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

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

LAND DIVISION

ORIGINATING SUMMONS NO. 06 OF 2011

OLIVIA NAKAIMA KIIZA………………………………………………………. PLAINTIFF

VERSUS

STELLA TUSIIME NSUBUGA……………………………………………….... DEFENDANT

BEFORE HON. LADY JUSTICE PERCY NIGHT TUHAISE

RULING ON PRELIMINARY OBJECTION

When this Originating Summons came up for hearing, Counsel Musamali Martin for the defendant raised a preliminary objection (PO) that the two affidavits in rejoinder do not indicate the person or the firm that prepared them. He contended that this was in contravention of the law. Citing the case of Kiiza Besigye V Y. K. Museveni Election Petition No. 1 of 2001, learned Counsel for the defendant submitted that such affidavits are incompetent and defective and ought to be struck out and expunged from the record.

The PO was opposed by Counsel for the plaintiff Waiswa Abdusala who contended that the PO is misconceived. He submitted that the two affidavits clearly show they were sworn by deponents Kiiza and Mutebi. He submitted that Kiiza’s affidavit clearly mentioned that her address Elgon Associated Advocates, the firm that has been conducting the matter; that paragraph 12 of the same clearly show that her Counsel is Waiswa of the same law firm; that the affidavit is duly signed and commissioned by a Commissioner for Oaths. He also submitted that the same is the case for the affidavit of Davis Mutebi which clearly indicated that Elgon Advocates is the firm that drafted the affidavits. He argued that the Kiiza Besigye case cited by the defendant’s Counsel is distinguishable from the facts of the instant case. He argued that the basis of the Supreme Court judgment in the said case was that if an affidavit does not show a person who has sworn it or that is not represented or defective in durat that is when court can disregard it. He further argued that the issue of drawn and filed by who is meant to make known to the other party the firm handling the case for the client. He contended that in the instant case all the documents are clear that the plaintiff is represented by Elgon Associated Advocates where he is lead Counsel. He argued that absence of such information in the affidavit does not in any way prejudice the case because the same deponent had already sworn affidavits already in court. He prayed court to ignore the technicalities raised by the defendant’s Counsel and handle the matter under Article 126(e) of the Constitution.

In rejoinder, Counsel Musamali for the defendant maintained that the plaintiff’s Counsel does not dispute the fact that the affidavits in this case do not disclose who draw them. He reiterated his earlier prayers and submissions.

The preliminary objection by the defendant’s Counsel is that that the affidavits in this case do not disclose who drew them; that the plaintiff’s Counsel does not dispute the fact; and that this renders the two affidavits incompetent. It was held in Sagu V Roadmaster Cycles (U) Ltd [2002] 1 EA 258 (CAU) that a defect in the jurat or any irregularity in the form of the affidavit cannot be allowed to vitiate an affidavit in view of article 126(e) of the Constitution; and that a Judge has power to order that an undated affidavit be dated in court or that the affidavit be re sworn, and may penalize the offending party in costs. The same position was stated in Kebirungi Justine V M/S Road Trainers & 2 Ors MA No. 285 of 2003 arising from Civil Suit No. 687 of 2002, Rubby Aweri Opio J.

In my opinion, in view of the foregoing authorities, that the omission to indicate who drafted the affidavit is a mere technicality which must not deter court from administering justice under Article 126(e) of the Constitution. Since it has nothing to do with the averments in the main body of the affidavits, the plaintiff’s Counsel can indicate who drew them and be penalised in costs.

The preliminary objection is therefore overruled. However, it is ordered that the plaintiff’s Counsel indicates on the two affidavits as to who drew or prepared them, and pays the costs for this objection doing so.

Dated at Kampala this 25th day of October 2012.

Percy Night Tuhaise.

JUDGE.