Court name
HC: Civil Division (Uganda)
Judgment date
15 March 2014

Ojangole & Anor v Jerome Otim (Miscellaneous Application-2013/41) [2014] UGHCCD 40 (15 March 2014);

Cite this case
[2014] UGHCCD 40

IN THE HIGH COURT OF UGANDA AT SOROTI

MISC. APPLIC. 41 OF 2013

ARISING FROM CIVIL APPEAL  10 OF 2013

ARISING FROM SOROTI LAND CLAIM 28 OF 2008

1.OJANGOLE WILSON

2. DIFAS MUCHANAGANDI...............................                                                                                                               APPLICANTS

                                                                                                                                VERSUS

JEROME OTIM OULE..........................................                                                                                                                 RESPONDENT

 

                                                                                                        BEFORE HON. LADY JUSTICE H. WOLAYO

                                                                                                                                            RULING

In this application, the applicants through their advocates Ms Isodo & Co. Advocates apply to be allowed to adduce additional evidence . The application is supported by affidavit of  Ojangole Wilson .  It is brought under section 80(1)  (d) & 98 of the CPA, order 43 r 22 and order 52 rr 1 &2 of the CPR. 

The main ground of the application is that the evidence could not be adduced at the trial due to the floods that had covered the graves on the 2nd applicant’s relatives.

Mr. Otim for the respondent opposed the application . Counsel sought to rely to the affidavit in reply of Levi Otim. This affidavit was attacked by Mr. Isodo for  being defective.

Counsel contends  that the affidavit is thumb printed which implies the deponent is an illiterate and under  sections 2 and 3 of the Illiterates Protection Act, the person who prepared the affidavit is  obligated to indicate that the affidavit has been read back to the illiterate.

Mr. Otim for the respondent submitted that the affidavit is sworn by a literate person. 

I find it strange that a person who read and understood the affidavit  thumb printed  the affidavit instead of  appending his signature. The presumption is that such a person is an illiterate and therefore the writer of the document must comply with sections 2 and 3 of the Illiterate Protection Act. Non- compliance renders the affidavit defective.

Counsel further submitted that the affidavit was sworn  in Lira before an advocate based in Soroti.  This anomaly renders the affidavit  unreliable .

For the above reasons, there is no affidavit in reply.

Turning to the grounds of the application, the fact that the applicant affirms that  graves of the applicants’ relatives were not seen by the trial court  is a legitimate reason to allow additional evidence to  be adduced.

Consequently, the application  to adduce additional evidence is allowed with costs in the cause.

DATED THIS  15TH OF  MARCH 2014.

 

HON. LADY JUSTICE H. WOLAYO