Lubega v Nampinga (Civil Application 235 of 2023)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

On a single-Justice application for a stay of execution, the Court upheld the respondent's preliminary objections. The applicant being an illiterate of the English language, his supporting affidavits were incurably defective for omitting from the jurat a certificate of translation required by sections 3, 4 and 5 of the Illiterates' Protection Act. The Court distinguished a merely defective affidavit from failure to comply with a statutory requirement, holding the latter fatal and not curable under Article 126(2)(e). An affidavit in rejoinder could not save the defect, as the required statement must appear on the same document. The unsupported application was therefore incompetent under Rules 43 and 44, and execution having already been completed, the application was overtaken by events and dismissed with costs.

Facts

The applicant was the registered proprietor of suit land at Busiro Block 421 having bought it for value. Following a contest over ownership, he was sued in High Court Land Division Civil Suit No. 0751 of 2018, which ordered cancellation of his title. The respondent extracted the decree and applied to the Commissioner for Land Registration to cancel the title, and the Registrar of Titles advertised to compel surrender of the duplicate certificates of title. The applicant's earlier application for a stay of execution in the High Court was dismissed. He then filed a notice of appeal and this application before the Court of Appeal seeking a stay pending Civil Appeal No. 194 of 2023. The respondent opposed it, contending that the applicant's supporting affidavits offended the Illiterates' Protection Act because the applicant had admitted illiteracy in all prior pleadings and had testified in Luganda, yet the affidavits carried no certificate of translation. The respondent further contended that the cancellation of the certificates of title had already been completed, leaving nothing to stay.

Issues

1. Whether the applicant's affidavits in support of the application are fatally defective for non-compliance with the Illiterates' Protection Act on account of the absence of a certificate of translation.
2. Whether, the supporting affidavit being defective, the application for a stay of execution is rendered incompetent under the Court of Appeal Rules.
3. Whether execution has already been completed such that there is nothing left to stay.

Orders

• The applicant's affidavit is struck out as defective and inadmissible.
• The application is struck out as incompetent for failure to comply with Rules 43 and 44.
• The application is dismissed with costs to the respondent.

Key headnotes

Legislation cited (10)

• Illiterates' Protection Act Cap 78 s.3
• Illiterates' Protection Act Cap 78 s.4
• Illiterates' Protection Act Cap 78 s.5
• Evidence Act Cap 6 s.16
• Constitution of Uganda 1995 Article 126(2)(e)
• Judicature (Court of Appeal Rules) Directions Rule 2(2)
• Judicature (Court of Appeal Rules) Directions Rule 6(2)(b)
• Judicature (Court of Appeal Rules) Directions Rule 43
• Judicature (Court of Appeal Rules) Directions Rule 44
• Judicature (Court of Appeal Rules) Directions Rule 76

Cases cited (6)

• Bujingo Ayub and Others v Abubakali Kikoba and Others (Civil Miscellaneous Application No. 234 of 2023)
• Kasaala Growers Co-operative Society v Kakoza Jonathan and Another (Supreme Court Application No. 19 of 2020)
• 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)
• Tropical Africa Bank Limited v Grace Were Mukwana (Supreme Court Civil Appeal No. 3 of 2012)
• Apunyo Tom v Atim Margret Obua (Civil Application No. 206 of 2020)