As a result, the High Court Judge Dr Andrew Bashaija dismissed the case on grounds that the affidavit in support of the petition sworn by James Nadhongha was invalid and incompetent since the Commissioner of Oaths whom he had sworn the affidavit in support of the petition did not possess a valid practicing certificate at the time.
Jusitce Elizabeth Musoke reading her judgement
The Court of Appeal in Kampala has ordered
for a retrial of an election petition challenging the victory of Polycarp Ogwari
as the Member of Parliament representing Agule Constituency in Pallisa District.
Following the January 14th 2021
elections, the Electoral Commission declared Ogwari an Independent leaning Candidate
as the winner with 7,190 votes followed by David Ochwa who stood on the National
Resistance Movement ticket and obtained 6,908 votes in a race that attracted
But being dissatisfied with the
results, Ochwa petitioned the Mbale High Court seeking to nullify the victory
of Ogwari on grounds that his election was not done in accordance with the electoral
laws because of bribery and intimidation.
As a result, the High Court Judge Dr Andrew Bashaija dismissed
the case on grounds that the affidavit in
the Petition Sworn by James
invalid and incompetent since the Commissioner of Oaths whom he had sworn
the affidavit in support of the petition did not possess a
valid practicing certificate at the time.
The court found that the Commissioner of
Oaths only obtained the certificate 10 days after
commissioning Ochwa and Nadhongha’s affidavits and therefore the petition was a
nullity and in law it could not be rectified.
But Ochwa decided to challenge the High Court decision in the
Court of Appeal on grounds that the learned trial
Judge erred in fact and in law when
he relied on a letter purportedly written
Chief Registrar of the
Courts of Judicature whose authenticity and content was contested.
The said letter indicated that the affidavit in
support of the
Petition was commissioned by an advocate
who did not possess a
valid Practicing Certificate
at the time.
In their ruling on Monday, the Court
of Appeal Lady Justices Elizabeth Musoke, Irene Mulyagonja have ruled that even
though the petition did not have valid affidavits accompanying it, the absence
of such affidavits became a mere irregularity which would have been cured in
judge therefore misdirected himself when
he held that the petition was incompetent and there was no
petition before the court,” said the Justices.
The Lady Justices have added that the
High Court Judge ought to have
Ochwa’s application to rectify his affidavits such that the petition is
on its merits.
Accordingly, they have set aside the
High Court decision and ordered that the file should be 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.