By Evarist Baimu Nyaga Mawalla - Home

application, the judge dismissed the application, holding that the decision of the secondrespondent rejecting the appellants application for full registration of the second appellantwas not affected by any bias on his part and that both the reasons given and the PoliticalParties Act were constitutional. The appellants were aggrieved by this decision and theylodged this appeal.On behalf of the appellants, Mr Nyange learned advocate filed five ground ofappeal but at the hearing, he ended up arguing only two grounds namely grounds 1 and 4.The other three grounds, 2, 3 and 5 were rightly conceded by Mr. Nyange to be largelyirrelevant and inapplicable in an application such as the present for Certiorari andMandamus. These concerned the interpretation and application of the constitution.In ground 1, the appellants complained that as the proceedings in the High Courtwere not of an interlocutory nature, the learned judge erred in law in admitting evidencebased on an affidavit deposed to by a person who could not of his own person knowledgeprove the contents thereof. The affidavit that is being impugned is the counter affidavitdeposit to by Mr. Salula learned Senior State Attorney who appeared for the respondentsboth in the High Court and in this appeal.In the High Court, Mr. Nyange had raised a preliminary objection against Mr. Salula’scounter affidavit stating that it contravenes Order 19 rule 3(1) of the Civil ProcedureCode in that it purports to show that all the information therein is based on the deponent’sown personal knowledge when it was not true.He said that the information in paragraphs 4, 5, 6, and 8 could only have been supplied toMr. Salula by the second respondent, hence he should have disclosed the source of suchinformation. He therefore prayed that the counter affidavit be rejected as incompetent andthe application should proceed as unopposed.The learned judge agreed that the counter affidavit was defective for this reason butdeclined to reject it as prayed by Mr. Nyange on the basis that it would work injustice onthe respondents.He therefore allowed Mr. Salula to amend his counter affidavit. Mr. Salula complied withthis order by filing an amended counter affidavit on which the hearing proceeded. Thefirst group complains against this decision and at the hearing of this appeal, Mr Nyangeurged us to ignore the counter affidavit and treat the application as uncontroversial bothin the High Court and in this Court.However Mr Salula contention by saying that the provisions of 0.19 do not applyto the present case, because, firstly, this was not a final matter, it was an application toapply for orders of certiorari and Mandamus.We do not think this reason is valid because the same counter affidavit was used in thefinal application for orders of certiorari and mandamus. Secondly, he said there was noorder by the Court to prove anything by affidavit, hence he said he was not proving248