MPIGI: A retrial has been ordered in the case of Betty Ssentamu, who was unhappy with the decision of the High Court of Mpigi. The appeals court is in Kampala.
A panel of three justices, Elizabeth Musoke, Irene Mulyagonja, and Monica Mugenyi, set aside orders of the High Court of Mpigi, ordered Ssentamu to pay 50,000 shillings in court fees, 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. Election officials said Nayebale won after getting 30,253 votes to Ssentamu’s 22,657 votes in the general election on January 14, 2021.
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 lower filing fees at the time of commencing the petition. Ssentamu paid 100,000 shillings instead of the 150,000 shillings provided for under the Parliamentary Elections (Interim 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 by not using his discretion to order her to make the necessary payment. As part of her appeal, she also argued that 28 affidavits of her witnesses should not have been taken out of the court record. She also said that the judge’s decision to decide the case based on a preliminary object rather than its merit was unfair.
Ssentamu, through her lawyer, Medard Seggona, argued before the 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 made 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 lack of payment, the court’s hands were not tied to the extent that the only course of action was to dismiss the petition.
A group of justices said that if a party hasn’t paid a fee or has only paid part of it, courts have the power to let them pay up.
“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, then, that even though the petition was brought before the trial court in the wrong way because it didn’t pay the required court fees, the judge who dismissed it did not use the judicial discretion he had under section 97 of the CPA,” said the panel.
Regarding removing 28 affidavits from the court record, the panel ruled that the trial court could have called the illiterate witnesses on whose behalf the affidavits were written, to establish whether they indeed consented to the drafting of the affidavits.
Any person who writes a document on behalf of an illiterate must also write his or her name and address, and that doing so implies that he or she was told to write the document and that it fully and accurately represents the person for whom it was written and that it was rewritten.