Wakilii

Mpanga v Ssenkubuge and Another (Election Petition No. 15 of 2021)

High Court · [2021] UGHCCD 112 · 2021 Petition Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging local government election results, struck out on preliminary objection
Decision
Petition struck out for want of a valid accompanying affidavit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An election petition must be accompanied by a valid affidavit setting out the facts on which it is based. Where the supporting affidavit is commissioned by an advocate practicing in the law firm representing the petitioner, it contravenes section 4(1) of the Commissioner for Oaths (Advocates) Act and is incurably defective. Such a defect cannot be cured under article 126(2)(e) of the Constitution or section 14A of the Advocates Act as it offends substantive law. A petition without a valid accompanying affidavit collapses and must be struck out.

Outcome

Petition struck out for want of a valid accompanying affidavit

Facts

The petitioner challenged the election of the 1st respondent as Chairperson of Bweyogerere Division, Kira Municipality, Wakiso District held on 3 February 2021. The 1st respondent was declared winner with 6,879 votes against the petitioner's 5,683 votes. The petitioner alleged that the 2nd respondent failed to conduct the election in accordance with electoral laws and that non-compliance affected the result substantially. When the matter came up for scheduling, the respondents raised preliminary objections concerning irregularities in the petition. The court validated late service of the 1st respondent's answer. The main objection concerned the affidavit in support of the petition, which was sworn before Ms. Nampeera Juliet, an advocate practicing with Lukwago & Co. Advocates, the firm representing the petitioner.

Issues

  1. Whether the affidavit in support of the petition can support the petition having been based on information from third parties.
  2. Whether the annexures to the affidavit in support of the petition should be struck out for non-certification as required by law.
  3. Whether the commissioning of the affidavit in support of the petition by an advocate practicing in the firm representing the petitioner renders it fatally defective.
  4. Whether the 25 affidavits in support of the petition should be expunged from the record having been filed after the petition had been long filed.

Orders

  • The petition is struck out.
  • Costs awarded to the respondents.

Rules and key headnotes

Electoral Law — Election Petitions — Affidavit in Support — Commissioning by Advocate from Petitioner's Law Firm
A commissioner for oaths shall not exercise powers under the Commissioner for Oaths (Advocates) Act in any proceeding in which he or she is the advocate for any of the parties or is concerned in the matter or is interested. An advocate practicing in the law firm representing a party to proceedings is concerned and interested in the matter by virtue of employment with that firm. An affidavit commissioned in violation of section 4(1) of the Commissioner for Oaths (Advocates) Act is not an affidavit as envisaged in law and is incurably defective.
Electoral Law — Election Petitions — Defective Affidavit — Power to Cure Defects
An affidavit sworn in violation of section 4(1) of the Commissioner for Oaths (Advocates) Act is incurably defective and cannot be cured under article 126(2)(e) of the Constitution or section 14A of the Advocates Act. Article 126(2)(e) was not created or intended to defeat substantive law. Section 14A of the Advocates Act is meant to protect innocent litigants from unscrupulous advocates, not to cure an illegality.
Electoral Law — Election Petitions — Requirement for Accompanying Affidavit
Rule 4(8) of the Parliamentary Elections (Interim Provisions) Rules requires that a petition shall be accompanied by an affidavit setting out the facts on which the petition is based. Where the supporting affidavit is incurably defective, the petition is not accompanied by any affidavit as required by law and must be struck out.
Electoral Law — Election Petitions — Affidavits Based on Information from Third Parties
In election petitions, a candidate cannot be everywhere and is represented by agents. A petitioner may rely on information given by agents provided there is proper and full disclosure of the particulars of the sources of information. Disclosure of sources of information is a crucial requirement in election matters.
Electoral Law — Election Petitions — Filing of Additional Affidavits
Rule 4(8) of the Parliamentary Elections (Interim Provisions) Rules does not stipulate that all affidavits intended to be relied upon by the petitioner have to be filed within the restricted time and does not prevent the petitioner from filing other affidavits after the petition has been filed. Courts adopt a liberal approach when dealing with affidavits in election matters given the peculiar circumstances, including the short statutory time frame and the need to gather evidence from a wide spectrum of people.
Evidence — Public Documents — Certification — Declaration of Results Forms
A declaration of results form is a public document within the meaning of section 73(a)(ii) of the Evidence Act and requires certification under section 76 if it is to be presented as an authentic and valid document in evidence. The question of admissibility of uncertified declaration forms is a matter of evidence requiring thorough scrutiny and can only be determined after the matter has been scheduled, not in a preliminary objection.
Civil Procedure — Service of Process — Election Petitions — Late Service
Service of process required in election petitions is directory rather than mandatory. Failure to serve within time, especially where no injustice or prejudice is caused, cannot vitiate the proceedings before the court. Late service may be validated where it does not prejudice the other party.

Legislation cited (12)

Cases cited (11)

  • Muhindo Rehema v Winfred Kizza and Electoral Commission (Election Appeal No. 29 of 2011)
  • Zimula Fred v Bazigatillawo Kibuuka Francis (Election Petition Appeal No. 1 of 2018)
  • John Baptist Kakooza v Electoral Commission and Yiga Anthony (Election Petition Appeal No. 11 of 2007)
  • Stephen M. Mogaka Vs Independent Electoral and Boundaries Commission &2 others (Election Petition No.2 of 2017)
  • Fatuma Nakatudde and Another v Makerere University (Miscellaneous Cause No. 175 of 2019)
  • Dr. Colonel Kizza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2001)
  • Markly Vincent Okidi and 4 Others v Peter Odok W'Oceng (Election Petition No. 9 of 2011)
  • Chemoiko v Soyekwo and Electoral Commission (Election Appeal No. 56 of 2016)
  • Tamale Julius Konde v Ssenkubuge and Electoral Commission (Election Petition Appeal No. 75 of 2016)
  • Suubi Kinyamatama Juliet v Sentongo Robinah Nakasirye and Another (Election Petition Appeal No. 92 of 2016)
  • Akuguzibwe Lawrence v Muhumuza David, Mulimira and Electoral Commission (Election Petition Appeal No. 22 of 2016)

Full judgment

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

Mpanga v Ssenkubuge and Another (Election Petition No. 15 of 2021) [2021] UGHCCD 112 (8 September 2021)
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.