Wakilii

Mpanga v Ssenkubuge and Others (Election Petition Appeal No. 13 of 2021)

Court of Appeal · [2022] UGCA 220 · 2022 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal and cross-appeal from High Court ruling striking out an election petition, with an interlocutory application to strike out the appeal as time-barred
Decision
Appeal allowed; trial judge's order striking out the petition set aside; matter remitted to the High Court for trial on merits before another judge

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal held that an affidavit commissioned by an advocate practising in the same firm representing a litigant is incurably defective under section 4(1) of the Commissioner for Oaths (Advocates) Act, the commissioner being concerned or interested. However, the absence of a valid principal affidavit does not automatically render an election petition defective, since allegations may be proved by other forms of evidence. The trial judge therefore erred in striking out the petition. The appeal was allowed, the cross-appeal dismissed, and the matter remitted to the High Court for trial on merits before another judge.

Facts

Mpanga Farouq, Ssenkubuge Isaac and five others contested the election for Chairperson of Bweyogere Division, Kira Municipality, Wakiso District. The Electoral Commission declared Ssenkubuge the winner with 6879 votes; Mpanga was second runner-up with 5683 votes. Dissatisfied, Mpanga petitioned the High Court challenging the validity of Ssenkubuge's election for non-compliance with electoral laws. At scheduling, the respondents raised preliminary objections. The trial judge found that the affidavit in support of the petition was incurably defective because it had been commissioned by Ms. Nampeera Juliet, an advocate practising in M/s Lukwago & Co. Advocates, the firm representing the petitioner, contrary to section 4(1) of the Commissioner for Oaths (Advocates) Act. Holding the petition was therefore not accompanied by any affidavit in support, the judge struck out the petition with costs. Mpanga appealed; the Electoral Commission cross-appealed and also applied to strike out the appeal as filed out of time.

Issues

  1. Whether Election Petition Appeal No.13 of 2021 was filed out of the time prescribed by the electoral laws and should be struck out.
  2. Whether an affidavit commissioned by a commissioner for oaths from the same law firm representing a litigant is fatally defective under section 4(1) of the Commissioner for Oaths (Advocates) Act.
  3. Whether an election petition is competent without the principal affidavit in support of the petition.
  4. Whether an affidavit in support of an election petition based on information from third parties can support the petition.
  5. Whether the preliminary objection regarding the appellant's uncertified Declaration of Results Forms was premature.
  6. Whether 25 affidavits filed after the petition without leave of Court were properly filed.

Orders

  • The learned trial Judge's decision striking out Election Petition No.013 of 2021 is set aside.
  • The file should be remitted to the High Court for trial of the petition on its merits before another Judge.
  • Costs are awarded to the 1st and 2nd respondents.
  • Election Petition Application No.40 of 2022 (to strike out the appeal as time-barred) is dismissed.
  • The cross-appeal is dismissed.

Key headnotes

Electoral Law — Local Council Election Appeals — Applicable Procedural Rules
In the absence of specific rules of procedure for filing election petition appeals arising from Local Council elections, the applicable rules are the Judicature (Court of Appeal Rules) Directions, not the Parliamentary Elections (Interim Provisions) Rules.
Civil Procedure — Institution of Appeals — Exclusion of Time for Preparation of Record
Where a copy of the High Court proceedings is requested in writing and served on the respondent, time required for preparation and delivery of the record is excluded in computing the period for filing an appeal under Rule 83(2) and (3) of the Court of Appeal Rules; delay attributable to the court does not render the appeal time-barred.
Evidence — Affidavits — Commissioning by Advocate from Same Firm — Section 4(1) Commissioner for Oaths (Advocates) Act
An affidavit sworn before a commissioner for oaths who is an advocate practising in the law firm representing the deponent is incurably defective, as the commissioner is concerned or interested in the matter contrary to section 4(1) of the Commissioner for Oaths (Advocates) Act, and is for all intents and purposes not an affidavit as envisaged in law.
Statutory Interpretation — Curative Provisions — Scope of Section 14A Advocates (Amendment) Act
Section 14A of the Advocates (Amendment) Act 2002 applies only where an advocate practises with a cancelled or suspended certificate or is denied audience; it cannot cure an affidavit defective for having been commissioned contrary to section 4(1) of the Commissioner for Oaths (Advocates) Act, nor can article 126(2)(e) of the Constitution validate a defect that offends substantive statutory law.
Electoral Law — Election Petitions — Effect of Defective Principal Affidavit
An invalid or defective principal affidavit does not automatically render an election petition defective, since allegations in the petition may be proved by other forms of evidence such as oral evidence or witness statements, the affidavit requirement being intended to expedite trial rather than to oust other modes of proof.
Evidence — Affidavits in Election Petitions — Information from Third Parties
In election petitions, affidavits may contain information provided by agents and witnesses where the deponent clearly discloses the sources of his information, given that a candidate cannot be everywhere; such disclosure is sufficient and does not render the affidavit fatally defective.
Evidence — Public Documents — Uncertified Declaration of Results Forms — Timing of Objection
An objection to uncertified Declaration of Results Forms, which requires the court to examine the forms and goes to the merits of the petition, is premature when raised before the matter has been scheduled for hearing.

Legislation cited (20)

  • Commissioner for Oaths (Advocates) Act Cap 5 s.4(1)
  • Advocates (Amendment) Act 2002 s.14A
  • Advocates Act Cap 267 s.12(1)
  • Partnership Act 2010 s.5(2)
  • Local Governments Act s.145
  • Parliamentary Elections (Interim Provisions) Rules SI 142-1 r.29
  • Parliamentary Elections (Interim Provisions) Rules r.30(b)
  • Parliamentary Elections (Interim Provisions) Rules r.15(1)
  • Parliamentary Elections (Interim Provisions) Rules r.4(8)
  • Judicature (Court of Appeal Rules) Directions r.83
  • Judicature (Court of Appeal Rules) Directions r.86(1)
  • Constitution of Uganda art.126(2)(e)
  • Civil Procedure Rules Order 19 r.3
  • Evidence Act Cap 6 s.59
  • Evidence Act Cap 6 s.73(a)(ii)
  • Evidence Act Cap 6 s.76
  • Evidence Act Cap 6 s.64(1)(a)
  • Evidence Act Cap 6 s.65
  • Parliamentary Elections Act s.60
  • Parliamentary Elections Act s.64

Cases cited (30)

  • Kusiima Moses v Electoral Commission (Election Petition Application No. 7 of 2012)
  • Abuga v Musema Mudathir (Election Petition Application No. 24 of 2016)
  • Muliro Wanga v Wakholanya Sam Paul (Election Application No. 9 of 2017)
  • Kubeketerya James v Waira Kyewalabye and Electoral Commission (Election Petition Appeal No. 97 of 2016)
  • Kwoba Herbert v Ssebuguawo Tadeo (Election Petition Appeal No. 108 of 2016)
  • Makutu Augustus v Wesura David (Election Petition Appeal No. 73 of 2016)
  • Bandikubi Boniface Musisi and Others v Ssenamguta William Tom and Anor (Election Petition Appeal No. 110 of 2016)
  • Markiy Vincent Okidi and Others v Peter Odok W'oceng and Electoral Commission (Election Petition No. 09 of 2011)
  • Clare S. Kyweesa v Uganda Free Zones Authority and Fredrick Kiwanuka (Miscellaneous Application No. 454 of 2021)
  • Suubi Juliet Kingamatama v Ssentongo Robinah Nakasirye (Election Petition Appeal No. 92 of 2016)
  • Mukasa Anthony Harris v Dr. Bagiga Micheal Philip Lulume (Election Petition Appeal No. 18 of 2007)
  • Musoke Emmanuel v Kibaggu Richard and Electoral Commission (Election Petition Appeal No. 67 of 2016)
  • Arthur Busingye and Busingye Properties Limited v Gianluigi Grassi and Doreen Rugondo (Miscellaneous Application No. 203 of 2013)
  • Lee Njiru vs. J.K Lokorio & Anor Cause No.64 of 2019 [Formerly Nairobi HCC NO.23 of 2018]
  • Kenya Federation of Labour and Anor Versus Attorney General & 2 others, Cause No. 135 of 2012
  • Stephen M. Mogaka vs. Independent Electoral & Boundaries Commission & Ors, Election Petition H.C Kenya No.02 of 2017
  • Fatuma Nakatudde and Another v Makerere University (Miscellaneous Cause No. 115 of 2019)
  • Sudhir Ruparelia v MMAKS Advocates (Miscellaneous Application No. 1063 of 2017)
  • Caltex Oil (Kenya) Ltd vs. New Stadium Services Station Ltd & anor [2002] eKLR
  • James Francis Karuki & Another vs. United Insurance Co. Ltd, Civil Appeal No. 1450 of 2000
  • Lokeris Samson v Komol and the Electoral Commission (Election Petition Appeal No. 09 of 2021)
  • Kasirye Zzimula Fred v Bazigatirawo Kibuuka Francis Amooti and Electoral Commission (Election Petition Appeal No. 007 of 2016)
  • Col (Rtd) Besigye Kizza v Museveni Yoweri Kaguta and Electoral Commission (Presidential Election Petition No. 01 of 2001)
  • Kakooza John Baptist v Electoral Commission and Yiga Anthony (Election Petition Appeal No. 011 of 2007)
  • Tamale Julius Konde v Ssenkubuge Isaac and Electoral Commission (Election Petition Appeal No. 075 of 2016)
  • Mutembuli Yusuf v Nagwomu Moses and Electoral Commission (Election Petition Appeal No. 043 of 2016)
  • Betty Muzanira Bamukutatsa v Matsiko Winfred Komuhangi and Others (Election Petition Appeal No. 65 of 2016)
  • Ssemwogerere and Others v Attorney General (Constitutional Petition No. 3 of 1999)
  • Charles Mubiru v Attorney General (Constitutional Appeal No. 1 of 2001)
  • Chenoiko v Soyekwo and Electoral Commission (Election Petition Appeal No. 56 of 2016)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.