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Ariko Jonny De West v Omara Yuventine (Election Application 16 of 2023)

Court of Appeal · [2024] UGCA 36 · 2024 Application Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out pages 11-16 of the respondent's supplementary record of appeal in an election petition appeal
Decision
Application allowed; pages 11 to 16 of the respondent's supplementary record of appeal struck out

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Holding

In an application to strike out pages 11-16 of the respondent's supplementary record of appeal in an election appeal, the Court of Appeal held that a supplementary record may only contain documents that formed part of the lower court's record and cannot be used to introduce new evidence without leave. Finding that the impugned certificate of service was never part of the High Court record, the Court allowed the application and struck out the pages. It rejected the respondent's preliminary objections, holding that an advocate may swear an affidavit on formal, non-contentious matters within their knowledge, and that the application was not time-barred, though it observed the matter could have been raised as a preliminary point in the appeal.

Facts

The applicant and respondent contested the Abim District LCV Chairperson seat in the elections held on 14 January 2021; the Electoral Commission returned the respondent as the validly elected Chairperson. The applicant petitioned the Soroti High Court, which on 9 March 2023 nullified the result on the ground that the respondent had not resigned from the UPDF before his nomination. The respondent appealed (Election Petition Appeal No. 4 of 2023). After serving the record of appeal, the respondent filed a supplementary record of appeal on 23 May 2023 containing a certificate of service at pages 11-16. The applicant contended these pages were never part of the High Court record and were an attempt to bolster the respondent's position on appeal. Certified copies obtained from the High Court Registrar confirmed the pages did not form part of the original record. The respondent maintained the certificate had been adduced at trial, was referred to by the trial Judge, and was integral to a document already on the record.

Issues

  1. Whether an advocate attached to the firm conducting the matter is prohibited under Regulation 9 of the Advocates (Professional Conduct) Regulations from swearing an affidavit in support of the application.
  2. Whether the application to strike out the impugned pages was time-barred or an abuse of process given the same objection had been raised in conferencing notes in the pending appeal.
  3. Whether the respondent's certificate of service at pages 11-16 of the supplementary record of appeal formed part of the record of the High Court and was properly introduced into the record of the appeal.

Orders

  • Both preliminary objections raised by the respondent are rejected.
  • The application is allowed.
  • Pages 11 to 16 of the respondent's supplementary record of appeal are struck out for not forming part of the record of the High Court.
  • Each party shall meet their own costs of the application.

Key headnotes

Civil Procedure — Appeals — Supplementary Record of Appeal — Permissible contents
A supplementary record of appeal may only contain documents, or additional parts of documents, that formed part of the record of the lower court; it cannot be used to introduce a new document that was never part of the trial record.
Civil Procedure — Appeals — Fresh evidence — Leave of court
A document that was not part of the trial record cannot be placed before the appellate court through a supplementary record of appeal; it may only be introduced as additional evidence after first obtaining leave of court.
Civil Procedure — Affidavits — Advocate as deponent — Professional conduct
An advocate is not prohibited by Regulation 9 of the Advocates (Professional Conduct) Regulations from swearing an affidavit on formal or non-contentious matters within their knowledge; even where ineligible, the remedy is to substitute another deponent, not to dismiss the application.

Legislation cited (14)

  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.43(1)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.43(2)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.87(1)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.89(2)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.90(3)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.90(4)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.90(5)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.30(1)(b)
  • Advocates Act
  • Advocates (Professional Conduct) Regulations S.I. 267-2 reg.9
  • Local Governments Act Cap 243 s.145(2)
  • Uganda People's Defence Forces (Conditions of Service) (Officers) Regulations S.I. 307-2 reg.31(3)
  • Uganda People's Defence Forces Act

Cases cited (6)

  • Barclays Bank of Uganda Ltd v Eddy Rodrigues (Civil Appeal No. 5 of 1987)
  • Betuco (U) Ltd & Anor v Barclays Bank of Uganda Ltd & Others (Civil Appeal No. 1 of 2017)
  • Arthur Busingye & Another v Gianluigi Grassi & Anor (HCT-00-CC-MA No. 203 of 2013)
  • Mbarara Municipal Council v Jetha Brothers Ltd (Civil Application No. 10 of 2013)
  • Salama Beach Hotel Ltd v Mario Rossi (Civil Appeal No. 10 of 2015)
  • Hakika Transporters Services Ltd v Albert Chulah Wamimitaire (Civil Application No. 1 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.