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

Civil Procedure Rules: O.17 r. 3:

The procedure in respect of this petition was regulated by the Civil Procedure Rules, subject to the provisions of the Election Petitions Rules with such modifications as this Court may consider necessary in the interests of justice and expedition of the proceedings. On strength, of that, Mr. Nkurunziza further raised objection to numerous affidavits filed in support of the petition which offended O.17 r.3 of the Civil Procedure Rules. Sub-rule (1) of that rule reads thus:

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

Learned counsel pointed out that, of the affidavits filed in support of the petition, 28 contained hearsay, and 87 were based on belief of the deponent the source of which was not stated . He urged the Court to reject not only averments which were not within the deponents’ own knowledge, but also to reject each such affidavit in its entirety. The learned Solicitor General for the 2nd Respondent fully supported the objection and stressed that a deponent who swears to matters which are not within his or her own knowledge is unreliable as a witness. Both contended that the position of the law was virtually settled, that an affidavit offending the rule was not severable but had to be rejected in its entirety. The Court was referred to several decisions of the Court of Appeal and the High Court, as persuasive precedents. For the Petitioner it was conceded that 0.17 r.3 of the Civil Procedure Rules was applicable and that an affidavit offending the rule was defective. Learned counsel argued, however, that such defect was not fatal as an affidavit was severable so that the Court relies only on such of the averments as were deponed from the deponent’s own knowledge. Counsel relied on two decisions of the Supreme Court.

It is not accurate, as submitted for the respondents, to say that courts have consistently held that affidavits with defects are not severable. Three of the decisions cited to us, while applying the rule in O.17 r.3, were not directly on the issue of severance of affidavits. It is only in S.C HERALI HUDANI’s CASE Civil Suit No.71 2/95 (HC) that Ntabgoba P.J. said:

“…..it does not matter whether some parts of an affidavit are in order while other parts are defective. The defective ones cannot be separated from the proper ones so as to render part of the affidavit acceptable. A defective portion of an affidavit vitiates the whole document.”

With the greatest respect to the learned Principal Judge, however, that is only true of affidavits whose contents are inseparable. In my view, the court can reject offending parts of an affidavit while accepting the rest of it, the same way it rejects inadmissible oral evidence, without treating the entire evidence of the witness as inadmissible. Inclusion of hearsay or other inadmissible evidence in an affidavit is not an illegality. It is an irregularity which is curable by expunging the inadmissible part. I find support for this view from 0.17 r.3 itself, which, far from rendering the offending affidavit invalid, provides a different kind of sanction in sub-rule (2) which, so far as is relevant, reads:

“3. (2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matters shall, unless the court orders otherwise, be paid by the party filing the same.”

MOTOR MART (U) LTD vs. YONA KANYOMOZI Civil Application No. 6/99 (SC) cited by counsel for the Petitioner, is a decision of a bench of three Justices of the Supreme Court, on a reference from my ruling as a single judge of the Court, in Civil Application No. 8 of 1 998. The Court rejected a ground seeking to reverse my holding that an inadmissible part of an affidavit can be severed without vitiating the rest of the affidavit. In REAMATON LTD vs. UGANDA CORPORATION REAMARIES LTD & ANOTHER Civil Application No.7/2000 (SC) Tsekooko JSC held that like oral evidence, an affidavit can be relied on “even if a paragraph which is severable is found to be inaccurate.” I consider this to be the correct position of the law, I would only wish to add for clarity that an affidavit in which it is not clear which averments are deponed from personal knowledge and which are from information or from belief, would for that reason not be severable, and would therefore, be defective in its entirety. I have therefore, considered affected affidavits in this petition accordingly.

I should however comment especially on affidavits required under rr.4 (7) and 8(3) (a) of the Election Petition Rules to accompany the petition and the answers thereto. The said rules require that those affidavits shall set out facts on which the petition is based, and the Respondent will rely on, as the case may be. Invariably however the parties have to rely heavily on factual information they receive from their agents and other witnesses, in order to comply with that requirement. In my view therefore in relation to those affidavits, 0.17 r.3 of the Civil Procedure Rules has to be applied with such modification as permits the Petitioner and the Respondent to include in those affidavits facts which they depone on such information.