Wakilii

Nakaima Kiiza v Tusiime Nsubuga (Originating Summons No. 06 of 2011)

High Court · [2012] UGHC 214 · 2012 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objection raised by defendant in Originating Summons proceedings
Decision
Preliminary objection overruled; matter to proceed with plaintiff's counsel ordered to cure defect in affidavits and pay costs

Observed later treatment

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Holding

Held that the omission to indicate who drafted an affidavit is a mere technicality under Article 126(e) of the Constitution and does not vitiate the affidavit. The court has power to order that the defect be cured and may penalise the offending party in costs. Preliminary objection overruled with costs awarded to defendant.

Outcome

Preliminary objection overruled; matter to proceed with plaintiff's counsel ordered to cure defect in affidavits and pay costs

Facts

The plaintiff filed Originating Summons in the Land Division. When the matter came up for hearing, defendant's counsel raised a preliminary objection that two affidavits in rejoinder filed by the plaintiff did not indicate the person or firm that prepared them, contending this contravened the law and citing Kiiza Besigye v Museveni. Plaintiff's counsel opposed, arguing the affidavits clearly showed they were sworn by identified deponents, that the plaintiff was represented by Elgon Associated Advocates as disclosed in the affidavit text, and that the omission did not prejudice the defendant. Plaintiff's counsel argued the objection was a technicality that should be handled under Article 126(e) of the Constitution.

Issues

  1. Whether affidavits in rejoinder that do not indicate the person or firm that prepared them are incompetent and should be struck out.

Orders

  • Preliminary objection overruled.
  • Plaintiff's counsel to indicate on the two affidavits who drew or prepared them.
  • Plaintiff's counsel to pay the costs of the preliminary objection.

Rules and key headnotes

Evidence — Affidavits — Formal Requirements — Omission to Indicate Drafter
The omission to indicate who drafted an affidavit is a mere technicality which must not deter the court from administering justice under Article 126(e) of the Constitution where the omission has nothing to do with the averments in the main body of the affidavit.
Civil Procedure — Affidavits — Defects in Form — Court's Power to Cure
A defect in the jurat or any irregularity in the form of an affidavit cannot be allowed to vitiate an affidavit in view of Article 126(e) of the Constitution, and a judge has power to order that the defect be cured and may penalise the offending party in costs.

Legislation cited (1)

Cases cited (3)

  • Kiiza Besigye v Y. K. Museveni (Election Petition No. 1 of 2001)
  • Sagu v Roadmaster Cycles (U) Ltd [2002] 1 EA 258
  • Kebirungi Justine v M/S Road Trainers & 2 Ors (MA No. 285 of 2003)

Full judgment

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

Nakaima Kiiza v Tusiime Nsubuga (Originating Summons No. 06 of 2011) [2012] UGHC 214 (25 October 2012)
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.