Kampala, Uganda | THE INDEPENDENT | The Court of Appeal sitting in Kampala has ordered for a retrial in the case where Betty Ssentamu challenged the decision of the High Court in Mpigi.
A panel of three justices; Elizabeth Musoke, Irene Mulyagonja and Monica Mugenyi have set aside orders of the High Court Mpigi, ordering Ssentamu to pay 50,000 shillings in court fee and sent back the entire case for retrial.
Ssentamu, who held the flag for the National Unity Platform petitioned the High Court in Mpigi challenging the election of Sylvia Nayebale as the elected woman member of Parliament for Gomba district citing election malpractice. The Electoral Commission declared Nayebale as winner after collecting 30,253 votes against Ssentamu’s 22,657 votes following the 14th January, 2021 general elections.
Ssentamu challenged Nayebale’s victory, but Justice Richard Wejuli Wabwire dismissed her petition. Nayebale raised a preliminary objection that the petition was not properly filed, since Ssentamu had paid less filing fees at the time of commencing the petition. Ssentamu paid 100,000 shillings instead of 150,000 shillings provided for under the Parliamentary Elections (lnterim Provisions) Rules.
Displeased with Justice Wabwire’s decision, Ssentamu appealed before the Court of Appeal. She said that the judge erred in fact and law to not use his discretion to order her to make the necessary payment. She also challenged the decision to remove 28 affidavits of her witnesses from court record and the judge’s decision to determine the case based on a preliminary object rather than merit among other grounds of appeal.
Ssentamu through her lawyer Medard Seggona argued before Court of Appeal that the trial court should have treated the non-payment of the full court fees as a minor error to be corrected by ordering her to make the required payment. She further added that a mistake, negligence, oversight or error done by her counsel shouldn’t cost her justice.
The panel ruled that although it is true that the petition was not filed properly due to the less payment, the court’s hands were not tied to an extent that the only course of action was to dismiss the petition.
The Justices ruled that rules of the Civil Procedure Act unequivocally grant courts the discretion to allow a party that has not paid an applicable fee or has only paid a part of it to make good on the shortfall.
“We thus find that the Trial Court did have the discretion to allow the Appellant to pay the shortfall on the prescribed court fees and erred in obviating that discretionary duty…. We are satisfied, therefore, that although the petition was indeed improperly before the Trial Court given the non-payment of the requisite court fees, the trial judge wrongly dismissed it on that basis without exercising the judicial discretion available to him under section 97 of the CPA.” ruled the panel.
Regarding removing 28 affidavits from court record, the panel ruled that the trial Court could have called the illiterate witnesses on whose behalf affidavits were written, to establish if indeed they consented to the drafting of the affidavits.
Section 3 of the illiterates Protection Act provides that any person who shall write any document for on behalf of any illiterate shall also write on the document his or her name as the writer of the document and his or her true and full address, and his or her so doing shall imply a statement that he or she was instructed to write the document by the person for whom it purports to have been written and that it fully and correctly represents his or her instructions and was read over and explained to him or her.