[2021] UGSC 64

#### THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA **AT KAMPALA**

## CORAM: OWINY-DOLLO CJ; KISAAKYE; ARACH-AMOKO; OPIO-AWERI; MWODHA; MUGAMBA; MUHANGUZI; TUHAISE; CHIBITA; JJ. S. C.

**MISCELLANEOUS APPLICATION NO. 01 OF 2021** (Arising from Presidential Election Petition No.01 of 2021)

# **KYAGULANYI SSENTAMU ROBERT:::::::::: PETITIONER**

#### **VERSUS**

1. YOWERI MUSEVENI **TIBUHABURWA KAGUTA** 2. ELECTORAL COMMISSION :::::::::::::::::::::::::::::::::::: **3. ATTORNEY GENERAL**

### **REASONS FOR THE RULING**

## 1.0: Introduction:

On 9^th February, 2021, the court dismissed an application by the applicant/petitioner to amend the petition. We Promised to give reasons for the dismissal at a later date. We now give reasons for rejecting the amendment.

### 2.0: Background

January, 2021, the Electoral Commission $14$ $On$ conducted general elections that included Presidential and Parliamentary elections. In fulfilling her Constitutional mandate under article 61 of the 1995 Constitution, the second respondent nominated 11 (eleven) individuals as presidential candidates. These included Amuriat Oboi Patrick, Kabuleta Kiiza Joseph, Kalember Nanc Katumba John, Kyagulanyi Ssentamu Robert, Mao Nobert, REGISTRAR **DATE:**

SUPREME COURT-OF UGANDA

Mayambala Willy, Mugisha Muntu Gregg, Mwesigye Fred, Tumukunde Henry Kakurugu and Yoweri Museveni Tibuhaburwa Kaguta.

was the 6^th Presidential Election since the This promulgation of the 1995 Constitution, the first having been held in 1996, the second in 2001, the third in 2006, the fourth in 2011 and the fifth in 2016.

On 16^th January, 2021, the second respondent declared the results of the election returning Yoweri Museveni Tibuhaburwa Kaguta of the National Resistance Movement party, hereinafter the 1^st respondent as the validly elected President of the Republic of Uganda having polled 5,852,037 votes representing 58.64% of the total votes cast. Other candidates in the race polled the following votes and percentages respectively;

| Name of Candidate Number of votes per candidate Percentage | | | | |------------------------------------------------------------|--|--|--| | | | | |

| Amuriat Oboi Patrick | 323,536 | 3.24% | |----------------------------|-----------|--------| | Kabuleta Kiiza Joseph | 44,300 | 0.44% | | Kalembe Nancy Linda | 37,469 | 0.38% | | Katumba John | 35,983 | 0.36% | | Kyagulanyi Ssentamu Robert | 3,475,298 | 34.83% | | Mao Nobert | 55,665 | 0.56% | | Mayambala Willy | 14,657 | 0.15% | | Mugisha Muntu Gregg | 65,334 | 0.65% | | <b>Mwesigye Fred</b> | 24,673 | 0.25%, | | Tumukunde Henry Kakurugu | 50,141 | 0.50% | | | | |

$\overline{2}$

Aggrieved with the outcome of the Election, the applicant contested the results of the election in this court, this being the court of first instance in challenging presidential elections. The grounds advanced included; that the $1^st$ respondent was not validly elected as the elections were not conducted in accordance with the principles laid down in the provisions of the Constitution, the Presidential Elections Act, the Electoral Commission Act and other relevant laws, and that the non-compliance affected the results of the election in a substantial manner. He thus filed a petition on 1^st February, 2021 in this court seeking declarations or orders that;

- i) The Presidential election held on the 14^th day of January, 2021 was not held in accordance with the provisions of the electoral laws and the governing elections, which nonprinciples compliance affected the results of the election in a substantial manner. - ii) The 1^st respondent was not validly elected as the president of the Republic of Uganda. - iii) The election of the 1^st respondent as President of the Republic of Uganda be annulled and set aside. - iv) A fresh election be conducted in accordance with the law. - v) The 3^rd respondent be directed again to cause amendment to the relevant laws to comply with the observations, recommendations and directives of this court in Presidential Election Petition No.1 of 2001, Rtd. Col. Dr. Kiiza Besigye versus Y. K Museveni, Election Petition No.01 of 2006

Col. (Rtd) Dr. Besigye Kiiza versus Museveni Yoweri Kaguta & Electoral Commission, and Presidential Election Petition No.01 of 2016, John Patrick Amama Mbabazi versus Yoweri Kaguta Museveni, Electoral Commission and Attorney General to enable internationally recognized principles of a free and fair election.

- vi) A permanent injunction doth issue restraining the Uganda People's Defence Forces and intelligence services from involving themselves and interfering with electoral processes in future. - A permanent injunction restraining Resident vii) District Commissioners from engaging in partisan politics and election matters. - viii) The respondents pay the costs of the petition.

Pursuant to the above petition, the applicant filed the instant application on 8^th February, 2021 to amend the petition. We considered the application and dismissed it summarily and we promised to give our reasons in the judgment. However, the fact that the petition was formally withdrawn by the applicant, resulted in no formal judgment being written by this court. That is why we have found it necessary to give the reasons for dismissal of the application in the application separately.

### 3.0: The Instant Application:

The application was brought under Section 98 of the Civil Procedure Act, Cap. 71, rule 15 of the Presidential Elections (Election Petitions) Rules, Order 6 rules 19 and 20 of the Civil Procedure Rules S. I 71-1, Rules 2(2), 42

$\overline{4}$

and 44 of the Judicature (Supreme Court) Rules S.1. 13-11 seeking orders that leave to amend the petition be granted and that costs of the application be provided for.

### 4.0: Grounds of the Application:

The grounds of the application are briefly stated in the application and further elucidated in the affidavit in support sworn by the applicant and, a supplementary affidavit deponed by Mr. Turyamusima Geoffrey.

Briefly, the grounds are that the applicant had filed a Presidential Election Petition which had been served on the respondents and that the filing of pleadings in the petition was still ongoing. He further stated that the amendment of the petition was necessary to enable the court effectively investigate and completely determine all questions involved in the petition and that the amendment would not prejudice the respondents as the proposed amendment did not raise a distinct cause of action in place of the original. The applicant further averred that it is in the interest of justice, equity and fairness that leave be granted to amend the petition.

A supplementary affidavit in support of the application sworn by Mr. Turyamusima Geoffrey, a lawyer on the applicant's legal team was also filed. The sum import of the averments contained therein is that he attempted to file an amended petition in this court which the Registrar declined to receive on the ground that the applicant ought to have sought leave of the court first. He further deponed that in no way would the respondents be prejudiced by the intended amendment since the proposed amendment did

$\mathsf{S}$

not substitute a cause of action. The applicant contended that the justice of the case would demand that the application to amend the petition be allowed.

### 5.0: Reply to the Application:

The respondents opposed the application by way of filing deponed by their respective reply in affidavits officers/representatives. For the 1^st respondent, Mr. Oscar Kihika, the Director of Legal Affairs of the National Resistance Movement swore an affidavit in reply. He deponed therein that the intended amendment was being sought after the expiry of the constitutionally prescribed timeframe for filing Presidential Election Petitions, and that the matters raised in the proposed amendment were at the time of filing the petition in the public domain and available to the applicant, his party officials and or agents. He further deponed that the intended amendment sought also to introduce a new ground in the petition to the effect that the 1^st respondent was not qualified for election as President, outside the constitutionally prescribed time for filing a Presidential Election Petition and that the proposed new grounds are intended to defeat the already filed answer to the petition by the $1^{st}$ respondent. Mr. Kihika further deponed that given the strict requirements of the law in determining a Presidential Election Petition, it would be prejudicial to the $1^st$ respondent to allow the amendment to the petition and that the amendment should not be disallowed.

For the 2^nd respondent, Justice Byabakama Mugenyi Simon deponed an affidavit in reply rebutting the

$\overline{6}$

applicant's assertions. Briefly, he averred that the proposed amendments were not sustainable as they were not particularized and were unnecessary, intended to embarrass and were prejudicial to the 2^nd respondent. He further deponed that the amendment was sought after the expiry of the constitutionally prescribed timeframe for filing Presidential Election Petitions and introduces new intended to defeat the defences of the grounds respondents to the petition. He added that owing to the timeline required by the $2^{nd}$ respondent to file a reply to the petition, three (3) days, it is not just and equitable to allow the amendments sought.

For the 3^rd respondent, Mr. Jackson Kafunzi, the Deputy Attorney General deponed an affidavit in reply in which he virtually re-echoed the averments of the $1^{st}$ and $2^{nd}$ respondents but with specific emphasis on the expiry of the constitutional timeframe for filing a presidential election petition and the proposed amendments seeking to introduce new grounds of alleged illegal practices or offences in the petition outside the constitutionally prescribed timeframe. He thus implored court to disallow the application as it would be prejudicial to the respondents.

#### 6.0: Representations:

the hearing of the application, Hon. William $At$ Byaruhanga the Attorney General of the Republic of Uganda together with Mr. Francis Atoke the Solicitor General, Ms. Christine Kaahwa, Mr. Martin Mwambutsya

$\overline{7}$

and Mr. George Kallemera appeared for the $3^rd$ respondent.

Mr. Medard Ssegona, Mr. Muyizi Samuel Mulindwa, Mr. Anthony Wameli, Mr. Fredrick Kalule, Mr. Kiwanuka Abdallah, Mr. Sulaiman Kakaire and Mr. Sekanjako Abubaker appeared for the applicant.

Mr. Ebert Byenkya, Mr. Kiryowa Kiwanuka, Mr. Edwin Karugire and Mr. Usama Sebuwufu appeared for the 1st respondent.

Mr. Joseph Matsiko, Mr. Alfred Okello Oryem, Mr. Ellison Karuhanga, Mr. Eric Sabiiti and Mr. James Tumwebaze appeared for the $2^{nd}$ respondent.

#### $7.0$ : Submissions:

commenced his applicant, Mr. Ssegona the For submissions by raising a point of law in regard to the affidavit in reply for the 1^st respondent deponed by Mr. Oscar Kihika. He argued that the 1st respondent to the application was Yoweri Museveni Tibuhaburwa Kaguta who according to the affidavit deponed by Mr. Kihika authorized him to swear the affidavit on his behalf.

He submitted that no authority had been attached to the affidavit in reply deponed by Mr. Kihika from the 1st respondent indicating that he had authorized Mr. Kihika in that respect as required under the Civil Procedure Rules (Order 1 rule 12). He argued that the requirement is applicable by virtue of rule 15 of the Presidential Election Petition Rules. He thus prayed that the affidavit of Mr. Kihika be struck off the record.

Regarding the merits of the application, Mr. Ssegona argued that the applicant had filed Election Petition No.01 of 2021 on 1^st February, 2021 which had been served on the respondents and that the filing of pleadings was still ongoing. He said that consequently, the amendment of the petition was necessary to enable the court investigate and completely determine all questions involved in the petition.

He further argued that the respondents would not be prejudiced by the amendment as the amendment does not raise distinct causes of action in place of the original as it concerns the same claim. Highlighting the averments contained in the affidavit in support of the application deponed by the applicant, Mr. Ssegona argued that after the election, the applicant was placed under house arrest and only managed to get out of captivity after the intervention of the High Court when it granted him some relief and release from house arrest.

To buttress his arguments, Mr. Ssegona cited the case of Mulowoza and Brothers Ltd versus Enshire & Co. Ltd, Civil Appeal No.26 of 2010 in which principles for amendment of pleadings were emphasized. He submitted that in the Mulowoza decision, the court was of the opinion that an amendment should be freely allowed except where the amendment tended to cause prejudice to the opposite party and that such prejudice cannot be readdressed.

He further argued that the Mulowoza authority also emphasizes the principle that an amendment is intended to enable the court effectively adjudicate on all matters in

controversy and that this is the position of the Constitution under article 104 (3) & (5), which position is echoed under section 58 of the Presidential Elections Act. Mr. Ssegona also made reference to the case of Mohan Musisi Kiwanuka versus Asha Chand, Civil Appeal No.21 of 2001 which he said re-emphasizes the principles in Mulowoza (Supra).

Referring to the case of Rt. Hon. Amama Mbabazi versus Yoweri Kaguta Museveni & 2 others, Presidential Election Petition No.01 of 2016, Mr. Ssegona argued that an application for amendment was allowed having been made during advanced stages of the petition, which is not the case with the present petition where an application for amendment has been filed without undue delay. He however observed that he was alive to the constitutional requirement of expeditiously dealing with petitions of such a nature filed before this court. He made an undertaking to expedite the filing of the amendment once granted leave to amend the petition.

According to counsel for the applicant, the argument that an Election Petition is time bound and therefore this application should have been filed within the same time limitation does not have sound legal basis. In this respect, he referred the court to the decisions of Awori Media Uganda Ltd & Another vs. Eco Bank Ltd, Misc. App No. 1105 of 2014 and, Ms. Fang Ming versus Belex Tours and Travel Ltd, SCCA No. 06 of 2013. He concluded his submissions arguing that the respondents cannot use the illegality of confining the applicant in his home as a basis to deny him leave to amend the petition given that he lost 10 days within which he ought to have filed the petition. Counsel invited court to exercise its powers to allow the application.

For the 1^st respondent, Mr. Ebert Byenkya commenced his submissions by responding to the objection raised by Mr. Ssegona in regard to the affidavit in reply sworn by Mr. Oscar Kihika. He submitted that the objection was misconceived since Mr. Ssegona did not make reference to Order 19 of the Civil Procedure Rules as the law governing affidavits. He added that Mr. Kihika swore the affidavit in his capacity as the Director of Legal affairs of the National Resistance Movement.

Mr. Byenkya submitted that candidate Yoweri Museveni was a candidate for the National Resistance Movement Party and that Yoweri Museveni was not alone in that matter as he represented the National Resistance Movement. He stated that what Mr. Kihika did as an advocate is actually what Mr. Turyasiima did when he swore an affidavit in support of the application. He thus implored court to ignore the objection and have the same dismissed.

Concerning the merits of the application, Mr. Byenkya argued that the law governing the determination of Presidential Election Petitions does not provide for, nor does it allow an amendment. He was emphatic that the rules governing the determination of Presidential Election Petitions provide for a fixed number of events which include, the filing of the petition, service of the petition, filing an answer to the petition and then hearing of the

petition. Mr. Byenkya argued that each of these aspects has timelines and that the court was at the time expected to hear the petition next as amendment was out of question.

He thus implored the Court to disallow the application. He distinguished the Mbabazi authority with the current application noting that the circumstances that existed in the Mbabazi petition were different. He submitted that in the Mbabazi case, the court made recommendations among which was extension of time to allow the process to be carried out fairly and that is what the court was dealing with at the time.

Regarding the applicability of the Civil Procedure Rules in Presidential Election Petitions, Mr. Byenkya submitted that the application of the CPR is limited for purposes of trial only and that trial cannot be the same as amendment. He insisted that the rules cannot be extended beyond the purpose for which they were introduced. He opined that the power to amend in the short timeframe provided for the determination of a Presidential Election Petition does not exist in the Presidential Election Petition Rules.

On whether the court could allow the amendment if it was established that it had the right to amend, Mr. Byenkya submitted that the amendment cannot be allowed after the expiry of the time for filing the petition. Counsel added that the time for filing the petition is provided for under article $104(2)$ which is fifteen (15) days after the declaration of the candidate as President. He said that the

period had passed. To buttress his argument, Mr. Byenkya cited Halsbury's Laws of England Volume 38(a), 5^th Edition and the case of Rao and others, (1956) 1 MLJ 40 where it was observed that, it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with, and any petition seeking such interference must strictly conform to the requirements of the law.

On the proposed amendments, Mr. Byenkya argued that paragraph 5 of the proposed amendment touched on the qualifications of the 1^st respondent as not being qualified to be elected President. He submitted that, that proposed amendment was not in the original petition and was a new ground. Similarly, he pointed to the 1^st respondent using government resources which was also a new ground. On new offenses, Mr. Byenkya pointed out that the proposed amendment introduces 15 new offenses of bribery. He hastened to add that the law does not allow a petitioner to amend a petition to introduce new grounds. He made reference to the decision of Rao (supra) and Halsbury's Laws of England cited earlier.

On the question of prejudice, Mr. Byenkya submitted that the applicant had not served on them affidavit evidence and as a result, the respondents did not know which evidence the applicant intended to adduce. He stated that this had in a way prejudiced their case and that allowing an amendment would further prejudice their case. He submitted that the offenses in the proposed amendments, they do not disclose a cause of action as the $1^{st}$ respondent was not in charge of conducting the election

but rather the second respondent. He concluded his submissions by praying for the dismissal of the application.

$\tilde{\tau}_2$

$\mathcal{L}_{\mathcal{L}}$

For the 2^nd respondent, Mr. Joseph Matsiko commenced his submissions by making reference to Order 1 rule 12 of the Civil Procedure Rules which had been cited by Mr. Ssegoona in attacking the affidavit in reply sworn by Mr. Oscar Kihika. Mr. Matsiko submitted that Order 1 rule 12 CPR deals with representation of parties and that the same was erroneously cited by counsel for the applicant.

Concerning the merits of the application, Mr. Matsiko submitted that the CPR under which the applicant commenced his application does not apply in regard to amendment of Presidential Election Petitions. He further submitted that the Constitution, the Presidential Elections Act and the rules made there under do not provide for amendment especially where the amendment introduces fresh causes of action or grounds. He added that the 15 days stipulated by the Constitution are cast in stone, and a party cannot go beyond that limit.

Counsel submitted that where the proposed amendment introduces new causes of action, that amendment is not permissible if the effect of allowing it is to defeat the constitutional timeline allowed for filing the petition challenging a presidential election. Making reference to the proposed amendment, Mr. Matsiko argued that the applicant introduces a new ground relating to non-use of declaration forms in declaring the results which in his

opinion was a new pleading, a new cause of action and a new ground.

Mr. Matsiko also highlighted section 12 (1)(c) of the Presidential Elections Act relating to the use of biometric relating to section $56(2)$ and verification voter transmission of the return forms, tally sheets and DR forms which he observed were new grounds and causes of action not incorporated in the petition filed originally.

With regard to article 104 of the Constitution, Mr. Matsiko argued that it is not permissible to introduce new grounds outside the time prescribed by the Constitution. He argued that the proposed amendments were to be allowed, they would prejudice the 2^nd respondent as she had already filed her answer to the petition. He made reference to the the that Mbabazi decision emphasizing Amamba circumstances that existed then were different and distinguishable from those that exist in the instant matter.

Making reference to the authorities cited by the applicant, Mr. Matsiko submitted that the cases of Mulowoza and Brothers Ltd and Mohan Kiwanuka never dealt with timelines set by the constitution for filing an election petition, neither did they deal with allowing an amendment that introduces new grounds that are fresh or would constitute pleading fresh grounds outside the limitation period permitted under the law. Mr. Matsiko submitted that those authorities dealt with amendment of ordinary civil proceedings and therefore do not apply in the instant matter. He thus prayed that the application be dismissed.

For the 3^rd respondent, Mr. Byaruhanga the learned Attorney General submitted that the laws governing the trial of Presidential election Petitions do not provide for amendment in presidential election petitions. $Mr.$ Byaruhanga was of the view that the proposed amendments by the applicant introduce new causes of action which was not the case in the Mbabazi petition. He went on to argue that the 3^rd applicant had complied with the rules when she filed her reply within the timelines required by the rules and had served the same on the petitioner. Mr. Byaruhanga proposed that for the court to ably determine this application, it should frame the following issues;

- i) Whether the Civil Procedure Act and Rules apply to the amendment of a Presidential Election Petition. - ii) Whether the amendment can be made after the expiry of time - iii)Whether the amendment can be allowed when it introduces new causes of action.

As to whether the Civil Procedure Act and rules are applicable, the applicant having invoked section 98 and 100 of the Civil Procedure Act, it was Mr. Byaruhanga's view that these laws do not apply.

He submitted that rule 15 of the Presidential Election Petition Rules which brings into application the Civil Procedure Act and Civil Procedure Rules limit their application to trial and not amendment of pleadings. He added that the petition filed presented extremely unique and different circumstances where the burden was on the

petitioner to present his petition and supporting evidence within 15 days from the date of declaration of results in accordance with article 104(2) of the Constitution as amended.

He stated that the activities of filing and serving all pleadings by the parties referred to under the Presidential Election Petition Rules have been carried out and served. He added that by the applicant seeking an amendment under the Civil Procedure Act and Rules which require an elaborate procedure and long process which are not time bound unlike a Presidential Election Petition which has very strict timelines would tantamount to dragging the court into procedural aspects which are not provided for under the law.

Mr. Byaruhanga further submitted that the amendment if allowed would prejudice the respondents after they had presented their case. He stated that the petitioner having read their reply would have the advantage to re-do his case, and consequently come up with new causes of action all together. He referred the court to the decision of Harmon versus Tylor, Supreme Court of Tennessee, 1904 where it was observed that where one desires to contest the election of a person, he/she must comply with statutory requirements intended to prevent a the Constitutional crisis.

Mr. Byaruhanga submitted that the legislature did not make any provision for the extension of time within which an amendment could be made and that the laws only allow twenty days as sufficient time within which to obtain

all the information necessary to begin the contest which the applicant was aware of. He added that allowing the application would imply that any amendment or supplemental pleading could be filed at any time after the expiration of the time prescribed by the rules which could prolong the litigation until the new term of office expires.

Mr. Byaruhanga stated that the 3^rd respondent would suffer prejudice if court allowed the amendment as the proposed amendments are intended to defeat the respondent's answer to the petition. He added that as the court considers this application, it should also consider the reality that the country was waiting for the final confirmation of the Presidential election and if the applicant is allowed to freely amend his petition, it means that the respondent will have to file an amended answer affecting the timeframe set under the law, section 59(3) of the Presidential Elections Act No.16 of 2015.

He further argued that allowing the amendment would be superfluous as it would imply that the Supreme Court went out of its way to recommend an increment of time as article 104(3) of the Constitution makes it mandatory for this court to determine the petition within 45 days. He implored this court to find that the petition is not amendable especially under the new rules and added that had the legislature intended that an amendment would be allowed, it would have expressly stated so. $Mr.$ Byaruhanga concluded his submissions imploring court to find that there are no sufficient grounds to warrant the grant of leave to amend the petition and that the application should accordingly be dismissed.

In a brief rejoinder, Mr. Ssegona argued that the instant application did not seek for extension of time but rather for amendment of pleadings. He added that the time fixed by the Constitution is for filing of the petition and the amendment of the petition is an entirely different procedure following the filing, which was done within time. As to whether the proposed amendments introduce new causes of action, it was Mr. Ssegoona's submission that the proposed amendment does not introduce new causes of action but rather new grounds.

It was Mr. Ssegona's contention that amendments in Presidential Election Petitions will be allowed depending on the circumstances of a particular petition and the statute under which it is brought. He said that in our jurisdiction, it is not outlawed but rather permissible, the reason one has to go to the general practice as provided for in the Civil Procedure Act and Rules. He added that the framers of the Presidential Election Petition Rules were aware that they could not provide exhaustively everything. He said that that was the reason they made reference to the existing rules that apply to this court and that is where amendments are permitted

## 8.0: Determination of the application:

In determining the instant application, we have fully considered the pleadings, the submissions by all counsel, the law and the authorities cited.

Before we go to the merits of the application, we have to consider the objection raised by the applicant regarding the affidavit in reply to the application sworn by Mr.

Kihika. The applicant raised issue with this affidavit arguing that the same purports to be the affidavit of the $1^{st}$ respondent and when it is not. The applicant insisted that the 1^st respondent is Yoweri Museveni Tibuhaburwa Kaguta who, allegedly had authorized Mr. Kihika to swear the affidavit in reply. The applicant questions the validity of Mr. Kihika's affidavit given that there is no attachment showing the first respondent authorized him to swear the affidavit on his behalf.

The law governing affidavit evidence is Order 19 of the Civil Procedure Rules, S. I. 71-1. The relevant provision is rule 3(1) of Order 19. The rule provides that Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated.

We have had the benefit of reading the affidavit sworn by Mr. Oscar Kihika in reply to the application. Paragraph 1 of the affidavit is worded in the following terms;

1. I am an Advocate of the Courts of Judicature and the Director Legal Affairs, National Resistance Movement which sponsored the respondent's $1st$ Partu. candidature in the 2021 Presidential Elections. I am authorized by the $1^{st}$ respondent to swear this *affidavit.*

The reading of the rule cited and reproduced above leads to the conclusion that an affidavit can be sworn by a deponent well versed with facts within his knowledge relating to the matter before court. Mr. Oscar Kihika avers in his affidavit that he is an Advocate of the High Court and the Director Legal Affairs of the National Resistance Movement party that sponsored the $1^st$ respondent as a Presidential candidate in the 2021 elections.

The question as to the sponsorship of the $1^{st}$ respondent by the NRM party as a presidential candidate in the 2021 elections is not in issue. Those facts are within Mr. Kihika's knowledge which he can rightly depone in that regard. As an Advocate and thus the Director Legal Affairs at the NRM, the law permits Mr. Kihika to depone to facts that have come to his knowledge in the course of executing his professional duties as long as he does not appear to represent a litigant in a matter on whose behalf, he swore the affidavit. Refer to R. versus Secretary of **State for India (1941) 2 ALL ER, 546.** However, where he avers that he had authority to depone the affidavit on behalf of the $1^{st}$ respondent, it is trite law that that authority must be explicit and in writing. However, to the extent that Mr. Kihika swore the affidavit in his capacity as an Advocate for the $1^{st}$ respondent wherein he did not appear to represent the $1^{st}$ respondent in the same matter, that affidavit is admissible.

## 8.1: Consideration of the Merits of the Instant application

The power to receive and adjudicate a Presidential Election Petition by the Supreme Court is enshrined under article 104 of the Constitution of the Republic of Uganda 1995. For purposes of clarity, the relevant clauses of article 104

which grant the Supreme Court jurisdiction to hear and determine a Presidential Election Petition are worded in the following terms;

**Article 104 of the Constitution:**

- (1)Subject to the provisions of this article, any aggrieved candidate may petition the Supreme Court for an order that a candidate declared by the Electoral Commission elected as President was not validly elected. - $(2)$ A petition under clause (1) of this article shall be lodged in the Supreme Court registry within fifteen days after the declaration of the election results. - (3) The Supreme Court shall inquire into and determine the petition expeditiously and shall declare its findings and reasons not later than forty-five days from the date the petition is filed - $(4)$ - (5)After a due inquiry under clause (3) of this article, the Supreme Court may-

a) Dismiss the petition

- b) Declare which candidate was validly elected; $or$ - c) Annul the election

| | <b>Contract Contract State</b> | |--|--------------------------------|

9 Parliament shall make such law as may be necessary for the purposes of this article, 22

## including laws for grounds of annulment and rules of procedure.

In line with clause (9) of art 104 of the Constitution, Parliament enacted the Presidential Elections Act No.16 of 2005. The rules giving effect to the provisions of section $59(11)$ of the Act were put in place as well.

Significantly, under the Presidential Elections Act (PEA), section 59 also confers upon the Supreme Court jurisdiction to hear and determine a Presidential Election Petition. Subsections (1), (2), (3) and (5) of section 59 Presidential Elections Act echo the provisions of article 104 of the Constitution highlighted above. The Presidential Elections (Election Petitions) Rules, S. I. No. 13 of 2001 provide for the procedure of trial of a presidential election petition.

The reading of the above legal provisions leads to the conclusion that every event geared towards the determination of a Presidential election petition has fixed time frames that require strict compliance.

Article 104(2) of the Constitution 1995 and Section 59(2) of the Presidential Elections Act, 2005 are couched in mandatory terms requiring an aggrieved candidate to lodge his/her petition in the Supreme Court Registry within fifteen days after the declaration of the election results. The Court on the other hand is commanded by the Constitution to inquire into and determine the petition not later than forty-five days from the date the petition is filed.

A critical reading of the Presidential Elections (Election Petitions) Rules, 2001, S. I. No.13 indicates that the rules provide for time lines within which the chronology of events geared towards the filing and determination of a presidential election petition are supposed to be performed. The steps leading to the determination of the petition include the presentation of the petition (filing) at the registry, service of the petition, filing an answer to the petition by the respondent(s) and trial of the petition. These steps are elucidated under the Section $59$ subsections $(1)$ , $(2)$ , $(3)$ and $(5)$ respectively.

The Presidential Elections (Elections Petitions) Rules, rule 5 thereof provides for the mode of presentation of the petition by the petitioner, Rule 6 of the rules provides for the mode of serving the petition, and Rule 8 provides for the filing of an answer by the respondent(s) to the petition. Rules 10 and 11 elucidate the mode of trial of the petition with, rule 12 emphasizes an expeditious hearing of the petition by the court. The Court is commanded to declare its findings in not more than 45 days.

The above steps leading to the determination of the petition are worded in mandatory terms which require strict compliance. It thus follows that in determining the petition, the court is restricted to those steps provided for under the law. There is no doubt therefore that the intention of the legislature in providing time lines in the determination of the petition is to prevent delay and ensure expeditious hearing and conclusion of election related disputes. This is to ensure the country gets back to normalcy having gone through a stressful electoral process. We are fortified by the finding of court in **Harmon** versus Tyler, Supreme Court of Tennessee (112

Tenn.8) 1041, where it was observed that the statute requires all grounds of the contest to be filed within the time provided. Such is the plain meaning and intent of the statute. The Legislature has made no provision for extension of time by allowing amendment and the law makes none. In the absence of such permission under Statute, amendments of this nature cannot be made. Consequently, no new cause of action or contest can be set up by way of amendment.

The timelines provided for under the Uganda legal regime are not entirely alien to those of other states within the East African region. As a matter of comparison, Kenya also applies a similar structure to that of Uganda. In Odinga & 5 others $v$ Independent Electoral & Boundaries Commission & 3 others (2013) (2019) 6 KLR (p) 1, the Supreme court of Kenya observed;

The Supreme Court's jurisdiction is also limited in timespan. A petition contesting the election of a President does not set off an open-ended course of litigation without timeframes. The applicable time-frame, within which any challenge to the election must be filed, served, heard and determined, is prescribed under the Constitution.

Article 104 of the 1995 Uganda Constitution provides for similar timelines that require strict adherence.

the Uganda law relating the to whether $As$ to determination of a Presidential election petition provides for amendment of pleadings by any party to the proceedings, the available chronology of the steps leading to the determination of the petition does not indicate that

amendment of pleadings is envisaged in a Presidential election petition.

In the instant application however, the applicant, invoking the provisions of Rule 15 of the Presidential Elections (Election Petitions) Rules moved this court to have his petition amended. According to the applicant, rule 15 makes applicable the general law relating to the hearing of civil matters hence the application of the Civil Procedure Act and the Civil Procedure Rules.

Thus persuaded, the applicant relied on section 98 and 100 of the Civil Procedure Act and Order 6 rules 19 and 20 of the Civil Procedure rules being the general law governing the amendment of civil proceedings as the applicable law in amending a Presidential Election Petition. The applicant further submitted that the framers of the Presidential Election Petition Rules were aware that they could not provide exhaustively everything within the rules, the reason they made reference to the existing rules that apply to this court and that, that is where a window for making amendments can be found.

To ably address this issue, it is imperative that a clear interpretation of the provisions of rule 15 of the Presidential Elections (Election Petition) Rules be made.

Rule 15 of the rules provides thus;

"Subject to the provisions of these rules, the practice and procedure in respect of a petition shall be regulated, as nearly as **may be**, in accordance with the Civil Procedure Act and the rules made under that Act relating to the **trial** of a suit in the High Court,

with such modifications as the court may consider necessary in the interest of justice and expedition of proceedings."

The first issue to consider from the reading of the above rule is that the rule does not make it mandatory for this court to apply the Civil Procedure Act and the rules made thereunder in the determination of a Presidential election petition given the use of the phrase, "may". Secondly and the most relevant, is that if need arose to apply the Civil Procedure Act and the rules, their use would be limited to the trial/hearing of the petition only.

It is thus evident that it is only at the trial/hearing of a Presidential election petition that the court **may** apply the Civil Procedure Act and the Civil Procedure Rules. Anything outside a trial makes the Civil Procedure Act and the rules made thereunder inapplicable. Needless to say, the amendment of the petition is not a trial. To this extent therefore, the authorities of Mulowoza and Brothers ltd versus Enshire and Co. Ltd and Mohan Musisi Kiwanuka versus Asha Chand cited by the applicant that dealt with amendment of ordinary civil suits are of no relevance when it comes to the amendment of a Presidential election petition.

The question as to whether a Presidential election petition can ordinarily be amended can only be answered when one examines the value of an election, but most importantly a petition arising from a Presidential election. Undoubtedly, an election is a cornerstone of democracy in which people make choice of leadership. It offers a

$\overline{27}$

medium through which citizens freely and fairly choose their representatives and political leadership. It allows a degree of communication between those who govern and the governed. Where the rule of law and democratic principles are upheld, it becomes the most acceptable means of changing political leadership as the authority of government is derived solely from the consent of the governed. The principal mechanism for translating that consent into government authority is the holding of free and fair elections. A free and fair election gives the assurance that those who emerge as validly elected leaders govern in accordance with the law. Where however there are questions as to whether one has been validly elected, that question as to the validity of an election can be ably answered through a legal contest hence an election petition.

By its own nature, a Presidential election petition is unique and therefore accorded special treatment. This is envisaged by the strict timelines within which specific events are supposed to be performed leading to its final determination, and its trial by and large modifies certain rules of civil proceedings.

We have in mind the persuasive dictum of **Uwais CJN in** Orubu versus NEC, (1988) 5 NWLR (pt. 94 232 at **p.347)** when he observed;

" An election petition is not the same as the ordinary civil proceedings. It is a special proceeding because of the nature of elections which, by reason of their importance to the well-being of a democratic society

are regarded with aura that places them above the normal day today transactions between individuals which give rise to ordinary or general claim in court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute".

It is no doubt that the above quotation is in pari-materia with the requirements of the Uganda legal regime dealing with the determination of a presidential election petition. The law in this regard evidentially treats a presidential election petition not just as an ordinary civil suit but rather as a unique action that requires special attention. It creates special jurisdiction and the ordinary rules of procedure in civil cases do not serve to effectuate its purpose. It is thus not surprising that the Constitution of the Republic of Uganda, the Presidential Elections Act and the rules made thereunder do not specifically provide for amendment of pleadings in a Presidential election petition.

We have already addressed the requirements of the law in regard to strict compliance with the timelines and events leading to the eventual trial and determination of a Presidential election petition. The law envisages that once a petition has been filed, the journey towards its final determination commences, which by and large should be uninterrupted. An amendment which could be seen as an interruption towards the expeditious trial of an election petition is not specifically provided for either in the Constitution, the Presidential Elections Act or the rules. If this court were to allow an amendment to a presidential

election petition, then it would be acting outside the law that governs the trial and determination of that petition.

The respondents submitted that the proposed amendment to the petition by the applicant introduces new causes of action and or grounds and that if the same were to be allowed, it would prejudice their case. We have had occasion to look at the proposed amendments attached to the application. They are marked as annexture 'C'. Paragraph 5 of the proposed amendment in our view introduces a new cause of action that relates to the qualifications of the 1^st respondent as a Presidential candidate.

In paragraph 5 of the proposed amendment, the applicant avers that contrary to article 102(1) (b) and 219 of the Constitution of the Republic of Uganda and section. 4(b) of the Presidential Elections Act, the 1^st respondent was not qualified for election as President while in the office of head of state, head of government, commander in chief (CIC) and chairperson of the National Security Council. This ground goes further to point out several acts committed by the 1^st respondent under his command, control and authority that created insecurity and compromised the freedom, fairness and voter turnout in the general elections more especially in the districts/Cities of Kampala, Wakiso, Mukono, Mpigi, Gulu and Masaka.

We have considered the case of **Gaso Transport Services** (Bus) Ltd versus Obene, (1990) EA at 88, where the court outlined the principles that govern amendment of pleadings with the emphasis that where an amendment is to occasion injustice to the other side, then such amendment should not be allowed.

We have had the occasion to look at both the petition originally filed in this court and the proposed amendment. It is indeed true that the ground in regard to the qualifications of the 1^st respondent was not pleaded in the first petition. Introducing the same in the amendment would amount to introducing a new cause of action which definitely prejudices the case of the respondents. The applicant relates to this fact in paragraph 12 of the affidavit in support of the application when he depones that he had been advised by his lawyers which advice he believed that further particulars, grounds and prayers were necessary. He added that these could only be introduced by way of an amended petition. Going by this averment, it is not in doubt that the applicant is introducing new grounds which in itself is contrary to the general principles governing amendment of pleadings. In arriving at this finding, we are persuaded by the decision of Epaineto versus Uganda Commercial Bank Ltd [1971] EA 185 where court observed that a proposed amendment which introduces a new cause of action after the expiry of a period of limitation must be **rejected.** A similar position was held by the Court in **Auto** Garage & others versus Motokov (3) [1971] EA 514.

Matters are not made any better given the position that the respondents had already filed their respective answers to the petition. If this court were to allow the amendment, it would necessitate the respondents to amend their respective answers to the petition which procedural

aspects are not provided for under the law for the determination of a Presidential Election Petition.

Regarding the argument that the applicant through his proposed amendment was introducing new grounds pertaining to non-compliance with the laws and commission of electoral offenses, we find that these were already pleaded in the earlier petition filed in this court and reproducing them in the proposed amendment would be superfluous. There is no restraint to the applicant to produce relevant evidence at the trial to prove the electoral offences he alleges.

As to whether the amendment was filed out of the timelines for filing a Presidential election petition, it was the respondents' argument that the proposed amendment introduces new grounds and causes of action which are brought outside the time permitted by the law. According to the respondents, the timelines for doing specific acts in the trial of a presidential election petition are well stipulated under the law and that the applicant cannot be seen to commence a new cause of action outside the law.

We have already found that the proposed amendment by the applicant introduces new causes of action which, if this court were to allow would be outside the set constitutional timelines. In addressing this question, we are persuaded by the decision of Rao and others, (1956)1 **MLJ 40** where it was observed that;

> "........ the general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action

at law or a suit in equity but is a purely statutory proceeding unknown to the common law, and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law".

We indeed find that article 104(2) of the 1995 Uganda Constitution makes it mandatory for an aggrieved candidate to file their petition within 15 days after the declaration of the election results. The applicant complied with that constitutional requirement when he lodged his petition in the registry of this court on 1^st February, 2021. Like we have indicated before, the applicant's attempt to amend his pleadings wherein he introduces new causes of action would tantamount to filing his petition outside the time allowed to file a Presidential Election Petition. It was submitted on behalf of the applicant that this is not an application for extension of time. We agree but must add that, this court has no authority to extend the time within which a party would file a petition challenging the results of a Presidential election. This court is in agreement with the decision Dhartpakar Madan Lal Agarwal versus Rajiv Gandhi, 11 May 1987 AIR 1577, 1987 SCR (3) 369 wherein J Byron observed;

> "........there is a long line of authority for the proposition that there can be no amendment to a petition after the expiration of the time limit, commencing with Maude versus Lowley (1874) L. R. 9

C. P. 165, then Lowley (1883) 48 L. T. 762, where the court indicated that an amendment would not be allowed where there was a rigid limit of time for the presentation of the petition. To allow otherwise would have the practical effect of extending the time for filing the petition".

We are persuaded by the above decision in as far as the limitation imposed on this court by the Constitution to entertain a petition filed within the acceptable timeframe. The court has no powers to extend that timeline.

It was further submitted for the applicant that he was incarcerated by security forces who restricted his movement when his home was surrounded by the Police and Military who refused him from leaving his home to meet his lawyers and party officials. That the security forces only withdrew from the applicant's home pursuant to a court order obtained from the High Court. That as a consequence, he had only five days within which he had to prepare and file his case.

In addressing this issue, we make reference to the supplementary affidavit in support of the application deponed by Mr. Turyamusiima Geoffrey who also deponed to the fact of incarceration of the applicant. Paragraph 3 of Mr. Turyamusiima's affidavit states;

## 3. That we as his lawyers were also denied access to his home and were only communicating with him on phone.

Access to legal counsel need not necessary be physical. With the inception of technology, the applicant could have reached his legal team through phone or otherwise just like what Mr. Turyamusiima admits to have done. It should however be emphasized that once a party submits him/herself to the jurisdiction of this court under article 104 of the Constitution, he/she is obliged to comply with the parameters stated thereunder as there are no exceptions provided under that Constitutional provision. Like we have indicated before, this court is mandated to comply with the strict timelines provided for under article 104 of the Constitution. It cannot do otherwise as it has no powers to do so. Consequently, the applicant had no alternative but to manage the process of filing his petition within the timeframe provided under the law. Preparation and filing of the petition did not necessarily require the physical presence of the applicant. That could have been done by his party officials and or agents in terms of gathering the necessary evidence. We are therefore not convinced by the applicant that the incarceration can be a ground to warrant the amendment of the petition.

The applicant referred the court to the decision of Rt. Hon. Amama Mbabazi versus Yoweri Kaguta Museveni & 2 others, Presidential Election Petition No.01 of 2016, where this Court allowed an amendment to the petition. We have had the benefit of reading the decision of court in the Amamba Mbabazi case. We find that the application was brought under section 100 of the Civil Procedure Act and Article 126 of the Constitution to allow the amendment. We have already indicated before that the Civil Procedure Act and Civil Procedure Rules do not apply when it comes to the amendment of a Presidential Election Petition.

We find that this court is restricted by constitutional timelines to conclude the petition which if relaxed, the court would not be in position to deliver its decision within the 45 days required by the Constitution and the Presidential Elections Act.

While we recognize that the doctrine of precedent is very vital for certainty of laws, we are also aware that the role of the Supreme Court as an apex Court in the country is to state the correct position of the law to guide the lower courts. We are fortified by Article 132 (4) of the Constitution.

That Article provides as follows: -

"The Supreme Court may, while treating its own previous decisions as normally hinding, depart from a previous decision when it appears to it right to do so; and all other Courts shall be bound to follow the decisions of the Supreme Court on question of law".

Arising from the above provision, this court has on many occasions departed from its previous decisions. A case in point is Rwabugande VS Uganda, Supreme Court Criminal Appeal No. 25 of 2014.

In view of our analysis above, we conclude that the correct position of the law is that a Presidential Election Petition is not subject to amendment like ordinary Suits. We accordingly decline to allow the application.

Overall, we find that this application is misconceived and has no merit. Consequently, the same is disallowed as it seeks to introduce new grounds/causes of action not canvassed in the original petition, which is against the general principles governing amendment of pleadings. The proposed amendment also reproduces electoral offenses which we found, were already pleaded in the Petition earlier filed. We categorically stated that the petitioner did not require any amendment but only evidence in support of the allegations he had made in his pleadings in the Petition. For the above reasons, this application must fail.

The application is accordingly dismissed with no order as to costs.

Dated at Kampala this ..... 18th ......day of.... March........ 2021 Alfonse C. Owiny-Dollo

**Chief Justice**

$\cdots$ Esther Kisaakye Justice of the Supreme Court

Stella Arach-Amoko Justice of the Supreme Court

Rubby Opio-Aweri Justice of the Supreme Court

Faith Mwondha Justice of the Supreme Court 37

Thuerage

Paul Mugamba Justice of the Supreme Court

Ezekiel Muhanguzi Justice of the Supreme Court

$V$ $\Omega$ $\Lambda$ $\cdots$ Percy Night Tuhaise Justice of the Supreme Court

Mike Chibita Justice of the Supreme Court

I Certify that this is a true Copy of the Original REGISTRAR SUPREME COURT-OF UGANDA **DATE:...**

$\cdot \cdot$