Wakilii

Balikuddembe & 3 Ors v Nakamate (Misc.Application No. 161 of 2004)

High Court · [2004] UGHCCD 2 · 2004 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for temporary injunction arising from civil suit, dismissed on preliminary objection
Decision
Application struck out on preliminary objection for defective affidavit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that an affidavit failing to state the place where it was sworn in the jurat, as required by section 5 of the Oaths Act, is incurably defective. Where an application for temporary injunction is grounded on such a defective affidavit, the application must fail for lacking the necessary evidentiary foundation. The application was struck out without costs, as the blame lay with counsel and the Commissioner for Oaths, not the applicants.

Outcome

Application struck out on preliminary objection for defective affidavit

Facts

The applicants, represented by the Legal Aid Project, filed an application for a temporary injunction arising from Civil Suit No. 719 of 2003. At the hearing, counsel for the respondent raised a preliminary objection that the supporting affidavit was defective because its jurat did not state the place where the affidavit was sworn, as required by section 5 of the Oaths Act. The applicant, appearing in person after his Legal Aid counsel left, asked the court to proceed despite the irregularity. The respondent sought costs.

Issues

  1. Whether an affidavit that fails to state the place where it was sworn in the jurat is incurably defective.
  2. Whether an application for temporary injunction grounded on a defective affidavit can proceed.

Orders

  • Application struck out.
  • No order as to costs.

Rules and key headnotes

Evidence — Affidavits — Jurat Requirements — Mandatory Statement of Place
Section 5 of the Oaths Act requires an affidavit to state truly in the jurat at what place and on what date the oath or affidavit is taken or made. This requirement is mandatory, and failure to comply renders the affidavit incurably defective.
Civil Procedure — Applications — Effect of Defective Affidavit
Where an application is grounded on an affidavit that is declared to be incurably defective, the application must also fail, as it remains without the necessary facts and evidence to prove the case. The defective affidavit cannot be ignored unless the application is grounded on matters of law only.
Civil Procedure — Irregularities — Court's Duty
An irregularity in court proceedings, once detected by the court, should not be ignored, even though it may be an irregularity rather than an illegality. The court cannot close its eyes to such defects.
Civil Procedure — Costs — Discretion Where Fault Lies with Counsel
Where an application is struck out due to a defective affidavit caused by the fault of counsel and the Commissioner for Oaths rather than the applicants themselves, and the main suit remains pending, the court may exercise its discretion to make no order as to costs.

Legislation cited (5)

  • Civil Procedure Rules O.37 r.1
  • Civil Procedure Rules O.37 r.2
  • Civil Procedure Rules O.37 r.9
  • Commissioner's for Oaths (Advocate) Act s.5
  • Oaths Act s.5

Cases cited (5)

  • Makula International v Cardinal Nsubuga (Civil Appeal No. 4 of 1981)
  • Misc. Application. No.267/1998, arising from H.C.S.C. 529 OF 1994
  • Teddy Namazzi v Sibo [1986] HCB 58
  • Sembeguya v Reliable Trustees (H.C. Civil Suit No. 601 of 1992)
  • Odongokara v Kamanda [1968] EA 21

Full judgment

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

Balikuddembe & 3 Ors Vs Nakamate (Misc.Application No. 161 of 2004) [2004] UGHCCD 2 (2 April 2004)
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.