PALLISA: The Court of Appeal in Kampala has ordered 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.
Because James Nadhongha swore an affidavit in support of the petition, the High Court Judge Dr. Andrew Bashaija threw out the case because the Commissioner of Oaths to whom he had sworn the affidavit in support of the petition did not have a valid licence to practise law 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 were contested.
The said letter indicated that the affidavit in support of the petition was commissioned by an advocate who did not possess a valid practising certificate at the time.
There were no valid affidavits with the petition, but that didn’t make it any less valid, the Court of Appeal Lady Justices Elizabeth Musoke and Irene Mulyagonja said in their ruling on Monday. The absence of these affidavits was just an irregularity that could be fixed in law.
It was wrong for the judge to say that the petition wasn’t valid because there wasn’t a petition before the court, the Justices said.
The Lady Justices have said that the High Court Judge should have let Ochwa correct his affidavits so that the petition could be decided on its merits, which is what the petition is about.
Accordingly, they have set aside the High Court decision and ordered that the file be remitted to the High Court for trial of the petition on its merits and that the appellant be given time to rectify the defect in the accompanying affidavit.