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Mubiru Eliphaz v Tumwehe and Anor (Election Petition No. 3 of 2021)

High Court · [2021] UGHC 58 · 2021 Preliminary Objections Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging outcome of L.C V Chairman election for Gomba District — ruling on preliminary objections raised at scheduling conference
Decision
Three preliminary objections upheld — portions of petition and supporting affidavits expunged — petition to proceed on remaining grounds

Observed later treatment

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Holding

The court upheld three preliminary objections. First, paragraph 7 of the Petitioner's affidavit was expunged for containing hearsay without disclosing the source of information, violating O.19 r.3 Civil Procedure Rules. Second, paragraphs 4.1 and 4.2 of the Petition were severed for failing to plead particulars of alleged connivance, contrary to O.6 r.3. The court held that the Parliamentary Elections Act does not apply to Local Council election petitions under s.172 Local Government Act. Third, four affidavits by illiterate deponents were struck off for non-compliance with s.3 Illiterates Protection Act.

Outcome

Three preliminary objections upheld — portions of petition and supporting affidavits expunged — petition to proceed on remaining grounds

Facts

The Petitioner and 1st Respondent contested for the position of L.C V Chairman Gomba District. The 1st Respondent was declared winner by the 2nd Respondent (Electoral Commission). The Petitioner filed an election petition challenging the outcome. At the scheduling conference, the Respondents raised three preliminary objections concerning: (1) hearsay evidence in paragraph 7 of the Petitioner's affidavit regarding dead persons on the voters register; (2) lack of particulars in paragraphs 4.1 and 4.2 alleging connivance between the 2nd Respondent's officials and the 1st Respondent to forge and alter declaration forms; and (3) non-compliance of four affidavits with the Illiterates Protection Act.

Issues

  1. Whether paragraph 7 of the Petitioner's affidavit in support, containing hearsay evidence without disclosure of source, should be expunged from the record.
  2. Whether paragraphs 4.1 and 4.2 of the Petition, alleging connivance without pleading particulars, offend O.6 r.3 of the Civil Procedure Rules.
  3. Whether the Parliamentary Elections Act and Rules apply to Local Council election petitions.
  4. Whether affidavits deponed by illiterate persons comply with the Illiterates Protection Act Cap 78.

Orders

  • Paragraph 7(a)-(d) of the Petitioner's affidavit in support expunged from the record.
  • Paragraphs 4.1 and 4.2 of the Petition severed and expunged from the record.
  • Affidavits of Nakibuka Hasifwa, Ntale Jamilu, Ryalikuda Denes Denesi, and Ssekate Adrian struck off and expunged from the record.

Rules and key headnotes

Evidence — Affidavit Evidence — Hearsay — Disclosure of Source
An affidavit that depones to facts based on information received from others without disclosing the source of that information offends O.19 r.3(1) and (2) of the Civil Procedure Rules and should be expunged from the record.
Civil Procedure — Pleadings — Particulars — Fraud and Connivance
Where a petition alleges connivance akin to fraud, forgery, or impersonation, particulars of such allegations must be pleaded in accordance with O.6 r.3 of the Civil Procedure Rules. Failure to plead particulars such as dates, names of officers involved, and persons impersonated renders the pleading defective and liable to be struck out.
Electoral Law — Local Council Elections — Applicable Legislation — Petitions
Section 172 of the Local Government Act, which provides that the Presidential Elections Act and Parliamentary Elections Act shall apply to the election of Local Councils, applies only to the conduct of elections and does not extend to election petitions. Election petitions are governed by s.143(1) Local Government Act, which provides that the powers of court and rules of procedure applicable are those which apply to a civil action in a court of law.
Evidence — Affidavits — Illiterate Deponents — Statutory Requirements
An affidavit deponed by an illiterate person must comply with s.3 of the Illiterates Protection Act. A mere statement by the Commissioner of Oaths that the affidavit was read over and explained to the deponent, or a proclamation of the Commissioner's proficiency in the relevant languages, does not suffice to bring the affidavit into conformity with the Act. There must be evidence that the affidavit was drafted at the instruction of the deponent.
Civil Procedure — Statutory Interpretation — Plain Meaning Rule
The plain meaning rule of interpretation of statutes dictates that statutes be interpreted using the ordinary meaning of the language of the statute unless the statute defines some of its terms otherwise.

Legislation cited (9)

  • Civil Procedure Rules O.19 r.3(1)
  • Civil Procedure Rules O.19 r.3(2)
  • Civil Procedure Rules O.6 r.1
  • Civil Procedure Rules O.6 r.3
  • Local Government Act s.143(1)
  • Local Government Act s.172
  • Parliamentary Elections Rules r.4(8)
  • Illiterates Protection Act Cap 78 s.3
  • Oaths Act

Cases cited (3)

  • Wanyama Gilbert Mackmot v Hisa Albert and Electoral Commission (Election Petition Appeal No. 99 of 2016)
  • Nakato Segayi & Electoral Commission v Nabukenya Brenda (Election Petition Nos. 17 and 21 of 2016)
  • Mugume Peter v Mudiobole Abedi Nasser (Election Petition Application No. 16 of 2016)

Full judgment

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

Mubiru Eliphaz v Tumwehe and Anor (Election Petition No. 3 of 2021) [2021] UGHC 58 (26 August 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.