Wakilii

Attorney General v Okello and Another (Civil Miscellaneous Application No. 31 of 2020)

High Court · [2021] UGHCCD 46 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review arising from civil suit, dismissed on preliminary objection
Decision
Application struck out for defective affidavit; notice of motion left without supporting evidence

Observed later treatment

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Holding

The court struck out the application with costs after finding that the supporting affidavit was incurably defective. The affidavit bore only the stamp of the Chief Magistrate's Court without indicating the name or grade of the judicial officer who commissioned it, contrary to section 5 of the Commissioner for Oaths (Advocates) Act. The applicant failed to file a supplementary affidavit to cure the defect. The illegality overrode all questions of pleading, leaving the notice of motion without supporting evidence.

Outcome

Application struck out for defective affidavit; notice of motion left without supporting evidence

Facts

The Attorney General filed an application seeking to review and set aside an order in Civil Suit No. 14 of 2017. The respondents raised a preliminary objection challenging the validity of the affidavit in support. The affidavit was commissioned on 28 February 2020 and bore the stamp of the Chief Magistrate's Court but did not indicate the name or grade of the judicial officer who administered the oath. The respondents also challenged whether the deponent had authority to swear the affidavit on behalf of the applicant. The applicant argued that the stamp and signature were sufficient evidence of proper commissioning and that the deponent, a Senior Hospital Administrator, had authority to depose the affidavit.

Issues

  1. Whether the affidavit in support of the application was properly commissioned in compliance with the Commissioner for Oaths (Advocates) Act.
  2. Whether the deponent had authority to swear the affidavit on behalf of the applicant.

Orders

  • Application struck out.
  • Costs awarded to the respondents.

Rules and key headnotes

Affidavits — Commissioning — Requirements for Valid Jurat
An affidavit must comply with section 5 of the Commissioner for Oaths (Advocates) Act, which requires the jurat to state the place and date the oath was taken and to identify the commissioner. An affidavit bearing only a court stamp without the name and grade of the commissioning judicial officer is incurably defective unless cured by a supplementary affidavit confirming who commissioned it.
Affidavits — Defective Affidavit — Effect on Application
Where the only affidavit in support of an application is struck out as defective, the notice of motion is left without supporting evidence and the application must be dismissed.
Illegality — Effect on Pleadings and Admissions
An illegality, once brought to the attention of the court, overrides all questions of pleading including admissions. A defective affidavit that does not comply with statutory requirements constitutes an illegality that cannot be cured by substantive justice provisions in Article 126(2)(e) of the Constitution where the defect goes to the root of the matter.

Legislation cited (7)

Cases cited (3)

  • Kiza Besigye v Y.K. Museveni (Election Petition No. 1 of 2001)
  • Mohammed Majyambere v Bhakresa Khalil (Miscellaneous Application No. 727 of 2011)
  • Makula International Ltd v His Eminence Cardinal Nsubuga [1982] HCB 11

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Attorney General v Okello and Another (Civil Miscellaneous Application No. 31 of 2020) [2021] UGHCCD 46 (2 July 2021)
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.