Wakilii

Kamugisha Anatoli and Anna Kamugisha v H & L Exporters (U) Ltd (Miscellaneous Application 2034 of 2023)

High Court · [2023] UGCOMMC 127 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of judgment and decree pending appeal to Court of Appeal, dismissed on preliminary objection
Decision
Application dismissed for failure to comply with mandatory requirements for swearing affidavits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An affidavit sworn without the deponent personally appearing before the Commissioner for Oaths is invalid and cannot support an application. Where an application relies solely on a defective affidavit, the application must be dismissed. Section 5 of the Commissioners for Oaths (Advocates) Act and Section 6 of the Oaths Act impose a mandatory requirement that the deponent must personally appear before the Commissioner for Oaths and take oath on the contents of the affidavit. Non-compliance with this requirement renders the affidavit unlawful and the application unsupported.

Outcome

Application dismissed for failure to comply with mandatory requirements for swearing affidavits

Facts

The applicants sought a stay of execution of a ruling in Miscellaneous Application No. 555 of 2022 and judgment in Civil Suit No. 630 of 2012 pending their appeal to the Court of Appeal. Civil Suit No. 630 of 2012 had been determined by consent judgment in 2014, but the applicants alleged that the consent was executed by counsel without their authority. The respondent opposed the application and raised preliminary objections. During cross-examination on 22 September 2023, the 2nd applicant (who had sworn the affidavit in support) testified that she did not appear before the Commissioner for Oaths while deponing her affidavit. The respondent argued this non-compliance was fatal to the application.

Issues

  1. Whether failure by the deponent to appear before the Commissioner for Oaths when deponing an affidavit is fatal to the application.

Orders

  • The 2nd Applicant's affidavit in support struck off the record for non-compliance with the law on commissioning affidavits.
  • Application dismissed.
  • No order as to costs.

Rules and key headnotes

Evidence — Affidavits — Validity — Requirement for Personal Appearance Before Commissioner for Oaths
It is a mandatory requirement of law under Section 5 of the Commissioners for Oaths (Advocates) Act and Section 6 of the Oaths Act that a deponent must personally appear before a Commissioner for Oaths and take oath on the contents of his or her affidavit for the affidavit to be valid.
Civil Procedure — Applications — Supporting Affidavits — Consequences of Defective Affidavit
Where an application is supported by only one affidavit and that affidavit is found to be invalid for non-compliance with the requirements for swearing affidavits, the application is unsupported and cannot stand. Such an application must be dismissed.
Civil Procedure — Preliminary Objections — Disposal — Court's Discretion
Where a preliminary objection is capable of disposing of a matter, the court has discretion to determine the preliminary objection before embarking on the merits of the case.

Legislation cited (10)

Cases cited (6)

  • Mukisa Biscuit Manufacturing Co v West End [1969] EA 696
  • Uganda Telecom Ltd v ZTE Corporation (Supreme Court Civil Appeal No. 3 of 2017)
  • Kakooza John Baptist v Electoral Commission and Yiga Anthony (Supreme Court Election Petition Appeal No. 11 of 2007)
  • Musa Nsimbe v Joseph Nanjubi & Others (High Court Miscellaneous Application No. 23 of 2014)
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Anor (1982) HCB 11
  • Ssali Samuel v Gladys K. Rwamwamba (High Court Miscellaneous Application No. 514 of 2014)

Full judgment

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

Kamugisha Anatoli and Anna Kamugisha v H & L Exporters (U) Ltd (Miscellaneous Application 2034 of 2023) [2023] UGCommC 127 (13 October 2023)
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.