Kiwanuka v Attorney General of the Republic of Uganda (Consolidated Applications 4 of 2019; Consolidated Applications 6 of 2019) [2020] EACJ 27 (6 February 2020) (First Instance Division)


## **IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA FIRST INSTANCE DIVISION**


*(Coram: Monica K. Mugenyi, PJ; Faustin Ntezilyayo, DPJ: Audace Ngiye; Chadec* **0.** *Nyawello & Charias Nyachae, JJ)*

#### CONSOLIDATED APPLICATIONS NQ.4 & 6 OF 2019 (Arising from Reference No.6 of 2019)

MALE H. MABIRIZI KIWANUKA............... APPLICANT/RESPONDENT

### VERSUS

THE ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA.................... RESPONDENT/ APPLICANT

6th FEBRUARY, 2020

Consolidated Applications No. 4 & 6 of 2019 Page <sup>1</sup>

### REASONED RULING OF THE COURT

#### A. Background

- 1. On 3rd May 2019, Mr. Male H. Mabirizi Kiwanuka did file before this Court Reference No. 6 of 2019, Male H, Mabirizi Kiwanuka vs. The Attorney General of the Republic of Uganda, challenging the validity of Uganda's *Constitutional (Amendment) Act No. <sup>1</sup> of 2018.* He served the Reference upon the office of the Attorney General of Uganda on 6th May 2019. On 20lh June 2019, the Attorney General's office filed its Answer to the Reference' and subsequently filed an Affidavit in Reply' in respect of the same Reference on 21June 2019. Both pleadings were served upon the Mr. Mabirizi on 24,h June 2019, whereupon he filed Application No.4 of 2019 that is before us presently. - 2. Application No.4 of 2019 was instituted under Article 30 of the Treaty for the Establishment of the East African Community ('the Treaty1), as well as Rules 21(1), 30(1), 43 and 47 of the East African Court of Justice Rules of Procedure ( the Rules'). It *inter alia* sought to have the Answer to the Reference and Affidavit in Reply referred to above struck off the court record, and judgment on admission entered in favour of the Applicant therein, Mr. Mabirizi. It was premised on the following grounds: - i. The Respondent therein (the Attorney General of Uganda) had not filed and served the impugned Answer to the Reference and Affidavit in Reply within forty five (45) days as by law prescribed. - ii. The impugned Answer to the Reference' and Affidavit in Reply' are alien to the Rules of this Court.

Consolidated Applications No. 4 & 6 of 2019 Psge 2

- iii. The documents in support of the impugned Answer to the Reference were not filed together with it. - iv. The said Answer to the Reference and Affidavit in Reply contain general and evasive denials; are frivolous and vexatious, and the Affidavit in Reply particularly contains irrelevant and scandalous material. - 3. The Application was supported by the Affidavit of Mr. Male Mabirizi that, while regurgitating the foregoing grounds, literally critiques the form and content of the Respondent's Answer to the Reference and faults the impugned Affidavit in Reply for not making specific responses to his Affidavit in support of the Reference. - 4. In turn, the Attorney General filed an Affidavit in Reply to Application No.4 of 2019. as well as Application No.6 of 2019 that essentially moves this Court to enlarge the time within which the Answer/ Response to the Reference may be served upon Mr. Mabirizi or, in the alternative, the Answer/ Response to the Reference that had been previously served upon him be validated. The Application is premised on the alleged inability of the Attorney General's Office to serve the said pleading upon Mr. Mabirizi within the prescribed time on account of reasons beyond that party's control, to wit, the indisposition of one Moses Opio, a Records Assistant who was responsible for the process service function in the Attorney General's Chambers. - 5. At the hearing of the above Applications, the Parties did concede to their consolidation. Consequently, the hearing of the consolidated Application commenced with submissions from Mr. Mabirizi in Application No.4 of 2019, followed by the Attorney General's

Consolidated Applications No. 4 & 6 of 2019 Page 3

submissions in response to the same Application, as well as Submissions highlighting his case in Application No.6 of 2019. Mr. Mabirizi did then address us in Submissions in Reply in respect of Application No.4 of 2019, as well as his Submissions with regard to Application No.6 of 2019. Finally, the Attorney General addressed us in Submissions in Reply with regard to Application No,<sup>6</sup> of 2019.

6. Mr. Mabirizi was self-represented, while the office of the Attorney General was represented by a team of State Attorneys led by the Hon. Attorney General, Mr. William Byaruhanga; Hon. Deputy Attorney General, Mr. Rukutana Mwesigwa: Learned Solicitor General, Mr. Francis Atoke; Director of Civil Litigation, Ms. Christine Kaahwa and <sup>a</sup> team of Stare Attorneys - Mssrs. Martin Mwambusya. Phillip Mwaka, George Karernera, Richard Adrole, Geoffrey Madete, Imelda Adongo, Susan Akello Apira. Johnson Natuhwera. Allan Mukama and Sam Tusubira.

### B. Mr. Mabinzi's Submissions in *Application No. <sup>4</sup> of 2019*

7. Mr. Mabirizi did not dispute the fact that the Answer to the Reference had been filed within the 45 day period prescribed by Rule 30(1). What he did contest was its late service upon him, as well as its designation as an 'Answer' to the Reference rather rhan 'Response' to the Reference. He does also fault the Attorney General's office for filing an Affidavit in Reply after the filing of the Answer to the Reference, which he argued contravened Rule 39(1) of the Court's Rules of Procedure. He appeared to consider the Affidavit in Reply to have been a document accompanying the Answer to the Reference, which Affidavit he contested for having been filed out of time. He relied on the cases of Madhivani International vs. Attorney

General of Uganda, Civil Appeal No. 23 of 2010 *(Uganda Supreme Court)* and Mwesekezi vs. Kajubi, Civil Application No. 261 of 2013 *(Uganda Court of Appeal)* to assert that issues of time limitation were not mere technicalities but, rather, matters that went to the substance of a case and should be enforced strictly.

C. Mr. Mabirizi referred us to paragraphs 14-21 of his Affidavit in support of Application No.6 of 2019 to supposedly illustrate the general and evasive denials that had been made by the Respondent therein (Attorney General of Uganda) to express averments in the Reference. In his view, the nature of the Respondent's denials violated Rule 43(1) of this Court's Rules of Procedure, as well as case law from Kenya and Uganda that frowned upon evasive denials in pleadings. In that regard, he cited Nile Bank & Another vs. Thomas Kato & Others, Miscellaneous Application No. 1190 of 1999, Obit Chemical Industries vs. Attorney General of Kenya, Civil Case No. 876 of 2014 and Kenya Commercial Bank vs. Suntra Investment Bank, Civil Suit No. 3S0 of 2013. Finally, with regard to the allegation of scandalous and unnecessary material, Mr, Mabirizi relied upon the definition of 'scandalous matter' in *Black's Law Dictionary 8th Edition, p.4187* to urge the Court to strike out the scandalous material cited in paragraphs 22 and 23 of his Affidavit in support of the Application. In conclusion, it was his contention that since the Answer to the Reference had oeen shown to contain evasive denials and scandalous material, Rule 43(1) of the Court's Rules should be evoked such that the purportedly uncontroverted allegations of fact made in the Reference be deemed to have been admitted by opposite party.

# D. Attorney General's Submissions in *Consolidated Application No. 4 & 6 of 2019*

- 8. Mr. Geoffrey Madete argued that the Answer to the Response was duly filed on 20th June 2019 in accordance with Rule 30(1) of the Court's Rules but conceded that it was served upon the Applicant therein on 24lh June 2019, beyond the prescribed time frame. It was his contention that the filing of an 'Affidavit in Reply' in respect of tne Reference on 21s' June 2019 did not offend any procedural rule in so far as the documents attendant thereto (Annexes A and B) were appended to the said Affidavit and not to the Reference. He further argued that, contrary to Mr. Mabirizi's assertions, the Answer to tne Reference did address al) the allegations of fact made in trie Reference and its supporting Affidavit, without offending Rule 37 of the Court's Rules of Procedure, which enjoins all pleadings to contain concise statement of facts and not evidence. He thus maintained that the Answer to the Reference was in compliance with Rule 43(1) of the Court's Rules. With regard to the question of time limitation, Mr. Madete contended that Rule 4 of the Rules explicitly empowers the Court to consider applications for extension of time therefore it could not be suggested that prescribed time frames were not open to extension. He urgeo the Court to consider the substance of tne Answer to the Reference and not the nomenclature surrounding its title, and exercise its discretion to dismiss Application No.4 of 2019. - 9. On her part, Ms. Christine Kaahwa advanced the argument that the Application before us was the wrong procedure for a determination as to whether matters in a pleading were either frivolous or vexatious, or in any way admitted by a party. In her view, Rule 53(1) of the Court's

Rules provides an avenue by which points of agreement and disagreement between parties may be distilled in a Scheduling Conference. She sought to counter Mr. Mabirizi's contention in respect of the allegedly general denials in the Attorney General's pleadings, by reference to Rule 43(2) of the Rules, which allows for specific denials, as well as by a statement of non-admission, either expressly or by necessary implication. Ms. Kaahwa urged us to deduce some denials by necessary implication, arguing that the Respondent had not deemed it necessary to answer each and every allegation set out in the convoluted Reference.

10. On the other hand, arguing Application No. 6 of 2019 on behalf of the Attorney General, Mr. Richard Adrole contended that the Applicant in that case had demonstrated sufficient reason for his inability to file the Affidavit in Reply to the Reference within time. He argued that the Answer to the Reference having been filed within time, the Attorney General only sought to have rhe time within which it could be served upon Mr. Mabirizi enlarged or, in the alternative, the late service be validated by this Court. In his view, Mr. Mabirizi stood to suffer no prejudice by the grant of the Application therefore it was just and equitable that it be granted. Mr. Adrole grounded his arguments in cases where this Court had deduced what constituted sufficient reason for the grant of an application for extension of time to be a matter of unfettered court discretion and considered matters of public importance to sufficiently warrant the exercise of its discretion to grant such applications. See *Prof. Anyang' Nyong'o & 10 Others vs. the Attorney General of the Republic of Kenya, EACJ Application No. <sup>1</sup> of 2010 and Anthony Calist Komu vs. the Attorney Genera! of the United Republic of Tanzania, EAGJ*

*Reference No.* 7 *of 2012.* He argued that Reference No.6 of 2019 raised matters to do with eligibility to contest the Presidency in an EAC Partner State, that Partner State's electoral calendar for national elections, as well as the mandate of this Court re interrogate the decision of a Partner State's apex court; all of which, he portended, were matters of grave public interest and importance.

## E, Mr. Mabirizi's Submissions in *Consolidated Application No. 4 & 6 of 2019*

11, Mr. Mabirizi addressed us in Submissions in Reply in respect of Application No.4 of 2019, as well as substantive Submissions in Application No.6 of 2019. With regard to the former Application, he maintained that the filing of the Answer to the Reference within time was not in dispute; rather, it was the late filing and service of the attachments and annexures thereto that was in contention. He maintained that the Court's Rules of Procedure enjoined parties to respond to all allegations presented in opposite parties' pleadings therefore it was not up to any party to determine what to respond to in thai regard. Further, in his view, where the Rules explicitly designated a pleading as a 'Response' to the Reference, parties were bound by the Rules and did not have the prerogative to either redesignate the pleading as an 'Answer' to tne Reference or additionally file an Affidavit in Reply. He contested Ms. Kaahwa's assertion that a Scheduling Conference was the right forum for the points of law raised in his Application, arguing that scheduling conferences did not deai with the striking out of unnecessary material in pleadings.

12. In terms of Application No,6 of 2019. Mr. Mabirizi relied upon the case of Attorney General of Uganda vs, Media Legal Defence Initiative & 19 Others, EACJ Appeal No.3 of 2016, where it was *inter alia* held that a parry could not be permitted to defeat a preliminary objection. Unc© a notice of any objection is given or lodged, the time to remedy the deficiency complained of lapses.' He argued that Application No,6 of 2019 was incompetent <sup>m</sup> so far as it sought to remedy the deficiency of time iimuation after he raised the issue, and thus oeieat his Application. He also questioned die cogency of the reasons advanced oy opposite party for the grant of an extension of time given that the process servers alleged ill Health was not supported by medicai evidence, it was his contention teat the purported gravity of the matters raised in the . Reference would have been more reason for the Applicant therein to ensure compliance with the procedural rules.

## F. Attorney General's Submissions in Reply to *Application No. 6 of 2019*

13. In a brief reply, it was re-asserted for the Attorney General that Application No.6 of 2019 was not intended to defeat the purpose of Application No.4 of 2019 but simply sought to redress a procedural lapse. Mr. Adrole reiterated his earlier submission that this Court did have powers to enlarge time in a matter as grave as the Reference underlying the present consolidated Application.

#### G. Court's Determination

14. Upon hearing both Parties herein, the Court did render its decision in the consolidated application. We reproduce the decision below: - *i.* We *decline to strike out the Answer to the Reference.* - *ii.* We *decline to strike down the Affidavit in Reply in its entirety but do hereby expunge paragraph 17 thereof.* - *Hi.* We *disallow the prayer sought in Application No.4 of 2019 for judgment on admission m Reference No.6 erf 2019.* - *iv.* We *do exercise our discretion under Ruie 4 of the Court s Rules of Procedure to emerge the time wtihin .■.hicn the Answer to the Reference may be served. and do hereby deem the said Answer to tne Reference as previously served upon me Applicant/ Respondent - Mr Mabinzi. io have been validly served.* - 15. The foregoing decision was rendered in accordance with Article 68(3) of the Court's Rules of Procedure, which provides for the reservation of reasons that underpin a decision. We do forthwith proceed to deliver the reasons that informed tne foregoing decision - 16. In a nutshell, the present Consolidated Application poses the issue of the applicability of the Court's procedural rules. It brings to the fore the need for clarity on the application of the rules pertaining to time limitation, pleadings and court's discretionary mandate to extend time fixed by the Rules. We note from the outset that it was a conceded fact that the impugned Answer to the Reference had been filed within time but was served late upon opposite party. Thus, whereas on me one hand, the Applicant in Application No.4 of 2019 severely admonishes the Respondent therein for service oi a pleading that he portends is illegally designated as an Answer to tne Petition beyond the time prescribed in Ruie 3CJ; of .he Court's Ruies. tne said Respondent (vide Application No.6 of 2019 <sup>j</sup> <sup>i</sup> everts to Ruie 4 of tne

same Rules to remedy the acknowledged late service. For clarity, we reproduce Rules 4 and 30(1) below:

## Rule 30(1)

The respondent shall within forty-five (45) days after being served with a notification of the reference file and serve upon the applicant a response stating the:-

(a) Name and address of the respondent; (b)Concise statement of facts and taw relied on; (c) Nature of evidence in support where appropriate, and (d) Relief sought by me respondent.

## Rule 4

A Division of the Court may, for sufficient reason, extend the time limited by these Rules or by any decision of itself for the doing of any act authorized or required by these Rules, whether before or after expiration of such time and whether before or after the doing of the act, and any reference m these Rules to any such time shall be construed a reference to such time as so extended.

17. Rule 30(1) addresses the allegations of late sen/ice of the Answer to the Respondent; non-recognition of any such document in the Ru'es, as well as the late filing of the <sup>1</sup>Affidavit in Reply' to the Reference and the documents appended thereto. It seems quite clear that the time frame stipulated in Rule 33(1) pertains to the duai function of filing and service of a 'response to a Reference. To that extent, we oo agree with Mr. Mabinzi that late servtce of the Answer to me Reference did contravene tnat Rule. However, it is also aoundantly

clear that a party that is caught up by the time limitation prescribed in that Rule does have recourse to Rule 4 for redress. That is what the Attorney General sought to do by filing Application No. 6 of 2019 Mr. Mabirizi contested this course of action oy the Attorney General on the premise that it was intended to defeat his Application No. 4 of 2019 that had been filed earlier seeking Lc have the impugned Answer to the Reference shuck off the Gouri recoro.

- 18. First and foremost in the case of Attorney General of. Uganda vs. Media Legal Defence Initiative & 19 Others (supra) to which we were referred by Mr. Mabirizi. it was a *preliminary objection,* and not an application, that was in issue. Rule 4: of the Courts Rifes addresses preliminary objections before this Court as follows: - (1) A party may by pleading raise any preliminary objection. - (2) Where a respondent intends to raise a preliminary objection he shall, before the scheduling conference under Rule 53 of these Ru'es, give not less than seven (7) days written notice of the preliminary objection to the Court and to the other parties of the grounds of die objection. - **19,** In oral submissions, Mr. Mabirizi argued that Rule 41(2) was inapplicable to him because he was an aoolicant in the Reference and not a respondent as delineated in that Rule. He thus appears to have interpreted Rule 41 in such a manner as to suggest ihat. there being no duty upon an applicant under Rule 41 <2; to notify opposite party of a preliminary objection, a preliminaiy objection may be raised by pleading it in an application ano the opposite party woulc stand duly notified. Though net entirely untenable, we find tins a rather disingenuous and untidy proceaure for raising preliminary points of

law before this Court in so far as it defies the notion of judicial economy. Simply stated, judicial economy denotes efficiency in the operation of courts and the judicial system, especially the efficient management of iitigaiion so as io minimize duplication of effort and to avoid wasting the judiciary s time and resources.' Indeed, the function of judicial economy in court procedures was aptly arúcuiaíed m the Article, Pieras, u. *'Juaicial Economy and Efficiency iitrough the initial Scheduling Conference: The Method',* Catholic University caw Review, Vol.35, 1986, p,934, as toilows.

In reality, there are three participants in every case: the plaintiff, the defendant and the court. All of them have their particular interest. The plaintiffs and defendant's interests are of an economic nature, the comt's inteiest is m c.e administration of justice m accordance wAh the and in <sup>t</sup>~na speedy resolution of disputes. Speedy resolution translates into economy of time, effort and money, and ccnseguendy tea reduction of costs tc- al! participants. *(Ou: emphasis)*

20. Against that background, the usual practice before this Court is rér an applicant that wishes to raise a preliminary point of law to do so at the scheduling conference delineated under Rule 53: the Court would then make a determination as to whether <sup>a</sup> is the sort of pom: cf :aw that would conclusively dispose of the case, in wticn case n would be heard as a preliminary point of jaw; otherwise. i: would oe frameo as an issue for determination in the Reference. Tne circumstances of this case are that Mr. Mabirizi opted to ine an application that raised

**<sup>1</sup> Black's L3;v Dic'Janary, 10' Ed** , j **>75**

Consolidated Applications *& c* '1'20 :<sup>9</sup> <sup>13</sup>

preliminary points of law. He thus placed himself out of the ambit of typical preliminary objections and into the realm of interlocutory applications. He cannot then be seen to benefit from the law' on preliminary objections when he has opted to submit to the purview of interlocutory applications. We therefore find the oecision jn Attorney General of Uganda vs. Media i-egal Defence Initiative & 19 Others (supra) inapplicable to the Consolidated Application before us presently.

- 21. In the consolidated Application before us it was argued for the Attorney General that the Answer to the Reference having been filed within time, he only sought to have the time which it could be served upon Mr. Mabirizi enlarged or, in the alternative, ine late service ce validated by this Court. Mr. Adrole argued that Mi. Mabirizi stood to suffer no prejudice by the grant of the prayers sought, which >n his view were just ano equitable gwen that Reference No. <sup>G</sup> of 2019 raised matters of public interest and importance, to wri, eligibility to contest the Presidency in an LAC Partner State, that Partner State s electoral calendar for national elections, as we:i as tee mandate of this Court to interrogate the decision of a Partner Stale s apex court. Or ;iis part, Mr. Mabirizi disputed the cogency or the reasons advanced for the grant of an extension of time, questioning a process server's averment of ill health in the absence Oi supportive medical evidence. - 22. In the case of Prof. Anyang' Nyonq'o & 10 Others vs. the Atto~ney General of the Republic of Kenya (supra), navigating the import of Rule 4 of the Court's Rules, it was held:

Consolidated Applications No. 4- & 6 of 2019 Page- 14

This Court appreciates the reference to the Court's 'unfettered discretion' indicated in the Katatumba case above. Nonetheless, as a matter of practical application and good jurisprudence, the Court's 'unfettered discretion arises only after 'sufficient reason' for extension of time, has been established. Therefore, to that extent, the Court's discretion in an application to extend time is not unfected.

23. On the other hand, in the latter case of Godfrey Magezi vs. National Medical Stores, EACJ Appeal No. 2 of 2016 it was held

In determining whether 'sufficient reason' for the extension of time under Rule 4 exists, the court seized of the matter should take into account not only the considerations relevant to the applicant's inability or failure to take the essential procedural step in time, but also any other considerations that might impel a Court of Justice to excuse a procedural lapse and incline to a hearing on the merits. In our considered opinion, such other considerations will depend on the circumstances. of individual cases and include, but are not limited to, such matters as the promptitude with which me remedial application is brought, ... the public importance of the said. matter, and of course, the prejudice that may be occasioned to either party by the grant or refusal of the application for extension of time.

24. Needless to state, the foregoing decisions have binding authority. upon us. In the instant case, the Reference raises matters of grave public importance to the governance of the Republic of Liganda, derived from the amendment of no less than the Grundhorm or that

**Consolidated Applications No. + & 6 of 2019**

Lage $15$

Here.

Partner State. We deduce no prejudice to the Respondent, Mr. Mabirizi, should the prayer for extension of time be granted, neither were we satisfactorily addressed on any such prejudice. In any event, the grant of tne Application would merely formaiise the service upon him of a document that is already on Gouri record.

25. Mr. Mabirizi did also challenge the veracity of the reasons advanced for the Attorney General's inability to serve the Answer to the Reference in time. These were encapsulated in the Affidavit of one Moses Opio that was longed in this Court on 2is! July 2GÍ9. However, a relates issue was conclusively aodiesseo by me Appellate Division of the EACJ in Godfrey Maqezi vs. National Medical Stores (supra,»<sup>i</sup> <sup>n</sup> ïhe fo<sup>I</sup> Iowing terrn s:

A statement or statements made on oath in an affidavit are evidence and it was improper co treat them as mere statements or allegations which required evidential proof (as would undoubtedly havo been the case d they nad been made m a pleading). To cast ooubc on the veracity of s^cn siatements, as die <sup>1</sup> rial Court did at the urging of Counsel for the Respondent, without there being any rebutting eViUecce from, the Respondent was also & misdirection of the law.

26. In this case, as in that case, no evidence in rebuttal '^as presenrad by the Respondent (Mr. Mabirizb such as would provide a basis for the veracity of the Applicant's evidence io be impeached. the absence of such contrary evidence Mr Opio s affidavit evidence remained uncontroverted. Consequently, we are satisfied trial tr-e Attorney General has established sufficient reason for that office's inability to serve the Answer to ice Petition within rhe prescribed rime.

Consolidated Applications No. uf2lE-J rags <sup>6</sup>

We would therefore exercise our discretion under Rule 4 of the Court's Rules to grant the application for enlargement of time within which the Answer to the Petition may be served upon Mr. Mabirizi.

- 27. Be that as it may, Mr. Mabirizi did further contend that there is no provision for such a pleading as an 'Answer to the Reference' in the Rules. With utmost respect, this argument appears to us to be a classic case of applying tures of procedure as handmaiders of *injustice* rather than *justice*. Whereas we go acknowledge the use of the term response in Rule 30(1) with regard to the preading that responds to a Reference, and it indeed might have been more prudent to use the same term in the attenuant pleading: we are nardpressed to appreciate how the designation of such pleading as an Answer to the Reference would so discredit it as to warrant its being struck off the record, as has been proposed. In our view, the more pertinent issue would be whether it conforms in substance to the requirement of a response to a reference as envisaged in Rules $30(1)$ and 43, a matter to which we revert later in this Ruling. For present purposes, therefore, although it might have been more elegant to refer to the pleading in question as a Response and not Answer to the Reference, such a procedural lapse would, in our considered view, not render it fatally deractive. - 28. With regard to the allegation of late filing of the Affidavit in Reply', we are constrained to observe that we find no provision in the Court's Rules for an Affidavit in support of a Reference or Response to a Reference. It does follow that, there deligh a provision for an affinavit in support of either pleadings, there would be no prescribed time frame in the Rules within which an affidavit in support of a Response

to a Reference may be filed. Meanwhile, whereas Rule 24(3) enjoins an applicant seeking to annul an Act, as is the case herein to accompany the Statement of Reference with documentary evidence of the same there is no such corresponding obligation. upon a respondent to a reference under Rule J0 Nonetheless, Rule 39(1) mandates any party that wishes to append documents to its pleadings to do so provided, obviously, that it would be required to formally adduce them in evidence at that should it wish to have them. formally on Court rescra, indeed in the case of Union Trade Centre (UTC) vs. Attorney General of Rwanga, EACJ Appeal no. 1 of $2015$ , it was help that any annexures to a document unless the document is an affidavit and they are annexed thereto. J. 103 same are produced at the trial as exhibits, are not evidence. The import of that decision is that documents that a party intends to relyupon in support of its case may be adduced either by appending them. to an affidavil or by their production in oral evidence at that as exhibits. Thus, subject to the Scheduling Contenence delineated in Rule 53(1), an afficient such as the Affidavit in Reply in this case. would be treated as altidavit evidence within the confines of Rule $53(1)(c)$ , and any documents appended thereto would be adduced as documentary evidence under cover or that affidavit. Vive 10 accordingly agree with Mir Mabirizi that an 'affidiavit in reply' with regard to the Answer to the Reference is indeed alien to the Rules. but disallow his claim that the said affidavit was not filed within the time frame by law prescaped. There is no such time frame in the Rules. We therefore find this objection to be inisconceived and unterrable.

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Ruy. 29. Mr. Mabirizi also sought to have the Answer to the Reference and Affidavit in Reply struck off the record on account of their purportedly containing general and evasive denials; being frivolous and vexatious, and the Affidavit in Reply particularly containing irrelevant. ano scandalous material. In what appeared to be an alternative argument, he did in oral stratifications contend that the general and evasive denials should be deemed to be admissions within the precincts of Rule 45(1). Conversely, it was argued for the Atlantey. General that the Answer to the Reference had addressed all line. allegations of fact made in the Reference and as supporting Affidavit without offending Rule 37, which enjoins all pleadings to contain concise statement of facts and not evidence in is not lost upon usthat the decisions cited by Mr. Mabinzi on this issue were from Kenyan and Ugandan courts. We are alive to the fact that decisions from EAC Partner States (apex courts inclusive) have only persuasive. authority before this Court.<sup>5</sup> They would not superseue the express provisions of the Court's procedural rules. The Rules themselves are quite categorical on any issue. We reproduce Rules $37(1)$ and $43$ for ease of reference.

## Rule 37(1)

Subject to the provisions of this Rule and Rules 40, 41 and 42, every pleading shall contain a concise statement of material facts upon which the party's claim or defence is based not the evidence by which mose facts are to be proved

<sup>2</sup> This object variant equally copies to the country Markini <u>variant (turned to adding the set of Answer)</u> Uganda, Civil Appeal No. 23 of 2010 (Egranda Supreme Court) & Mwesekezi vs. Kajubi, Civil Application No. 261 of 2013 (Uganda Court of Appeal) the liwere offed in Eupport on the pregnativor that Habes of finite limitation must be strictly enforced.

Consolidated Applications No. 4 & 6 of 2019.

Rule 43

- (1)Any allegation of fact made by <sup>a</sup> party in <sup>a</sup> pleading shall be deemed to be admitted by the opposite party unless it is denied by the opposing party in the pleading. - (2)A denial may be mads either by specific denial o» oy <sup>a</sup> statement of non-admission and either expressly or by necessary implication, - (3) Every allegation of met onaae in a pleading which is not admitted by the opposite party shati be specifically denied py that party; and a general denial or a general statement of non-aomission of such allegation snaii not be sufficient demal. - 30. Rule 37(1) exolic't'.y enjoins parties to a reference to be *concise* in their pleadings, restricting them to 'material facts upon which the party'<sup>s</sup> claim or defence is based.' On the other hand, Rule <sup>43</sup> specifically addresses denials and adm. ssions Vi/e construe Ru.e 43(1) to encapsulate the general rule that a factual allegation, if not denied by opposite part/ vvouid oe deemed to oe admitted. That general rule is then quaufied by Rule 43i2j mat outlines what die denial envisaged in Rule 43J ) would entail, to wit. <sup>a</sup> specific oenia. or a statement of non-admission, both of which may oe deduced from their express terms or by necessary implication. The first aspect of 43(3) appears to be synonymous with the impoit of Rule 4-3( i) in so far as it advocates the specific demal of any allegation that is not admitted. The second aspect of that sun-rule however, expressly negates the effect of *genera!* aeniais and statements of nonadmission. It thus lenders redundant blanket, sweeping statements ot

denial in the nature of omnibus denials that purport to restrict a party's liability to only matters expressly admitted by it in a pleading.

- 31. In the matter before us. Mr. Mabirizi did not take issue with any omnibus clause either in his pleadings or in submissions. He did, however, fault the Attorney General for not responding to aspects of his Statement of Reference. We have carefully considered paragraphs $14 - 21$ of his affidavit in support of Application No. 4 of 2019, to which we were referred. It is abundantly clear that those paragraphs do acknowledge that responses were made to all Mr. Mabrizi's allegations in the Reference along not in the detail at $z \cdot d$ th. the specificity that he might have preferred. This, in our view, is not quite the same thing as there being no depial whatsoever as envisaged under Rule $43(1)$ . On the contrary as quite rightly argued by Ms. Kaahwa, Rule $43(2)$ does make provision for either specific denials or statements of non-admission. Ferhaps more importantly, in any event, the Rules on not prescribe the degree or specificity that parties would be expected to subscribe to. Ultimately, it is the respective parties call to decide how much specificity would support. their base. It certainly is not for opposite party to dictate this detail to them. That would probably explain the Rules deference in Rule $37(1)$ to pleadings containing a concise statement of material facts." Consequently, we are satisfied that the Answer to the Reference did not offend the Court's Rules of procedure in that legara. - 32. Given the definition of a 'bleading' in Rule 2, which encompasses lary document lodged by or on behalf of a party relating to a matter before the Court's the application of the Rules in the foregoing discourse would also pertain to Mr. Mabinar's alregation that

Page 21

the Affidavit in Reply contained general and evasive denials. In any event, there would be nothing to stop opposite party from filing additional affidavits to provide more specific affidavit evidence in support of its case. We would therefore disallow Mr. Maprizis contestations as to the generality of the afficavit evidence on record.

33. We now turn to the question as to whether or not the Answer to the Reference and Affidavit in Reply were frivolous and vexatious. the latter document allegedly containing scandalous material too. Having carefully scanned the entire Court record we find no substantiation. by Mr. Mabilizi either in his Application or in submissions on the issue. of frivolous and vexatious pleadings. We shall therefore not belabor the point. He did nonetheless, address us on the question of the Affidavit in Reply containing what he considered to be scandalous material on the basis of the following definition of *scandalous matter* in B.ack's Law Dictionary 8<sup>th</sup> Edition, p.4187:

A matter that is both grossly disgraceful for defamatory) and irrelevant to the action or defense. A federal court - upon a party's motion or on its own $-$ can order a scandalous matter struck from a pleading

34. We reproduce the implighed paragraphs of the Hilldavit in Keply befow.

## Paragraph 15

That I know that the Applicant is habitually known to abuse court process and has previously challenged the competence of Lady Justice Elizabeth Musoke and Justice Cheborion Barishaki to hear his petition when it was fired in the

Constitutional Court on the alleged grounds that they were bound to be biased in favour of the Respondent due to their kinship connections with members of the Executive, and at the beginning of the hearing abarcached his application.

Paragraph 17

That I know that the Applicant has continuously exhibited vexatious and frivolous behavior in the conduct of bis challenging the legality of the Constitution patitions – (Amenament) Act fro. For 2018 in the Courts of Law of uganda.

35. We would respectfully decline to make a finding on paragraph 15. above given that it denotes issues that are similar to those raised in the substantive Reference from which this Application is derived the would not wish to pre-empt our decision by the merits in she. Reference without hearing the parties extensively on the issues. inherent therein. With regard to paragraph 17, nowever, it appears to be an attack on the person of Mr. Mapinzi in terms of his personal conduct of legal disputes attendant to Constitution (Amendment) Act No. 1 of 2018. It does in our considered view run atout of the professional courtesy that is expected from members of the Bail, including self-represented litigants and is, to that extent, spandalous, We do reiterate that court decorum dictates that the dignity of a court is to be respected and maintained at all times, including in speech. pleadings, affire and presentations made deficiency dutte opvious y that would extend to minimum standards of courtesy to all court users; judicial officers, advocates and litigants alike. This Court class treat court decorum with the senousness that should be accorded to

$\mathbb{P}a \neq \pm 3$

it, and would not condone any inclinations to the contrary. On that premise, we do hereby strike out paragraph 17 of the Affidavic in Reply.

## H. Conclusion

- 36. In the result, as we gid state in our Summary Ruling of 29<sup>th</sup> October 2019, we decline the invitation extended to us to strike off the Court record either the Answer to the Reference or Affidavit in Reply in its entirety. We do, however, expunge paragraph 17 from the Afficavit in Reply: cisallow the praver sought in Application No.4 of 2019 for judgment on admission in Reference No.3 of 2019, and exercise our discretion under Rule 4 of the Court's Rules of Procedure to enlarge the time within which the Answer to the Reference may be cerved. and do deem the said Answer to the Reference as previously served upon the Applicant, Respondent - Mr. Mathrizi, to have been validly seived. - 37. We do reiterate our Orders in our Ruling of 29<sup>th</sup> October 2019 that Application No.6 of 2019 is allowed and Application No.4 of 2019 is dismissed, save as decided in paragraph 6(ii) thereof that paragraph 17 of the Affidavit of Reply is expanded.

38. Finally, as we did state therein, we make no order as to costs It is so ordered.

**Dated, signed and delivered at Arusha this 6,h day of February, 2020.**

**Hon. Lady Justice Monica K. Mugenyi**

**Hon. Dr. Justice Faustin Ntezilyayo**


**Hon. Justice Audace Ngiye**

**JUDGE**

**Hon. Dr. Justice Charles O. Nyawello**

**JUDGE**

**Hon. Justice Charles Nyachae**

**JUDGE**

Consolidated Applications No. 4 & 6 of 2019