Wakilii

Nakanjako & Another v Tamale & 3 Others (Miscellaneous Application 124 of 2022)

High Court · [2023] UGHC 403 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for contempt of court arising from Civil Suit No. 40 of 2011
Decision
Application dismissed for want of a valid supporting affidavit

Observed later treatment

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Holding

The High Court dismissed a contempt application on a preliminary point of law. The court held that the affidavit in support was invalid because the deponent never appeared before a Commissioner of Oaths as required by sections 5 and 6 of the Oaths Act. During cross-examination, the deponent testified that only three people were present when she made the affidavit — herself, her sister, and her lawyer — and that she did not know the named Commissioner of Oaths. The court rejected the argument that an illiterate deponent cannot be expected to remember appearing before a Commissioner, finding the deponent's testimony clear and direct. Without a valid supporting affidavit, the application could not stand.

Outcome

Application dismissed for want of a valid supporting affidavit

Facts

The applicants sought a declaration that the respondents were in contempt of court for violating a decree in Civil Suit No. 40 of 2011, which restrained the respondents from transferring, alienating, selling, or tampering with suit property. The applicants alleged that the first respondent constructed structures on the suit land after the judgment, leased 45 acres to a third party, and continued to cultivate the land while denying the applicants access. The respondents denied the allegations and stated that the orders had been stayed by the court. During cross-examination on her affidavit in support, the first applicant testified that she made the affidavit in her lawyer's office in Kampala in the presence of only three people: herself, her sister Constance, and her lawyer. She stated that after signing the affidavit, she handed it to her lawyer and returned to Masaka. She did not know the person named as Commissioner of Oaths on the affidavit.

Issues

  1. Whether the affidavit in support of the application is competent.
  2. Whether the applicants have locus standi to bring the application.
  3. Whether the existence of a stay order renders the contempt application incompetent.
  4. Whether the respondents are guilty of contempt of court.

Orders

  • Application dismissed.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Affidavits — Commissioning — Mandatory Requirement of Appearance Before Commissioner of Oaths
It is a mandatory requirement of law that a deponent must appear before a Commissioner of Oaths and take oath on the contents of his or her affidavit in order for it to be valid. Where an affidavit was not sworn before a Commissioner of Oaths, such an affidavit should be rejected.
Evidence — Affidavits — Validity — Effect of Non-Compliance with Oaths Act
Where any of the steps in the process of deposition is lacking, the purported deposition is invalid for being incomplete and is therefore unlawful. An affidavit that does not comply with sections 5 and 6 of the Oaths Act and Rule 7 of the Commissioner of Oaths Rules is invalid and must be rejected.
Civil Procedure — Applications — Effect of Invalid Supporting Affidavit
Where there is only one affidavit in support of an application and the affidavit is found to be invalid, the application is not supported by any affidavit and cannot stand. In the absence of evidence by way of affidavit, the application is left unsupported and must be dismissed.
Evidence — Affidavits — Cross-Examination of Deponent — Weight of Testimony
Where a deponent testifies under cross-examination that she made an affidavit in the presence of only three people (herself, her sister, and her lawyer) and did not know the person named as Commissioner of Oaths, and that she left immediately after signing without going anywhere else, the court may properly conclude that the deponent never appeared before the Commissioner of Oaths. The argument that an illiterate deponent cannot be expected to remember the complexities of commissioning does not apply where the questions are plain and simple and concern only whether the deponent appeared before a Commissioner.

Legislation cited (13)

Cases cited (6)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Kakooza John Baptist v Electoral Commission and Another (Supreme Court Election Appeal No. 11 of 2007)
  • Kasala Growers Cooperative Society v Kakooza and Another (Supreme Court Civil Appeal No. 19 of 2010)
  • Musa Nsimbe v Joseph Nanjubi and Others (High Court Miscellaneous Application No. 23 of 2014)
  • Mohammed Majyambere v Bhakresa Khalil (High Court Miscellaneous Application No. 727 of 2011)
  • 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.

Nakanjako & Another v Tamale & 3 Others (Miscellaneous Application 124 of 2022) [2023] UGHC 403 (7 August 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.