Wakilii

Mugyenyi v Hon Tumwesigye Elioda and Another (HCT-05-CV-EP-001-2018)

High Court · [2018] UGHC 43 · 2018 Preliminary Objection Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection raised at commencement of election petition hearing challenging competence of affidavits
Decision
Multiple affidavits supporting the election petition struck out for non-compliance with statutory requirements; remaining affidavits admitted

Observed later treatment

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Holding

Held that affidavits sworn by illiterate deponents must strictly comply with Section 3 of the Illiterates Protection Act, requiring the translator to state their true and full name and address. Affidavits lacking the translator's full address, and those where the certificate of translation appeared after the commissioner's endorsement, were struck out as incompetent. These requirements are mandatory and substantive, not mere technicalities.

Outcome

Multiple affidavits supporting the election petition struck out for non-compliance with statutory requirements; remaining affidavits admitted

Facts

The petitioner filed an election petition supported by numerous affidavits. At the commencement of the hearing, the first and second respondents raised a preliminary objection challenging the competence of several affidavits. The respondents argued that affidavits sworn by persons illiterate in the language of the affidavit failed to comply with Section 3 of the Illiterates Protection Act. Specifically, they contended that certificates of translation lacked the translator's full address, and in some cases, the certificates appeared after the commissioner for oaths had already signed and stamped the affidavit. The petitioner submitted that the affidavits substantially complied with the law and that any defects were matters of evidence, not law.

Issues

  1. Whether the petition and affidavits filed for and on behalf of the petitioner are competent and triable at law.
  2. Whether affidavits sworn by illiterate deponents comply with the mandatory requirements of Section 3 of the Illiterates Protection Act.
  3. Whether certificates of translation that lack the translator's full address render affidavits incompetent.
  4. Whether certificates of translation appearing after the commissioner for oaths' signature and stamp comply with the Oaths Act.

Orders

  • All affidavits in the first category (where the translator's true and full address was not stated) struck out with costs to the respondents.
  • All affidavits in the second category (where the certificate of translation appeared after the commissioner's endorsement) struck out with costs.
  • Remaining affidavits of the petitioner and respondents not affected by the above orders deemed read and admitted on court record as evidence in chief.

Rules and key headnotes

Evidence — Affidavits — Illiterate Deponents — Mandatory Requirements
Section 3 of the Illiterates Protection Act requires any person writing a document for an illiterate to write their own true and full name and their true and full address on the document. This requirement is mandatory and substantive, not a mere technicality. Failure to comply renders the affidavit incompetent and it must be struck out.
Evidence — Affidavits — Certificate of Translation — Address Requirement
Where a certificate of translation on an affidavit sworn by an illiterate deponent fails to state the translator's true and full address, the affidavit does not comply with Section 3 of the Illiterates Protection Act. The certificate cannot imply that the translator was instructed by the deponent or that it correctly represents the deponent's instructions. Such affidavits are incompetent.
Evidence — Affidavits — Jurat Requirements — Order of Execution
Under the Oaths Act, an affidavit sworn by an illiterate person must include in the jurat at the end of the affidavit a statement that the contents were read and explained to the deponent who appeared to understand them. The jurat is at the end of the affidavit and is sealed by the commissioner for oaths. Any certificate of translation appearing after the commissioner's seal is not part of the affidavit, as it was not sworn before the commissioner. Such affidavits are incompetent.
Civil Procedure — Preliminary Objections — Points of Law
Where defects in affidavits sworn by illiterate deponents appear on the face of the documents and relate to mandatory statutory requirements, the issue is one of law that can be determined at the preliminary objection stage. It is not necessary to call evidence to establish whether deponents appeared before the commissioner for oaths; the affidavit must speak for itself.
Evidence — Admissibility — Documentary Evidence — Jurat Defects
Where a defect in an affidavit appears in the jurat and is not curable, it cannot be severed from the rest of the affidavit. The defect renders the entire content of the affidavit fatally defective and inadmissible.
Constitutional Law — Substantive Justice vs Technicalities — Article 126(2)(e)
The requirements of Section 3 of the Illiterates Protection Act are substantive requirements of the law and not mere technicalities. They do not fall within the ambit of procedural technicalities under Article 126(2)(e) of the Constitution. Non-compliance cannot be cured by invoking the principle of substantive justice over procedural technicalities.

Legislation cited (7)

Cases cited (5)

  • Mugerwa Peter v Mudiobole Abeck Nasser (Election Petition Appeal No. 16 of 2016)
  • Ngoma Njime v Electoral Commission and Hon Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
  • Nakiwala v Rwekibira (High Court Civil Suit No. 280 of 2006)
  • Kasala Growers Cooperative Society v Kakooza (Supreme Court Civil Appeal No. 19 of 2010)
  • Mukisa Biscuits

Full judgment

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

Mugyenyi v Hon Tumwesigye Elioda and Another (HCT-05-CV-EP-001-2018) [2018] UGHC 43 (16 January 2018)
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.