Wakilii

Hon. Yona Musinguzi v Hon Gerald Kafureka Karuhanga and Another (HCT-05-CV-EP-006-2016)

High Court · [2016] UGHC 14 · 2016 Preliminary Objection Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections in an election petition
Decision
Affidavits non-compliant with the Illiterates Protection Act struck out; first preliminary objection overruled; evidentiary issues deferred to hearing

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Holding

The court held that affidavits in rejoinder need not be sworn by persons who had sworn affidavits in support of the petition provided they respond only to issues raised in the answer to the petition and do not introduce new matters. Affidavits deponed by illiterate persons that do not comply with section 3 of the Illiterates Protection Act by failing to name the writer are inadmissible and must be struck out. Whether the oath was actually administered to deponents whose signatures appear as photocopies on served affidavits while originals appear on court record is an evidentiary matter to be determined at hearing.

Outcome

Affidavits non-compliant with the Illiterates Protection Act struck out; first preliminary objection overruled; evidentiary issues deferred to hearing

Facts

This was an election petition. The 2nd Respondent raised a preliminary objection seeking to expunge five affidavits in rejoinder deponed by persons who had not sworn affidavits in support of the petition. The 1st Respondent raised a separate preliminary objection that most affidavits in support of the petition and in rejoinder did not comply with the Illiterates Protection Act because the name and address of the writer were not indicated, and that affidavits served on the 1st Respondent bore photocopy signatures of deponents but original signatures of the commissioner for oaths. The petitioner opposed both objections, arguing that affidavits in rejoinder could be sworn by any person replying to matters raised in the answer to the petition, that compliance with the Illiterates Protection Act was an evidentiary issue, and that photocopy signatures did not invalidate the affidavits.

Issues

  1. Whether affidavits in rejoinder deponed by persons who did not swear affidavits in support of the petition are admissible.
  2. Whether affidavits that fail to comply with sections 2 and 3 of the Illiterates Protection Act by not naming the writer and translator are admissible.
  3. Whether affidavits served on respondents bearing photocopy signatures of deponents but original signatures of the commissioner for oaths are admissible.

Orders

  • First preliminary objection overruled.
  • Second preliminary objection partly upheld — affidavits that do not comply with section 3 of the Illiterates Protection Act are struck out.
  • Second part of second preliminary objection (photocopy signatures) overruled as an evidentiary matter for determination at hearing.
  • Each party to bear its own costs of the preliminary objections.

Rules and key headnotes

Affidavits in Rejoinder — Standing of Deponents
An affidavit in rejoinder may be sworn by a person who did not swear an affidavit in support of the petition provided the rejoinder affidavit responds only to matters raised in the affidavits in support of the answer to the petition and does not introduce new matters or issues of fact.
Illiterates Protection Act — Mandatory Compliance with Section 3
Compliance with section 3 of the Illiterates Protection Act, which requires the writer of a document for an illiterate person to write on the document his or her own true and full name and address, is mandatory. Failure to comply renders the affidavit inadmissible. Words at the bottom of an affidavit stating 'drawn and filed by [law firm]' do not satisfy the requirements of section 3, as those words are required by the Advocates Act and do not identify the individual who interpreted the document to the illiterate person.
Affidavits — Photocopy Signatures — Evidentiary Matter
Where affidavits served on a respondent bear photocopy signatures of deponents but the affidavits on court record bear original signatures, the question of whether the oath was actually administered is an evidentiary matter that cannot be determined at the preliminary objection stage and must be resolved after evidence is heard.

Legislation cited (5)

Cases cited (5)

  • Mutembuli Yusuf v Nagwomu Moses Musamba (Mbale Election Petition No. 13 of 2016)
  • Southern Investments Ltd v Mukabura Foundation Investments Ltd (Commercial Division MA No. 105 of 2004)
  • Kasaala Growers Co-operative Society v Kakooza Jonathan & Another (Supreme Court Civil Application No. 19 of 2010)
  • Aligawesa Phillip v Byandala Abraham James and Another (Election Petition Appeal No. 24 of 2011)
  • OdettaHennry John Vs. OmedaOmax, Election Petition No. [not specified] of 1996

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Hon. Yona Musinguzi v Hon Gerald Kafureka Karuhanga and Another (HCT-05-CV-EP-006-2016) [2016] UGHC 14 (22 June 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.