Wakilii

Nakalema & Ors v Mucunguzi Myers (Misc. Applic. No. 0460 of 2013)

High Court · [2013] UGHCLD 78 · 2013 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to be added as defendants in pending civil suit
Decision
Application to add applicants as defendants dismissed due to defective affidavit

Observed later treatment

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Holding

The court dismissed an application to add parties where the supporting affidavit was sworn by one applicant on behalf of others without attaching written authority as mandatorily required by Order 1 rule 12(2) of the Civil Procedure Rules. Joint Letters of Administration do not satisfy the requirement for express written authority signed by co-applicants authorising one to swear on their behalf. An affidavit defective for non-compliance with this mandatory requirement is incurably defective and cannot support the application.

Outcome

Application to add applicants as defendants dismissed due to defective affidavit

Facts

The applicants, joint administrators of an estate, sought to be added as defendants in Civil Suit No. 211 of 2009. The first applicant, Lena Nakalema Binaisa, swore an affidavit in support, stating in paragraph 2 that she had been authorised by the 2nd and 3rd applicants to swear on their behalf. A copy of the Letters of Administration was annexed to the affidavit. The respondent raised a preliminary objection that the affidavit was defective because no written authority from the other applicants was attached, as required by Order 1 rule 12(2) of the Civil Procedure Rules. Counsel for the applicants argued that the Letters of Administration themselves constituted sufficient authority by necessary implication, and that the defective portion could be severed.

Issues

  1. Whether an affidavit sworn on behalf of other applicants without attached written authority complies with the mandatory requirements of Order 1 rule 12(2) of the Civil Procedure Rules.
  2. Whether Letters of Administration held jointly by applicants constitute sufficient authority under Order 1 rule 12(2) CPR for one administrator to swear an affidavit on behalf of co-administrators.
  3. Whether a defective affidavit lacking required written authority can support an application to add parties to a suit.

Orders

  • Application dismissed with costs.

Rules and key headnotes

Civil Procedure — Affidavits — Authority to Swear on Behalf of Co-parties — Mandatory Requirements under Order 1 Rule 12(2) CPR
Where an affidavit is sworn by one party on behalf of co-parties, the mandatory requirements of Order 1 rule 12(2) of the Civil Procedure Rules must be satisfied: the authority must be in writing, signed by the parties giving it, and filed in court. Failure to attach such written authority renders the affidavit incurably defective and unable to support an application.
Civil Procedure — Letters of Administration — Insufficient as Authority under Order 1 Rule 12(2) CPR
Joint Letters of Administration do not constitute the written authority required under Order 1 rule 12(2) of the Civil Procedure Rules for one administrator to swear an affidavit on behalf of co-administrators. Even joint administrators must provide separate written authority signed by those giving it, specifically authorising one to swear on behalf of the others.
Civil Procedure — Defective Affidavits — Non-compliance with Mandatory Procedural Requirements
An affidavit that fails to comply with mandatory procedural requirements is incurably defective and cannot be saved by severance of the defective portions. Where the defect goes to the deponent's authority to swear on behalf of others, the entire affidavit cannot support the application.

Legislation cited (6)

  • Civil Procedure Act s.98
  • Civil Procedure Rules O.1 r.12
  • Civil Procedure Rules O.1 r.13
  • Civil Procedure Rules O.52 rr.2&3
  • Civil Procedure Rules O.1 r.10(2)
  • Civil Procedure Rules O.3 r.2(a)

Cases cited (4)

  • Taremwa Kamishana Tomas v Attorney General (HC Misc. Application No. 38 of 2012)
  • Vincent Kafero & 11 Ors v Attorney General (HC Misc. Application No. 48 of 2012)
  • Mukuye & 106 Ors v Madhvani Group Ltd (Misc. Application No. 821 of 2013)
  • Makerere University v St Mark Education Institute & Ors (HC Civil Suit No. 378 of 1993)

Full judgment

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

Nakalema & Ors v Mucunguzi Myers (Misc. Applic. No. 0460 of 2013) [2013] UGHCLD 78 (2 October 2013)
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.