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

Ssemogerere and Mubiru are decisions of the Constitutional Court. With the greatest respect to that court, I think that the Court erred in both of these cases. First I think that in Constitutional Petitions, 0.1 7 Rule 3 ought not to be strictly adhered to in view of the special Rules which regulate the hearing of Constitutional Petitions. The Rules of the Constitutional Court (Petitions for Declarations under Article 137 of the Constitution) Directions, 1996 (Legal Notices No.4 of 1996) were made by the Chief Justice by virtue of powers given to him under para (c) of subsection (2) of S.51 of the Judicature Statute, 1996. The rules are special intended to apply to the expeditious disposal of constitutional cases. That is why Rule 12 thereof directs that all evidence at the trial of the petition shall be by affidavit. Moreover, Rule 13 which makes the Rules of the High Court, including Order 17, applicable subjects the application of the High Court Rules to Legal Notice No. 4 of 1996. This appears to suggest that whenever the technical application of the Rules of the High Court conflicts with the objective intended to be achieved by the provisions of Legal Notice No. 4 of 1996, namely expeditious delivery of justice, the High Court Rules must give way. Indeed at that stage the provisions of Article 126 (2) (e) would come into aid, I think.

Be that as it may, I have seen the ruling of the Constitutional Court in the Ssemogerere petition and I find it difficult to accept the view that paragraphs 6 and 8 in Kadaga’s affidavit contravened 0.17 Rule 3. Para. 6 shows that Hon. Kadaga talked to Members of Parliament who confirmed her own knowledge that they had been present in Parliament. The position appears to me more interesting in the Mubiru case. The deponent (Mubiru) disclosed in the affidavit that he had a discussion with his advocate who gave him legal opinion. The deponent believed the opinion of his advocate and relied on it. That was his basis for belief. Moreover the information can be verified by reference to the law quoted or the Court files. I think that Mubiru case ruling on the first point of objection (source of information) represents bad law and practice.

At this point I find it pertinent to make general observations. Objections by Counsel for the two respondents concerning the admissibility of affidavits by deponents supporting the petition were based on:

(a) 0.1 7 Rule 3 of the Civil Procedure Rules and decisions in election petitions decided by Judges of the High Court since the Parliamentary elections of 1996.

It does not appear to me that there was adequate consideration during the trials of petitions in the High Court of the import of S.121 of the Parliamentary Elections (Interim Provisions) Statute 1996, (Statute 4 of 1996), and the objectives of Rules 15 and 17 of the Parliamentary Elections (Election Petitions), Rules, 1996 (S.1. 1996 No. 27). These provisions are special and regulate the hearing of election petitions in the High Court (at least after 1996).

(b) A number of Constitutional cases decided since 1996. Proper consideration should be accorded to the import of Rules 12 and 13 of the Rules contained in Legal Notice No. 4 of 1 996 (supra).

The words of Rule 17 of S.1. 1996 No.27 and of Rule 13 of Legal Notice No.4 of 1 996 are identical. The rules in the two enactments contain general procedural provisions, which regulate the institution of Petitions and the conduct of the inquiry or the trial in the respective courts. In each set, like in this petition, although the calling of witnesses is provided for, the trials are to be conducted on affidavits to be read in Court. In either case, here is rule 17 and rule 13 (which I shall call the “rule of resort”) which provides for resort to the Civil Procedure Act and the Civil Procedure Rules, but, when resorting to these latter rules (General Rules), neither the High Court, nor the Constitutional Court, nor indeed this Court, is expected to apply those general rules in disregard of the objectives of these special rules. I think that there would have been no need to enact the special laws and rules if courts hearing petitions were expected to follow the letter and spirit of the Civil Procedure Act and the Civil Procedure Rules.

Now I think it is instructive to consider Rule 2 of S.l.2001 No.13 which declares that;-

“These Rules shall apply to the conduct of election petitions under section 58 of the Presidential Elections Act, 2000”

In conclusion I think that the special rules enjoin the High Court, the Constitutional Court and this Court, when trying petitions governed by the laws I have referred to, to expeditiously deliver justice to the parties with least regard to technicalities. In connection with the objection I would like to refer to Maidstone Borough case, Evans vs. Castle Reagh (1906) 5 O’M & H 200 at 201, where Lawrence J. observed:-

“That it is true that in election cases we have to throw over board the rules which regulate ordinary cases, because we have to deal with peculiar circumstances.”

I don’ think that the learned Judge was there advocating for ignoring the general rules altogether. However the message is clear. Avoid undue technicalities

For the reasons I have endeavoured to give, I do not think that it is appropriate to apply 0. 17 Rule 3, too strictly as was the case in the petitions of Ssemogerere & Olumu (supra), and Odetta vs. Omeda (supra). In my view those decisions in so far as they decided that 0:17 Rule 3 must be applied strictly in election petitions and in Constitutional petitions, represent bad law and to that extent, these decisions should be overruled.

Bearing the foregoing in mind let me revert to the other arguments on the objections by Dr. Byamugisha. He referred to Ss.57 and 58 of the Evidence Act and submitted that the affidavits are hearsay and also that annexed documents violate sections 60 to 63 of the same Act. He said that the affidavits and documents did not comply with sections 72, 75, and 76, of the Evidence Act. Mr. Kabatsi, the learned Solicitor-General concurred and submitted that Rule 3 of 0-1 7 does not appear to accept severance of bad parts of affidavits from their good parts. He suggested that if this Court were to depart from the established practice of not acting on defective affidavits, the Court should not overrule existing decisions (presumably Ssemogerere, Mubiru, Kabwimukyi), because we would create a bad precedent for the Courts below.

Mr. Balikudembe, for the Petitioner, submitted that under 0.17 Rule 3, a court has discretion to accept or to reject proper or improper material appearing in an affidavit in the same way as courts do in regard to oral testimony. He relied on my decision in Reamaton Ltd vs. Uganda Corporation Creameries Ltd & Kawalya - Sup. Court Civil Application No. 6 of 1999 (unreported) and Motor Mart (U) vs. Y Kanyomozi - Civil Application No. 6 of 1999 (unreported) and urged us to consider the substance of these affidavits and decide the petition on its merits.

Let me begin with the main affidavit of the Petitioner accompanying the petition, which was also included among the so-called defective affidavits, containing hearsay and matters based on information and without source which offended Rule 3 of 0.17.

I have already referred to Rule 2 of S.l.2001 No.13 which directs that:-

“These Rules shall apply to the conduct of election petitions under section 58 of the Presidential Elections Act, 2000”

Under Rule 3,

“An election petitions includes the affidavit required by these Rules to accompany the petition”

On the basis of the chart provided to us by the respondents’ counsel I take it that their objection to the petitioner’s affidavit was restricted to the main affidavit sworn on 23/3/2001. I think that an election petition like a plaint is likely initially to make allegations1 which are subject to proof or disproof. In a petition, like the present, which is presented expeditiously under special rules as those set out in S.1. 2001 No. 13, a petitioner will inevitably including hearsay matters in the main affidavit accompanying his petition- I am not saying that hearsay should be included deliberately. What I believe happens is that grounds in the petition would most likely be based on information provided, in all probability by his agents or supporters from various parts of the country. The proper course to take during the inquiry, in such circumstances, is to consider the petition and the accompanying affidavit and, unless the affidavit contains obviously scandalous or frivolous matter, finally reject any matters contained in such affidavit as appear not to have been satisfactorily proved unless perhaps the petition does not disclose a cause of action. Alternatively where time is still available the petitioner should seek leave to correct errors by way of supplementary affidavit. It would be unjust to reject the petitioner’s whole affidavit at the beginning of the inquiry. In the result, I do not agree, and in any event, I am not persuaded1 that the accompanying affidavit of the petitioner violated 0.17 Rule 3.

Let me quote Rule 15 of S.1. 2001 No.13 which makes the Civil Procedure Rules applicable in these proceedings. It states as follow:-

“Subject to the provisions of these Rules, the practice and procedure in respect of a petition shall be regulated, as nearly as may be, in accordance with the Civil Procedure Act and the Rules made under that Act relating to the trial of a suit in the High Court with such modifications as the Court may consider necessary in the interests of justice and expedition of the proceedings.”

I have already stated that the import of this rule is to advance expeditious disposal of petitions without forgetting to do justice to the parties. Speed is the reason why the trial of the petition is by way of affidavits. It is, I think, the broad principles of the CP. Rules, which are to be applied.

By the way if we stick to the rules, it is arguable whether paragraphs 9, 15 and 16 of the first Respondent’s affidavit attached to his answer would not violate 0.17 as they contain some hearsay and therefore would render the whole affidavit defective.

A part from the two decisions of this Court cited by Mr. Balikudembe, there are decided cases from other jurisdictionS1 such as England and Kenya, which support the proposition that parts of an affidavit can be severed from the rest of the same affidavit where the severance does not affect the merits, or will not detract from the other paragraphs, of the affidavit. See M. B Nandala vs. Father Lyding (1963) E. A. 706 where the concluding and the only offending part of the affidavit was severed. That is a decision of Sir Udo Udoma, C.J., in which the present 0.17 Rule 3 was considered. See Mayers & Another VS. Akira Ranch (1969) EA. 169 (K). See Zola vs. Ralli (1969) EA. 691, at page 693 which is authority for the proposition that an affidavit may be defective but not necessarily a nullity. The E. A. Court of Appeal rejected arguments substantially similar to what were put forward by Mr. Nkurunziza.

In Rossage vs. Rossage (1960)1 W.L.R 249, an authority listed by Counsel for the first Respondent, the English Court of Appeal considered a similar objection. The Court, Hudson, L.J. at page 250, considered Order 38 Rule 3 of the then Supreme Court Rules of England, which was substantially the same as our 0.17 R.3. The Court of Appeal expunged some of the affidavits from the court record but that was because the proportion of the offending materials to the relevant materials was so high that the court found it proper to remove the offending affidavits all together. The offending matters were scandalous and would have embarrassed the Court as well as the opposite party. The effect of that decision is that striking out an affidavit depends on the contents of the affidavit.

The affidavits complained of in the petitions before us are listed in a chart provided by the respondents’ counsel. The chart lists the respondent’s affidavits also. I have gone through these affidavits. Very many of the affidavits complained of are very similar to the affidavit in Nandala case (supra) Deponents speak about what they personally saw and or what they heard. That is very clear. The concluding paragraph then ends with the sentence.

“— What I have stated herein is true to the best of my knowledge and belief”.

I think that the inclusion of the words ‘belief” or ‘information” is in some cases superfluous and does not render each affidavit invalid, at any rate not the whole of each affidavit. In my opinion it would be improper in this petition to strike out wholly affidavits which are found to contain so called hearsay evidence in some parts where the offending parts of the same affidavits can be severed from the rest of the affidavit without rendering the remaining parts meaningless.

Incidentally 0.1 7 R.3 has a punishment provision for parties who offend. Rule 3(2) reads as under: Perhaps for those who press for striking out affidavits containing hearsay matter,
I would like to quote sub-rule 2 of Rules 3 Order It states:-

‘The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents, shall, unless the court otherwise directs, be paid by the party filing the same”

This sub-rule envisages matters complained of by Mr. Nkurunziza. Punishment by way of costs against a party who files an offending affidavit appears to me to be a suitable remedy in appropriate cases. And just to emphasis the point that election petition rules are special rules, I refer to page 600 of vol.3 of A.I.R. 1Qth Ed. Commentaries, on the Indian Code of Civil Procedure. The commentators refer to the existence of Election Rules of 1961 whose purpose is the same as the present Presidential Election (Election Petition) Rules, 2001. Discussion there concerns the Indian 0.19 Rule 3 which is identical to our 0.17 Rule 3. The commentators opined that there is nothing in the (Indian) Code­­….. Which can apply in derogation of the (Indian) Representation of the People Act or the Rules framed there under. Authorities are quoted to show that a defective affidavit filed in an election petition is not fatal and a petitioner can be allowed to make appropriate correction. I share this opinion.