Wakilii

Namboowa Rashida v Bavekuno Mafumu Godfrey Kyeswa & Another (Election Petition Appeal No. 69 of 2016)

Court of Appeal · [2017] UGCA 125 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition appeal from High Court dismissal at preliminary stage
Decision
Appeal allowed; dismissal set aside and petition remitted for full trial before another High Court judge

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal against the dismissal of an election petition at a preliminary stage. It held that certification of the jurat of an illiterate deponent's affidavit by a translator, rather than the Commissioner for Oaths, is an insubstantial deviation from Form B that does not render the affidavits fatally defective. Failure to seal annexures (as opposed to exhibits) does not offend Rule 8 of the Commissioner for Oaths Act. The court should have relied on the properly sealed affidavits on record. Reporting electoral complaints to the Electoral Commission is an administrative procedure that does not oust the High Court's unlimited original jurisdiction. The petition was ordered to proceed to a full trial before another judge.

Outcome

Appeal allowed; dismissal set aside and petition remitted for full trial before another High Court judge

Facts

The appellant, the first respondent and others contested the position of LC V District Chairperson for Butambala District in the elections held on 24 February 2016. The Electoral Commission declared and gazetted the first respondent as the validly elected Chairperson. Aggrieved, the appellant petitioned the High Court challenging the process and outcome of the election. The petition was supported by numerous affidavits deposed by illiterate persons not conversant with English; their contents were translated and certified by translators (Sekitoleko Peter or Mpenje Nathan) rather than by the Commissioner for Oaths. The first respondent was served a copy of the petition bearing unsealed annexures, while the copy on the court record had sealed and certified annexures. The trial Judge upheld preliminary objections, expunged 83 affidavits for non-compliance with the Illiterates Protection Act and Oaths Act, relied on the served unsealed copy, and dismissed the petition with costs on the further ground that the appellant had not reported electoral irregularities to the Electoral Commission before the elections.

Issues

  1. Whether the trial Judge erred in expunging the 83 affidavits supporting the petition for non-compliance with the Illiterates Protection Act and the Oaths Act.
  2. Whether certification of the jurat by a translator, rather than by the Commissioner for Oaths, renders an affidavit fatally defective.
  3. Whether the trial Judge erred in relying on the served copy with unsealed annexures rather than the sealed and certified affidavits on the court record.
  4. Whether failure to report electoral irregularities to the Electoral Commission before elections was fatal to the petition and ousted the High Court's jurisdiction.

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 those in the lower court awarded to the appellant.

Rules and key headnotes

Affidavits — Illiterate Deponents — Certification of Jurat by Translator Instead of Commissioner for Oaths
Where a third party interpreter certifies that an affidavit was translated to an illiterate deponent who appeared to understand its contents, and a Commissioner for Oaths thereafter administers the oath, the certification of the jurat by the interpreter rather than the Commissioner for Oaths is an insubstantial deviation from Form B of the Oaths Act and does not render the affidavit fatally defective.
Deviation from Prescribed Statutory Form — Substance over Form
Under section 43 of the Interpretation Act, an instrument purporting to be in a prescribed form is not void for a deviation that does not affect the substance of the document or is not calculated to mislead; a breach of formal or procedural requirements is treated as a mere irregularity where the departure is trivial and causes no substantial prejudice to those the requirement was designed to protect.
Affidavits — Sealing of Annexures Distinguished from Exhibits — Rule 8 Commissioner for Oaths Act
Rule 8 of the Commissioner for Oaths (Advocates) Act requiring secure sealing under the seal of the commissioner applies to exhibits produced in court in proof of facts, not to mere annexures attached to affidavits; failure to seal annexures does not offend Rule 8 and does not render the supporting affidavits incompetent.
Court Record — Duty to Rely on Sealed and Certified Affidavits on Record
Where the affidavits on the court record are properly sealed and certified, a court should rely on them rather than a served copy bearing unsealed annexures, and should administer justice without undue regard to technicalities under Article 126(2)(e) of the Constitution, especially where the opposing party filed an answer and suffered no prejudice.
Election Petitions — Reporting to Electoral Commission Not a Condition Precedent
Failure to report electoral irregularities to the Electoral Commission before elections is not fatal to an election petition; the complaints procedure under section 15 of the Electoral Commission Act is an administrative avenue that does not oust the unlimited original jurisdiction of the High Court under Article 139 of the Constitution.

Legislation cited (10)

Cases cited (8)

  • Hon. Lillian Nakatte Segujja and Another v Nabukenya Brenda (Election Petition Appeal No. 17 & 21 of 2016)
  • Ngoma Ngime v Electoral Commission & Hon. Winnie Byanyima (Election Petition Appeal No. 11 of 2001)
  • Chelbei Fred & Salimo David v Masali Labu (Miscellaneous Application No. 140 of 2010)
  • Nsubuga Silvest Ssekutu v Kalibbala Charles and Electoral Commission (Election Petition Appeal No. 26 of 2016)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Nanjibhai Prabhudas & Co. Ltd v Standard Bank Ltd [1968] EA 670
  • Secretary of State for Trade and Industry v Langridge [1991] 3 All ER 591
  • Uganda Corporation Creameries Ltd and Another v Reamaton Ltd (Civil Appeal No. 44 of 1998)

Full judgment

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

Namboowa Rashida v Bavekuno Mafumu Godfrey Kyeswa & Another (Election Petition Appeal No. 69 of 2016) [2017] UGCA 125 (22 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.