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

INADMISSIBLE AFFIDAVITS

Mr. Nkurunziza submitted that, certain affidavits breach the law and should be struck out. He started with the affidavit of Major (RTD) Rwaboni Okwir, which was sworn outside Uganda, (in the United Kingdom), before a Solicitor, contending it was inadmissible for non-registration as required by S.7 (3) of Statutory Declarations Act, 2000 (SDA) and, therefore, it should be struck out. For the respondent Mr. Balikudembe submitted that Rwaboni Okwir’s affidavit was sworn by virtue of S.3 of the SDA and that the affidavit does not require registration before it can be used in a court in Uganda.

The instrument in question is headed “AFFIDAVIT”. It then begins with the following words:

“I am a Ugandan citizen of the above mentioned particulars would hereby solemnly and sincerely declare the following”.

After setting out facts including his arrest at Entebbe in eleven paragraphs, the instrument ends with the following words which, like the opening, are normally used in statutory declarations:

“AND I MAKE THIS SOLEMN DECLARATION conscientiously believing the same to be true by virtue of the Statutory Declarations Act, 135 (sic).

Declared by the said OKWIR RWABONI MP”.

On the face of it, the instrument appears to be both an affidavit and a statutory declaration. This shows that the drafting is less than elegant. The instrument was made before a Solicitor in England. In that country a Practicing Solicitor, appointed by the Lord Chancellor, can act as Commissioner for Oaths and can administer Oath: See paragraph 76, Halsbury’s Laws of England, Vol.36, 3 Ed. and Commissioners for Oaths Act, 1889. The capacity in which the Solicitor acted is not challenged.

Subs. (1) and (3) of Section S.7 relied on by Mr. Nkurunziza, state as follows:- “7(1) A person wishing to depone outside Uganda to any fact for any purpose in Uganda, 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.

(3) 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 of Documents Act.”

On the other hand, section 3, which was relied on by Mr. Balikudembe, reads as follows:-

“3 After commencement of this Act, no affidavit shall be sworn for any purposes except: (a
where it relates to any proceedings application or other matter commenced in any Court or referable to a Court; or