The republic of uganda in the supreme court of uganda at kampala

(b) Where under any written law an affidavit is authorised to be sworn.”

On the other hand Section 4 provides that in every case to which Section 3 does not apply, a person wishing to depose to any fact for any purpose may do so by means of statutory declaration.

Under Section 7(1) a person wishing to depose outside Uganda to any fact for any purpose in Uganda, he may make a statutory declaration before any person authorised to take a statutory declaration by the law of the country in which the declaration is made. It is provided under Section 7(3) that a statutory declaration taken outside Uganda under this section shall not be admissible in evidence unless it is registered with the Registrar of documents under the Registration Documents Act.

The issue in this case in whether the document filed by Hon. Okwir is an affidavit or a statutory declaration. The document is headed “affidavit”. But at the end of it he stated “And I made this solemn declaration conscientiously believing the same to be true and by virtue of the Statutory Declarations Act 1 35.” It was declared before Solicitor/Commissioner for Oaths.

It seems to me the Hon. Okwir intended to swear an affidavit, but the form the document took was that of a statutory declaration. If the document was for use in these court proceedings it could not be a statutory declaration but an affidavit. The document was witnessed by a Solicitor/Commissioner for Oaths who had the power to administer an affidavit. The most important element is that it was made on oath. I think this is a matter of form which I should disregard by applying the principle set out in article 126 that substantial justice shall be administered without undue regard to technicalities, given the special circumstances of this Petition.

Eleven affidavits were challenged as in admissible on account of having been sworn before two advocates who were part of the team of counsel for the Petitioner, namely Mr. Kiyemba Mutale and Mr. Wycliff Birungi. Mr. Balikuddembe counsel for the Petitioner stated from the Bar that by the time the two advocates commissioned the affidavits, there were not members of the team representing the Petitioner. This statement was not challenged.

The proviso to Section 5(1) of the Commissioner for Oaths (Advocates) Act Cap. 53 states,
“Provided that a Commissioner for Oaths shall not exercise any of the powers given under this section in any proceeding or matter in which he is the advocate for any of the parties to the proceedings or concerned in the matter or clerk to such advocate or in which he is interested.”

In view of the fact that Mr. Balikuddembe’s statement was not challenged nor is there evidence to prove that the two advocates were already acting for the Petitioner or otherwise participating in the proceedings I am not satisfied that the affidavits they commissioned are inadmissible.

It was submitted for the 1 St Respondent that the many affidavits filed by the Petitioner offended Order 17 r.3 of the Civil Procedure Rules and were therefore in admissible. Order 17 r.3 provides,

“(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except in interlocutory applications, on which statements of his belief may be admitted provided that the grounds thereof are stated-”

(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents shall unless the court otherwise directs, be paid by the party filing the same.”

Mr. Nkurunziza learned counsel for the Respondent submitted that this petition was not an interlocutory proceeding but a final proceeding which will determine the rights of the parties conclusively and therefore any affidavit which is not confined to such facts as the deponent is able to prove by his own knowledge is in breach of this rule and should be rejected by the court. Counsel relied on the decisions in Paul Semogerere and Z. Olum v Attorney General, Constitutional Petition No.3/99, Charles Mubiru v Attorney General, Constitutional Appeal No.1 of 2001. Kibwimukva v Kasigwa (1978) HCB –

Learned counsel submitted further that the affidavits did not distinguish which facts were based on knowledge, and which were based on information and belief, nor were the sources of information disclosed. He also contended that is was not possible for a court to server defective parts from other parts in an affidavit but the defective portion vitiated the whole document. He relied on the decision of the High Court in Sirazali C M Hudoni v Amiran, Tejani and Others HCS No.712 of 1995,

Mr. Balikuddembe learned counsel for the Petitioner submitted that the court had discretion to admit some parts of the affidavit and reject other which are defective in the same way the court has power to reject hearsay evidence. He referred to the decision of the Supreme Court in Reamation Ltd. v Uganda Cooperative Creameries Civil Appl. No.7/2000 and Motor Mart (U) Ltd. v Yona Kanyomozi Civil Appl. No.6 of 1999 where he contended that the court exercised its discretion to sever the affidavit and exclude hearsay matters.

In Assanand & Son Uganda Ltd. v East African Records Ltd. (1 959) EA 360 and Caspair Ltd. v Harry Grandy (1962) EA 414, the Court of Appeal held that a court should not act on an affidavit which did not distinguish between maters stated on information and belief and matters to which the deponent swears from his own knowledge, or an affidavit which does not set out the deponents means of knowledge or his grounds of belief regarding the matter stated on information. In Assanand & Sons v EA Records (1 959) EA 360 at p.364, the learned President of the Court of Appeal said,

“The affidavit of Mr. Campbell was deficient in three respects. First it did not set out the deponent’s means of knowledge or his grounds or belief regarding the matters stated on information and belief, and secondly it did not distinguish between matters stated in information and belief and matters deposed to from the deponents knowledge (see O. XVIII r.3 (1) and Standard Goods Corporation Ltd. v Harakchand Nathu &. (1950) 17 EACA 99). The court should not have acted upon an affidavit so drawn.”

In Standard Goods Corporation Ltd. v Harakchand Nathu & Co. (1950) 17 EACA 99 the Court of Appeal held that it is well settled that where an affidavit is made on information it should not be acted upon by the court unless the sources of information are specified. At p.100, the court said

“The affidavit in question consisted of seven paragraphs. Para 2 was the facts stated herein are within my knowledge; and para 7 was what is stated herein is true and correct to the best of my knowledge and information. As regards paragraph 2, I would observe that facts can be within a person’s knowledge in two ways: (1) by his own physical observation or (2) by information given to him by someone else. It is clear that reading paragraphs 2 and 7 of the affidavit together, the deponent was stating facts without stating which were from his own observation and which were from information. An affidavit of this kind ought never to be accepted by a court as justifying an order based on the so called facts.”

Affidavits based on information and belief should be restricted to interlocutory matters. In proceedings which finally determine the matter only affidavits based on the deponent’s knowledge should be acted upon. See Paulo K. Ssemogerere and Z Olum v Attorney General, Constitutional Petition No.3 of 1 999, and Charles Mubiru v Attorney General, Constitutional Appeal No.1 of 2001. In Paulo K. Ssemogerere and Z. Olum v. Attorney General (supra) the Constitutional Court of Uganda held (per Berko JA):

“except in purely interlocutory matters affidavits must be restricted to matters within the personal knowledge of the deponent. They must not be based on information or be expression of opinion. Affidavits should be strictly confined to such facts, as the deponent is able of his own knowledge to prove. Affidavits by person having no personal knowledge of the facts and merely echoing the statement of claim cannot be used at the hearing.”

The Court of Appeal distinguished the cases of Nassand & Sons (Uganda) Ltd v East African Records Ltd (1959) EA 360, Standard Goods Corporation Ltd. v Harakchand Nathu 7 Co. (1950) 17 EACA 99 and Aristella Kabwimukya v John Kasigwa (1 978) HCB which concerned interlocutory applications.

The Court pointed out,

“A Constitutional Petition is not an interlocutory application. Therefore an affidavit in support of it must be restricted to facts the deponent is able of his own knowledge to prove and not facts based on information and belief”

It held that an affidavit based on information given to the deponent by someone else is hearsay and inadmissible to support the petition.

In Charles Mubiru v Attorney General Constitutional Appeal No. 1 of 2001, the Constitutional Court of Uganda held, relying on its decision in Ssemogerere & Another v Attorney General (supra) that an affidavit by the Petitioner which was merely echoing the information his advocate has given him was not based on his personal knowledge and could not be relied upon in a Constitutional Petition. An election petition is not an interlocutory proceedings but a final proceedings, which is aimed at determining the merits of the case. Therefore affidavits admissible in such proceedings must be based on the deponent’s knowledge, not on his information and belief.

The issue for determination is what should be the fate of affidavits filed by either party, which do not strictly comply with the law as stated above. Specifically, should all the affidavits which do not contain matters deposed from the deponent’s knowledge as well as those based on information and belief be acted upon whether they distinguish which facts are deposed from own knowledge and those based on information and belief?

There are two types of affidavits. The first is one, which distinguishes the facts based on knowledge and those on information and belief. The second category are those affidavits which contain matters based on knowledge, information and belief without distinguishing which facts are based on knowledge. A common formula for ending the second category of affidavits is “That all that is herein stated is true and correct to the best of my knowledge and belief” as most of the affidavits in Vol. 2 of the Petitioner’s affidavits. Facts based on belief are inadmissible in an election petition.

It was submitted for the Petitioner that the Court has discretion to sever the defective parts of affidavit, and act on the rest of the affidavit. There is some authority for the proposition that in proper cases, a court may sever parts of the affidavit, which are defective or superfluous instead of rejecting the whole affidavit.

In Nandala v Lyding (1963) EA 706 the affidavit supporting an application ended in para 6 with the words that “what is stated therein is true to my best of my knowledge, information and belief”.

At the beginning of the hearing of an application, counsel for the defendant submitted that the whole affidavit should be struck off as it contravened 0. 17 r 13 of the Civil Procedure Rules as it did not disclose the source of the deponent’s knowledge, information and belief. Sir Udo Udoma CJ held that the concluding paragraph of the affidavit was empty verbiage and unnecessary and that it should be struck off since the contents of the rest of the affidavit were statements of facts within the knowledge of the plaintiff and related to his own personal knowledge and accordingly 0.1 7 r 3 was not contravened.

Udo Udoma, CJ said at page 710,

“I am satisfied that the contents of pare. 6 of the affidavit are mere empty verbiage - a surplusage - which bear no relation to the contents of the affidavit as a whole. It is therefore severable from the rest of the remaining paragraphs of the affidavit, as in my view, the contents of pares 1-5 of the affidavit are statements of facts pecuniary within the knowledge of the deponent and relate to his own personal activities.

In the circumstances I would strike off para 6 of the affidavit leaving thereby the rest of the affidavit as I am satisfied that the Contents thereof are facts which the deponent is able of his own knowledge to prove. Accordingly para 6 of the affidavit is hereby struck off”

In Zola v Ralli Bros Ltd (1969) EA 691 the East African Court of Appeal held that the trial Judge could exercise his discretion to act on an affidavit which was merely defective in some respects, and was not a nullity. Newbold R said at page 693,

“As regards the submission that the affidavit of Mr. Harkness was a nullity because it failed to comply with the provisions of 0.18 and 0.35 and the trial judge should not have acted upon it but should have dismissed the motion. I agree that if the affidavit is a nullity then the trial judge could not act on it and the motion should have been dismissed. As I have said in other cases the courts should hesitate treat an incorrect or irregular act as a nullity, particularly where the act relates to matters of procedure [see Prabhudas & Co. v The Standard Bank Ltd. (1968) EA 670]. It was urged that Mr. Harkness could not swear positively to the facts verifying the cause of action, It is difficult to envisage, in the circumstances of this case, of a more suitable person to swear the affidavit on behalf of plaintiffs, who could not themselves swear to it, than Mr. Harkness, who was the manager of the Standard Bank, one of the plaintiffs, and who had personal knowledge of at least some of the relevant facts and who would be intimately concerned with the accounts of the parties in the Standard Bank. It is to be noted that according to his affidavit the amounts lent by the plaintiffs were credited to the account of the Sisal Co. in the branch of the Standard Bank of which he was manager. It was also urged that the affidavit did not distinguish clearly between those facts within the knowledge of Mr. Harkness and those facts stated on information and belief, nor did it set out Mr. Harkness’s means of knowledge, nor the grounds for belief on matters stated on information and belief. I do not agree. There is scarcely and affidavit, or indeed any document, which cannot be criticised. It may be that the affidavit could have been more explicit in certain respects, but there is set out there in the means of knowledge and the grounds of belief and the source of information in respect of each of the matters stated on knowledge, belief or information. I am satisfied that the affidavit complied with the provisions of 0.35 and 0.18 and substantially with the requirements relating to affidavits as set out in the decisions of this court in Assanand & Sons v East African Records. (1959) EA 360 and Standard Goods Corporation v Nathu & Company (1950), 17 EACA 99, to which we were referred by Mr. Salter. I am also satisfied that there is no reason to hold that the affidavit was a nullity. If it was merely irregular in some respects it was open to the trial judge in his discretion to act upon it. He has done so and I see no reason whatsoever, to interfere with the exercise of his discretion.”

In Reamation Ltd. v UGANDA Corporation Creameries Ltd. and Another Civil Application No.7 of 2001, Motor Mart (U) Ltd. v Yona Kanyomozi Civil Appl. No.6 of 1 99 and Yona Kanyomozi v Motor Mart (U) Ltd. No.8 of 98, the Supreme Court adopted a liberal approach to affidavits. In Yona Kanyomozi v Motor Mart (U) Ltd. (supra) Mulenga, JSC held that some parts of counsel’s affidavits were false and that those parts were irrelevant to the application and could be ignored. On a reference to the full Court, it was argued that the impugned affidavit was capable of severance as the single judge did before arriving at his decision. The full court held that it was unable to interfere with the discretion exercised by the single judge.

From the authorities I have cited there is a general trend towards taking a liberal approach in dealing with defective affidavits. This is in line with the constitutional directive enacted in article 126 of the Constitution that the courts should administer substantive justice without undue regard to technicalities. Rules of procedure should be used as handmaidens of justice but not to defeat it.

In the present case, the only method of adducing evidence is by affidavits. Many of them have been drawn up in a hurry to comply with the time limits for filing pleading and determining the petition. It would cause great injustice to the parties if all the affidavits which did not strictly conform to the rules of procedure were rejected. This is an exceptional case their all the relevant evidence that is admissible should be received in court. I shall therefore reject those affidavits, which are based on hearsay evidence only. I shall accept affidavits, which contain both admissible and hearsay evidence but reject the parts, which are based on hearsay, and only parts which are based on knowledge will be relied upon. As order 17r 3 (2) provides the costs of affidavits which contain hearsay matters should be borne by the party filing such affidavits.

Many affidavits were filed by the Petitioner but not specifically referred to by his counsel in their submissions. Counsel provided a list of such affidavits.

There was also a list showing affidavits of the Petitioner, which had not been rebutted or controverted. It was submitted that such affidavit should be taken to be admitted. I do not agree that they should be taken as gospel truth. I shall take into account all the various affidavits depending on their status and probative value as evidence in determining the issues in this petition.

Objection was raised to the admissibility of the affidavit sworn by the 1st Respondent in support of his answer to the Petition. Mr. Balikuddembe learned counsel for the Petitioner submitted that the affidavit did not conform to the form of the jurat, in that the affidavit does not show before whom the affidavit was sworn.

Section 6 of the Commissioner for Oaths (Advocates) Act states,

“Every Commissioner for Oaths 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 the oath or affidavit is taken or made.”

Rule 9 of the schedule provides that the form of jurat is set out in the third schedule to the Rules. The form of Jurat is as follows:

“Sworn/Declared before me……. this ………Day of ………..20….. at……………