The republic of uganda in the supreme court of uganda at kampala

Affidavit Evidence:

All evidence at the trial of an election petition is required to be adduced by affidavits. Cross-examination of the deponents may be permitted only with the leave of the court. This is provided in Rule 14, which states in material parts as follows:

“(1) Subject to this rule, all evidence at the trial, in favour of or against the petition shall be by way of affidavit read in open court.

(2) With leave of the court, any person swearing an affidavit which is before the court may be cross-examined by the opposite party and reexamined by the party on behalf of whom the affidavit is sworn.”

Accordingly parties filed many affidavits to support their respective cases. The Petitioner filed 174 affidavits both in support of the petition and in reply to the affidavits of the 1st and 2nd Respondents, who in turn filed 133 and 88 affidavits respectively. The filing of affidavits continued throughout the hearing of the petition. However, leave was granted to the Petitioner to call and cross-examine one deponent, Dr. Diana Atwine, who had sworn an affidavit in support of the 1st Respondent.

Mr. Nkurunziza learned counsel for the 1st Respondent submitted that three categories of affidavits were filed by the Petitioner as follows:

1. 
   Affidavits which are inadmissible in law.
   
2. 
   Affidavits specifically referred to in submission by the counsel for the Petitioner.
   
3. 
   Affidavits filed but not referred to during submissions.
   

As regards affidavits, which are inadmissible in law, Mr. Nkurunziza identified again three categories namely,

1. 
   Affidavit sworn outside Uganda.
   
2. 
   Affidavits sworn before advocates appearing in the petition.
   
3. 
   Affidavits sworn in breach of Order 17r.3 of the Civil Procedure Rules.
   

Mr. Balikuddembe learned leading counsel for the Petitioner challenged the admissibility of the affidavit accompanying the answer of the 1st Respondent.

Hon. Okwir Rwaboni filed an affidavit sworn before a Solicitor in the United Kingdom. It was submitted by Mr. Nkurunziza that under section 7(3) of the Statutory Declarations Act No.10 of 2000, a statutory declaration taken outside Uganda cannot be received in evidence unless it is registered under the Registration of Documents Act. In this case, there was no evidence that Hon. Okwir’s declaration was registered. Mr. Balikuddembe learned leading counsel for the Petitioner argued that Hon. Okwir’s affidavit was sown for use in this court and was admissible by virtue of the provisions of Sections 3 and 4 of the Statutory Declarations Act 2000.

Section 3 of the Statutory Declarations Act provides,

“After the commencement of this Act no affidavit shall be sworn for any purpose except -

(a) Where it relates to any proceedings application or other matter commenced in any court of referable to a court