Kayanja Vincent De Paul v Rulinda Fabrice Brad and Another (Election Petition 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, insofar as it makes affidavit evidence the mandatory mode of proof at trial, is inconsistent with section 64(1)(a) of the Parliamentary Elections Act 2005 and void to the extent of the inconsistency under section 18(4) of the Interpretation Act. The affidavit accompanying the petition under rule 4(8) is a pleading setting out the facts, not the evidence itself; facts must be proved by witnesses summoned and sworn as in civil proceedings. It was therefore erroneous to strike out the petition for want of supporting affidavit evidence. The appeal was allowed and the petition remitted for trial.

Outcome

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

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. The Electoral Commission had declared the first respondent elected with 6,703 votes against the appellant'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 allegedly forged annexures; affidavits had jurats standing apart from the main body contrary to the Oaths Act; agents' affidavits were couched in identical words; and additional affidavits introduced unpleaded matters. The trial judge sustained the objection, found the petitioner's affidavit hearsay and the agents' affidavits containing falsehoods going to the root of their appointment, held the remaining paragraphs could not sustain the required standard of proof, and struck out the petition with costs. The appellant appealed on five grounds contending the petition was struck out on presumptive grounds without a hearing.

Issues

1. Whether all evidence at the trial of an election petition must be adduced by affidavit under rule 15(1) of the Parliamentary Elections (Interim Provisions) Rules, or whether witnesses must be summoned and sworn under section 64(1)(a) of the Parliamentary Elections Act.
2. Whether the trial judge erred in striking out the petition for want of supporting affidavit evidence after sustaining a preliminary objection to the affidavits.
3. 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.

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; witness affidavits to be treated as witness statements subject to swearing and cross-examination.
• Costs of the appeal and in the court below awarded to the appellant.

Rules and key headnotes

Legislation cited (23)

• Parliamentary Elements Act 2005 s.60
• Parliamentary Elections Act 2005 s.64
• Parliamentary Elections Act 2005 s.66
• Parliamentary Elections Act 2005 s.61(3)
• Parliamentary Elections (Interim Provisions) Rules rule 4(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 rule 1(2)
• Civil Procedure Rules Order 18 rules 2, 3, 4 and 5
• Civil Procedure Rules Order 19 rule 1
• Advocates (Amendment) Act 2002 s.14A
• Oaths Act
• Judicature (Court of Appeal Rules) Directions, S.I No. 13-10 rule 30(1)(a)
• Judicature (Court of Appeal Rules) Directions 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] EA123
• Kifamunte Henry v Uganda (Supreme Court 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 Vs Hurlock [1948] 2 All ER 312
• Langton v Hughes (1 M & S 593, 596)
• Phoenix General Insurance Co of Greece SA Vs Administratia Asigurarilor de Stat [1987] 2 All ER 152

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