Attorney General v Lutaaya (Civil Application 1 of 2007) [2007] UGSC 26 (29 March 2007)

IIIE REPT'BI. IC OF UGNIDA

IN THE SUPREME COT'RT OF UGA}IDA

AT MEN@

CIVIL APPLICATION NO. 1 OE 2OO7

BETITEEN

ATEORNEI GENERAT: : : : : : : : : : : : : : : APPIJICIIII

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A. K. P. M. LTIIAYA RESPOIIDENTS

RT'LTNG OF THE COT'RT

This is an application for extension of time within which to fil-e a memorandum of appeal . The application is made by Notice of Motion brought under Rul-es 5 and 41, (2) , 42 (Z) and 2(2) of the Judicature (Supreme Court Rufes) Directions Section 1. 13-11. The application is purportedly supported by an affidavit j-.s---s.upp€+td by Joseph Matsiko, Acting Director of Civil\_ Litigation in the Ministry of Justice & Constitutional Affairs. This affidavit is purportedly

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sworn on 7th February 2OOj. I will come to it fater in this ruling. The grounds for the application are briefly set out in the main body of the application in ^g paragraphs. But the application states:

> "TAKE FURTEER NOTI. CE Xbat tJle gz;ouads for tbis appJ.icatioo are coataiaed, ia tbe affid,avit of Josepb, ttatsiko, tJae Actizg Dir.ector of Civil Litigatioa, rD,ic,h, sbal-l be rej-ied lap,oa, at &e bearir,g of &is appJ-ic,atioa but briafly ate:o

CJ-ear1y the af f idavit crucially important as the grounds upon which made. by Mr. Matsiko is it contains in fullthis application is

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Briefly, the thrust of the grounds for the appJ-ication as contai-ned in the Notice of Motion is that the delays in handling the file and filing the necessary court documents were caused by the resignation of the State Attorney who was handling the case, and the fail-ure by the Civif Registry

the file to the Director of in time. staff Civil to forward Litigation

The application is replied to and opposed by the respondent who filed an affidavit in reply sworn on 15th March 2OO1 . He gj\_ves ^a history of the case and applicat.ions that have been made, including one where the applicant had sought an extension of time within whi-ch to file and serve a Notice of Appeal, only to withdraw it when it was proved that in fact the applicant had indeed filed and served a Notice of Appeal on the respondent' s counsel- . The af f idavit al\_so points ouL that there is currently a pending application filed by the respondent on 2}th December 2006 to strike out the applicant, ^s Notice of Appeal. This is pending before ^a fuII Bench of the Supreme Court. The affidavit in reply al\_so challenges the application as being incompetent for being supported by an ,,affidavit fuJ.l oC fal,seboodst coattedietj,ote ,Dd de'liberltc 7ies. "

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As pointed out, the application was filed under a number of Rules of this Court. Rule 5 allows the Court to extend time if there is "sufficient reasons" to do so. The Rule itself does not define "sufficient reason," but one has to read it together with Rules $42(1)$ and $43(1)$ .

42(1) states in part, ".................................... Rule applications to this court shall be by motion, which shall state the grounds of the application."

Rule $43(1)$ states:-

"Every formal application to the Court shall be supported by one or more affidavits of the applicant or some other person or persons having knowledge of the facts." (emphasis added).

Clearly then, having stated the grounds in the body of the application, the applicant must proceed to show court by sworn evidence that there is sufficient reason why his

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application should be allowed. The requirement to support the application with an affidavit or affidavits is mandatory.

The question that now arises is whether the applicant's application was supported by affidavit as required by Rule 43(1). This court pointed out to counsel for the applicant that the purported affidavit by Mr. Matsiko had not been commissioned by a Commissioner for Oaths. Counsel agreed that the "affidavit" was not sworn and conceded that it was therefore not an affidavit. Amazingly he continued to present his arguments based on that same affidavit.

This matter was also taken up by counsel for the respondent in his reply when he contended very strongly that an unsworn affidavit is not an affidavit. Therefore, he submitted, the application was not supported by evidence and therefore did not show sufficient reason upon which the court could

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exercise its discretion to grant the extension of time.

Counsel cited ERIC TIBEBAGA $-Vs Fr$ . NARSENSIO BEGUMISA $\boldsymbol{\mathcal{E}}$ OTHERS, CIVIL APPLICATION NO. 18/2002 where Kato, JSC (as he then was) held that an application not supported by a valid affidavit must be dismissed as there would be no evidence to establish that the applicant had sufficient reasons within the meaning of the Rule for his failure to file the required documents in time.

Counsel also cited Section 5 of the Commissioners for Oaths (Advocates) Act. (Cap.5), and sections 5 and 6 of the Oaths Act, Cap.19. Section 5 of the Commissioners for Oaths states as follows:-

> "Every Commissioner for Oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat attestation at what place and on what date the oath or affidavit is taken or made."

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This is totally missing from Mr. Matsiko's affidavit. Section 6 of the Oath Act also states:

> "Every Commissioner for Oaths or notary public before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date or affidavit is taken is made."

In my view, the failure by Mr. Matsiko to swear his affidavit is not just a matter of a procedural anomaly upon which this court can exercise its distationary power under Rule $2(2)$ as invited by counsel for the applicant. It is a matter of substantive law that what he filed is not an affidavit in law. Court cannot be convinced that it has sufficient reason merely on statements contained in the body of the application. It has to be convinced by sworn affidavit evidence. This was not there in this case. In the result I find that the application is $\frac{1}{2}$

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incompetent and I accordingly strike it out with costs to the respondent.

Dated at Mengo this ....................................

purhatum he

Bart M. Katureebe JUSTICE OF THE SUPREME COURT