THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANOA AT KAMPALA

(Coram: Elizabeth Musoke, Muzamiu M. Kbeedi and Monica K. Mugenyi, JJA)

ELECTION PETITION APPEAL NO. OO23 OF 2O2I

s KATOTO HATWIB APPELLANT

VERSUS

1. KATOMUHAMMED 1

2. ELECTORAL COMMTSSTON I RESPONDENTS

[Appealfrom the judgment of the High Court of Uganda at Mbarara (Kazibwe Kawumi, J) in
10 Election Petition No. 004 of 2021 delivered on the 21't day of September 2021)

JUDGMENT OF THE COURT

BACKGROUND

This appeal arises from the Ruling of Hon. Justice Moses Kazibwe Kawumi (trial judge)
15 delivered on the 21.t day of September 2021 striking out Mbarara High Court Election Petition

N0.004 of 2021 on a preliminary point of law.

The background facts leading to the above Petition as established by the trial judge were that

the appellant, the 1st respondent and four others contested for the seat of Member of Parliament

for Katerera County Constituency in Rubirizi Electoral District during the General Elections that
20 were held in Uganda on 14th January 2021.The 1't respondent was declared the successful
candidate with a winning margin of 2,911 votes, having obtained 12,213 votes, while the
appellant was the runner up having garnered 9,302 votes. The election results were published in

the Uganda Gazette of the 17m day of February 2021 by the 2,0 Respondent

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 The appellant was dissatisfied with the election results and filed Election Petition No. 004 of

25 2021 in Mbarara High Court against the 1st and 2nd respondents seeking to nullify the said
election results on the ground that the 1.t respondent was not validly nominated and elected

since at the time of his nomination and subsequent election he lacked the requisite academic
qualifications prescribed for a Member of Parliament. The appellant also alleged that there was

noncompliance with the electoral laws and principles which affected the result of the election in a

30 substantial manner. The alleged non-compliance included multiple voting, ballot stuffing,
intimidation of voters with guns and sticks and the 1't respondent's alleged printing and

displaying of posters with the name "J(ATOTO" to mislead voters as he passed off as

"KATOTO HATWIB', the appellant.

Lastly, the appellant alleged that the 1st respondent bribed voters with an obstetric machine

35 (scan) which he donated to Katerera Health Center and an electric pole at Katerera Town

Council.

Each one of the respondents denied the claims in their respective Answers to the Petition.

At the trial, the respondents raised three Preliminary Objections of law relevant to this appeal.

The first was to the effect that the appellant had filed nine Affidavits out of the time granted by

40 court without leave to the prejudice of the respondents. The second was that the appellant's
Affidavits filed on 8th August 2021 were illegally on the court record because they introduced

new matters that were not pleaded in the Petition and the appellant's Affidavit Accompanying the

Petition (Principal Affidavit). The third objection was that there was no valid and competent
Petition before court as the Principal Afiidavit was commissioned by a Commissioner for Oaths

45 whose Practicing Certificate as an advocate had, at the material time, expired.

ln response, Counsel for the appellant invited the trial court to disregard the preliminary

objections and have the Petition set down for trial on its merits.

ln his Ruling, the trialjudge upheld the first objection and struck out the nine Affidavits for having

been filed out time.

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50 Regarding the second objection, the trial judge held that the introduction of new matters in the

Appellant's Affidavits filed in court on 09th August 2021 amounted to departure from the

pleadings and the court would expunge the offending paragraphs from the Affidavits.

As for the third objection, the trial judge found that the Principal Affidavit was defective for having

been commissioned by a Commissioner for Oaths without a valid Practising Certificate which

55 rendered the Petition itself a nullity for being unsupported by an Affidavit in the terms of Section

60 of the Parliamentary Elections Act No. 17 of 2005 (PEA) and Rules 3(C) and 4(8) of the
Parliamentary Elections (lnterim Provisions) Rules, S.l. No. 141 -2 (the Election Petitions Rules).

The kial judge held that the nullity could not be resuscitated by Section 14A of the Advocates

Act. He accordingly struck out the Petition with orders lhal"a Certificate of cosls fortwo Counsel

60 is awarded lo Counse/ for the first respondent who shall be paid 80% of taxed costs [while] the

2n0 respondent shall be paid 20% of the laxed cosls.'

The Appellant was dissatisfied with the Ruling and Orders of the trial court and appealed to this

court on the five grounds set out in the Memorandum of Appeal as follows:

1. The Learned Tial Judge erred in law and fact when he expunged the Appellant's nine

65 affidavits for having been filed out of time hence occasioning a miscariage of justice,

2. The Learned Trial Judge erred in law when he held thaf Sectlon 14A of the Advocates
(Amendment) Act, 2002 is not applicable in Election Petitions and thereby struck off the

Appellant's affidavit for having been commissioned by an advocate without a valid practicing

certificate hence occasioning a miscaniage of justice.

70 3. The leamed Tial Judge erred in law and fact when he awarded a certificate of cosls of lwo

Counsel with no reason advanced at all for the same,

4. The learned Trial Judge ened in law and fact when he abdicated his duty of evaluating allthe

evidence on the Couft record.

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 5. The learned Trial Judge ened in law and fact when he wrongfully severed the appellant's

75 affidavits for allegedly depaling from the petition.

REPRESENTATION

At the hearing, the appellant was represented by Hon. Medard Lubega Ssegoona and Ms. Annet

Nalubowa. The 1sr respondent was jointly represented by Messrs. Ronald Tusingwire, Emos

Masiko and Sadam Solomon. Mr. Akachimpa Godfrey held brief for Mr. Godfrey Mwebesa, the

80 second Counsel of the 1st respondent. The 2no respondent was represented by Mr. Honest
Baguma. Leave was granted to the parties to adopt, as their submissions, their respective

Written Submissions/Conferencing Notes which had already been filed on the court record.

APPELLANT'S WRITTEN SUBMISSIONS

Counsel for the appellant argued the five grounds separately starting with ground No. 2, then 3,

85 4,5 and 1 respectively.

Regarding ground two, Counsel submitted that the trial judge having found that the advocate

who commissioned the Principal Affidavit did not have a Practicing Certificate at the time he

commissioned the Principal Affidavit, erred to have held that the Petition was a nullity and could

not be resuscitated under Section '14A of the Advocates Act. Counsel argued that Section 14A

90 of the Advocates Act was coined and meant to protect innocent litigants from Advocate's

mistakes. Counsel invited Court to take judicial notice of the fact that a litigant will hardly inquire

from an Advocate if the particular Advocate has a valid certificate. According to Counsel, that is

the business of the Courts and the Law Council. Counsel submitted that to say that litigants who

engage Advocates without a practicing certificate do so at their peril is harsh because the

95 majority of the lay people do not know which Advocate is not entitled to practice.

Counsel further submitted that the documents drawn by an Advocate without a practicing

certificate should not be regarded as illegal and invalid simply because the Advocate had no

valid practicing certificate when he drew or signed such a document, For this submission,

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 Counsel referred to the case of Attorney General & Hon. Nvombi PeterVs Uqanda Law Societv,

1oo Mlsc. Cause N0.321 of 2013 where it was held that because of Section 14A of the Advocates

Act, the disqualification of an advocate without a valid practicing certificate, or an Advocate

whose conduct violates the law including client confidentiality and conflict of interest or any other

legal mafter does not invalidate the proceedings.

Counsel further invited this Court to follow its decision in Suubl Knyamatama Vs Robinah
10s Ssentonqo Election Petition Appeal N0.0092 of 2016 where this Court is stated to have held that

a document commissioned by an advocate without a practicing certificate could be cured by

allowing the affidavit to be recommissioned pursuant to Section 14A of the Advocates Act.

Counsel concluded this ground by praying to this Court to find that the Learned Trial Judge erred

in law and fact when he held that Section 14 A of the Advocates is not applicable in Election
110 Petitions and thereby struck out the Principal Affidavit for having been commissioned by an

advocate without a valid practicing certificate.

On ground three, Counsel faulted the Trial Judge for awarding a certificate of costs of two
Counsel without giving a reason for doing so. Counsel submitted that the determination by court

of whether a case is one fit for a certificate of two advocates is dependent upon the appreciation

115 by the Court of the nature of the application. For this submission Counsel relied on the case of

Pallock House Ltd Vs NairobiWholesalers Ltd. (NO.00Z t1%2l E.A. 172, and Rule

41 (1) of The Advocates (Remuneration and Taxation of Costs) Rules, S.l. No. 267- 4

Further, that each case depends on its own facts, and one must consider them all and

remember that there are times when engagement of two advocates by a party can be a luxury

720 for which an opponent should not be made to pay or, in some cases it is proper to do so and that

the Court may have every assistance possible in a difficult case in arriving at a proper
conclusion. For this submission Counsel relied on the case ol ln re WT Potts, Ex pale Epstein

Vs The Trustee and the Bankrupt, t19351 1 Ch 334,341.

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 Counsel argued that the instant petition did not meet the criteria for award of a Certificate of

725 Costs for two Counsel as the appellant challenged the nomination and election of the 1s
respondent and led evidence through his agents in the form of af{idavits that were filed before

Court. That when the matter came up for hearing, the Respondent's Counsel raised preliminary

objections which disposed of the Petition. That the Respondent's Counsel did not go through the

strenuous litigation process of cross examination of the appellant's witnesses.

130 Further, that the Preliminary Objections raised by the 1st respondent's Counsel could have been

raised by one of them and would still have achieved the same effect it did.

Lastly that there was no difficulty in the case before the trial court.

Regarding ground four, Counsel faulted the trialjudge for abdicating his duty of evaluating all the

evidence on the record of court. Counsel argued that even after the finding by the Trial Judge

135 that the Principal Affidavit was not properly commissioned and striking out the same, he was left

with 41 affidavits that were on record which he could rely on to establish whether the Appellant

had proved his case. For this submission, Counsel relied on the provisions of Rule 4 (8) of the

Election Petitions Rules which provides that the Petition shall be accompanied by an affidavit

setting out the facts on which the Petition is based together with a list of any documents on
740 which the Petitioner intends to rely. That the said rule does not suggest that the Affidavit that

accompanies the Petition should be that of the Petitioner. That indeed the Rule is silent on the

same. Counsel argued that Rule 4 (8) of the Election Petitions Rules in providing that the
Petition shall be accompanied by an affidavit setting out the facts on which the Petition is based,

did not restrict the same to the Petitione/s affidavit As such, argued Counsel, the Supporting
145 Affidavit can be any of the affidavits in the Petition. Counsel invited this court to adopt the

holding in the case of Wicks V. DDP (1947) A.C 362 where it was held that the words of a
Statute must be interpreted according to their literal meaning and sentences according to their
grammatical meaning. That if the words of the Statute are clear and unambiguous and complete

on the face of it, they are conclusive evidence of the legislative intention.
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150 Counsel further argued that in the instant case, if the framers of the law had intended to restrict

the Affidavit Accompanying the Petition to being made by the Petitioner only, they would have

clearly stated so, But the failure to state that an affidavit must be sworn exclusively by the
petitioner was intentional. Counsel prayed that this Court does find so.

Regarding ground five, Counsel faulted the trial judge for severing the appellant's affidavits for

1ss allegedly departing from the matters pleaded in the Petition. Counsel submifted that since Rule

15 (1) of the Election Petitions Rules provides that 'al/ evidence in election litigation in favour of

or against a petition at the trial shall be by way of affidavits read in open Courf , then affidavits
are part of the pleadings in an Election Petition. As such, Court erred to isolate the Petitioner's

affidavits from the Petition in determining the Preliminary Objection. For this submission Counsel

160 invited this court to follow the decision of this court in Chebrot Steven Chemoiko Vs Sovekwo

Kenneth & ElectoralCommission, Election Petition Appeal No.0056 of 2016.

Counsel concluded this ground by inviting this Court to find that the Learned Trial Judge erred in

law when he wrongfully severed the appellant's affidavits for allegedly departing from the
Petition.

165 Counsel submitted on ground one last. Counsel faulted the Trial Judge for expunging the

appellant's nine affidavits for having been filed out of the time which occasioned a miscarriage of
justice. Counsel submitted that the reason given by the Trial Judge that the affidavits filed out of

time without leave of Court were prqudicial to the Respondents was not valid as the parties had
just conducted the Pre-trial Scheduling and the Petition had not yet been heard by the Trial

170 Judge.

Counsel further submitted that the delay to file the Affidavits was attributable to the expertise

needed to transcribe and transfer the videos or the evidence on the CD from Muhwezi Edson's
phone. Counsel invited us to follow the decision of this Court in Tamale Julius Konde Vs

Ssenkabuoa lsaa and ElectoralCommission, Election Petition No. 75 of 2016 where it was held

L7s that:

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 'since it ls somelrrnes praclically not possrb/e to file all the affidavits in support of the
petition at the same time as the petition, as /ong as the additional affidavits are filed
before the scheduling anference is conducted, it's usually acceptable as no prejudice
would be occasioned to the Respondent even if no leave of Coul is obtained.'

180 As his final submission Counsel prayed that this court be pleased to find that the Appellant has
proved his case and that the appeal be allowed with costs to the Appellant.

1
ST RESPONDENT'S SUBMISSIONS

Counsel submitted on each ground separately in the order in which they were laid out in the

Memorandum of Appeal.

185 Concerning ground one, Counsel submitted that the Trial Judge did not err in law or fact when

he expunged the Appellant's nine additional affidavits for having been filed out of time and that

there was no miscarriage of justice occasioned upon the appellant as claimed.

Counsel stated that when the matter came up for scheduling on 19tt August 2021, the

Appellant's Counsel sought, and was granted leave of Court to file and serve five additional

190 af{idavits within a period of one week. Counsel for the 1't Respondent informed Court that they

intended to reply to the said affidavits once filed. The matter was then adjourned to 20th, 21s',

22n0 and 23,0 of September 2021 for hearing. However, the Appellant filed nine affidavits on 16th

of September 2021 which was close to one month outside the set timelines and never served
the same on the 1$ Respondent.

195 That the reason given to the trial court by the appellant's Counsel was that the late filing of the

afiidavits was due to the nature of the evidence and the absence of the Appellant's Lead
Counsel, Hon. Medard Lubega Ssegoona, who had many engagements. Counsel argued that

allowing the affidavits on record of Court would have greatly caused a miscarriage of justice onto

the Respondents who did not have an opportunity to respond to the same and would have
200 completely distorted the schedule of hearing of the Petition as set by the Trial Judge. Counsel

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 supported the trial judge's decision and relied on the decision of this court in Election Petition

Appeal No.82 of 2016, Muvania Lutaaya Vs Kenneth Lubogo & Another.

Counsel further submitted that Election Petitions must be handled expeditiously, and parties are

under an obligation to comply with the directives set by Court. That Article 140 (1) of the
205 Constitution and Section 63 (2) of the PEA require Trial Judges to hear and determine Election

Petitions expeditiously and, accordingly, the Trial Judge's decision to expunge the affidavits filed

outside the prescribed time without leave of Court was in line with this requirement. Counsel

relied on the case ot Election Petition Appeal No. 97 of 2016, Klbekelerya James Vs Waira

Kyen alabve & Anor where this court is stated to have em phasized the statutory obligation on the

2to part of court to handle Election Petitions expeditiously.

Counsel further contended that the timelines within which to file the affidavits were Court
directives which the Appellant had to comply with. That court directives are Court Orders and not

mere technicalities and must be complied with. That failure to comply with the same cannot be

cured by Article 126(2)(e). For this contention, Counsel referred lo Civil Application 109 of 2004,

zts Amrit Goval v Harichand Goval and 3 Ors.

Counsel prayed that this Court finds that the Learned Trial Judge rightly expunged the

Appellant's nine affidavits for having been filed out of time and, accordingly, dismiss ground one.

On ground two, Counsel supported the Trial Judge's decision to strike out the Principal Affidavit

for having been commissioned by an advocate without a valid practicing certificate. Counsel also

220 supported the holding of the Trial Court that Section 14A of the Advocates (Amendment) Act,

2002 was not applicable in Election Petition since evoking the same would amount to extending

time for the Appellant to bring a new Petition.

Counsel submitted that an Affidavit in support of the Petition commissioned by an advocate

wrthout a valid practicing certificate is invalid and cannot be relied on by a Court. For this

225 submission Counsel relied on Civil Appeal No. 27 of 1996 Bakunda Daiiwlotv Dr. Knvafta

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 Stanlev and Another and Civil No. 13 of 1997 The Retumin o I and another

v Haii Muluva Mustaphar,

Counsel further submitted that a Petition filed without a Petitioner's affidavit in support is

incompetent, filed contrary to the laws and illegal. For this submission, Counsel relied on Rule

230 3(c) of the Election Petitions Rules where it is provided that a Petition includes an affidavit
required by the rules to accompany the Petition, and Rule 4 (8) of the Election Petitions Rules

where it is a requirement of the law for an Election Petition to be accompanied by an affidavit for

it to be validly filed. lt was Counsel's argument that Election Petitions are governed by specific
legislations which prescribe the mode of presentation of the Petition and the timelines. That as

235 such, Court has a duty to ensure that the Election Petition laws are strictly complied with by the
parties and that Court has no powers to extend the statutory timelines set. That by allowing the

Appellant to file a new Petition supported by a valid affidavit pursuant to Section 14A of the

Advocates Act the Trial Judge would be exercising powers to extend time within wttich to file the

Petition which the Court did not have. For this position, Counsel relied on the decision of Rao

240 and others, (1956)1 MLJ 40 cited with a pproval by the Supreme Court of Uganda in Clvil
Miscellaneous Application 1 of 2021. Kvao ulanvi Ssentamu Vs Yoweri Museveni Tibuhaburwa

and 2 Others.

Counsel reiterated his submission that Section 14A of the Advocates Act does not apply to
Election Petitions as its application would be in contravention of the timelines set by the electoral

245 laws. Further, that the Trial Judge was justified to hold that any attempts to invoke Section 14A

would imply that Court is extending time for the Petitioner to bring a fresh Petition beyond the

statutory time limit set by Section 60 (3) of the PEA which mandate the court did not have.

Counsel invited us to follow the decision of this Court in Election Petition Appeal No. 92 of 2016,

Suubi Knvamatama Juliet v Sentonqo Robinak Nakasirye andEleolptaLQonna where an

250 affidavit commissioned by a Commissioner for Oaths without a valid Practicing Certificate was

held to be invalid and that the Petition in the said appear havins been valid

Accompanying Affidavit was held to have been:

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 "illegally filed in Cout in contravention of Sectlon 60 of the Parliamentary Eledions Act
and Rules 3(C) and 4(8) of the Parliamentary Elections (nteim Provisions/ Rules and
255 therefore co//apses with the affidavit in suppol ...'

Counsel prayed that this Honorable Court be pleased to dismiss ground 2 of the appeal.

Regarding ground three, Counsel supported the trial Court's decision to award a certificate of

costs for two Counsel. Counsel submitted that at the trial the 1,r Respondent was represented by

two law firms namely: M/S Ortus Advocates and M/S Obed Mwebesa & Associated Advocates.

260 That the Court Record shows that the 1,t Respondent's Affidavits in reply to the Petition were
jointly drawn and filed by [,'l/S Ortus Advocates and M/S Obed Mwebesa Associated Advocates.

Further, even when the cases were called for hearing before the trial judge on 19th August

2021and 20th September 2021 lhe 1d Respondent was represented by advocates from Ms.

Obed Mwebesa & Associated Advocates, and Ms. Ortus Advocates. Counsel argued that
265 Regulation a1 (1)of theAdvocates (Remuneration and Taxation of costs)Regulations, S.1. No.

267- 4 empowers the Trial Court to issue a certificate of two Counsel having regard to the
importance and difficulty of the case. Counsel argued that Election Petitions are an important

aspect in our electoral cycle and in the promotion of democracy. That given the nature of
evidence adduced by the parties as reflected in the Record of Appeal, it was reasonable and

270 prudent for the 1s Respondent to engage two law firms to collect evidence, draft Affidavits in

answer to the Petition, undertake extensive research and represent him in Court and to assist

Court in determining the Petition. Counsel relied on Mutembuli Yusuf v Nanqomu Moses
Musamba and the Electoral Commission Election Petition Appeal No. 43 of 2016 where this

Court is stated to have held thus: - 'Ihe voluminous nature of the Record of Appeal gives us a

775 clue on the involvement of Counsel in the lower Couft and the attendant research related
thereto. We find no reason and cannot therefore, fautt the learned Trial Judge for awarding a
ceftificate of two Counsel to the l't Respondent who had engaged two law firms to tackle to

arduous tasks involved.'

Counsel prayed to this Court to find no merit in this ground and accordingly dismiss it.
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280 Regarding ground 4, Counsel submitted that the Trial Judge cannot be faulted for not going

ahead to evaluate the appellant's evidence upon upholding the preliminary objection that the

Petition was incompetent. That upon the trial court making the said finding, the Appellant's

Petition automatically mllapsed, and this disposed of the Petition leaving no obligation on the

Trial Judge to evaluate evidence in support of an incompetent Petition. For this submission,

285 Counsel relied on the case of The Returninq officer, loanoa and another v Haii Muluva
Mustaphar (supra)where this Court is stated to have held that: -

"Having found as a fact that Mr. Akanpuira drd not possess a valid practicing ceiificate
when he commissioned the affidavit of Hajji Muluya Mustaphar on 26th July 1996, the
leamed tial judge ought to have held that it was invalid following the decision of this
290 court in Bakunda Darling-ton Vs Dr. Knyatta (supra) which is binding on the High Court.
Had the leamed tial judge accepted the above decision, she would have held that the
affidavit of Hajji Muluya Mustaphar commrssioned by Mr. Akampuira on the 26th July
/996 was invalid and therefore that the petition was incompetent. That would have
disposed of the petition."

295 Counsel prayed that this court finds the appellant's complaint in ground four to be baseless and

accordingly dismiss it.

Concerning ground five, Counsel supported the Trial Judge's decision to sever the Appellant's

affidavits on account of departure from the Petition. Counsel submitted that a Petitioner in an

Election Petition must, when filing an Election Petition, have knowledge and the basis of the

300 grounds of the Petition and must expressly lay them down in the Petition with their particulars.

For this submission, Counsel relied on the decision in Election Petition Appeal No. 14 & 16 of

2011 Mbaqadhi Fredrick & Another Vs, Dr. Nabwiso Frank.

That in the instant mafter, the grounds of the Petition were set out to be : The 1st Respondent did

not have the requisite academic qualifications at the time of nomination and election; the
305 election was not conducted in accordance with the electoral laws, Commission of the electoral

offences of giving a bribe in form of a scan to Katerera Health Centre and an electric pole to

Kabaseke; that the Presiding Officers employed by the Ino Respondent allowed armed men to

tick more than one ballot paper and stuffed them in the ballot boxes; and that the Presiding

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 Officers employed by the lno Respondent allowed multiple voting. Counsel submitted that the

310 Appellant was bound by these grounds and had a duty to adduce evidence in support of the

same and could not be permitted to file affidavits introducing new grounds. For this submission

Counsel relied on the decision of the Sup reme Court in lntefreiqht Forwarders (U) Limited Vs

East African Development Bank (CivilAnpealNo.33 Of 1992] t19931UGSC 16 .

Counsel also relied on the decision of this court in Mutembuli Yusuf Vs Nanoomu Moses

31s Musamba and the Electoral Cornmissron, Election Petition Appeal Ns 43 of 2UO al page 12
where in this Court is stated to have held that: -

"lf we consider the Petition and reply thereto in an election petition to const/ute
pleadings, then a petitioner is not permifted to introduce fresh lssues or to change the
subslance of his or her claim by introducing new matters by way of affidavits in
320 rejoinder. A paly cannot adduce evidence in resped of a matter not pleaded. Affidavits
are considered purely as evidence and as such they can only contain what has already
been pleaded.'

Counsel invited this court to dismiss ground five of the Appeal.

Counsel concluded by submitting that all the appellant's grounds of appeal were without basis in

325 law and fact. As such Counsel prayed that this court be pleased to uphold the Judgment of the

Learned Trial Judge and dismiss the Appeal with costs.

2ND RESPONDENT'S SUBMISSIONS

The substance of the 2no respondent's submissions was not fundamentally different from that of

the 1st respondent. As such, we found it not necessary to reproduce the same.

330 THE APPELLANT'S REJOINDER

ln the rejoinder to ground one, Counsel for the appellant submitted that the law, including Rules

4(8) and 15 of the Election Petitions Rules, does not stipulate that all affidavits intended to be
relied upon by the Appellant have to be filed within the restricted time. Counsel invited this Court

to follow its holding in the case ol Akuquzibwe Lawrence Vs MuhM

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33s No.22 of 2016 and Tamale Julius Konde Vs Ssenkubuoe lsaac and Electoral Commrcslon

Election Petition Appeal No.75 of 2016, where it was held that affidavits filed before schedulin g

are acceptable as no prejudice would be occasioned to the Respondent even if no leave of the

Court is obtained.

Counsel further submitted that courts have adopted a liberal approach to the filing of supporting

340 affidavits in Election Petitions because elections concern the general public. For this submission

Counsel referred to the case ol Kzza Besnve Vs Yoweri Museveni Kaquta PEPE No.001 of

2001.

ln respect of ground two, Counsel submitted that even if the laws governing Election Petitions
have stringent rules, they do not exist in a vacuum. That from the Supreme Court decision in

34s Sltenda Vs Niuba and Anor (E, lection Petition Aooeal 26 of 2007lhe purpose and intention of the

legislature in enacting the PEA was twofold: First, to ensure, in the public interest, that disputes

concerning election of people's representalives are resolved without undue delay. Second, by

setting up an elaborate system for judicial inquiry into alleged electoral malpractices, and for

setting aside election results found from such inquiry to be flawed on defined grounds, the

350 legislature also intended lo ensure, equally in the public interest, that such allegations are
subjected to fair trial and determined on merit.

Counsel argued that this being an Election Petition where the decision of Court would affect so

many people in the society, Court ought to have taken a liberal approach and allowed the
Appellant time to recommission his affidavit before the said Fabian Aogon who, by the time the

355 trial took place, had renewed his Practicing Ceffficate for that year.

Concerning ground three, Counsel submitted that the authority of Mutembuli Yusuf buprd is

distinguishable from the facts at hand since the Learned Trial Judge in that case gave his

reasons for awarding a certificate of costs to two Counsel unlike in the instant Petition where the

Learned Trial Judge did not advance any reasons at all. Counsel referred to the case of the

360 CommissionerGeneral anda Revenue Vs Meera lnvestments Ltd Ci eal 22

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 of 2007 where the Supreme Court faulted the Court of Appeal for awarding a certificate of two

Counsel without giving the reasons for doing so.

As regards ground 5, Counsel submitted that the Affidavits in support of an Election Petition,
though depositions, form part of the pleadings. For this submission Counsel cited Rule 3 (e) of

365 the Elections Petitions Rules.

Accordingly, Counsel argued that the additional Affidavits filed on 09th August 2021 in support of

the Petition are part and parcel of the pleadings of the appellant and only elucidated on the
grounds as set out in the Petition, particularly paragraphs 5 to 10 of the Petition.

Counsel reiterated their prayer that this Court allows the Appeal with costs in this Court and the

370 Court below.

CONSIDERATION BY THE COURT

As a first Appellate Court, the duty of this Court in an appeal of this nature is to re-appraise the

evidence before the Trial Court and draw its own inferences of fact while making allowance for

the fact that it did not have the opportunity enjoyed by the Trial Court of seeing or hearing the

375 witnesses testify. See Rule 30(1) of the Judicature (Court of Appeal) Rules S.l 13-10,

Pandva Vs R t1957 I EA 33 6. and lhe Executive Director of National Environmental

Manaqement Authoritv NEMA) Vs So/ld State Limited, Supreme Cout Civil Appeal N0.15 of

201Sfunreooted)

It is with the above principles in mind that we now proceed to consider and resolve the grounds

380 of appeal in the order in which they were set out in the Memorandum of Appeal

Ground One

Ground one was couched as follows:

"The Leamed Tial Judge erred in law and fact when he expunged the Appellant's nine
affidavits for having been filed out of time hence occasioning a miscaniage of !)ty'
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385 ln their submissions, Counsel for the appellant faulted the trial judge for striking out the
appellant's nine Affidavits filed out of the time granted by court notwithstanding that the late filing

was not preludicial to the Respondents as the hearing by the trial court had not yet commenced.

Counsel attributed their delay to file the impugned Affidavits in court to the expertise needed to

transcribe and transfer the evidence from the phone of a one Edson Muhwezi before they could

390 reduce the said evidence into Affidavit Form for filing in court. The second reason for the delay

was the tight schedule of the Lead Counsel.

Counsel for the 1't respondents did not agree. They contended that there was no valid reason

advanced by the Appellants to account for their failure to comply with the Court Directives
intended to expeditiously dispose of the Petition as prescribed by the law. That under the said

395 Court Directives, the appellants had been granted leave to file only five Affidavits within Seven

days. lnstead, they were not only late in their filing by about one month, but also filed nine
Affidavits instead of the five for which they had been granted Court leave. That this was greatly
prejudicial to the Respondents as it denied them an opportunity to respond to the same and

would completely distort the schedule of hearing of the Petition as set by the Trial Judge.

400 We have closely studied the record of the trial court. The matter first came up before the Trial

Court on 19th August 2021 for scheduling. But the Scheduling could not take place as Counsel

for the Appellant informed Court that he needed one week to file five more Affidavits. Further,

that after the filing of the responses from the Respondents, Counsel for all the parties would
meet in Kampala and generate a Joint Scheduling Memorandum. Court granted the appellant's

405 request and fixed the Petition for hearing on four consecutive days starting on 20th September

2021 lo23,o September 2021.

The seven days' period within which the appellant was supposed to file and serve the five
Affidavits ended on 26th August 2021 without the appellant fulfilling his obligation. lnstead, the

contested Affidavits were filed in Court on Thursday 16th September 2021 and served on only

410 the 2no Respondent on Friday 17th September 2021 al around 3PM. However, before the expiry

of the seven days, Mr. Ronald Tusingwire, one of the Counsel of the 1.t respo n ent, made

75 of 36

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 phone calls to the Appellant's Lead Counsel on several different occasions reminding him about

the time that was running out and the need for them to meet to work on the Joint Scheduling
Memorandum. Upon request of the Appellant's Lead Counsel, Mr, Tusingwre sent him several

475 email addresses to which to send whatever documents that he had prepared and the Joint

Scheduling Memorandum. By the time the Court reconvened on 20th September 2021, the

Appellant's Counsel had neither served him the Afiidavits nor emailed to him the intended Joint

Scheduling Memorandum for his input. But to ensure that the 1il Respondent was not prqudiced

by the inaction on the part of the Appellant's Counsel, Counsel for the 1st Respondent went
420 ahead to file 28 Affidavits on behalf of the 1s Respondent on Friday 17'h September 2021. He

also filed in court the 1st Respondent's Scheduling Notes and a letter addressed to court
explaining what had transpired and indicting that they will be applying to strike out and expunge

from the court record any Affidavits filed and not served on them.

When the Trial Court reconvened on Monday 20tt, September 2021, Counsel for the 1sr

425 Respondent had not yet been served with the impugned Affidavits of the Appellant. He

accordingly applied to have the nine Affidavits expunged from the Court record on the ground

that allowing them would be condoning inordinate delays which would adversely affect the time

set for the expeditious disposal of Election Petitions. Further, that the'1st Respondents would be

preludiced by the late filing in so far as it denied them an opportunity to reply to the matters

430 raised in the impugned Affidavits in time for the Hearing schedule already set by court.

The 1.t respondent's Counsel were suppo(ed by Counsel for the 2no Respondent.

ln reply, Counsel for the appellant admitted the late filing of the nine Affidavits without court
leave and gave two reasons to account for the situation. The first was that it had taken them
"some good time" lo get a competent person to transfer and transcribe the evidence from the

435 Phone of a one Muhwezi Edson and then put it together and come up with the necessary
Affidavits which they filed in court on '16th September 2021. Second, that the Appellant's Lead

Counsel, Hon. Medard Lubega Ssegoona, had very many engagements and was indisposed. As

a result, they were unable to fulfill all that was communicated between him and Counsel for the

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 1st respondent. Counsel then applied to Court for validation of the late filing contending that the

440 respondents would not be prgudiced as the Affidavits do not introduce new evidence. That the

impugned Affidavits only substantiate the evidence already indicated in the Petition.

ln the Summary Ruling, the trial court upheld the objection. Court re;ected the application for
validation in view of the failure of the appellant to fulfil the court order given to him, the non-

service of the impugned Affidavits upon the 1st Respondent and given the requirements to

445 conclude Petitions in time. Court reserved the detailed analysis of the reasons for the dismissal

of the application in the finaljudgment.

ln the Ruling of the trial court which finally disposed of the Petition, the reasons for expunging

the impugned Affidavits and denying the appellant's application for validation were stated thus:

'Secflon 63(2) of the [PEA] which relates to the heaing of eleclion petitions ...
450 underscores the impoftance attached to Eleclion petitions which are expedrtiously
handled at the expense of other mafters (including criminalcases) whrch may have
been filed before the petitions. Dates set by the Cout for the taking of pafticular
steps must therefore senous/y be obserued and leave sought if it is not pradicable
so fo do.
455 Counse/ for the Petitioner did not file and serue the Affidavits within the agreed
seven days. Allowing the Affidavits on record would open the door for the
Respondent to be accorded time to respond to them. lt would necessrtate a /ong
period of time to gather potenllal wrtnesses to respond to the contents in the filed
Affidavils which would rn essence diminish the spiit of Section 63(2) of the Act
460 cited here in above.

I further did not find meit rn the submlsslon that the delay was due to the difficulty
in getting a subsciber for the electronic evidence aftached to the Affidavits. The
person who claims to have recorded the evidence transcibed from his phone to the
CD attached to the Affidavit stated that he walked to the Law firm to volunteer the
465 evidence on 3d September 2021.This was way afrer the agreed time for the filing of
the five affidavits Counsel had applied for.
For all intents and purposes, the time sought was used for soliciting new evidence
and anything filed outside that peiod and without leave of court was inadmissible.
As conectly held in ananura Joh n Bosco V EC & Kaooro Kiza lsimbwa EP No
470 008 / 2016 Affidavits filed out of time without leave of coui are prqudicial to the
Respondent as they amount to an attempt by the Petitioner to plug holes that the
Respondent's respective answers could have poked into the petition.'

Poge 78 of 36

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 For this court to interfere with the impugned order of the trial court, it must be satisfied that the

trial judge in exercising his discretion misdirected himself in some matter and as a result arrived

475 at a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong

in the exercise of his discretion and that as a result injustice was occasioned. ( See Mboqo Vs

Shah [196B\EA 93 and lransAfrica Assurance Companv Ltd Vs Cimbria gEA) Ltd Civil Appeal

No, 11 of 2001 -U Unreported).

We have reviewed the record of proceedings and the reasons advanced by the appellant to
480 account for his failure to meet the timelines given by the trial court. The trial judge cannot be

faulted in his evaluation of the same and arriving at the decision he made. First, the timelines

were set by court in the presence of, and with the consent of all the parties. All the Counsel

involved must have taken into account their numerous commitments before consenting to the

timeline. As such, attributing the failure to beat the set timelines to the numerous engagements

485 ofthe Lead Counsel is not tenable.

Second, the appellant retained not less than three Counsel to prosecute his Petition before the

trial court. One would have expected that this was to ensure that they would work as a team,
reinforce each other, and stand in for the other at all the critical times so that the expeditious trial

expected of an election petition is achieved. As such, absence of one of the advocates could

490 not bar the other advocates from executing their mutual client's instructions and meet the
timelines set by court. On the contrary, the trial judge noted that there was some apparent laxity

on the part of the appellant's legal team in playing their part to the e(ent that even when it came
to transcribing evidence from Muhwezi Edson's phone to the CD attached to his Affidavit it
actually took place after the timelines given by court had long passed.

495 We find that the Trial judge cannot be faulted for finding that the reasons advanced by the
appellant to account for the failure to comply with the timelines issued by court with the consent

of Counsel for the parties were not satisfactory. Accordingly, ground one fails.

Poge 19 of 36

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 Ground 2

500 The appellant couched ground two as follows:

'The Leamed Tial Judge ened in law when he held that Section 144 of the Advocates
(Amendment) Act, 2002 is not applicable in Eledion Petitions and thereby struck off the
Appellant's affidavit for having been commissioned by an advocate wrthout a valid
practicing certificate hence occasioning a niscaniage of justire.'

505 From the submissions, the appellant's case is that the Principal Affidavit having been
commissioned by an advocate without a practicing certificate could be cured by allowing the

affidavit to be re-commissioned pursuant to Section 14A of the Advocates Act. And in support of

his submission, the appellant relied on the decision of this court in Suubi Knvamatama Vs
Robinah Ssentongo (op cit). On the other hand, the respondents support the holding of the Trial

510 Cou( that Section 144 of the Advocates Act was not applicable in the Election Petition since
evoking the same would amount to extending time for the Appellant to bring a new Petition.

Further, that without a validly commissioned Principal Affidavit the trial judge was justified in

striking out both the Principal Affidavit and the Petition which it sought to accompany. Counsel

likewise relied on the case of Suubl Knvamat ama Vs Robinah Ssenlonqo /op crf) to su pport the

515 trial court's decision in this aspect.

We note that the wording of ground two and the arguments of both sides in respect of ground

two are premised on the assumption that the trial judge was right to hold that the impugned

Principal Affidavit having been commissioned by an advocate who, at the material time, had not

renewed his Annual Practising Certificate for the year 2021 automatically rendered the Affidavit

s20 and the Petition defective and could only be salvaged by invoking Section 14A of the Advocates

Act. This is because there must first exist a defect before the aggrieved party can seek refuge in

Section 14A of the Advocates Act to remedy the alleged defect.

ln his Ruling, the trial judge stated as follows:

'. Coul from the Chambers of the Chief Registrar reveals that indeed
.. An inquiry by the
525 Counsel Aogon Fabian did not have a valid practicing ceftificate at the time he

C. Poge 2O of 36

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 purpoftedly commissioned the Affidavit in support of the Petition. This invariably renders
the Affidavit defective and leaves the Petition unsuppofted and liable to be struck out.

The question to resolve however is whether this situation can be cured by Section 14A
of the Advocates (amendment) Act. Act 27 of 2002. . .

530 ... Mv appreciation of the cited Section 14A (b) (ii) is that it does not apply to Election
Petitions.

Rule 3(c) of the Parliamentary Election (nterin Provisions) Rules. SI 141-2 defines
a 'Petition" to mean 'an election petition and includes the affidavit requied by these
rules to accompany the petition.'

535 Rule 4(8) provides:-

'The petition shall be accompanied by an affidavit setting out the facts on which the
petition is based together with a list of any documents on which the petitioner intends to
rely.'
The Affidavit in supporl of the petition cannot be separated from the petition. Once the
540 affidavit is purportedly commissloned by an Advocate without a valid practicing
certificate, as in the rnstant case, it cannot be sald that there is a valid Petition as
envisaged by section 60 of the Parliamentary Election Act and Rules 3 (c) and 4(8).

Nothing can resuscitate a nullity. Any attempt to invoke section 144 of the Advocates
Act as argued by Counsel for the Petitioner would imply that the Court is ertending time
545 for the Petitioner to bing a fresh petition Section 60(3) of the Parliamentary
Elections Act p rov id es : -
"Every election petrtion shall be filed within thitty days after the day on which the result
of the election is published by the Commission in the Gazette."

The above limitation period is statutory and cannot be enlarged by the Cowt under Rule
550 19 of the Parliamentary Elections (lnterim Provisions) Ru/es. Sl 141-2 which provides
forthe enlargement or abidgment of time in eledion litigation matters.
I am in agreement with the submission of Counsel for the Petitioner about the window
created by Section 14A to proted litigants from Advocates who illegally commission
affidavits. The application of seclion 14A however is effective where it is lawfully
55s available to the deponent of the Affidavit unlike in the instant case where there is no
Petition to talk about in the first place.

... ln sum. the Petition col/apses srnce I is not supported with a valid affidavit. No valid
inlervention can be premised on section 14A of the Advocates Act to resuscifate whal rs
reqarded as a nullitv under the law.' [Emphasis added]

560 From the above extract, it is apparent that the refusal of the trialjudge to invoke Section 144 of

the Advocates Act to salvage the appellant's Petition was based on his finding that the Principal
'v
,\-'y P of 36

lt t4!
 Affidavit having been commissioned by an advocate without a valid Practising Certificale was

defective. Second, that the defective Principal Affidavit automatically rendered the Petition a

nullity and liable to be struck out as it did not meet the criteria of "a valid Petifion as envisaged

s65 by Section 60 of the Parliamentary Election Act and Rules 3 (c) and a$) [ot the Election
Petition Rulesl".

ln light of the aforesaid, before this court can appropriately resolve whether indeed the trial court

erred in its decision to deny the appellant the protection prescribed by Section 14A of the
Advocates Act, it is critical for us to first interrogate the correctness of the assumptions of

570 counsel about the assumed invalidity of the Principal Affidavit and Petition on account of non-

possession of a valid Practising certificate by the Commissioner for Oaths. Thereafter we shall

analyse the appellant's complaint about the applicability of Section 14A of the Advocates Act.

Validity of the Principal Affidavit and the Petition itself

This court had occasion to consider a similar q uestion in the case of Suubi Knvamatama Vs

s7s Robinah Ssenlonqo (op cit) wtrich the appellant has heavily relied upon. ln that case, the

appellant filed an Election Petition in the High Court with an Affidavit in support commissioned

by an advocate who had not renewed his Practising Certificate at the time of commissioning.
The Court found that the said Affidavit was not duly commissioned. The Court held that the

Petition having been accompanied by a defective Affidavit was likewise fatally defective for
s80 having been filed illegally in court in conkavention of Section 60 of the PEA and Rules 3(C) and

4(8) of the Election Petition Rules and it therefore collapses with the collapse of the Affidavit in

support that was filed alongside the said Petition.

We have closely reviewed and analysed the judgment of this court in the above case. lt appears

to us that in arriving at the decision, this court did not consider the binding decision of the
585 Supreme Court of Uganda in Prof. Sved Huo Vs The lslamic Universitv in Uqanda. SCCA No. 47

of 1995 (Unreported) wtrere the court considered the circumstances under which a Commission
granted to an advocate pursuant to Section 1 of the Commissioner for Oaths (Advocates) Act,

-V
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 Cap. 5 is terminated or expires. As such we are unable to follow the decision in the case of

Suubi Kinvamatama Vs Robinah Ssenfongo (op cit).

590 This court subsequently had occasion to consider at great length the law governing the validity

of the commission granted to advocates in the case of Lokeris Samson Vs the Electoral
Commission and Komolo EPP No. 9 of 2021 (unreported) and held that the expiry of the

Practising Certificate granted to an advocate under Section 11 of the Advocates Act on the 31't

day of December of the year of issuance does not ipso facto terminate the Commission of the

595 concerned advocate.

The reasons given in the lokeris Case (ibid) to support the said holding were stated thus:

'Commissioning Affidavits by an advocate is provided for by Section 1 of The

of
Commissioner for Oaths (Advocates) Act, Cap. 5. As far as is relevant to the matters
under consideration, the section stales as fol/ows;

600 "1. Appointment of practicing advocates as commissioners tor oaths.

1) The Chief Justice may, from time to time, by commission signed by him or her
appoint persons being practicing advocates who have practiced as such for not
/ess fhan two years in Uganda immediately pior to making any application for
appointment and who are ceftifted to be fit and proper persons by two other
605 practicing advocates to be commissioners for oaths, and may revoke any such
appointment; but the power to revoke a commission shall not be exercised till the
commissioner in question has been given an oppoftunity of being heard against
any such order of revocation.

2) . ..Not relevant.

610 3) ... Not relevant.

4) Each commission shall immediately terminate on the holder ceasino to oractice

as an advocate.' [Emphasis mine]

From the above provision of the law, the appointment of an advocate as a Commissioner

for Oaths is inter alia dependent upon his/her being a 'practicing advocate' at the

615 material time. Therefore, there is no doubt lhaf possession of a valid practising cerlificate

rbsued pursuant fo Sectlon 11 of the Advocates Act is a key qualification citerion at the

appointment stage.

23 of 36
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 Upon appointment, the Comrnissioner signs the Roll of Commissioners and the law that

governs the discharge of hisher mandate as a Commissioner for Oaths ls fhe

620 Commissioners for Oaths (Advocates) Act. There is no provision in the Commissioners

for Oaths (Advocates) Act that the Commission expires annually and/or that rt should be
renewed annually. lnstead, it is provided that the commission continues to be valid until

revoked by the Chief Justice under Section 1(1) of the Commissloners for Oalhs

(Advocates) Act, or until it is terminated on the holder 'ceasing to practice as an

625 advocate' pursuant to Section 1 (4) of the Commlssioners for Oaths (Advocates) Act.

The Supreme Court of Uganda had occasion to consider the phrase'ceasing to

p ractice as an advocate" in Prof. Sved Huq Vs The lslamic Universitv in Uqanda,

SCCA No. 47 of 1995 (Unreporled) where Wambuz i, C.J who wrote the leading judgment

slaled:

630 'Be that as it may and with resped I think there was sorne misconstruction of
the provisions of section 2 (now section 1) of the Commrssrbners for Oaths
(Advocates) Acf. /t is quite coned that a commission granted under sedion 2
/asls untll it is revoked or until the grantee ceases to practice as an advocate,
'Ceasinq to practice' in suF-section U) does not mean exoirv ofthe advocates
635 practisina certificate. lt is common knowledge that a pradising celificate is
rssued for a pafticular year and expires on the 31st December of that year
inespedive of the date of issue. lf therefore an advocate gave up his legal
practice in Apil to do other buslness or ls suspended from practice, his
commission to practice as Commissioner for Oaths would be terminated in Apil
640 when he gives up the pradice or when he rc suspended and not on 31st
December when his praclising ceiificate expires." [Emphasis added]

The above decision rs str// good law and binding on this coul under the doctrine of Stare
decisls. / can simply add that to hold that the expiry of the annual Practising Cetificate

rssued lo advocates under Section 11 of the Advocates Act automatically terminates the

645 Commission under Section 1 (4) of the of the Commissioners for Oaths (Advocates) Act

would inevitably imply that each year an advocate whose Cornmisslon was terminated on

account of the expiry of the Annual Practising Ceftificate as an advocate on the 31sr of

December of the preceding year but who still deslres lo continue being a commtsstoner

24 of 36

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 for oaths after renewal of his Practising certificate as an advocate must lodge a fresh
650 application for appointment to the Chief Justice under Section 1(1) of the Commlssloners

for Oaths (Advocates) Act and fulfill all the other conditions set out for qualification for a
fresh appointment of a Practising advocate as a Commlssioners for Oalhs. Ihrs ls an

absurdity which could not have been intended by the law makers.'

It is our finding that the trial judge erred to hold that the Principal Affidavit in the instant matter
65s was defective on account of having been commissioned by a Commissioner for Oaths who had

not renewed his Practising Certificate for the year 2021. The Commission granted to an
advocate under Section 1 of the Advocates (Commissioner for Oaths) Act does not terminate

with the expiry of the Annual Practising Certificate issued to advocates under Section 11 of the

Advocates. And this leads us to our intenogation of the second assumption of the appellant's

660 Counsel namely, that the defective Principal Affidavit automatically rendered the Petition a
nullity.

Effect of a Defective Principal Affidavit on the Petition itself

When resolving the above issue ln the case of Suubi Knvamatama Vs Sentonoo Robinah

Nakasirve and ElectoralCommission (op cit), this court held thus:

665 'The effect ...is that the Petition from which this appeal aises, was illegally filed in coul
in contravention of Secflon 60 of the Parliamentary Elections Acl and Rules 3(C) and
4(8) of the Parliamentary (nteim Provisionsl Ru/es and it therefore col/apses with the
collapse of the Affidavit in Support that was filed alongside the said Petition. That
Petition was not supported by any evidence as is required by law. The Petition was,
670 therefore, fatally defective and as such there was no Petition in law before the trial
court.'

Our closer analysis of the above case indicates that this court in arriving at the decision did not

consider the provisions in the PEA itself which specifically define Petitions for purposes of
challenging the results from Parliamentary elections and specifically provide for the different

675 modes of adducing evidence to prove the claims set out in the Petition under the PEA. As such,

and with the greatest respect, we are unable to hold that a defective Affidavit accompanying the
.w,
Poge 25 ol 36

U/tk
 Petition automalically renders the Petition under Section 60 of the PEA a nullity. And for this

position, we adopt the same reasons which were given in detail in the case of lokens Samson

Vs the Electoral Commission and Komolo bp cil lhus'.

680 'Fist, the PEA lfse/f sets out the definition of the term "El*tion Petition" for purposes of lhe
PEA in Sedion 1 (1) of the PEA. As far as is relevant, the section provides as fol/ows;

"5.1 lnterpretation

1. (1) ln fhls Acl, unless the context othervvise requires-

... "election petition" means a petition filed in actordance with sedion 60...'

685 Section 60 of the PEA, on the other hand, is couched as follows:

"5.60 Who may present election petition

(1) Election petrtions under this Act shall be filed in the Htgh Coun.

(2) An eledion petition may be filed by any of the following persons-

(a) acandidate wholoses anelection: or

690 (b) a registered voter constituency concemed suppofted by the

in the
srgnafures of nol less than five hundred volers registered rn lhe
constituency in a manner prescibed by regulations.

(3) Every eledion petition shall be filed within thirty days afier the day on which the
resuft of the eledion is published by the Commission in the Gazette.

695 (4) For the puryoses of thls section, where any rules of coui require a petition to be
filed in any pafticular registry of the High Courl, the filing of the petition in a
registry of the High hurt other than in the first-mentioned registry shall not
invalidate the petition: and the registrar at the place where it is filed shall take
necessary sfeps to cause the petition to be transfened to the appropiate registry
700 but the couft may award costs in respect of such filing.'

The definition of "election petition" as sef oul rrs Seclion 1(1) of the PEA read together

with Section 60 of the PEA leads to the conclusion that once the 'Petition'meets fhe
components sef out rn Sectlon 60 of the PEA, then it qualifies to be termed as an

'Election Petition' for purposes of the PEA. The'Affidavit Accompanying the Petition'

705 (Principal Affidavit) is not one of the components set out in Section 60 of the PEA.

26 ol 35

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 Secon( the Pincipal Affidavit simply contains evidence in proof of the allegations and
c/arims as set out in the Petition. Howeve4 the PEA in Section 64 expressly provides,
inter alia, the mde of proof of the allegations and claims in election petitions to be in the

same manner as in any other civil proceedings. The section ls couched as follows:

770 '64 Witnesses in election petifions

(1) At the tial of an election petition-

(a) anv witness shall be summoned and swom in the same manner as
a wrtness mav be summoned and sworn in civil proceedinqs:

(b) the court may summon and examine any person who, in the opinion
7\5 of the court is likely to assist the murt to arive at an appropiate
decision;

(c) any person summoned by the court under paragraph (b) may be
cross+xamined by the parties to the petition if they so wish.

(2) .. , Not applicable' [Emphasis added]

720 The inference from the above section is that an Election Petition can stand without the

Accompanying Affidavit and the allegations in the Petition may be proved by other forms of

evidene as usually happens in ordinary civil proceedings.

Third, the requirement for an Election Petition to be accompanied by an Affidavit, the

Pincipal Affidavit, was a creature of Rule 4(8) of the Election Petition Rules. Rule 4(8) of the
725 Eledion Petition Rules provides:

'The petition shall be accompaniel by an affidavit setting out the fads on which
the petition is based together with a list of any documents on which the petitioner
intends to rely.'

My understanding of the above Rule is that it was intended to expedite the tial of Eledion
730 Petitions. But in the absence of the Pincipal Affidavit, the above Rule cannot be said to have

excluded recourse to proof of the allegations in the Eledion Petition using the other nodes

applicable in ordinary civil proeedings which are permissible by Sec'tion 64 of the PEA. So,

-
Rule 4(8) of the Eleclion Petition Rules does not form a valid /egal basis for holding that the
4./'
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 Petition cannot stand without the Accompanying Pincipal Affidavit.

735 As for the definition of the term'petition' by Rule 3 of the Eledion Petition Rules, ff rs slated

lhus:

"3) lnterpretation

/n these Ru/es unless lhe conbrt otherwise requires-

(a) .... Not applicable.

740 (b) ... Not applicable.

(c) "petition" means an election petition and includes the affidavit

reouired bv lhese Ru/es lo accomoanv the oetition:' [Emphasis
addedl

My undeManding of the use of the expresslon "ln these Rules" in Ru/e 3 is that the
745 definition of the term 'petition' as set out ln the Rule applies and/or is limited to the Eledion

Petition Rules only. To stretch the said definition to extend to the PEA whlch ttse/f has lts

own definition of the same term has no legal basis.

ln the premises aforesaid, I would hold that an invalid or defeclive Pincipal Afftdavit does
not, adomatically render an eledion petition under Sedion 60 of the PEA defedive. The

750 requirement by the Election Petition Rules for use of the Affidavit Accompanying the Petition

and Affidavit evidence generally in the tial of election Petitions was intended to expedite the
tial of eledion petitions in compliane with the spiit of the PEA. ft should be encouraged

and ought to be respecled by litigants in eledion petitions. But it does not oust the other

forms of evidence ordinarily used in civil proceedings which are permlssib/e under Sec:tion

755 64 of the PEA. Such forms of evidence include oral evidence and wttness sfatemenls.
Where the trial Cout finds that the Affidavit Accompanying Petition (Pincipal Affidavil) is

defeclive, the Coutt still has the option of granting the affected pafty the option to proceed to
prove the claims in the Petition using the other options ordinaily available to litigants in

ordinary civil proceedings like the use of oral evidence, I44lness Stafements or any other

760 form of adducing evidence.'

Poge 28 of 36

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 ln the circumstances, \,r/i-o find that the trial judge erred to have held that the appellant's Principal

Affidavit having been found to be defective left the Petition unsupported and liable to be struck

out.

Having interrogated and resolved the h,vo assumptions underlying the appellant's grievance in

765 ground two, we can now proceed to intenogate the appellant's complaint as set out in ground

two. This interrogation is, for purposes of only completeness of the resolution of appellant's
ground two in the very form as set out in the ground of appeal.

Applicability of Section 14A of the Advocates Act to remedy the alleged defects in the
Appellant's Principal Affidavit.

770 As already stated, the gist of the appellant's complaint in ground two of the appeal is that the

trial judge erred to have held that Section 14A of the Advocates Act was not applicable to
remedy the invalidity found by the trialjudge in the appellant's Principal Afiidavit arising from its

having been commissioned by an advocate who did not have a valid practicing certificate.

Section 14A of the Advocates Act provides thus:

775 "11A Protection of clients of advocates

1) Where-
a) an advocate pradies as an advocate @ntrary to subsectlon (1) of sedion 14
or;

b) in any prcceedings, for any reason, an advocate is lawfully denied audience or

780 authority to represent a partv by any couft or tibunal; then-

i. no pleading or contrad or other document made or adion taken by the

advocate on behalf of anv client shall be invalidated by any such event;
and in the case of any procxdings, the case of the client shall not be
dlsmissed Dy reason of any such event;

785 ii. the client who is a partv in the s shall. where necessary. be
allowed time to enoaoe another advocate or otheruise to make oood anv
defeds aisino out of anv such event.

Poqe 29 of 36

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 2) Any advocate nol rn possesslon of a valid practising ceftificate or whose certificate
has been suspended or cancelled and who pracllses as an advocate, commits
790 professiona/ misconduct; and the Law buncil or any person may make a
complaint to the Disciplinary C.ammittee in resped of the misconduct; and
paragraphs (b)(i) and (b)(ii) of subsectlon (1) shall apply with necessary
modifications.

3\ ln addition to any punishment prescribed under any provision of this Ad, the client
7es of an advocate to whom subsecfion (1) or (2) relates, rs entitled to a refund by the
advocate concemed of any fees paid to that advocate by the client and also to
compensation in respect of any costs or loss incuned by the client as a result of
the conduct of the advocate.'lEmphasis addedl

From its wording, it is apparent that section 14A of the Advocates Act is intended to protect

8oo 'clients of advocates". As such, before the appellant could invoke the protection granted by the

section, he had to prove that by his Principal Affidavit being commissioned by the advocate in

issue, he thereby became that advocate's "client".

Section 1 of the Advocates Act, defines the term "client" thus:

'client'includes any person who, as a pincipal or on behaff of another, or as a

805 trustee or personal representative, or in any other capacity, has power, express or
implied, to retain or employ, and retains or employs, or is about to retain or employ,
an advocate and any person who is or may be liable to pay to an advocate any
cosls"

On the other hand, Section 4(1) of the Commissioner for Oaths (Advocates)Act which defines

810 the scope of the powers of the Commissioner for Oaths expressly bars a Commissioner for
Oaths from commissioning documents 'in any proceeding or matter in which he or she ls fhe

advocate for any of the pafties to the proceeding or concemed in the matter or clerk to any such

advocate or in which he or she ls lnterested'. The section provides thus:

4. Powers of a Commissioner tor oaths

815 rr r A commisslo ner for oaths may, by viilue of his or her commission, in any part of
Uganda, administer any oath or take any affidavit for the purpose of any court or
mafter in Uganda, including mafters ecclesiastical, matters relating to the
registration of any instrument, whether under an Act or otherwise, and take any
bail or recqnisance in or for the purpose of any civil proceding in the High
820 Court or any magistrate's court; except that a commissioner for oaths shall not
V
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 exercise anv of the powers oiven by this section in anv proceedinq or matter in
which he or she is the advocate for anv of the parlies to the proceedinq or
concemed in the matter or clerk to any such advocate or in which he or she is
interested.' lEmphasis addedl

825 From the above, it is our flnding that Section 14A of the Advocates Act applies only where a

clientadvocate relationship exists. No client-advocate relationship existed between the appellant

and the advocate who commissioned his impugned Affidavit. As such, but for completely
different reasons, we cannot fault the kial ludge for the conclusion that section 14A of the
Advocates Act was inapplicable to the appellant's Principal Affidavit. However, following our

830 finding that neither the appellant's Principal Affidavit nor the Petition were defective, we hold that

the trialjudge erred to strike out the appellant's Principal Affidavit and the Petition.

The above resolution of ground two would ordinarily dispose of the appeal. But for purposes of

completeness, we shall consider the remaining grounds.

Ground 3

835 The appellant's complaint in ground three is that the trial judge erred not to give the reasons as

to why he found it fit to award a certificate of costs of two Counsel in the matter before him. The

ground was couched as follows:

"The leamed Tial Judge erred in law and fact when he awarded a ceftificate of costs of
two Counsel with no reason advanced at all for the same.'

840 The respondents did not agree. They argued that the trial judge had the discretion under
Regulation 41 (1) of the Advocates (Remuneration and Taxation of costs) Regulations to award

a certificate of two Counsel in light of the importance and difficulty of the case, and the fact that

the 1st respondent had engaged two law firms to defend him.

There is no doubt that Regulation 41 (1) of the Advocates (Remuneration and Taxation of Costs)

845 Regulations grants the trial court the discretion to grant costs to more than one advocate in the

circumstances detailed therein. The Regulation provides as follows:

'Ihe cosfs of morethan one Advocate may be allowed on the basis hereafter provided
ln causes or matters in which the Judge at tial or on delivery of iudgmenl;[2] have

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l.ttdt;
 ceftified under his or her hand that more than one Advocate was reasonable and
8s0 proper, having regard, in the case of a plaintiff, to the amount recovered or paid in
settlement or the relief awarded or the nature, impoiance or diffrculty of the case and, in
the case of a defendant, having regard to the amount sued for or the relief claimed or
the nature, impoftance or difftculty of the case."

The complaint of the appellant is about the failure by the trial court to give reasons for awarding

855 costs to two advocates in the matter before him.

When dealing with the issue of costs, the trialjudge stated thus:

'A cetificate of Costs for two Counsel is awarded to Counsel for the 1"t Respondent
who shall be paid 800/o of the laxed cosfs. The 2nt Respondent shall be paid 2001 of the
Taxed costs.'

860 It is apparent that the trial court did not give reasons as to why it exercised its discretion in the

way it did. As such, it is not possible for an appellate court to determine from the record what
principles guided the decision of the trial court in order to evaluate their correctness and

application. lt is settled law that the court in exercising the discretionary power conferred upon it

must act judiciously. By not giving reasons for its order as to costs, the trial court acted
865 injudiciously (See Oqeno Okwir Vs Transocean (U Limited Civil Appeal No. 52 OF 1999 ICA-UI

and Francis But, Vs Deborah Namukasa S.C.C.A No. 6 of 1989 . Accordingly, the

appellant's complaint in ground three has merit

We can add that under our current Constitutional order, giving reasons for judicial decisions is

part of the accountability expected from judicial officers to the people of Uganda from whom

870 judicial power is derived and, in whose name, judicial power is exercised pursuant to Article

126(1) of the Constitution of Uganda, '1995, which provides thus:

'126. Exercise of judicial power

(1) Judicial power is deived from the people and shall be exercised by the courts
established under this Constitution in the name of the people and in conformity with
875 law and with the values, norms and aspirations of the people.'

As such, failure of a judicial officer to give reasons for his/her decision should never be taken

lightly. Ground three accordingly succeeds

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MMi
 Ground 4

Ground four was couched as follows

880 'The learned Tial Judge erred in law and fact when he abdicated his duty of
evaluating all the evidence on the Courl record.'

From, the record of proceedings, it is crystal clear that the reason as to why the trial judge did

not evaluate all the evidence on the court record was that in his view, the dispute before the trial

court was resolved when the Petition was struck out upon court upholding the preliminary
885 objection raised by the respondents as to the validity of the Petition. The appellant's argument

under this ground is that even after the trial court finding the appellant's Principal Affidavit to be

defective, several other Affidavits deponed upon by the appellant's witness remained on record.

As such, instead of striking out the Petition for not being accompanied by the Appellant's
Principal Affidavit, the trial court should have gone ahead to find that in the absence of the

890 appellant's Principal Affidavit, the Affidavits of the appellant's remaining witnesses fulfilled the

legal requirement of the Petition being accompanied by an affidavit as set out in Rule 4(8) of the

Election Petition Rules.

Following our finding that the Petition under the PEA can stand on its own without any

supporting Affidavit, the appellant's complaint in ground four was thereby rendered moot. We so

895 hold.

Ground 5

Ground five was couched as follows:

'The leamed Tial Judge ened in law and fact when he wrongfully severed the
appellant's affidavits for allegedly depaling from the petition.'

900 The appellant's Affidavits relevant to this issue were the Additional Affidavits filed on 09th August

2021. According to Counsel for the Appellants, by virtue of Rule 3 (e) of the Elections Petitions

Rules, the said additional Affidavits having been filed in support of the and

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(/

v*4
 parcel of the pleadings of the appellant and only elucidated on the grounds as set out in the

Petition, particularly paragraphs 5 to 10 of the Petition. Accordingly, so argued the appellant's

905 counsel, the trialjudge ened to hold that the said Affidavits departed from the pleadings.

Counsel for the respondents supported the trial judge's decision arguing that the impugned
Affidavits were simply part of the appellant's evidence intended to prove the grounds as set out

in the Petition. That the appellant was rightly barred by the trial court from introducing new
grounds through the filing of the Additional Affidavits.

910 When dealing with the subject, the trial court held that the additional affidavits were part of the
appellant's evidence and not part of the pleadings. Further that:

"The affidavits filed on 9n August 2021 illegally introduced new mafters like the alleged
donation of culvefts by the 1st Respondent, an eledic pole at Kanywero Church of
Uganda, bribery at Katokoni and other malpracflces. Ihls amounts to a depaiure from
915 the pleadings. The renedy would be for the buft to expunge all such paragraphs from
the Affidavits.'

Our finding is that the contested Affidavits were filed by the appellant pursuant to Rule 15 of the

Election Petltion Rules which provides as follows:

"15. Evidence attial.

920 (l ) Sublect to this rule, all evidene at the tial, in favour of or against the petition shall
be by way of affidavit read in open courl.

(2) With the leave of the nuft, any person sweaing an affidavit which is before the
couft may be cross+xamined by the opposite pafty and reexamined by the pafty
on behalf of whom the affdavit is swom.

925 (3) The nurt may, of its own motion, examine any witness or call and examine or
recall any witness if the court is of the opinion that the evidenre of the wrlness is
/lkely to assrst the court to anive at a just decision.

(4) A person summoned as a wrlness by the court under subrule (3) of this rule may
be cross-examined by the paties to the petition.'

930 Accordingly, the trialjudge cannot be faulted for holding that the Additional Affidavits were part

and parcel of the appellant's evidence. .-1,,

.y
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@ W,
 We have closely examined the said Affidavits to confirm whether they indeed contained matters

outside the grounds set out in the Petition. The Aflidavits of Muhindo Loyce, Byamukama

Stanley, Katoto Gabriel, Muhindo Maureen and Arinaitwe Michael contained evidence of alleged

935 donation of electric poles at Kanywero Church of Uganda. This claim was not pleaded in the

Petition. The affidavits of Kemiryango Mebral, Ahimbisibwe Josephat, Amanya Augustine and

Asiimwe Margret introduced the issue of the alleged donation of a culvert which was not pleaded

in the Petition. The affidavits of Kemiryango Mebral, Balikubiri Geoffrey, Byamukama Stanley,

Katoto Gabriel, Twesigye Rogers, Bamuturaki Danson, Rwamagoza Whitehouse, Sanyu Aisha,

940 Asiimwe Margret, Hamidu Simba, Kamusime Sauda, Ndyomuhangi John, Musisi Bashir and

Akampulira Augustine introduced the allegation of voter bribery with money and masks which

was not one of the grounds in the Petition. The affidavits of Nakate Jane Scovia, Katuramu

Paddy, Tusiime Godad and Guniya Matia alleged intenuption of the Petitioner's campaign at

Kirugu Town Council. This was likewise not one of the claims set out in the Petition.

945 The Supreme Court and this court have on diverse occasions held that parties are bound by

their pleadings and cannot be allowed to succeed on a case not set up by them in the
pleadings(See lntefreiqht FoNvarders (U Limited Vs East Afican Development Bank (Civil

Appeal No.33 Of 1992) t19931UGSC 16. Furth er, that a party cannot be permtfted to introduce

fresh lssues or to change lhe substance of his/her claim by introducing new matters by way of

eso affidavits'. ee Mutembuli Yusuf Vs Nan u Moses Musamba and m ton

Election Petition No,43 of 2016 )

Accordingly, the trial judge cannot be faulted for expunging the offending paragraphs from the

Appellant's Affidavits. Ground five fails.

Decision of Court:

955 1) The appeal partly succeeds.

2) The Order of the High Court declining to grant the appellant's application to validate the
Affidavits filed out of time is hereby upheld.

3) The Order of the High Court expunging, from the Appellant's Affidavits filed on 09th August

35 of 36

wi
 2021, all the paragraphs which introduced matters not pleaded in the Petition is hereby
960 upheld.

4) The Orders of the kial court striking out the Petition and the accompanying Affidavit of the

Appellant with costs are hereby set aside.

5) The matter is hereby sent back to the High Court for trial by another judge on its merits.

6) Each party shall bear its costs in this court. But the costs in the High Court shall abide the

96s outcome of the trial of the case on the merits. The reason for this Order as to costs is that the

High Court Order which was the crux of the appeal namely, striking out the Petition and the

appellant's Principal Affidavit, has been set aside based on reasons which are different from

those articulated by Counsel for the appellant. At the same time, the respondents succeeded

in respect of some of the other grounds of appeal.

e7o We so order.
IL
Signed, dated and delivered at Kampala tnis..l3...)... day of 2022.

ELIZABETH MUSOKE
Justice of Appeal

Mr-o^,^
MUZAMIRU MUTANGULA KIBEEDI
Justice of Appeal

MONICA K. MUGENYI
Justice of Appeal

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