Wakilii

Kikongo v Electoral Commission & Anor (Election Appeal No. 75 of 2011)

High Court · [2012] UGHC 398 · 2012 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate Court dismissal of election petition on preliminary objection
Decision
Matter remitted to Chief Magistrate Court to proceed on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that s.6 of the Oaths Act, requiring affidavits to be dated, is directory and not mandatory. A defect in dating cannot vitiate an affidavit under Article 126(2)(e) of the Constitution, and undated affidavits may be dated or re-sworn in court with costs awarded to the aggrieved party. Where the court file contained dated affidavits, those constitute the official record regardless of what was served on the opposite party. The trial magistrate erred in dismissing the entire election petition when the objectors only prayed for expungement of the affidavits.

Outcome

Matter remitted to Chief Magistrate Court to proceed on merits

Facts

The appellant and second respondent contested for woman councillor for Mengo Kisenyi III Parish, Kampala Central Division on 2 March 2011. The second respondent won with 617 votes against the appellant's 588 votes. The appellant filed an election petition in the Chief Magistrate Court of Mengo challenging the election. At trial, counsel for the respondent raised a preliminary objection that the affidavits supporting the petition offended s.6 of the Oaths Act because they were undated. The trial court found that the affidavits served on the respondents were not dated, but the affidavits on the court file were dated. The Chief Magistrate held that s.6 was mandatory, that pleadings on record must match those served on parties in every detail, and dismissed the petition with costs. The appellant appealed to the High Court.

Issues

  1. Whether the provision of s.6 of the Oaths Act requiring dating of affidavits is mandatory.
  2. What was the legal effect of having affidavits served on the parties undated while the court record had dated affidavits.
  3. Whether the Trial Magistrate erred by dismissing the petition instead of striking out the affidavits that were said to be offensive to s.6 of the Oaths Act.

Orders

  • Appeal allowed.
  • Orders of the court below set aside.
  • Election Petition No. 75/2011 to proceed on its merits.
  • Costs of the appeal awarded to the appellant.

Rules and key headnotes

Affidavits — Dating Requirements — Section 6 Oaths Act — Mandatory vs Directory Provision
Section 6 of the Oaths Act, which requires that every Commissioner for Oaths state truly in the jurat at what place and on what date an affidavit is taken or made, is directory and not mandatory in nature.
Substantive Justice — Article 126(2)(e) Constitution — Technical Defects in Affidavits
A defect in the jurat or any irregularity in the form of an affidavit cannot be allowed to vitiate an affidavit in view of Article 126(2)(e) of the Constitution of Uganda 1995, which requires courts to administer substantive justice without undue regard to technicalities.
Affidavits — Undated Affidavits — Court Powers to Cure Defects
A judge has power to order that an undated affidavit be dated in court or that the affidavit be re-sworn, and may penalise the offending party with costs.
Court Record — Official Point of Reference — Affidavits on File vs Served on Parties
The court record on file constitutes the official point of reference in all proceedings. Where the court file contains dated affidavits, it becomes official that the affidavits are properly dated, regardless of what documents were served on the opposite party.
Use of 'Shall' — Directory vs Mandatory — Purposive Interpretation
In interpreting a provision of law, a court must ensure that justice is done and pay less respect to technicalities. The use of the word 'shall' in a statute does not automatically render the provision mandatory; its nature depends on the intention of parliament and whether strict enforcement would defeat justice.
Powers of Court — Granting Relief Not Prayed For — Descending into the Arena
A court errs when it grants a prayer that the parties never asked for, as this amounts to descending into the arena instead of keeping its role as a neutral umpire.

Legislation cited (2)

Cases cited (4)

  • Saggu v Road Master Cycles (U) Ltd [2002] EA 258
  • Ibrahim v Shiek Bros Investments Ltd [1972] EA 118
  • Kiiza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 01 of 2001)
  • Lubyayi Iddi Kisiki v Kagimu Maurice Peter (Election Petition Appeal No. 6 of 2002)

Full judgment

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Kikongo v Electoral Commission & Anor (Election Appeal No. 75 of 2011) [2012] UGHC 398 (2 March 2012)
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.