Wakilii

Kikongo v Electrol Commission and Anor (Election Appeal No. 75 of 2011)

High Court · [2012] UGHCEP 298 · 2012 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court dismissal of election petition challenging local council election result
Decision
Election petition remitted to Chief Magistrate's Court to be heard on its merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that section 6 of the Oaths Act requiring affidavits to be dated is directory, not mandatory. An undated affidavit can be dated in court or re-sworn, with costs awarded to the aggrieved party. The court record is the official point of reference in proceedings. Where affidavits on the court file were dated, even if copies served on opposing counsel were undated, the official record prevails. A trial court erred in dismissing an election petition when the only prayer made was to expunge undated affidavits, not to dismiss the entire petition.

Outcome

Election petition remitted to Chief Magistrate's Court to be heard on its merits

Facts

On 2 March 2011, the appellant and second respondent contested for the seat of woman councillor for Mengo Kisenyi III Parish, Kampala Central Division. The second respondent won with 617 votes against the appellant's 588 votes. The appellant filed Election Petition No. 007 of 2011 at the Chief Magistrate's Court of Mengo, supported by affidavits from the appellant and seven other deponents. At trial on 6 October 2011, respondents' counsel raised a preliminary objection that the affidavits served on the respondents were undated, offending section 6 of the Oaths Act. The court found that the affidavits on the court file were dated, but copies served on opposing counsel were undated. The trial magistrate held that section 6 was mandatory and that pleadings on court record should match those served on the opposite party in every respect. She dismissed the petition with costs. The appellant appealed to the High Court.

Issues

  1. Whether the provisions of s.6 of the Oaths Act are 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 Chief Magistrate's Court set aside.
  • Election Petition No. 75 of 2011 to proceed on its merits.
  • Costs of the appeal awarded to the appellant.

Rules and key headnotes

Civil Procedure — Affidavits — Formal Requirements — Whether Mandatory or Directory
Section 6 of the Oaths Act requiring that every Commissioner for Oaths state truly in the jurat at what place and on what date an affidavit is taken is directory, not mandatory. The use of the word 'shall' in the provision does not confer mandatory character, and a defect in the jurat or irregularity in the form of an affidavit cannot vitiate it in view of Article 126(2)(e) of the Constitution.
Civil Procedure — Affidavits — Undated Affidavits — Remedies
Where an affidavit is undated, the court has power to order that the affidavit be dated in court or that the affidavit be re-sworn, and may penalise the offending party with costs. The failure to date an affidavit is not forgery and can be cured by remedial action before the court.
Civil Procedure — Court Record — Official Status
The court record on file is the official point of reference in all proceedings. When an appeal is preferred, only the court record is relied upon, not any notes or documents held by parties. Where affidavits on the court file are dated, it becomes official that the affidavits in support of the motion or petition are dated, regardless of whether copies served on opposing counsel were undated.
Statutory Interpretation — Use of 'Shall' — Mandatory or Directory
In interpreting the word 'shall' in a statutory provision, the court must determine whether it is used in a directory or mandatory sense by examining the context and purpose of the statute. The court's duty is to interpret a statute in a manner that will not defeat the intention of parliament and not cause a miscarriage of justice, ensuring that justice is done and paying less respect to technicalities.
Civil Procedure — Court's Role — Granting Relief Not Prayed For
A court errs when it grants relief that was not prayed for by the parties. Where parties pray only that defective affidavits be expunged from the record, the court descends into the arena and abandons its role as a neutral umpire by dismissing the entire petition instead of granting the limited relief sought.

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
  • Rtd Col Dr 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 Electrol Commission and Anor (Election Appeal No. 75 of 2011) [2012] UGHCEP 298 (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.