Kayanja v Rulinda and another (Election Appeal No. 30 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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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. The affidavit accompanying a petition under rule 4(8) is a pleading setting out the facts to be proved by witnesses, not the evidence itself. It was therefore erroneous to strike out the petition on a preliminary objection to those affidavits. The appeal was allowed and the petition remitted to the High Court for trial by summoned witnesses.

Outcome

Appeal allowed; High Court order striking out the petition set aside and petition remitted to the High Court for trial by summoned witnesses.

Facts

The appellant petitioned the High Court to nullify the election of the first respondent as chairperson of Entebbe Municipality following elections held on 25 January 2021, in which the first respondent was declared the winner with 6,703 votes against the petitioner's 5,576. At the hearing, the respondents raised a preliminary objection that the affidavits supporting the petition were incurably defective: the petitioner's affidavit was based on hearsay with forged annexures; affidavits with jurats standing alone offended the Oaths Act; agents' affidavits were couched in similar words and contained falsehoods; and additional affidavits introduced new unpleaded matters. The trial judge sustained the objection, held the affidavits defective and inadmissible, found the remaining paragraphs could not sustain the standard of proof, and struck out the petition with costs. The petition was never tried on its merits. The appellant appealed to the Court of Appeal on five grounds centred on the treatment of affidavit evidence.

Issues

1. Whether affidavit evidence is the primary or appropriate mode of proving the grounds of an election petition.
2. Whether rule 15(1) of the Parliamentary Elections (Interim Provisions) Rules is inconsistent with section 64(1)(a) of the Parliamentary Elections Act 2005 and void to that extent.
3. Whether the trial judge erred in striking out the petition on a preliminary objection to the affidavits in support of the petition.
4. Whether the affidavit accompanying the petition under rule 4(8) constitutes the evidence for trial or merely a pleading setting out the facts to be proved by witnesses.

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 awarded to the appellant in this court and in the court below.

Rules and key headnotes

Legislation cited (29)

• Parliamentary Elections Act 2005 s.60
• Parliamentary Elections Act 2005 s.61(2)
• Parliamentary Elections Act 2005 s.61(3)
• Parliamentary Elections Act 2005 s.64(1)(a)
• Parliamentary Elections Act 2005 s.64(1)(b)
• Parliamentary Elections Act 2005 s.64(1)(c)
• Parliamentary Elections Act 2005 s.64(2)
• Parliamentary Elections Act 2005 s.66(1)
• Parliamentary Elections Act 2005 s.66(3)
• Parliamentary Elections Act 2005 s.101(3)
• Parliamentary Elections (Interim Provisions) Rules r.4(8)
• Parliamentary Elections (Interim Provisions) Rules r.7
• Parliamentary Elections (Interim Provisions) Rules r.12
• Parliamentary Elections (Interim Provisions) Rules r.15
• Parliamentary Elections (Interim Provisions) Rules r.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(3)
• Interpretation Act cap 3 s.18(4)
• Oaths Act
• Advocates (Amendment) Act 2002 s.14A
• 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
• Judicature (Court of Appeal Rules) Directions r.30(1)(a)
• Judicature (Court of Appeal Rules) Directions r.86(1)
• Constitution of Uganda Article 126(2)(e)

Cases cited (8)

• Attorney General v Florence Baliraine (Civil Appeal No. 79 of 2003)
• 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)
• 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 (1 M & S 593)
• Phoenix General Insurance Co of Greece SA v Administratia Asigurarilor de Stat [1987] 2 All ER 152

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