Wakilii

Sentumu v Nayebale and Another (Election Petition Appeal No. 11 of 2021)

Court of Appeal · [2022] UGCA 127 · 2022 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court decision dismissing an election petition on preliminary objections
Decision
Appeal substantially succeeds; High Court ruling set aside and Election Petition No. 1 of 2021 remitted to the High Court at Mpigi for trial on its merits before a different judge

Observed later treatment

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Holding

The Court of Appeal held that although a petition on which insufficient filing fees were paid was improperly before the trial court, section 97 of the Civil Procedure Act (applicable to election petitions via Rule 17) gave the court discretion to allow payment of the shortfall, whereupon the petition would be deemed duly filed without any extension of time. Dismissal without exercising that discretion denied the appellant a fair hearing on the merits. The court further held that where an illiterate deponent's affidavit lacks the drafter's name but contains a certified translation jurat, the court should call the deponent rather than expunge the affidavit. The appeal substantially succeeded and the petition was remitted for trial.

Outcome

Appeal substantially succeeds; High Court ruling set aside and Election Petition No. 1 of 2021 remitted to the High Court at Mpigi for trial on its merits before a different judge

Facts

Betty Sentamu and Sylvia Nayebale contested the position of Woman Member of Parliament for Gomba District in the general election held on 14 January 2021. The Electoral Commission declared Nayebale the winner with 30,253 votes against Sentamu's 22,657 votes. Dissatisfied, Sentamu filed Election Petition No. 1 of 2021 at the High Court at Mpigi alleging electoral malpractices. At presentation of the petition, Sentamu paid Ushs. 100,000/= in filing fees instead of the Ushs. 150,000/= prescribed by Rule 5(3) of the Parliamentary Elections (Interim Provisions) Rules. The first respondent raised preliminary objections that the petition was incompetent for insufficient fees and that 28 supporting affidavits of illiterate deponents offended section 3 of the Illiterates Protection Act. The trial court upheld both objections, dismissed the petition and expunged the affidavits. Sentamu appealed.

Issues

  1. Whether the petition was validly before the trial court given the non-payment of the full prescribed filing fees, and whether the trial court could exercise discretion to allow payment of the shortfall under section 97 of the Civil Procedure Act.
  2. Whether allowing payment of the residual filing fees amounted to an extension of time within which to file the petition.
  3. Whether the trial court held the appellant personally liable for the mistake of her advocate.
  4. Whether the trial court denied the appellant a fair hearing by not determining the petition on its merits.
  5. Whether the trial court erred in entertaining the preliminary objections without the second respondent complying with a court order for inspection of BVVK machines.
  6. Whether the trial court erred in expunging 28 affidavits for contravening section 3 of the Illiterates Protection Act.

Orders

  • The Ruling of the High Court dated 30th August 2021 in Election Petition No. 1 of 2021 and the orders made therein are set aside.
  • The Appellant is allowed to pay the sum of Ushs. 50,000/= being the outstanding court fees due upon presentation of Election Petition No. 1 of 2021.
  • Election Petition No. 1 of 2021 is remitted back to the High Court of Uganda at Mpigi forthwith for trial on its merits before a different judge.
  • Each party to bear its own costs.

Rules and key headnotes

Election Petitions — Filing Fees — Discretion to Cure Shortfall under Section 97 CPA
Where a party has paid only part of the prescribed filing fees for an election petition, the court has discretion under section 97 of the Civil Procedure Act to allow payment of the shortfall, whereupon the petition is deemed duly filed as if the fee had been paid in the first instance, and this does not amount to an extension of time for filing.
Election Petitions — Applicability of Civil Procedure Act via Rule 17 of Parliamentary Elections Rules
Because the Parliamentary Elections (Interim Provisions) Rules are silent on curing non-payment of court fees and Rule 17 adopts the practice and procedure of the Civil Procedure Act, section 97 of the Civil Procedure Act is directly applicable to election petitions.
Election Petitions — Right to Fair Hearing — Determination on Merits
The legislative purpose of the Parliamentary Elections Act includes ensuring that alleged electoral malpractices are subjected to a fair trial and determined on the merits, and dismissing a petition without exercising available judicial discretion to cure a minor procedural defect flouts the petitioner's right to a fair hearing.
Preliminary Objections — Discretion to Dispose at Onset of Hearing
Under Order 6 rule 28 of the Civil Procedure Rules a court may dispose of a preliminary point of law at or after the hearing, and it is a matter of the court's discretion, depending on the facts of each case, whether to rule on the objection as a preliminary matter or defer it.
Illiterates Protection Act — Affidavits — Effect of Defective Jurat
Where an illiterate deponent's affidavit omits the drafter's name and address as required by section 3 of the Illiterates Protection Act but contains a certification by the Commissioner for Oaths that the contents were read, translated and explained, coupled with the deponent's signature, the court should call the deponent to establish consent rather than expunge the affidavit, the manner of certification being a matter of form not substance.
Election Petitions — Liberal Approach to Affidavits
Courts should take a liberal approach to affidavits in election petitions owing to the tight timelines under which they are compiled, unless an omission is material and goes to the root of the substance of the affidavit.

Legislation cited (19)

Cases cited (29)

  • Wanyoto Lydia Mutende v The Electoral Commission and Another (Miscellaneous Application No. 179 of 2021)
  • Kubeketerya James v Waira Kyewelabye and Another (Election Petition Appeal No. 97 of 2016)
  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 16 of 2016)
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Achieng Sarah Opendi and Another v Ochwo Nyakecho Keziah (Election Petition Appeal No. 39 of 2011)
  • Father Nasensio Begumisa and Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Yese Ruzimbira v Kimbowa Builders & Construction Ltd (1976) HCB 278
  • Apollo Kantinti v Sitenda Sebalu & 2 Others, Consolidated Election Petition Applications No. 55 & 84 of 2015 (Arising out of Consolidated Election Petition Appeals No. 31 & 33 of 2016)
  • Kiiza Besigye v Electoral Commission and Another (Presidential Election Petition No. 1 of 2005)
  • Amama Mbabazi and Another v Musinguzi Garuga James (Election Petition Appeal No. 25 of 2002)
  • Sitenda Sebalu v Sam K. Njuba and Another (Election Appeal No. 26 of 2007)
  • Raphael Baku and Another v Attorney General (Constitutional Appeal No. 1 of 2005)
  • Makula International Limited v His Eminence Cardinal Nsubuga and Another (Civil Appeal No. 4 of 1981)
  • Uganda Taxi Operators and Drivers Association v URA (Civil Appeal No. 52 of 2021)
  • Hadkinson v Hadkinson (1952) All ER 566
  • Hon Sitenda Sebalu v Secretary General of the East African Community (EACJ Reference No. 1 of 2012)
  • Major General D. Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Kasaala Growers Co-operative Society v Jonathan Kakooza and Another (Civil Application No. 19 of 2010)
  • Sodzedo Akutuye and Others vs. Adioa Nyakoah and Others (2018) GHASC 31 (Supreme Court of Ghana)
  • Zabrama v Segbedzi (1991) 2 GLR 221
  • Kwaku Bamfi Adomako & Another v Opanin Kofi Duodu & Others (2011) GHASC 38
  • Protazio Begumisa v Wilfred Nuwagaba and Another (Election Petition No. 1 of 2021)
  • Mubiru Eliphaz v Kiviri Tumwehe Geoffrey and the Electoral Commission (Election Petition No. 3 of 2021)
  • Abubaker Mashari v Bakunda (U) Ltd and Others (Miscellaneous Application No. 233 of 2013)
  • Nakate Lillian Segujja & Another v Brenda Nabukenya. Consolidated Election Petition Appeals No. 17 & 21 of 2015 (unreported)
  • Mugema Peter v Mudiobole Abedi Nasser (Election Petition Appeal No. 30 of 2011)
  • Rehema Muhindo v Winifred Kiiza (Election Petition Appeal No. 2 of 2011)
  • Col. Dr. Kiiza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2001)
  • Queensland v Commonwealth (1977) 139 CLR 585

Full judgment

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Sentumu v Nayebale and Another (Election Petition Appeal No. 11 of 2021) [2022] UGCA 127 (25 April 2022)
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.