Uganda: High Court

RULING:
This petition was filed under the Parliamentary Election Act by KAKANDE KENNETH PAUL (hereinafter referred to as the petitioner) against RUHINGI FRED and The Electoral Commission (hereinafter referred to as the 1^st and 2^nd respondents respectively.) It was in respect of the Parliamentary elections that were held throughout the country on 23^rd February 2006. The petitioner and the respondent with others contested for the Nakawa Division Constituency Parliamentary seat and at the end of the election the 1^st respondent was declared the winner. The result of the Election was published in the Uganda Gazzette of 27^th March 2006. Following the publication of the results the petitioner contested the outcome of the election and filed this petition on 26/4/2006. In the petition he alleged that the 1^st respondent had committed a number of Electoral Offences and that the 2^nd respondent failed to conduct the Election in accordance with the constitution and the Parliamentary Elections Act.

The 1^st respondent filed his reply to the petition on 15^th May 2006 while that of the 2^nd respondent had been filed on 8^th May 2006. They both denied any wrong doing and prayed this court to dismiss the petition filed by the petitioner.

The burden to prove the allegations in the petition lies on the petitioner and according to Rule 15(1) of the Parliamentary Election (Election Petitions) Rules all the evidence at the trial, in favour of or against the petition shall be by way of affidavit read in open court. This presupposes that by the time of the trial each party has adduced his or her evidence in form of affidavits and this evidence has been served on the other party.

As already pointed out this petition was filed on 26/4/2006. An affidavit in support of the petition was filed together with the petition. It was incumbent upon the petitioner to adduce all the other evidence he intended to rely on during the trial and serve it on the respondents who in turn would adduce their evidence against the petition. As it was no other evidence was adduced by the petitioner to support the allegation as a consequence of which the respondents never filed any other evidence against the petition.

This petition was first called for mention on 24/7/2006. This was about three months from the time the petition was filed. The petitioner had had more than ample time to adduce his evidence supporting the petition. Instead Mr. Katumba Counsel for the petitioner informed court that he was not ready to proceed with the hearing of the petition because the petitioner was out of the country. Neither the 1^st nor the 2^nd respondents was ready for the hearing. The petition was set down for mention on 31/7/2006 and on this day all the parties and their counsel attended. The proceedings which are vital for this ruling are set out below:-

The case was for a pre conference and it is noted that the petitioner has not filed evidence in form of affidavits to support the petition. By consent of all parties:

1.      

The petitioner will be allowed till 1/8/2006 at 5.00 p.m. to file the affidavits in support of the petition and serve them on the respondents by 2/8/2006 at 5.00 p.m.
2.       The respondents will file their affidavits in reply by 16/8/2006 at 5.00 p.m.

3.      

The scheduling conference shall be held on 25/8/2006 at 9.00 a.m.

4.      

The hearing of the petition shall be held on 4^th to 7^th September 2006.”

The scheduling conference was not held on 25/8/2006 because counsel for the 1^st respondent was bereaved. It was agreed that the scheduling conference would be held on 4/9/2006 and the actual hearing of the case would commence thereafter.

When the case was called up for hearing 4/9/2006 Mr. Katumba counsel for the respondent informed court that he had served the respondents with the affidavits in support of the petition but that they had not responded. He stated that since an Election is a matter of Public Interest the respondents should be given more time to respond to the petitioners evidence. Alternatively he prayed that if court was to find that there was no proper service the petitioner should be allowed another two or three days to effect service of the affidavits.

Both Mr. Kandebe and Mr. Okello Oryem counsel for the 1^st and 2^nd respondents respectively opposed the application for the petitioner to be give more time to serve the respondents. They both denied having been served with the affidavits. They prayed that the affidavits be excluded and that the case proceeds with the evidence that is already on the court record.

Mr. Katumba’s application raises two issues. The first is whether there was proper service of the affidavits. The second is the fate of the affidavits in case court finds that they were not properly served.

On the first issue it is my view that none compliance with a court order setting down the time when the affidavits should have been filed negates the service. It was clearly stated that the petitioner should file his affidavits on 1/8/2006 and serve by 2/8/2006 at 5.00 p.m. According to the affidavit of the process server he served the 1^st respondent on 3/8/2006 at 1.16 p.m. and the 2^nd respondent was served at 3.00 p.m. Both services were outside the time stipulated by court. To me it is immaterial that service was outside the stipulated time by a few hours or that in the circumstances prevailing it was difficult to comply with the court order as the affidavit of the process server seems to suggest. In such circumstances the petitioner should have applied to court for expansion of the time instead of trying to ‘force’ service on the respondents. This should not have taken more a month to do and to condone such an inordinate delay would defeat the purpose of the parliamentary elections act that provides for expeditious trial of Electoral Petitions. The answer to the 1^st issue is that the purported service of the affidavits on the two respondents was not proper and the fate of these affidavits is that they will not be admitted. They are excluded from the record of this petition.

I am aware that court can allow filing of affidavits even as the trial of the case proceeds. (See Matsiko Winifred Komuhangi V. Bahihuga J. Winnie (Election/Petition Appeal No. 9 Of 2002) but the bulk of the affidavits should be filed at the tiSme of filing the petition and others would be additional to the bulk of the evidence.

Mr. Katumba also raised the public importance of an Election Petition. Unfortunately the petitioner has not demonstrated that he attaches such importance to the petition when he has failed to file affidavits in support of the petition for the last four months. I am not inclined to give the petitioner more time to adduce evidence.

In the circumstances the affidavits filed in this court on 1^st and 2^nd August 2006 will be excluded from the trial which will proceed with the evidence already filed.

Eldad Mwangusya
JUDGE
5/9/2006