Wakilii

Sudhir Reparrelia v Magezi and Another (Miscellaneous Application 947 of 1999)

High Court · [1999] UGHC 29 · 1999 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of a decree pending appeal
Decision
Stay of execution granted pending appeal, conditional on deposit of decretal sum

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted the stay of execution after the applicant undertook to deposit the decretal sum and interest. The court held that where annexures to an affidavit are not intended as exhibits to prove facts before the court, non-compliance with Rule 8 of the Commissioner for Oaths (Advocates) Act requiring exhibits to be sealed does not render the affidavit incompetent. However, the court emphasised that exhibits to affidavits proving facts must be securely sealed under the commissioner's seal and marked with serial letters of identification.

Outcome

Stay of execution granted pending appeal, conditional on deposit of decretal sum

Facts

The applicant was ordered to pay the defendant Shs. 20 million. The applicant filed a Notice of Appeal and requested trial court proceedings. He then applied for stay of execution by Notice of Motion supported by an affidavit of his advocate, Innocent Ngobi Ndiko. The affidavit stated that a Notice of Appeal and a formal request for proceedings had been filed, but the affidavit contained no undertaking regarding security for payment of the decretal sum. Additionally, the annexures to the affidavit—the letter requesting proceedings and the notice of appeal—were not sealed by the commissioner. Counsel for the respondent objected, arguing that by failing to provide verified annexures the affidavit offended Rule 8 of the First Schedule to the Commissioner for Oaths (Advocates) Act. Counsel for the applicant cited Uganda Corporation Creameries Ltd v Rearrton Ltd CA 44 of 1998, in which Engwau JA held that an affidavit need not have exhibits attached and that annexures not in dispute and not produced as exhibits at trial were not subject to the sealing requirement. The applicant provided an undertaking from the Bar to provide security for payment.

Issues

  1. Whether an affidavit in support of an application for stay of execution should be dismissed where annexures to the affidavit were not sealed by the commissioner.
  2. Whether the applicant should provide security for payment of the decretal sum as a condition for stay of execution.

Orders

  • Stay of execution granted.
  • Applicant to deposit the decretal sum and interest (approximately Shs. 58 million) within 30 days by way of a valid banker's cheque.

Rules and key headnotes

Civil Procedure — Stay of Execution — Security for Payment
An applicant seeking stay of execution of a decree pending appeal must provide security for payment of the decretal sum in case the appeal fails.
Evidence — Affidavit Practice — Exhibits and Annexures — Sealing Requirement
Under Rule 8 of the First Schedule to the Commissioner for Oaths (Advocates) Act Cap 53, all exhibits to affidavits must be securely sealed to the affidavit under the seal of the commissioner and marked with serial letters of identification. The rule implies that exhibits must be annexed to the affidavit and sealed with wax. Failure to comply with this mandatory provision renders exhibits intended to prove facts worthless as evidence.
Evidence — Affidavit Practice — Distinction Between Exhibits and Annexures
Not all annexures to affidavits are exhibits. Where documents annexed to an affidavit are already on record and are not intended to be used as exhibits to prove facts not before the court, non-compliance with the sealing requirement does not render the affidavit incompetent. The court must take into account the nature of the documents annexed and their pivotal significance to the relief sought.
Evidence — Affidavit Practice — Probative Value of Exhibits
Where a deponent seeks by exhibits annexed to an affidavit to prove a fact, such exhibits must be sealed to the affidavit under the seal of the commissioner and marked with serial letters of identification. Failure to do this greatly reduces the probative value of the annexures to the point of worthlessness as evidence.
Evidence — Affidavit Practice — English Practice Distinguished
The practice in England where exhibits are lodged separately with the master does not obtain in Uganda. Under Rule 8 of the Commissioner for Oaths (Advocates) Act, exhibits must be securely sealed to the affidavit under the seal of the commissioner.

Legislation cited (1)

  • Commissioner for Oaths (Advocates) Act Cap 53 Rule 8

Cases cited (6)

  • Uganda Corporation Creameries Ltd v Rearrton Ltd (Court of Appeal No. 44 of 1998)
  • [1896] 1 Ch 117
  • Slowe v/s Britain SC Co. (1897) (1)
  • Feroz Kassam v/s The Commissioner for Land Registration and Meerji Investments Ltd
  • Mettel v Uganda Oxygen Ltd (Civil Suit No. 1064 of 1995)
  • Rwangina v/s Ukanda MA No. 1248 of 1998

Full judgment

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

Sudhir Reparrelia v Magezi and Another (Miscellaneous Application 947 of 1999) [1999] UGHC 29 (23 September 1999)
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.