Bakunda v Dr. Kinyatta and Another (Election Petition 18 of 1996) [1996] UGHC 64 (16 September 1996)

Full Case Text

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## ELECTION PETITION NO. 18 OF 1996

## ARISING FROM ELECTION MKA 1 Z1996 OF KABALE

BAKUNDA DARLINGTON PETITIONER VERSUS DR. KINYATTA B. G. S.

1 RESPONDENDS FRANK NTAHO (RO. RUKUNGIRI)

## RULING

This is an application to amend an election petition which was filed by Mr. Bakunda Darlington (hereinafter to be referred to as "the petitioner") against Dr. and "the 2nd respondent" respectively). Kinyatta B. G. Stanley and Mr. Frank. Ntaho (the Returning Officer of Rukungiri *i'''* District) (both of whom shall hereinafter be referred to as "the 1st respondent"

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The said application was made by way of Chamber Summons under Order 6 rule 18 of the CPR and rule 17 of the Parliamentary Elections (Election Petitions) Rules 1996. It was accompanied by an affidavit sworn by the petitioner and dated 3rd Septeiab' **5**

The grounds which were cited in the Chamber Summons in support of this application were as follow s:\_

- "(a) The petitioner inadvertently swore his original affidavit, currently on the court file, before a commissioner for oaths who had neglected or failed to renew his practising certificate and this has rendered the petition lackr.i in certain necessary particulars which the petitioner.... seek . o supply by filing a fresh affidavit properly commissioned. - (b) If an amendment is g; nted in the terms requested it will assist the court to determine th real questions in controversy between the parties and prevent a ultiplicity of proceedings *zz* as serve

more properly the ends of Justice".

I heard this application on 9th September, 1996. However, before I go into the details of what transpired in court that day, I thought that it would help to understand the background of the said application first. That background is very briefly as follows:-

Following the Parliamentary Elections which were held at the end of June this year, and whose results were published in the Uganda Gazette of 5th July, 1996, the petitioner who participated in an election in Kinkizi East Constituency and was beaten $b_{y_5}$ then is perpendent by $\frac{532}{2}$ valoration inelection imedition. against the 1st and 2nd respondents in Kabale district negistry. For the report

On the petitioner's application, that petition was subsequently transferred to the High Court in Kampala where it was supposed to be heard after all the preliminary applications in respect to it had been attended to.

On 28th August 1996, the 1st respondent made an application seeking further and better particulars from the petitioner. That application was granted and court thought that by 9th September, 1996, all would be set for this petition to be heard.

However, before that day came, the petitioner filed this application and had it fixed for hearing on 9th September, 1996.

At the time of its hearing, (i.e. the application herein) Mr. Byenkya the advocate for the petitioner relying on the grounds in the Chamber Summons and the affidavit accompanying it, basically argued that since through no fault of his the details of what campired in court that day, I houses that it would bein to own or the petitioner's, the present petition was accompanied by an affidavit which Highlight the Gaussian and a factor in the difference of the second or the difference of the second or the difference of the second or the difference of the second or the difference of the second or the differ くする! is insufficient in the sense that it was commissioned by an advocate who had no practising certificate, Court should allow the petitioner to amend the petition. That the amendment required would be in the form of another affidavit which will answer all the queries raised by the other side. That affidavit will be in the same

terms as the original one but, will be properly commissioned.

Mr, Byenkya also pointed out that the required amendment was vital for the determination of the real questions in controversy between the parties herein. petition, there would be a multiplicity of proceedings. That would be so, because the petitioner would, in that event, be forced to file another petition. He warned that should court not grant it and further go on to strike out the

Mr. Byenkya finally explained, that all legal considerations for the grant of this application also favoured the petitioner. (For example, the hearing of the petition has not yet began and no injustice would be caused to the respondents by the amendment sought; the said amendment would not take the respondents by surprise since the new affidavit will be in the same terms as the old one, and any damage that may be caused by the proposed amendment can be compensated with costs). (He backed up the above with a number of cases such as East Bakery V. Castellino ll?58] E,A, 461; Haji Kassan v, Radvjee [1943] JEACA Page 10; Kizza v. A. G. • 1986 HCB 71; Habib Jaffer v, Singh [1962] E. A. 557. etc.).

As far as the respondents' side is concerned, because their respective advocates Messrs Mwesig wa Rukutana (for the 1st respondent) and Ser wan ga (for convenience and greater clarity consolidated the said submissions. the 2nd respondent) were agreed in their submissions, I have for the sake of

The said advocates vehemently opposed this application and argued that since the petitioner's side conceded that the affidavit in issue (which is an integral part of the petition herein) was defective, this application can not succeed. This is so, simply because in that event, there would legally be no election petition worth amending.

They then compared the petitioner's fate in this application to that of a plaintiff who files a suit which does not disclose a cause of action and later on seeks to amend the plaint in a bid to improve that action; or an applicant on a

Notice of Motion which has no accompanying affidavit or whose affidavit is fundamentally defective^ seeks to amend it.

In the examples referred to above, the said advocates pointed out that the courts have consistently held that it would be unjust to allow an amendment which is merely designed to bring into existence what is not there. (They cited the cases of Kaingana v. Dabobubu 1986 HCB 59; and Ntambi v. A. G. in support of their arguments above).

The above advocates also explained that if the amendment sought herein is refused on the basis that there is no petition herein, and as a result what purports to' be a petition herein is struck out, that would not lead to a Parliamentary Elections (Interim Provisions) Statute (Statute No. 4 of 1996) the petitioner is already time barred. He cannot therefore lawfully file anew petition now. multiplicity of petitions. They argued that according to section 90 (3) of the

Further to the above, the said Advocates also revealed to court, that if the amendment herein sought was allowed, that would lead to a defeat of the intention of the legislature under section 90 (3) (Supra). They argued that after amending this petition, the present petitioner who has no valid petition in existence now, would obviously emerge with a valid petition. And that would be the same as allowing him to file a petition after the expiry of the statutory 30 days.

From all the above, the advocates for the respondents urged court to refuse to grant this application. They insisted that it should be dismissed with costs. They also prayed, that the petition herein being legally non-existent should be struck out with costs to the respondents.

Having had time to read the Chamber Summons and its accompanying affidavit; and also to study the arguments of counsel for all the sides herein, I fully agree with the submissions aid reasoning of counsel for the respondents.

Rule 3 of The Parliamentary Elections (Election Petitions) Rules, 1996,

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defines a petition as follows:-

"Petition" means an election petition and includes the affidavit required by these Rules to accompany the petition". Rule 4 (8) of the same law also provides as foliowss-

the facts on which the petition is based". "The petition shall be accompanied by an affidavit setting out

petition and its accompanying affidavit have to be filed together, the latter is an integral part of the former. In other words, you cannot talk of an election petition From the above, 1 think it is quite clear that apart from the fact that a [ when that election petition has no accompanying affidavit.

Although the petitioner's side mildly referred to the affidavit in issue as merely an insufficient one, I believe in reality they knew that they had a big problem of an incompetent affidavit on hand; and that is why they wished to eplace it.

According to Alfred Qlwora v. Uganda Central Co-operative Union Ltd. Civil Appeal No. 25 of 1992, it is implicit that documents which are signed and filed by an advocate who has not been able to acquire a valid practising certificate within the time of grace (i.e. between 31st December and 1st March of a given year) are invalid and of no legal effect.

In the instant case, the affidavit in issue was commissioned by the and clearly that date was outside the period of grace referred to in Alfred Olwora's case (supra). As a result, the affidavit in issue is invalid and of no legal effect. Commissioner for Oaths who had no valid practising certificate on 12th July, 1996^

As the said affidavit is clearly invalid and of no legal effect, it means therefore that in the light of rules 3 and 4 (8) of the Parliamentary Elections (Election Petition) Rules 1996, there is no election petition before me. If that is so,

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it follows that one cannot seek to amend what is not there.

In Kayondo y. A. G. (1988-90] HCB Page 127, the plaintiff was caught up in a situation similar to the one at hand. He realized that he had filed a suit against the defendant which did not reveal any cause of action. He then sought to amend the plaint with a view to curing that defect. The High Court held that no amount of amendment could cure the defect of no disclosure\*. **It thorofore** refused to grant the application and struck out the plaint.

1 also believe that if 1 were to allow the amendment sought herein, it would be the same as allowing the petitioner to file a new petition after the expiry of the statutory 30 days.

In view of all the above, 1 have no choice but to dismiss this application; and like in Kayondo (supra), I also hereby order that the petition herein be struck out, for being fundamentally defective.

The Petitioner shall pay the respondents the costs of this application.

■\*> E. S. LUGAYIZI

JUDGE. 16/9/96

Read before: At 3.21 p.m. Mr. Byenkya for the petitioner. The Petitioner is present. **5** The 1st Respondent is present. Mr. Kato for the 1st Respondent Mr. Mulindwa Court Clerk

E. S. LUGAYIZI

JUDGE.

16/9/96

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