THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT FORT PORTAL
CIVIL MISC. APPLICATION NO. DR. MFP 1/89
(Original Civil Appeal No. MFP 33/88)
(Original Kibiito Civil Suit No. MFP 5/88)
PAULO NGUWA ::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT/APPELLANT
JOBU TUGUME ::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS
BEFORE: THE HONOURABLE MR. JUSTICE I MUKANZA
This is an application by notice of motion brought under section 232 (3) and 4 of the Magistrate Courts Act 1970. Seeking for leave to appeal to this court the first application having been refused by the learned Chief Magistrate on 1st June 1989 and the judgment sought to be appealed against was dated 8th December, 1988.
Before the application was heard the learned counsel representing the respondent raised some preliminary objections to the application. He was overruled and the court proceeded to entertain the application on its merits. I now give my reasons Mr. Nyakabwa submitted that there are certain matters which he felt should not have come in at all.
He was objecting to the affidavit attached to the motion. It was not an affidavit to the substance. It was a statement of objections or grounds of appeal why the learned counsel representing the applicant/appellant was attacking the judgment or the ruling of the court. An affidavit should be a statement of evidence basically. I saw or heard this. It is some kind of hearsay which is admitted. Points of law are not necessary. He referred me to the case of Uganda vs. Commission of Prisons Exp Matovu Re. 1966 Ea P.514.
He concluded that the affidavit should not be accepted since the grounds embedded in the motion was sufficient. He prayed that they follow the grounds as put in the motion.
Mr. Zehulikize the learned counsel representing the applicant submitted that that was not the first time. Mr. Nyakabwa had raised the objection. The learned Chief Magistrate made no mention to that objection in his ruling. The application was made under section 232 (3) (4) of the MCA 1970 and the section did not set up form of motion but as a matter of practice the form of application is by notice of motion accompanied by affidavit. He contended that not every notice of motion must be supported by an affidavit and perhaps that was the objection being raised by the learned counsel representing the applicant. He made the affidavit after perusing the judgment of the Chief Magistrate. It was not true that the affidavit was deposed to facts end evidence alone. having studied the judgment he vas convinced to the best of his knowledge and belief that there was very important point of law which caused miscarriage of justice and that warranted consideration by this court.
Order 17 r. 3 of the Civil Procedure Rules states that affidavit shall be confined to such facts as a deponent is able of his own knowledge to prove except interlocutory applications on which statement of his belief may be admitted provided the grounds thereof are stated
In some of his affidavit he swore in support of the application Mr. Zehulikize averred to matters like:-
“That the learned Chief Magistrate erred in failing to find that the plaintiff/respondents had no locus standi as they did not have letters of administration in respect of the alleged estate of Ruhweza and that the learned Chief Magistrate never evaluated the evidence before him and thus caused a miscarriage of justice.”
I am of the view that Mr. Zehukirize
was deposing to facts which he was able of his own knowledge to prove after perusal of the records. And even if I might not be correct in so finding the grounds as given in the notice of motion were sufficient in the meselves
to enable this court to dispose of the application. I was referred to the case of Uganda v Commissioner of Prisons Exparte Matovu
1966 EA 514 the learned counsel representing the respondent was of the view that the affidavit sworn by Mr. Zehulikize
should not be accepted. In the latter case the applicant and his
counsel swore affidavit. The applicant was applying for a writ of Habeas corpus and subjiciendum
because he was unconstitutionally
and unlawfully being detained.