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

Age: 32 years

Occupation: Member of Parliament

The introductory paragraph reads:

“I am a Ugandan Citizen of the above mentioned particulars I would hereby solemnly and sincerely declare as follows:”

This is followed by numbered paragraphs of statements contained in the document. It ends thus:

“AND I MAKE THIS SOLEMN DECLARATION consciefltI0Y believing the same to be true and by virtue of the Statutory Declaration Act 135.

Declared by the said OKWIR RABWONI - M.R

At (name of place not legible).

This 23 day of March 2001

Before me: (Name illegible).

Solicitor/Commissioner for Oaths.”

The expression “Commissioner for Oaths” is crossed off in the jurat, but it is apparent that the document was deponed to before a solicitor, not before a Commissioner for Oaths. Although the document is headed “Affidavit”, it appears to be clear that it is a statutory declaration. It the circumstances, section 7(3) of Act 10/2000 would apply to it. It would therefore, not be admissible in evidence unless it was registered with the Registrar of Documents. Though not so registered it is obviously not an illegal document. The main purpose of the requirement for registration of such a document, in my view, appears to be for authentication of receipt of the document in Uganda and, must be also, for raising some revenue in addition, since fee is payable for registration. To me, the requirement is a technicality which should not vitiate the validity of the document. This is where substantive justice should be administered without undue regard to technicality as article 126(1) (e) of the Constitution requires. For these reasons, in my view, the document of Major (Rtd.) Okwir Rabwoni is admissible in evidence in these proceedings.

Mr. Balikuddembe next commented on the affidavits criticized for having been commissioned by advocates who were allegedly counsel for the Petitioner. He said that at the time the affidavits were commissioned by advocates, Wycliffe Birungi and Kiyemba Mutale, they had no instruction to represent the Petitioner as his counsel in this petition. However, on the day the hearing of the petition commenced, the tow advocates were robed and seated in a row of seats behind Mr. Balikuddembe That was when he introduced them to the Court as part of the Petitioner’s team of Lawyers. When Mr. Balikuddembe subsequently consulted the Petitioner, the latter informed him that he had instructed ten Lawyers only, Mr. Wycliffe Birungi and Mr. Kiyemba Mutale not being amongst them. That was the reason Mr. Balikuddembe prayed for grant of a certificate for 10 counsel for the petitioner when he made his closing submission in the petition.

Mr. Balikuddembe further submitted in the alternative, that the prohibition in section 5(1) is against a Commissioner for Oaths commissioning a matter in which he is an advocate or has interest. The section is silent about the fate of such affidavit or document. Learned counsel contended that non compliance with section 5(1) of the Commissioners for Oaths (Advocates) Act does not render an affidavit deponed to by an innocent party invalid. The affidavit in question should remain valid. This argument is in the alternative if the Court holds that the two gentlemen were Lawyers representing the Petitioner and, therefore, should not have commissioned the affidavits.

In my view, the explanation by Mr. 8alikuddem that Mr. Wycliffe Birungi and Mr. Kiyemba Mutale were not the Petitioner’s Lawyers when they commissioned the affidavits and that they, in fact, were not instructed by the Petitioner to represent him in the petition is sufficient explanation to leave the relevant affidavits unaffected by the provisions of section 5(1) of the Commissioner for Oaths (Advocates) Act. It is, therefore, not necessary to consider Mr. Balikuddembe’s alternative argument about the affidavits.

With regard to affidavits which offend the provisions of Order 17, rule 3 of the C.P.R. Mr. Balikuddembe submitted that this Court has discretion on the evidence by the affidavits in question. It can accept and act on parts of an affidavit which are valid and reject what it considers to be defective, just as it does with oral evidence from witnesses. I accept this argument.

I do not think that an affidavit should be rejected in its entirety because it is vitiated by a defective aspect of the document if there are parts of the affidavit which conform to O.17.r3 of the C.RR or the affidavit is otherwise valid. Defective parts of affidavits should be severed from valid ones. This in my view should be done in the interest of substantive justice without due regard to technicalities. Courts do accept and act on parts of oral evidence from witnesses who personally give testimony in Court, where some evidence is credible or otherwise conform to legal requirements and reject those which do not.

In my view, the same consideration should be given to evidence by affidavit.

To me, there would appear to be no proper reason for treating evidence by affidavit differently. A part or parts of an affidavit which are defective should be severed from the part or parts which is credible or conform to legal requirements. While the valid part should be admissible evidence, the defective part should be rejected. This should be done in the interest of 5drniniStering substantive justice without undue regard to technicalities. Some decided cases support the view that defective parts of affidavits may be severed from parts which are otherwise valid. See: Motor Mart Application No. 6/99 (SCU) (unreported). Reamation Ltd vs. Uganda CP-operative Creameries Ltd., Civil Anneal 7/2000, (SCU) (unreported); Nandala v Father Lyding 1963 EA 706 Mayers and Another VS Akira Ranch 1969 E.A. 169- and ZoIa VS Ralli (1969) E.A.691

In the instant case many of the affidavits to which the 1st Respondent’s learned counsel objected are similar to those in: Nandalas case (supra). The respondents speak of what they saw or heard. In my view the defective parts of the affidavit should be severed from the valid ones. That is what I shall do in this case. The decided cases to the effect that affidavits are not severable and that any defect in an affidavit vitiates the entire document which the 1st Respondent’s learned counsel cited should, I think, not apply to the affidavits in this case for the reason I have given in this judgment.

Another reason is that a short time of only ten days is the period within which under rule 5 of the Rules, like in the instant case, a petitioner in an election petition has to file his/her pleadings together with supporting affidavits and other documents. The affidavits, in effect, are part of the pleadings. It is doubtful, in my view, if this is sufficient time to collect all the evidence a petitioner may need to file affidavits together with the petition. This, of course, is no excuse for affidavits which do not comply with the law, but I think nevertheless that it is a good reason for severing such affidavits.

Burden and Standard of Proof

Section 58 of the Act provides:

(6) The election of a candidate as president shall only be annulled on any of the following grounds — if proved to the satisfaction of the, Court —