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Bujingo Ayub and Others v Abubakari Kikoba and Others (Civil Miscellaneous Application 234 of 2023)

Court of Appeal · [2023] UGCA 175 · 2023 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to a single Justice of the Court of Appeal for an interim order of stay of execution pending the hearing of the substantive application for stay
Decision
Application for interim stay of execution dismissed with costs after the supporting affidavit was struck out as inadmissible

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Holding

On a preliminary objection, the Court held that an affidavit sworn by an applicant who was found to be illiterate in the English language was incurably defective and inadmissible because it omitted the certificate of translation required by sections 3, 4 and 5 of the Illiterates' Protection Act, this being failure to comply with a mandatory statutory requirement rather than a curable technicality. The defect could not be cured by a later affidavit in rejoinder (a translation statement must appear on the same document) nor by a certificate of translation introduced by letter to the Registrar. With the only supporting affidavit struck out, the application offended Rules 43 and 44 and was incompetent. The application was dismissed with costs to the Respondents.

Facts

The Respondents sued the Applicants in the High Court (Family Division) over land at Kasaato, Kisenyi II, alleged to form part of the estate of the late Hajji Muhammed Makanga, seeking removal of a caveat and a declaration that a memorandum of understanding was void. On 29 January 2021 judgment was entered in favour of the Respondents. The Applicants filed Civil Appeal No. 396 of 2022 and earlier applications for stay in the High Court, which were dismissed. They then applied to the Court of Appeal for an interim order of stay of execution pending the substantive stay application (Civil Application No. 233 of 2023). The application was supported by an affidavit sworn by the 1st Applicant, Bujingo Ayub. The Respondents objected that the 1st Applicant was illiterate in English, as found by the trial judge, and that his affidavit lacked the certificate of translation required by the Illiterates' Protection Act.

Issues

  1. Whether the affidavit in support of the application, sworn by an applicant who is illiterate in the English language without a certificate of translation in the jurat, complies with the Illiterates' Protection Act.
  2. Whether an application for an interim stay of execution can stand once its sole supporting affidavit is struck out as inadmissible.
  3. Whether a defect in an affidavit may be cured by a supplementary affidavit in rejoinder or by a certificate of translation introduced by letter to the Registrar.

Orders

  • Preliminary objection upheld and the 1st Applicant's affidavit in support struck out as inadmissible.
  • Application for an interim order of stay of execution dismissed.
  • Costs awarded to the Respondents.

Key headnotes

Affidavits — Illiterate Deponent — Certificate of Translation under the Illiterates' Protection Act
An affidavit sworn by a person illiterate in the language of the document, which omits the certificate of translation required by the Illiterates' Protection Act, is incurably defective and inadmissible, since failure to comply with a mandatory statutory requirement is fatal and not a mere technicality saved by article 126 of the Constitution.
Affidavits — Distinction between a Defective Affidavit and Failure to Comply with a Statutory Requirement
A distinction must be drawn between a defective affidavit (such as one not signed or dated by the deponent), which may be treated liberally, and failure to comply with a statutory requirement, which is fatal to the document's admissibility.
Applications — Competence — Supporting Affidavit Required under Rules 43 and 44
Where the sole affidavit supporting an application is struck out, the application is left unsupported by any affidavit, fails to comply with Rules 43 and 44 of the Court of Appeal Rules, and is incompetent and liable to be struck out.
Affidavits — Cure of Defects — Limits of Amendment and Supplementary Affidavits
A defect arising from non-compliance with the Illiterates' Protection Act cannot be cured by a supplementary affidavit in rejoinder, because the translation statement must be written on the same document; nor can it be cured by a certificate of translation introduced by letter to the Registrar, since an affidavit is evidence, not a pleading, and is not amendable.

Legislation cited (10)

  • Judicature Act s.33
  • Civil Procedure Rules Order 50(3A)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.43(1) and (2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.44
  • Illiterates' Protection Act Cap 78 s.3
  • Illiterates' Protection Act Cap 78 s.4
  • Illiterates' Protection Act Cap 78 s.5
  • Constitution of Uganda article 126

Cases cited (4)

  • Kato & Another v Nalwoga (Civil Application No. 12 of 2011)
  • Kasaala Growers Cooperative Society v Kakooza Jonathan & Another (Civil Appeal No. 19 of 2010)
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Ngoma-Ngime v Electoral Commission and Hon. Winnie Byanyima (Election Petition Appeal No. 11 of 2002)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.