Wakilii

Mabirizi v Attorney General (Miscellaneous Application 7 of 2018)

Supreme Court · [2018] UGSC 55 · 2018 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application in a constitutional appeal seeking leave to adduce additional evidence by oral examination of the Speaker of Parliament and to have her summoned for examination.
Decision
Application to summon and examine the Speaker of Parliament dismissed; applicant's affidavits struck out.

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Holding

The Court dismissed the applicant's application to adduce additional evidence by examining the Speaker of Parliament. It held that an undated affidavit is a curable defect and the respondent properly cured it by filing a dated affidavit sworn by the same deponent, occasioning no prejudice. The applicant's supporting affidavits (264 paragraphs in total) were argumentative and prolix contrary to Order 19 Rule 3 of the Civil Procedure Rules and were struck out, leaving no competent application as required by Rule 43 of the Supreme Court Rules. The Court further held the application was pre-emptive of Issue No. 7 already framed in the pending appeal and an abuse of court process.

Facts

The applicant had filed Constitutional Petition No. 49 of 2017 challenging the Constitution (Amendment) Act 2017, which was consolidated with other petitions in the Constitutional Court. At the hearing he applied to have the Speaker of Parliament summoned for examination; the Constitutional Court declined. Dissatisfied, he filed Constitutional Appeal No. 2 of 2018 in the Supreme Court and this application seeking leave to adduce additional evidence by orally examining the Speaker, Rt. Hon. Rebecca Kadaga, and to have her summoned. The respondent's affidavit in reply, sworn by the Clerk to Parliament, was initially undated; the Solicitor General sought to substitute it with a dated version of identical content. The applicant's supporting, supplementary and rejoinder affidavits together ran to 264 paragraphs. The Court raised concerns that the affidavits offended Order 19 Rule 3 and that the application pre-empted issues already framed in the appeal.

Issues

  1. Whether an undated affidavit in reply may be cured by substituting a subsequently dated affidavit sworn by the same deponent.
  2. Whether the applicant's affidavits were argumentative, prolix and non-compliant with Order 19 Rule 3 of the Civil Procedure Rules and should be struck out.
  3. Whether, following the striking out of the supporting affidavits, there remained a competent application before the Court.
  4. Whether the application was pre-emptive of the issues framed for determination in the pending constitutional appeal and an abuse of court process.

Orders

  • Application dismissed.
  • No order as to costs.

Key headnotes

Civil Procedure — Affidavits — Undated Affidavit — Curable Defect
An undated affidavit is a defective but curable affidavit; the defect may be cured by re-dating the affidavit in court or by re-swearing it, or by filing a subsequent dated affidavit of identical content sworn by the same deponent, and Article 126(2)(e) of the Constitution prevents such an irregularity in form from vitiating the affidavit.
Civil Procedure — Affidavits — Prolixity and Argumentative Content — Order 19 Rule 3
An affidavit must adduce evidence confined to facts within the deponent's knowledge and must not argue the case; affidavits that are argumentative, prolix and non-compliant with Order 19 Rule 3 of the Civil Procedure Rules may be struck off the record.
Civil Procedure — Applications — Supporting Affidavit Requirement — Rule 43 Supreme Court Rules
Where the supporting affidavits of a formal application are struck out, there is no competent application before the Court, since Rule 43 of the Supreme Court Rules requires every formal application to be supported by one or more affidavits.
Civil Procedure — Abuse of Court Process — Application Pre-empting Issues Framed for Appeal
An interlocutory application that seeks to pre-empt issues already framed for determination in a pending appeal, on which submissions have already been made, constitutes an abuse of the court process and will not be allowed.

Legislation cited (6)

  • Civil Procedure Rules Order 16 Rule 1
  • Civil Procedure Rules Order 19 Rule 3
  • Judicature (Supreme Court Rules) Directions Rule 43
  • Judicature Act s.7
  • Constitution Article 126(2)(e)
  • Constitution Article 82

Cases cited (6)

  • Saggu v Roadmaster Cycles (U) Ltd (2002) 1 EA 258
  • Kasaala Growers Co-operative Society v Kakooza Jonathan & Another (Civil Application No. 19 of 2010)
  • Hon. Theodore Ssekikubo & 3 Others v Attorney General & 4 Others (Constitutional Application No. 6 of 2013)
  • Banco Arabe Espanol v Bank of Uganda (Civil Application No. 8 of 1998)
  • Re: Bukeni Gyabi Fred HCMA 63/99, [1999] KALR 918
  • Rohini Sidipra vs Freny Sidipra & Ors HCCS 591/90, [1995] KALR 724
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.