Wakilii

Mashari v Bakunda (U) Ltd & 3 Ors (Misc. Application No. 233 of 2013)

High Court · [2014] UGHCLD 127 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of suit and for reinstatement, arising from HCCS No. 137 of 2006
Decision
Application dismissed on preliminary objections relating to defects in the supporting affidavit

Observed later treatment

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Holding

An application to set aside dismissal of a suit was dismissed on preliminary objections. The court held that an affidavit sworn by an illiterate person without a certificate of translation showing compliance with the Illiterates Protection Act s.3 is inadmissible, and an affidavit not commissioned in the presence of the deponent is defective. Without a valid supporting affidavit, the application could not proceed. The court exercised discretion to dismiss the application with no order as to costs given the applicant's vulnerability and inadequate legal representation.

Outcome

Application dismissed on preliminary objections relating to defects in the supporting affidavit

Facts

The applicant sought to set aside the dismissal of HCCS No. 137 of 2006, which had been dismissed on 7 August 2009 due to his and his counsel's absence from a scheduled hearing. The applicant averred that he was not informed of the hearing date by his counsel. He had previously filed Misc. Application No. 847 of 2009 on 14 December 2009 seeking reinstatement, but that application was withdrawn by his lawyers on 5 March 2013 without his instructions. The applicant filed the present application seeking reinstatement of the main suit. The respondents opposed the application on multiple grounds including undue delay, lack of merit, and defects in the supporting affidavit. The applicant admitted under cross-examination that he did not know English, that the affidavit was read to him by his lawyer before he signed it, and that he did not know the commissioner for oaths who purportedly commissioned the affidavit.

Issues

  1. Whether the affidavit in support of the application was properly commissioned in the presence of the applicant as required by the Oaths Act.
  2. Whether the affidavit complied with the Illiterates Protection Act where the deponent is illiterate.
  3. Whether the applicant demonstrated sufficient cause for non-appearance when the main suit was dismissed.

Orders

  • Application dismissed.
  • No order as to costs.
  • Counsel for the applicant denied costs and may not file an advocate-client bill as a consequence of this application.

Rules and key headnotes

Evidence — Affidavits — Illiterate Deponents — Requirement for Certificate of Translation
An affidavit sworn by an illiterate person must bear a certificate of translation at its foot showing the full name and address of the person who wrote it, certifying that it was written on the illiterate's instructions, that it fully and correctly represents those instructions, and that it was read over and explained to the illiterate. This requirement under the Illiterates Protection Act s.3 is mandatory and couched in legal not procedural terms, and failure to comply renders the affidavit inadmissible.
Evidence — Affidavits — Commissioning of Oaths — Presence of Deponent
An affidavit must be commissioned in the presence of the deponent. Where a deponent testifies that the affidavit was signed only in the presence of his lawyer and not before the commissioner for oaths, the affidavit is inadmissible for failure to comply with the Oaths Act s.6 and the Commissioner for Oaths Rules.
Civil Procedure — Motions — Supporting Affidavits — Effect of Defective Affidavit
Under Order 51 rule 3 of the Civil Procedure Rules, every motion must be supported by an affidavit. Where the only affidavit in support is found to be inadmissible due to non-compliance with the Illiterates Protection Act and the Oaths Act, the application is left without valid evidentiary support and must fail on preliminary objections without consideration of its merits.
Civil Procedure — Costs — Discretion of Court — Vulnerable Litigants
The award of costs under s.27(1) of the Civil Procedure Act is in the court's discretion. Where an illiterate litigant has suffered from inadequate legal representation and the application fails due to technical defects attributable to counsel's conduct, the court may exercise discretion to dismiss the application with no order as to costs and deny costs to counsel.

Legislation cited (10)

Cases cited (11)

  • Motor Mart (U) Ltd v Yona Kanyomozi (SCCA No. 6 of 1999)
  • National Insurance Corporation v Mugenyi & Co. Advocates [1987] HCB 28
  • Mugo v Wanjiri [1970] EA 481
  • Njagi v Munyiri [1975] EA 179
  • Tikens Francis and Anor v The Electoral Commission and 2 Others (HC Election Petition No. 1 of 2012)
  • Kasaala Growers Cooperative Society v Kakos Jonathan and Another (SCCA No. 19 of 2010)
  • Mohammed Majyambere v Bhakresa Khalil (MA No. 727 of 2011)
  • Stone Concrete Ltd v Jubilee Insurance Co. Ltd (MA No. 358 of 2012)
  • Kasaala Growers Co-Operative Society v Kakooza and Another (SCCA No. 19 of 2010)
  • Ngoma Ngime Vs. Electoral Commission and Hon Winnie Byanyima (supra)
  • Hon. Ssekikubo & 3 Ors v Ali & 4 Ors (Misc. Application No. 233 of 2013)

Full judgment

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Mashari v Bakunda (U) Ltd & 3 Ors (Misc. Application No. 233 of 2013) [2014] UGHCLD 127 (16 October 2014)
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.