Procedure — Affidavits — Commissioner for Oaths — Practising Certificate — Grace Period for Renewal
The grace period for renewal of an advocate's practising certificate extends only to 1 March of each year, not to 31 March. An advocate who commissions an affidavit after 1 March without having renewed their practising certificate acts invalidly and commits a criminal act. The commission granted to an advocate to act as a commissioner for oaths ceases when the advocate's practising certificate expires after the grace period.
Civil Procedure — Defects in Proceedings — Cure of Irregularities — Constitutional Power — Article 126(2)(e)
The constitutional power under Article 126(2)(e) to do substantive justice without undue regard to technicalities cannot be invoked to cure the commissioning of an affidavit by an advocate without a valid practising certificate. This is not a mere irregularity but a failure to comply with a statutory requirement, which is fatal to the proceedings.
Civil Procedure — Defects in Proceedings — Advocates (Amendment) Act — Section 14A — Application
Section 14A of the Advocates (Amendment) Act 2002, which protects documents made by advocates who have lost their right of audience, does not apply to save an election petition that is incompetent from the outset due to an invalid supporting affidavit. Courts have no power to extend statutory time limits for filing election petitions, and therefore cannot grant time to file a fresh petition.

Legislation cited (14)

Cases cited (7)

  • Ssubi Kinyamatama Juliet and Others v Ssentongo Robina and Electoral Commission (Election Petition Appeal No. 92 of 2016)
  • Returning Officer Iganga District and Another v Hajji Muluya Mustafa (Civil Appeal No. 19 of 1997)
  • Professor Syed Hug v Islamic University in Uganda (Civil Appeal No. 47 of 1995)
  • Otim Nape George William v Ebil Fred and Another (Election Petition No. 17 of 2011)
  • Kabogere Coffee Factory v Haji Twalib Kigongo (SCCA No. 10 of 1993)
  • Kasaala Growers Cooperative Society v Kakooza Jonathan and Another (Supreme Court Civil Application No. 19 of 2010)
  • Makula International v His Eminence Cardinal Nsubuga (SCCA No. 4 of 1981)

Full judgment

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

Ossiya v Koluo and Another (Election Petition No. 2 of 2021) [2021] UGHCEP 40 (6 September 2021)
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.