The Returning Officer,Iganga District and Another v Haji Muluya Mustaphar (Civil Appeal No 13 of 1997)

Observed later treatment

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 section 96(1) confers no right of appeal against an interlocutory decision in an election petition, but the trial here had been completed on the merits so the appeal was competent. On the merits, the court held that the Advocates Act and the Commissioners for Oaths (Advocates) Act must be read together: an advocate who fails to obtain a practicing certificate in a given year ceases to practice and his commission terminates. An affidavit commissioned by such an advocate is invalid. As the supporting affidavit was commissioned by an advocate without a 1996 practicing certificate, the petition was incompetent. The appeal was allowed and the High Court judgment set aside.

Outcome

Appeal allowed; High Court judgment set aside; petition rendered incompetent

Facts

The respondent, having lost the parliamentary election in Bunya East Constituency, petitioned against the successful candidate, alleging the candidate lacked the minimum educational qualifications, that elections were marred by malpractices, and that he was not duly nominated. The petition was supported by the respondent's affidavit sworn on 26 July 1996 before Mr. Akampurira, stated to be a Commissioner of Oaths. The appellants raised a preliminary objection that the affidavit was commissioned by an advocate who did not hold a valid practicing certificate for 1996. The trial judge overruled the objection, held that the Advocates Act and the Commissioners for Oaths (Advocates) Act were to be interpreted separately, and proceeded to hear and allow the petition, setting aside the election on grounds that the elected candidate lacked the required educational qualifications and was not duly nominated. The appellants appealed.

Issues

1. Whether an appeal lies to the Court of Appeal against an interlocutory decision of the High Court in an election petition under section 96(1) of the Parliamentary Elections (Interim Provisions) Statute 1996.
2. Whether an affidavit commissioned by an advocate who lacks a valid practicing certificate is valid.
3. Whether the petition was competent in light of the supporting affidavit.

Orders

• Appeal allowed.
• Judgment and orders of the High Court set aside.
• Each party to bear its own costs in the Court of Appeal and in the court below.

Rules and key headnotes

Legislation cited (9)

• Parliamentary Elections (Interim Provisions) Statute 1996 s.96(1)
• Parliamentary Elections (Interim Provisions) Statute 1996 s.93(2)
• Parliamentary Elections (Interim Provisions) Statute 1996 s.42
• Parliamentary Elections (Election Petitions) Rules 1996 r.13(1)
• Parliamentary Elections (Election Petitions) Rules 1996 r.13(2)
• Commissioners for Oaths (Advocates) Act Cap 53 s.2(1)
• Commissioners for Oaths (Advocates) Act Cap 53 s.2(4)
• Advocates Act
• Civil Procedure Rules Order 40

Cases cited (3)

• Bakunda Darlington v Kinyatta and Another (Civil Appeal No. 27 of 1996)
• Margaret Zziwa v Catherine Naava Nabagesera (Parliamentary Election Petition Miscellaneous Application No. 9 of 1996)
• Kabogere Coffee Factory v Haji Twalibu Kigongo (Supreme Court Civil Appeal No. 10 of 1993)

Cases citing this judgment (6)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Ossiya Solomon Alemu v Koluo Joseph Andrew and Another (Election Petition Appeal No. 15 of 2021)
• Ochwa v Ogwari and Another (Election Petition Appeal No. 16 of 2021)
• Ochwa David v Ogwari Polycarp and Another (Election Petition Appeal No. 16 of 2021)
• Apama Amato v Obiga Kania and Anor (Election Petition No. 2 of 2021)
• Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye and Another (Election Petition Appeal No. 92 of 2016)
• Maji Real Estates (U) Limited & Anor v Aulogo Cooperatives Savings and Credit Society Limited, Adjumani (MISCELLANEOUS CIVIL APPLICATION No. 0028 OF 2017)

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