Court name
Commercial Court of Uganda
Judgment date
19 September 2002

Fred Kigozi v Paul Musoke (Miscellaneous Application-2002/509) [2002] UGCommC 16 (19 September 2002);

Cite this case
[2002] UGCommC 16


THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)

MISC. APPLICATION NO. 509 OF 2002
(Arising out of
Civil Suit No. 461 of 2002)
FRED KIGOZI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT/DEFENDANT
VERSUS
PAUL MUSOKE :::::::::::::::::::::
:::::::::::::::::::::::::::::::::: RESPONDENT/PLAINTIFF

BEFORE: THE HON. MR. JUSTICE R.O. OKUMU WENGI.


RULING:
When this application came up counsel for Respondent objected to the affidavit in support of the motion. The affidavit was not dated. His contention was that such a document is not a valid affidavit and thus the motion is purported to support had to be struck out.
For the Applicant it was argued that failure by the Commissioner who administered the Oath to date the jurat was a breach of the Commissioner’s statutory duty which breach should not be visited on the deponent/Applicant.
I would normally accept to correct a silly mistake and in some cases to rectify a predated affidavit by ordering it’s redating. In this was substantial justice is accessed by both parties. However, in this case I have not been asked to order a dating of an undated affidavit. Rather counsel is of the view that the fault lies with the officer who commissioned the oath. I do not agree. From the typing it is clear that no space was left blank for the date to be inserted by the Commissioner. This mistake was not made in the affidavit of service commissioned by Wilfred Niwagaba and filed in court on 12/9/2002.
It is also not the case with the affidavit in Rejoinder. There is no supplementary affidavit that would support the application even if the original affidavit in support fell on the wayside. The affidavit in Rejoinder is not such affidavit.
Secondly, it is quite clear that the impugned affidavit was endorsed as ‘drawn and filed by’ counsel for the applicant. The fault with the affidavit lies with no space for dating and subsequently filed an undated affidavit. I have not been asked to avoid visiting the mistake of counsel upon the litigant. I have rather been asked to lay the blame on the Commissioner. This is in my view the correct representation of the problem. I am on this ground alone unable to intervene responsible professionally for his negligence in the manner he drew and proceed to file an affidavit with no dating. I will reject this affidavit. I also reject annexture A to the affidavit such that even if the affidavit had survived the annexture would not. This is because the annexture was not verified as required by the law. Its evidential value as a ground for supporting the application would be nil.
In the result I must strike out this application as having no supporting documents. I do so with costs to the Respondent, with the consequence that the Plaintiff be entitled to a decree as prayed for in the suit.

R.O. OKUMU WENGI
JUDGE
20/09/2002.

12.15 p.m. :-    Kabito Karamagi for Respondent
                 Rose Emeru Court Clerk
Court :- Ruling read in open court n the presence of above.
JUDGE
20/09/2002.