Busonya & 2 Ors v Giruli [2018] UGSC 50

Supreme Court · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second civil appeal from a Court of Appeal decision ordering a retrial in the High Court

Decision

Appeal dismissed; the Court of Appeal's order remitting the matter to the High Court for a retrial was upheld

The full judgment

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court dismissed the second appeal. It held that a Commissioner of Oaths' failure to seal and identify annexures under Rules 8 and 9 of the Commissioner for Oaths Rules does not ipso facto render the affidavit itself fatally defective; the defect is a procedural irregularity curable under Article 126(2)(e) of the Constitution, and only the offending annexures, not the whole affidavit, should be struck out. The Court further held that the Court of Appeal had properly re-evaluated the evidence as a first appellate court and correctly ordered a retrial, because allegations of fraud had been raised which must be specifically pleaded and proved in an ordinary suit rather than determined on affidavit evidence in an originating summons.

Facts

The appellants, as administrators of the estate of the late Taibu Magoola, sued the respondent in the High Court for Ushs 87,480,000 arising from a loan the deceased had advanced to the respondent. The loan was secured by the respondent's land title and a mortgage transfer agreement to take effect on default. The appellants alleged the loan remained unpaid and sought, by originating summons, to foreclose the respondent's property. The respondent claimed he had made part payments during the deceased's lifetime, relying on annexures to a supplementary affidavit. The trial judge struck out the affidavit and annexures because the annexures had not been sealed as required by Rules 8 and 9 of the Commissioner for Oaths Rules, and entered judgment for the appellants. The respondent's affidavit in rejoinder alleged that the respondent had fraudulently obtained a special certificate of title for the suit property while the original was held by the appellants, raising an allegation of fraud that the trial judge did not address.

Issues

Whether the unsealed annexures attached to the respondent's affidavit constituted a procedural irregularity curable under Article 126(2)(e) of the Constitution, such that the affidavit should not have been struck out.
Whether the Court of Appeal, as a first appellate court, failed in its duty to properly re-evaluate the evidence on record.
Whether the Court of Appeal erred in setting aside the trial judge's judgment and ordering a retrial of the matter.

Orders

Appeal dismissed.
Judgment and orders of the Court of Appeal upheld.
Matter to be sent back to the High Court for retrial.
Costs of the appeal awarded to the respondent.

Key headnotes

Civil Procedure — Affidavits — Effect of unsealed annexures under the Commissioner for Oaths Rules

The failure of a Commissioner of Oaths to seal and identify annexures as required by Rules 8 and 9 of the Commissioner for Oaths Rules does not ipso facto render the affidavit itself fatally defective or inadmissible; where the affidavit otherwise complies with the rules, only the offending annexures may be struck out, not the whole affidavit.

Civil Procedure — Technicalities — Article 126(2)(e) of the Constitution

Article 126(2)(e) of the Constitution was not intended to wipe out the rules of procedure, which remain handmaids to justice; a procedural irregularity such as unsealed annexures may be cured under Article 126(2)(e) where strict adherence to the rule would not serve the ends of justice.

Civil Procedure — Appeals — Duty of a first appellate court to re-evaluate evidence

A first appellate court has a duty to review and re-evaluate the evidence on record and to make up its own mind, carefully weighing the trial court's judgment; it need not, however, reach the same decision as the trial court.

Civil Procedure — Retrial — Exercise of discretion in the interest of justice

An appellate court may order a retrial in the interest of justice where allegations of fraud have been raised that cannot be resolved without hearing a defence, as a court should not gloss over an allegation of fraud, which would occasion a miscarriage of justice.

Evidence — Fraud — Pleading and standard of proof

Fraud must be specifically pleaded and strictly proved; once a party raises it a court must address it, and it cannot be established on affidavit evidence alone in an originating summons but must be proved by oral testimony in an ordinary suit.

Legislation cited (7)

Constitution of Uganda Article 126(2)(e)
Commissioner for Oaths Rules r.8
Commissioner for Oaths Rules r.9
Civil Procedure Act s.80(1)(e)
Court of Appeal Rules r.32
Court of Appeal Rules r.66(2)
Civil Procedure Rules Order 37 r.4

Cases cited (8)

Egypt Air Corporation v Suffish International Food Processors Ltd & Anor (Civil Appeal No. 24 of 2002)
Utex Industries Ltd. vs. Attorney General, Supreme Court Civil Application No.2 of [year illegible — OCR]
AG vs. Major General David Tinyefuza, Constitutional Petition No. [illegible — OCR]
Col. Dr. Besigye Kiiza vs. Museveni Yoweri Kaguta and Electoral Commission, Election Petition No.1 of [year illegible — OCR]
Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No.7 of 2008
Ajay Kumar Ghoshal v State of Bihar & Anor (Criminal Appeal Nos. 119-122 of 2017)
Nuru Kaaya v Crescent Transport Ltd (Civil Appeal No. 5 of 2002)
Farm International Ltd & Farah v Mohammed Hamid Ferih (Civil Appeal No. 16 of 1998)

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