Wakilii

Konde v Ssenkubuge Isaac and Another (Election Petition Appeal No. 75 of 2016)

Court of Appeal · [2017] UGCA 166 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition appeal from High Court dismissal of petition on preliminary objections
Decision
Petition remitted for full trial before another Judge of the High Court

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal, holding that uncertified Declaration of Results Forms should have been admitted as evidence in the exceptional circumstances where the petitioner accused the Electoral Commission of altering results, since demanding certification from the accused body would be illogical. Additional affidavits filed without leave before the scheduling conference did not prejudice the respondents and should not have been struck out. The affidavits substantially complied with the Illiterates Protection Act and Oaths Act; deviations in the jurat form were insubstantial under Article 126(2)(e) of the Constitution. The trial Judge erred in dismissing the petition on preliminary objections; a full trial on the merits was ordered.

Outcome

Petition remitted for full trial before another Judge of the High Court

Facts

The appellant, the 1st respondent and four others contested the election for Chairperson of Bweyogerere Division, Kira Municipality, held on 9 March 2016. The Electoral Commission declared the 1st respondent the winner with 2,188 votes against the appellant's 1,873. The appellant petitioned the High Court alleging that duly signed Declaration of Results Forms issued to his agents at 8 polling stations had been altered to increase the 1st respondent's votes, with forged agent signatures. He attached two sets of DR Forms to his affidavit: uncertified copies given to his agents and certified copies obtained from the Electoral Commission which he alleged contained altered results. He filed six additional affidavits by his agents after the petition, without leave of court. The respondents raised preliminary objections that the uncertified DR Forms were inadmissible public documents, that the additional affidavits were filed without leave, and that affidavits failed to comply with the Illiterates Protection Act and Oaths Act. The trial Judge upheld all objections, expunged the affidavits and DR Forms, and dismissed the petition as unsupported.

Issues

  1. Whether uncertified Declaration of Results Forms are admissible in evidence where the petitioner alleges alteration of results by the body that would certify them.
  2. Whether additional affidavits in support of an election petition filed without leave of court before the scheduling conference should be struck out.
  3. Whether the affidavits complied with sections 2 and 3 of the Illiterates Protection Act and section 1 of the Oaths Act.
  4. Whether the trial Judge erred in dismissing the petition at the preliminary stage as unsupported by evidence.

Orders

  • Appeal allowed.
  • Order dismissing the appellant's petition set aside.
  • Full trial of the petition ordered before another Judge of the High Court.
  • Costs of the appeal and of the proceedings in the court below awarded to the appellant.

Rules and key headnotes

Evidence — Public Documents — Admissibility of Uncertified Declaration of Results Forms — Exceptional Circumstances
Although section 76 of the Evidence Act provides for proof of public documents by production of the original or certified copies, uncertified Declaration of Results Forms may be admitted in exceptional circumstances under sections 64(1)(a) and 65 of the Evidence Act, particularly where the petitioner accuses the certifying body itself of altering the results, since it would be illogical to require certification from the accused party.
Electoral Law — Election Petitions — Filing of Additional Affidavits Without Leave Before Scheduling Conference
Additional affidavits in support of an election petition may be filed without leave of court provided they are filed before the scheduling conference, as no prejudice is occasioned to the respondents who can still respond; leave is only required for affidavits filed after the scheduling conference.
Statutory Interpretation — Affidavits — Deviation in Form of Jurat — Substantial Compliance under Article 126(2)(e)
A defect or deviation in the form of a jurat prescribed under the Oaths Act does not vitiate an affidavit where the mischief the form seeks to address is otherwise satisfied and the deviation does not affect substance, in keeping with section 43 of the Interpretation Act and Article 126(2)(e) of the Constitution requiring substantive justice without undue regard to technicalities.
Illiterates Protection Act — Verification of Documents — Implied Statutory Compliance by Witness
Where a literate person writes the name of an illiterate deponent and appends his own true and full name and address as witness, sections 2 and 3 of the Illiterates Protection Act imply that the document was read over and explained to the illiterate and written on the illiterate's instructions, satisfying the statutory requirements without further express recital.
Civil Procedure — Preliminary Objections — Premature Dismissal Requiring Merits Determination
A court errs in dismissing an election petition on preliminary points of law where the nature of the complaint, such as alleged alteration of results, raises serious allegations that require a thorough scrutiny of the evidence and determination on the merits rather than summary disposal.

Legislation cited (17)

Cases cited (8)

  • John Baptist Kakooza v Electoral Commission (Election Petition Appeal No. 11 of 2007)
  • Bank of Uganda v Banco Arabe Espanol (Civil Application No. 23 of 1999)
  • Samuel Mayanja vs Uganda Revenue Authority, HCT-00-CC-MC-0017-2005
  • Sitenda Sebalu v Sam K. Njuba (Election Petition Appeal No. 26 of 2007)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Hon. Lillian Nakatte Segujja and anor vs Nabukenya Brenda (supra)
  • Saggu v Roadmaster Cycles (U) Ltd [2002] 1 EA 258
  • Nanjibhai Prabhudas & Co Ltd v Standard Bank Ltd [1968] EA 670

Full judgment

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

Konde v Ssenkubuge Isaac and Another (Election Petition Appeal No. 75 of 2016) [2017] UGCA 166 (5 December 2017)
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.