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Kayanja v Rulinda and Another (Election Petition Appeal 30 of 2021)

Court of Appeal · [2022] UGCA 337 · 2022 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from a High Court ruling striking out an election petition on a preliminary objection to affidavit evidence
Decision
Appeal allowed; High Court order striking out the petition set aside and petition remitted to the High Court for trial

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Holding

The Court of Appeal held that rule 15(1) of the Parliamentary Elections (Interim Provisions) Rules, requiring all trial evidence to be by affidavit, is inconsistent with section 64(1)(a) of the Parliamentary Elections Act 2005 (which requires witnesses to be summoned and sworn as in civil proceedings) and is therefore void to the extent of the inconsistency under section 18(4) of the Interpretation Act. Affidavit evidence is not the primary mode of proving grounds in an election petition. The affidavit accompanying a petition under rule 4(8) is part of the pleadings, not the only evidence. The trial judge erred in striking out the petition for want of competent affidavit evidence. The appeal was allowed and the petition remitted for trial.

Facts

The appellant petitioned the High Court to nullify the election of the first respondent as chairperson of Entebbe municipality in elections held on 25 January 2021, in which the first respondent was declared winner with 6,703 votes against the appellant's 5,576. When the petition came for hearing, the respondents raised a preliminary objection that the supporting affidavits were defective: the petitioner's affidavit was based on hearsay with allegedly forged annexures; affidavits had jurats standing separate from the body, offending the Oaths Act; and the agents' affidavits were couched in similar words containing falsehoods. The trial judge sustained the objection, found the affidavits inadmissible and incompetent, held the remaining paragraphs could not sustain the standard of proof in election petitions, and struck out the petition with costs to the respondents. The appellant appealed on five grounds challenging the striking out of the petition on the affidavit evidence.

Issues

  1. Whether evidence at the trial of an election petition must be adduced by affidavit, or by witnesses summoned and sworn in the same manner as in civil proceedings.
  2. Whether rule 15(1) of the Parliamentary Elections (Interim Provisions) Rules is inconsistent with section 64(1)(a) of the Parliamentary Elections Act and therefore void.
  3. Whether it was erroneous to strike out the petition on a preliminary objection that the supporting affidavits were defective and hearsay, without trial of the merits.

Orders

  • Appeal allowed.
  • The order of the High Court striking out the appellant's petition is set aside.
  • The petition is remitted to the High Court for trial, with evidence to proceed by summoning witnesses of either side under the Civil Procedure Rules in the ordinary way.
  • Witness affidavits shall be treated as witness statements on condition that witnesses are summoned, appear in court to be sworn to confirm their statements, and are subject to cross-examination and re-examination.
  • Costs of the appeal in this court and the court below to the appellant on a point of law arising from the grounds of appeal.

Key headnotes

Election Petitions — Mode of Adducing Evidence at Trial
At the trial of an election petition, evidence must be adduced by witnesses who are summoned and sworn in the same manner as witnesses in civil proceedings under section 64(1)(a) of the Parliamentary Elections Act; affidavit evidence is not the primary or appropriate mode of proving the grounds of the petition.
Subsidiary Legislation — Inconsistency with Parent Act — Ultra Vires
Rule 15(1) of the Parliamentary Elections (Interim Provisions) Rules, requiring all trial evidence to be by way of affidavit read in open court, is inconsistent with section 64(1)(a) of the Parliamentary Elections Act and is void to the extent of the inconsistency under section 18(4) of the Interpretation Act.
Election Petitions — Affidavit Accompanying Petition — Nature as Pleading
The affidavit that must accompany an election petition under rule 4(8) of the Parliamentary Elections (Interim Provisions) Rules forms part of the pleadings and is intended to set out the facts on which the petition is based; it is not the only evidence and the facts asserted may be proved by other witnesses at trial.
Affidavit Evidence — Striking Out — Effect on Competence of Petition
Striking out affidavits in support of an election petition (other than the accompanying main affidavit) for hearsay or falsehood does not render the petition incompetent, since the underlying evidence can be adduced viva voce by summoning and swearing witnesses at trial.
First Appeal — Duty of Appellate Court to Reappraise Evidence
On a first appeal from the exercise of original jurisdiction, the appellate court may reappraise the evidence and draw its own inferences of fact, but should caution itself on not having seen the witnesses and defer to the trial judge on matters of credibility absent justifiable grounds.

Legislation cited (26)

  • Parliamentary Elements Act 2005 s.60
  • Parliamentary Elections Act 2005 s.64
  • Parliamentary Elections Act 2005 s.66(1)
  • Parliamentary Elections Act 2005 s.66(3)
  • Parliamentary Elections Act 2005 s.61(3)
  • Parliamentary Elections (Interim Provisions) Rules rule 4(8)
  • Parliamentary Elections (Interim Provisions) Rules rule 7
  • Parliamentary Elections (Interim Provisions) Rules rule 8
  • Parliamentary Elections (Interim Provisions) Rules rule 12
  • Parliamentary Elections (Interim Provisions) Rules rule 15
  • Parliamentary Elections (Interim Provisions) Rules rule 17
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.94
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.121
  • Parliamentary Elections Act 2001 s.65
  • Parliamentary Elections Act 2001 s.100
  • Parliamentary Elections Act 2005 s.101(3)
  • Interpretation Act cap 3 s.18(4)
  • Civil Procedure Rules Order 16
  • Civil Procedure Rules Order 17 r.1(2)
  • Civil Procedure Rules Order 18 rr.2,3,4,5
  • Civil Procedure Rules Order 19 r.1
  • Advocates (Amendment) Act 2002 s.14A
  • Oaths Act
  • Judicature (Court of Appeal Rules) Directions S.I No. 13-10 rule 30(1)(a)
  • Rules of the Court of Appeal rule 86(1)
  • Constitution of Uganda article 126(2)(e)

Cases cited (8)

  • Pandya v R [1957] EA 336
  • Selle and Another v Associated Motor Boat Company [1968] EA 123
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Attorney General v Florence Baliraine (Civil Appeal No. 79 of 2003)
  • Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye (Election Petition No. 92 of 2016)
  • Bostel Brothers Ltd v Hurlock [1948] 2 All ER 312
  • Langton v Hughes (1813) 1 M & S 593
  • Phoenix General Insurance Co of Greece SA v Administratia Asigurarilor de Stat [1987] 2 All ER 152
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.