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Court of Appeal Orders Retrial in Agule Constituency Election Case

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 six contenders.

  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 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.

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 by the 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 law.

  “The trial 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 allowed Ochwa’s application to rectify his affidavits such that the petition is disposed of 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. 

   

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