Twinamasiko v Agaba and another (Election Petition No. 702 of 2021) [2021] UGHCEP 3 (9 September 2021)

Full Case Text

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MASINDI

## **ELECTION PETITION NO. 007 02 2021**

# IN THE MATTER OF PARLIAMENTARY ELECTIONS (ELECTION **PETITIONS) RULES 1996**

#### AND

# IN THE MATTER OF PARLIAMENTARY ELECTIONS HELD ON 14TH **JANUARY, 2021**

TWINAMASIKO ONESIMUS ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### $\mathbf{1}$ **AGABA AISA**

ELECTORAL COMMISSION :::::::::::::::::::::::::::::::::::: $\overline{2}$ .

## RULING ON PRELIMINARY OBJECTIONS RAISED BY THE **RESPONDENTS**

## **BEFORE: HON. MR. JUSTICE AJIJI ALEX MACKAY**

This is an election petition which was filed by Mr. Twinamasiko Onesimus challenging the nomination and subsequent election of Agaba Aisa as the directly elected member of parliament for Bugangaizi East County Constituency, Kakumiro District in the election that was held on the 14th day of January, 2021 where the 1st respondent was declared the winner of the election with 17,803 votes while the petitioner returned second with 15,421 votes. Aggrieved and dissatisfied with the outcome of the election, the petitioner filed the instant petition.

When the matter came up for scheduling, counsel Isingoma Esau for the 1st respondent raised a preliminary objection to the effect that all the affidavits filed in this Court on behalf of the petitioner were defective. He contended that some of the affidavits in support of the petition in the purported rejoinder offended the provisions of sections 5 and 6 of the oaths Act and that it is after the determination of this preliminary objection that they will be able to know who they will require for be cross examined.

This ruling is therefore in respect to that preliminary objection.

#### **Representation**

The petitioner was represented by counsel Ambrose Tebyasa, Evans Ochieng, Ben Zziwa Semanda and Vinsensia Sandra Namigadde of M/s Ambrose Tebyasa & Co. Advocates, the 1st respondent was represented by Thomas Ocaya and Esau Isingoma of K&K Advocates, the 2nd respondent was represented by Ezale Oshman.

## Submissions by the 1st respondent

Counsel Isingoma submitted that in all the affidavits, the jurats are on a separate page the first being that of Ruteebemberwa Chrispas, the affidavit of Mwebaze Oscar, Byamukama Ellya, Nizeyimana Faustina, Sanyu Ruth, Alinda Christopher, Alinda Gift, Arinaitwe Wensi, Haguma Vincent, Bizimungu Emmanuel, Turyatemba Junior, Mugambagye Edith, Amon Hussein Sunday, Mutegki Fortunate, Sebuwuufu Patrick, Kavuma Moses, Tubebamwe Malita, Akansasira Medard, Kanuma Gordon, Munyentwari Charles, Musinguzi Ezra, Byaruhanga Erius, Tongire Fred, Busingye Omuhereza.

He further submitted on the affidavits in rejoinder that save for the affidavit of the petitioner which is okay, the rest of the affidavits starting with that of Atucungwire Wilson, Ruufari Philip, Rutebeemberwa Chrispas, Byamugisha Yeremia, Mutegeki

Fortunate, Bahagire Sylvia, Turyatemba Junior, Kajungu Andrew, have the jurats on a separate page.

Counsel further submitted that there are affidavits which have deponents whose signatures differ from those on their National IDs and have jurats on a separate page such as, the affidavit of, Mutegeki Fortunate, Niwamanya Brian, Bahagire Sylvia, Turyatemba Junior, Haguma Vincent, Byamukama Eriya, Mwebaze Oscar.

He also faulted the affidavit of Bagumanya Isaac for having a jurat on separate page and no National ID attached to identify him.

Counsel Isingoma further submitted that there is no rule that allows the petitioner to file affidavits in rejoinder, once the respondent has filed an answer, there is no room to file a rejoinder. Therefore, in this case even those who did not depone affidavit in the first place purportedly filed affidavits in rejoinder, which to him amounted to adducing fresh evidence after the respondents had put in their answer.

He concluded by praying that all the above affidavits offend the law and should be struck out and expunged with costs.

Counsel for the 2nd respondent associated himself with the submissions of counsel for the $1$ st respondent and prayed for the same.

#### **Submissions by Counsel for Petitioner**

In reply, counsel Tebyasa submitted that the objection raised by counsel for the 1st respondent is totally misconceived, based on speculations and not rooted in law. The speculations being that they did not understand the nature of the dispositions, jurats to the respective affidavits, that the respective deponents did not appear before the commissioner for oaths to take oath. That what has been raised is from the bar and not law. That according to the oaths act, there is no regulation upon which the

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affidavit should be typed before the commissioner. Further, that there is no law that has been cited stipulating the manner, font, spacing and arrangement of the printed paper where the oath is to be taken.

Counsel Tebyasa also submitted that an affidavit cannot be defeated merely on the form of the jurat, and that if the Court has any doubt as to the respective deponent having taken oath, the remedy is to cross examine them on that very aspect and not to reject their affidavits on the account of the jurat. That election petitions are important matters which are not only important to the contestants but also to their electorate. It would be a miscarriage of justice for this Court to be swayed into a belief that the deponents did not take oath and proceed to expunge their affidavits without establishing the facts.

That the attack on affidavits is generalized merely as result of type setting formatting and printing of the affidavit which does not go to the root of the affidavit.

Counsel Tebyasa also took issue with the respondents lamping of their affidavits rejoinder with supplementary affidavits.

In rejoinder, Counsel Isingoma submitted that the petitioners should not have filed their affidavits in rejoinder without leave of court after the respondents had filed their answers. Counsel Tebyasa then submitted that a petitioner has a right to file an affidavit in rejoinder, he relied on the case of Mutembuli Yusuf vs. Nagwomu Moses Musamba & Anor Election Petition No. 13 of 2016 in support of his submissions. That not until a matter is set down for hearing before Court in an election petition, parties are at liberty to file further evidence and that affidavits are to be filed with leave of Court only after Court has entertained the matter and given timelines for concluding the pleadings.

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Scailleu with Cambo

### Rejoinder by the Petitioner

Counsel Evans Ochieng, while rejoining the submission of counsel Isingoma on the aspects of affidavits and jurats, stated that the affidavits before Court have jurats, they have proof that they were commissioned and if one does not agree that they were commissioned the remedy lies in cross examination of their deponents.

#### Considerations of the preliminary objections by Court

Having carefully listened to submissions by counsel, it is clear to me that the following key issues feature prominently.

- 1. Objections in the form and structure of the jurat in the affidavits filed by the petitioner. - 2. Differing signatures in affidavits and the National identification cards of deponents. - 3. Whether affidavits in rejoinder can be admitted.

#### Resolution

1. Objections in the form and structure of the jurat in the affidavits filed by the petitioner.

The Black's law dictionary 8th Edition defines a jurat as, "*a certification added to* an affidavit or deposition stating when and before what authority the affidavit or deposition was made"

An affidavit is defined in the same dictionary as, "a *written or printed declaration*. or statement of facts made voluntarily and confirmed by the oath or affirmation by

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the party making it, taken before an officer with the authority to administer such oath"

The law regulating the administration of Affidavits is found in the Oaths Act Cap 19 **section 5** and **6** thereof as well as the practice and procedure in the Courts of law.

The gist of the respondents' objection on this issue is that the jurats appear on separate pages hence offending the above provisions of the Oaths Act as its difficult to discern who deponed to the affidavits, on which date and before which Commissioner for Oaths.

It is not in contention that the affidavits purport to have a jurat and purport to have been commissioned, what is in contention is whether the various deponents, first of all appeared before the commissioner for oaths, and had their affidavits read back to them and they signed them. It is also not in contention that they bear a stamp and the signature for the commissioner for oaths but again, the issue is whether the commissioner administered the oath which is said to have been signed by the deponent.

The respondents have identified a number of affidavits having their jurats on separates pages even where they could have been inserted on the same page with the body of the affidavit through careful formatting and type setting of the documents, taking care that not too much space is left between paragraphs so as to allow the jurat fit on the same page with the body of the affidavit.

Whereas the petitioner seems to justify and condone this practice and insists that there is nothing wrong with the jurat appearing on a separate page and that formatting and type setting are not issues for Court to dictate for the lawyers, I am inclined to treat this as a fraudulent intent and a sloppy practice where lawyers take

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Scanneu with Cambo advantage of such drafting to lure unsuspecting declarants and affirmants to sign what they have not been read back to and understood.

This kind of practice ought to be condemned and discouraged in the strongest terms because such conduct gives room for fraudulent practices and suspicious conduct in a serious trial. Affidavits of this nature presuppose that the affirmants and deponents do not take the oath or even appear before the commissioner for oaths.

I am persuaded by the decision of my learned brother Justice Batema in the case of Dr. Bayiiga Michael Phillip Lule vs. Mutebi David Ronnie. Election Petition No. 14 of 2016 which relied on the Kenyan case of Re central bank of Kenya & Anor Nairobi (Mulimani) High Court) Civil Case No.4 of 2000 where it was held that where the jurat in an affidavit appears on pages separate from the main text, it offends the provisions of the oath and statutory declarations Act and renders that affidavit defective.

The practice in High Court and Superior Courts requires a high degree of diligence and perfection in handling business of Court and so lawyers must present their work in an orderly manner. Affidavits are known to take a certain form and format and therefore, one cannot present an affidavit the way he wants even when it clearly offends provisions of the sections 5 and 6 of the Oaths Act.

The respondents have invited this Court to strike out the said affidavits which offend the provisions of the Oath Act. However, to do this, I shall need to examine each of the impugned affidavits and strike out those offending the law.

In the affidavit of Ruteebemberwa Chrispas on page 96 of the affidavit in support, too much space is left in between the paragraphs and more so on page 101 yet if this space had been saved, paragraph 40 of the affidavit would have fitted on the same page with the jurat, I feel this was intentional and designed to have the jurat on a

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different page and so you cannot marry the body of the affidavit with the jurat which is appearing on a different page. I therefore strike it out.

In the affidavit of Nizeyimana Faustina, a lot of space was left after paragraph 12 on which part of the jurat could have fitted. In the affidavit of Sanyu Ruth, a lot of space was left after paragraph 12 and also after paragraph 13 on which the jurat could have fitted.

In the affidavit of Alinda Christopher, the jurat could have fitted on the space after paragraph 17. In the affidavit of Alinda Gift, too much space was wasted on the first page of the affidavit and also left a lot of space after paragraph 17 on which the jurat could have fitted.

Similarly, on the affidavit of Arinaitwe Wensi, a lot of space was wasted on the first page of the affidavit and after paragraph 25 of the said affidavit which could have fitted the jurat. In the affidavit of Turyatemba Junior, a lot of space was left after paragraph 24 on which to commence a jurat.

In the affidavit of Amon Hussein Sunday, so much space was left between paragraph 1 and 2 and the between paragraph 10 and 11 and after paragraph 19 and 26 which if saved would have made the jurat fit on the same page with paragraph 26.

In the affidavit of Mutegki Fortunate, a lot of space was left on which the jurat could have fitted on the same page with the affidavit. In the affidavit Kavuma Moses, a lot of space was wasted. In the affidavit of Tubebamwe Malita, a lot of space was also wasted. In the affidavit of Akansasira Medard, only a third of the space was used for the last paragraph and instead of inserting the jurat on that page, it was deliberately put on a separate page.

In the affidavit of Kanuma Gordon, too much space was deliberately left which if saved could have fitted the jurat.

Therefore, the affidavits of the following are expunged, Ruteebemberwa Chrispas, Nizevimana B Nizeyimana Faustina, Sanyu Ruth, Alinda Christopher, Alinda Gift, Arinaitwe Wensi, Turyatemba Junior, Amon Hussein Sunday, Mutegki Fortunate, Kavuma Moses, Tubebamwe Malita, Akansasira Medard, Kanuma Gordon.

Counsel for the petitioner on the other hand also attacked some of the affidavits of the $1^{st}$ respondent which had their jurats on a separate page.

Referring to the affidavits of the 1st respondent which equally had their jurats appearing on a separate page, this can be distinguished from the affidavits of the petitioner, in that the affidavits of the 1st respondent were page numbered, provided a smooth flow of each affidavit from the first page to the last and wasted no spaces in between paragraphs or even below the last paragraphs in order to provide for a jurat on a separate page.

Unlike those of the petitioner, the affidavits were not page numbered and could not provide a clear flow leading to the jurat, in most of them the body of the affidavit never flowed to the jurat on a separate page. In actual fact, one could easily detach the body from the jurat and take it to a different affidavit. It is for the above reasons that I found as above, that some of the petitioner's affidavits offended provisions of the Oaths Act and were inherently suspicious.

#### 2. Differing signatures in affidavits and the National identification cards of deponents.

Counsel Isingoma pointed out affidavits which have signatures that differ from those on the National identification cards of deponents.

In the case of Kazarani charles vs. Musoke Paul Sebulime & Anor. Election Petition No. 17 of 2016. Justice Kabito ruled in respect of signatures that are not consistent with the national IDs. It was his view that such inconsistencies that are

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$_{\mathfrak{g}P}$ parent on the face of the record make the affidavit to be suspect and un reliable and he struck them out.

Similarly, in the instant case, I would treat the petitioners' affidavits that have inconsistent signatures with a lot of suspicion. For counsel to argue that by Court inquiring into the signatures and thumb prints of the deponents and making a finding that the deponents therein may not have appeared before the commissioner for oaths or even signed the respective affidavits is to say the least simplistic.

Counsel would therefore, want Court to take the signatures on the jurat and on the National IDs on their face value. That is to say, Court should not scrutinize but just take them the way they appear. This is misleading and Court would be absconding its duty by so doing. Court must be satisfied that the signature and/ or thumb print of the deponent that appear on the affidavit and the National ID belong to the one and the same person they purport to be.

Looking at the affidavits before me, it is unfortunate that in the affidavits of Mutegeki Fortunate and Haguma Vincent, there were no National IDs attached in order to identify them and so they are struck out.

## 3. Whether affidavits in rejoinder can be admitted.

It is trite law that pleadings must at one time come to a close. The Civil Procedure Rules SI 71-1 under Order 8 Rule 18 provide the sequence of presentation and the closure of pleadings.

There are two schools of thought espoused in different decisions regarding filing of rejoinders in election petitions. One school of thought is to the effect that where the respondent introduces new matters a petitioner can file a rejoinder.

$\int_{e}$ other school of thought deals with the strict interpretation of the rules in election $p$ *etition* which rules do not provide for filing an affidavit in rejoinder. Put simply, $\frac{1}{a}$ affidavits in rejoinder have no room in the regime of election petitions. I tend to subscribe to this school of thought as I find it improper to import what has not been covered in the rules with regard to rejoinders during election petitions.

Section 60 (3) of the Parliamentary Elections Act Cap 17 and Rule 4 (8) Parliamentary elections (Interim Provision) Rules SI 141-2 requires the petitioner to file his or her petition together with accompanying affidavits within 30 days setting out the facts in which the affidavit is based together with the list of any documents which the petitioner intends to rely on.

A respondent who wishes to oppose the petition may then file an answer to the petition together with affidavits stating the facts upon which the respondent relies in support of his or her answer within 10 days after the petition was served on him or her. See Rule 8 of the Parliamentary Elections (Interim Provision) Rules.

At this stage, all filings are deemed to be have been completed and parties are precluded from filing additional matters except where parties together with the Court have agreed on dates during scheduling or where the court on its own motion or upon application by a party to the proceedings has applied for enlargement of the time appointed in the rules as envisaged under rule 19 of the Parliamentary Elections (Interim Provision) Rules.

I am fortified by the decision of the Court of Appeal in the case of Mutembuli Yusuf vs. Nagwomu Moses Musamba & Anor Election Petition Appeal No. 43 of 2016 where the Justices of the Court of Appeal held, "that all the 86 supplementary affidavits that had been struck out by the trial judge qualified to be affidavits in

$\frac{1}{\text{subport}}$ of the petition or supplementary affidavits in support which can only be filed with leave of Court." [Emphasis mine]

Therefore, my take is that the petitioner was precluded from filing affidavits in rejoinder to the respondents' answers and the accompanying affidavits without leave of Court and before scheduling. They ought to have waited up to the time of scheduling and applied for leave of Court to bring in additional evidence if they felt the respondents introduced new matters. Consequently, all the affidavits in rejoinder filed by the petitioner on 17th of May 2021 are struck out.

Dated this 9th day of September, 2021 at Masindi High Court.

**AJIJI ALEX MACKAY**

**JUDGE**