Wakilii

Kiwanuka v Attorney General of the Republic of Uganda (Consolidated Applications 4 of 2019; Consolidated Applications 6 of 2019)

East African Court of Justice · [2020] EACJ 27 · 2020 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated interlocutory applications arising from Reference No. 6 of 2019 challenging the validity of Uganda's Constitutional (Amendment) Act No. 1 of 2018
Decision
Application No. 6 of 2019 allowed; Application No. 4 of 2019 dismissed save for expunging paragraph 17 of the Affidavit in Reply; Answer to the Reference deemed validly served

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court declined to strike out the Answer to the Reference or the Affidavit in Reply in their entirety, but expunged paragraph 17 of the Affidavit in Reply as scandalous. The Court exercised its discretion under Rule 4 of the EACJ Rules to enlarge the time for service of the Answer to the Reference, deeming it validly served. The Court held that late service could be remedied by application for extension of time where sufficient reason is shown, and that matters of public importance support the exercise of discretion to extend time. The Court rejected the argument that the designation of a pleading as an 'Answer' rather than 'Response' rendered it fatally defective, and found that the pleadings complied with the Rules' requirements for denials and admissions.

Outcome

Application No. 6 of 2019 allowed; Application No. 4 of 2019 dismissed save for expunging paragraph 17 of the Affidavit in Reply; Answer to the Reference deemed validly served

Facts

On 3 May 2019, Mr. Mabirizi filed Reference No. 6 of 2019 before the EACJ challenging the validity of Uganda's Constitutional (Amendment) Act No. 1 of 2018. The Attorney General filed an Answer to the Reference on 20 June 2019 within the prescribed 45-day period, but served it on Mr. Mabirizi on 24 June 2019, beyond the time limit. The Attorney General also filed an Affidavit in Reply on 21 June 2019. Mr. Mabirizi filed Application No. 4 of 2019 seeking to strike out the Answer and Affidavit in Reply for late service, improper designation, general denials, and scandalous material, and requesting judgment on admission. The Attorney General filed Application No. 6 of 2019 seeking enlargement of time for service or validation of the late service, citing the indisposition of a Records Assistant responsible for process service. The parties consented to consolidation of the applications.

Issues

  1. Whether the Answer to the Reference and Affidavit in Reply should be struck off the court record for late service.
  2. Whether the designation of the pleading as an 'Answer' rather than 'Response' to the Reference contravenes the Court's Rules.
  3. Whether the Answer to the Reference and Affidavit in Reply contain general and evasive denials warranting striking out or judgment on admission.
  4. Whether the Affidavit in Reply contains scandalous material that should be expunged.
  5. Whether the Court should exercise its discretion under Rule 4 to enlarge the time for service of the Answer to the Reference.

Orders

  • Application No. 6 of 2019 allowed.
  • Application No. 4 of 2019 dismissed, save that paragraph 17 of the Affidavit in Reply is expunged.
  • The Answer to the Reference is not struck off the court record.
  • The Affidavit in Reply is not struck off in its entirety, but paragraph 17 thereof is expunged.
  • The prayer for judgment on admission in Reference No. 6 of 2019 is disallowed.
  • The time within which the Answer to the Reference may be served is enlarged under Rule 4 of the Court's Rules of Procedure.
  • The Answer to the Reference as previously served upon Mr. Mabirizi is deemed to have been validly served.
  • No order as to costs.

Rules and key headnotes

Time Limitation — Extension of Time — Sufficient Reason
Under Rule 4 of the EACJ Rules of Procedure, the Court may extend time for doing any act authorized or required by the Rules where sufficient reason is shown. The Court's discretion to extend time arises only after sufficient reason has been established. In determining whether sufficient reason exists, the Court considers not only the applicant's inability to take the procedural step in time, but also other considerations including the promptitude of the remedial application, the public importance of the matter, and prejudice to either party.
Pleadings — Designation of Pleadings — Substance over Form
Where a pleading is designated as an 'Answer' to a Reference rather than a 'Response' as contemplated in Rule 30(1) of the EACJ Rules, such procedural lapse does not render the pleading fatally defective if it conforms in substance to the requirements of a response to a reference. The more pertinent issue is whether the pleading complies with the substantive requirements of Rules 30(1) and 43.
Pleadings — Denials and Admissions — General Denials
Under Rule 43 of the EACJ Rules, an allegation of fact in a pleading is deemed admitted unless denied by the opposing party. A denial may be made by specific denial or by statement of non-admission, either expressly or by necessary implication. General denials or general statements of non-admission are not sufficient. However, where responses are made to allegations albeit not with the specificity preferred by the opposing party, this does not constitute a failure to deny as envisaged under Rule 43(1). The Rules do not prescribe the degree of specificity required in denials.
Affidavit Evidence — Rebuttal — Veracity of Statements
Statements made on oath in an affidavit are evidence and it is improper to treat them as mere statements or allegations requiring evidential proof. To cast doubt on the veracity of such statements without there being any rebutting evidence from the opposing party is a misdirection of law. In the absence of contrary evidence, affidavit evidence remains uncontroverted.
Preliminary Objections — Distinction from Interlocutory Applications
Where a party opts to file an interlocutory application raising preliminary points of law rather than raising a preliminary objection at the scheduling conference as contemplated by Rule 41, that party places itself outside the ambit of typical preliminary objections and into the realm of interlocutory applications. Such a party cannot then benefit from the law on preliminary objections when it has opted to submit to the purview of interlocutory applications.
Court Decorum — Scandalous Material in Pleadings
Court decorum dictates that the dignity of a court is to be respected and maintained at all times, including in pleadings, attire and presentations made before it. This extends to minimum standards of courtesy among all court users: judicial officers, advocates and litigants alike. Attacks on the personal conduct of a litigant in pleadings that do not relate to the substantive issues run afoul of professional courtesy and constitute scandalous material that may be struck out.
Documentary Evidence — Annexures to Pleadings
Documents annexed to a pleading, unless the pleading is an affidavit and the documents are annexed thereto, are not evidence unless produced at trial as exhibits. Documents that a party intends to rely upon may be adduced either by appending them to an affidavit or by their production in oral evidence at trial as exhibits.

Legislation cited (19)

  • Treaty for the Establishment of the East African Community Article 30
  • East African Court of Justice Rules of Procedure Rule 2
  • East African Court of Justice Rules of Procedure Rule 4
  • East African Court of Justice Rules of Procedure Rule 21(1)
  • East African Court of Justice Rules of Procedure Rule 24(3)
  • East African Court of Justice Rules of Procedure Rule 30(1)
  • East African Court of Justice Rules of Procedure Rule 37(1)
  • East African Court of Justice Rules of Procedure Rule 39(1)
  • East African Court of Justice Rules of Procedure Rule 41
  • East African Court of Justice Rules of Procedure Rule 41(2)
  • East African Court of Justice Rules of Procedure Rule 43
  • East African Court of Justice Rules of Procedure Rule 43(1)
  • East African Court of Justice Rules of Procedure Rule 43(2)
  • East African Court of Justice Rules of Procedure Rule 43(3)
  • East African Court of Justice Rules of Procedure Rule 47
  • East African Court of Justice Rules of Procedure Rule 53
  • East African Court of Justice Rules of Procedure Rule 53(1)
  • East African Court of Justice Rules of Procedure Rule 53(1)(c)
  • East African Court of Justice Rules of Procedure Rule 68(3)

Cases cited (10)

  • Madhivani International v Attorney General of Uganda (Civil Appeal No. 23 of 2010)
  • Mwesekezi v Kajubi (Civil Application No. 261 of 2013)
  • Nile Bank & Another v Thomas Kato & Others (Miscellaneous Application No. 1190 of 1999)
  • Obit Chemical Industries v Attorney General of Kenya (Civil Case No. 876 of 2014)
  • Kenya Commercial Bank v Suntra Investment Bank (Civil Suit No. 380 of 2013)
  • Prof. Anyang' Nyong'o & 10 Others v Attorney General of the Republic of Kenya (EACJ Application No. 1 of 2010)
  • Anthony Calist Komu v Attorney General of the United Republic of Tanzania (EACJ Reference No. 7 of 2012)
  • Attorney General of Uganda v Media Legal Defence Initiative & 19 Others (EACJ Appeal No. 3 of 2016)
  • Godfrey Magezi v National Medical Stores (EACJ Appeal No. 2 of 2016)
  • Union Trade Centre (UTC) v Attorney General of Rwanda (EACJ Appeal No. 1 of 2015)

Full judgment

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

Kiwanuka v Attorney General of the Republic of Uganda (Consolidated Applications 4 of 2019; Consolidated Applications 6 of 2019) [2020] EACJ 27 (6 February 2020)
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.