THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA ATMENGO CIVIL APPLICATION NO. 1 OF 2007 BETWEEN ATTORNEY GENERAL.....................................................................................................

APPLICANT A N D A.K.P.M.LUTAYA................................................................................. RESPONDENTS

RULING OF THE COURT This is an application for extension of time within which to file a memorandum of appeal. The application is made by Notice of Motion

brought under Rules 5 and 41(2), 42(2) and 2(2) of the Judicature (Supreme Court Rules) Directions Section 1. 13-11. application is purportedly

supported by an affidavit by Joseph Matsiko, Acting Director of Civil Litigation in the Ministry of Justice & Constitutional Affairs. This affidavit is purportedly sworn on 7th February 2007. I will come to it later in this ruling. The grounds for the application are briefly set out in the main body of the application in 8 paragraphs. But the application states:

"TAKE FURTHER NOTICE that the grounds for this application are contained in the affidavit of Joseph Matsiko, the Acting Director of Civil Litigation, which shall be relied upon at hearing of this application briefly are:" C l e a r l y t h e a f f i d a v i t b y M r . M a t s i k o i s crucially important as it contains in full the grounds upon which this application is made.

Briefly, the thrust of the grounds for the application as contained in the

Notice of Motion is that the delays in handling the f i l e a n d f i l i n g t h e n e c e s s a r y c o u r t documents were caused by the resignation of t h e S t a t e A t t o r n e y w h o w a s h a n d l i n g t h e case, and the failure by the Civil Registry staff to forward the file to the Director Civil Litigation in time.

The application is replied to and opposed by the re s ponde nt w ho f ile d a n a f f ida v it in reply sworn on 15th March 2007. He gives a history of the case and applications that h a v e b e e n m a d e , i n c l u d i n g o n e w h e r e t h e applicant had sought an extension of time within which to file and serve a Notice Appeal, only to withdraw it when it proved that in fact the applicant had indeed filed and served a Notice of Appeal on re s p o nd e nt's coun sel. Th e af f idav it also points out that there is currently a pending application filed by the respondent on 20th December 2006 to strike out the applicants Notice of Appeal. This is pending before a f u l l B e n c h o f t h e S u p r e m e C o u r t . T h e affidavit in reply also challenges the application as being

incompetent for being supported by an "affidavit full, f a l s e h o o d s , c o n t r a d i c t i o n s a n d d e l i b e r a t e lies.'

As pointed out,' the application was f under a number of Rules of this Court. Rule 5 allows the Court to extend time if there is "sufficient reasons" to do so. The' Rule itself does not define "sufficient reason, b u t o n e h a s t o r e a d i t t o g e t h e r w i t h R u l e , 42(1) and 43(1). Rule 42(1) states in part, .all applications to this court shall be by motion, which shall state the grounds of application."

Rule 43(1) states:"Every formal application to the Court shall be supported by one or more affidavits of the applicant or some other person or persons having knowledge of the facts." (emphasis

added). Clearly then, having stated the grounds the body of the application, the applicant must proceed to show court by sworn evidence t h a t t h e r e is sufficient reason why his application should be allowed. The requirement to support the application with an affidavit or affidavits is mandatory.

The question that now arises is whether applicant's application was supported by affidavit as required by Rule 43(1). This court p o i n t e d o u t t o c o u n s e l f o r t h e applicant that the purported affidavit by Mr. Matsiko had not been commissioned by a Commissioner for Oaths. Counsel agreed that the "affidavit" was not sworn and conceded t h a t i t w a s t h e r e f o r e n o t a n a f f i d a v i t . A m a z i n g l y h e c o n t i n u e d t o p r e s e n t h i s arguments based on that same affidavit.

This matter was also taken up by counsel for t h e r e s p o n d e n t i n h i s r e p l y w h e n h e contended very strongly that an unsworn affidavit is not an affidavit. Therefore, he submitted, the application was not supported b y evidence and therefore did not show

sufficient reason upon which the court could exercise its discretion to grant the extension of time.

Counsel

cited

ERIC

TIBEBAGA

VS

Fr.

NA R S E N S IO

B E G U M I S A & O T H E R S , C I V I L APPLICATION NO. 18/2002 where Kato, JSC (as he then was) held that an application not s u p p o r t e d b y a v a l i d a f f i d a v i t m u s t b e dismissed as there would be no evidence to establish that the applicant had sufficient reasons within the meaning of the Rule for his failure to file the required documents in time.

C o u n s e l a l s o c i t e d S e c t i o n 5 o f t h e Commissioners for

O a t h s ( A d v o c a t e s ) A c t (Cap. 5), and sections 5 and 6 of the Oaths Act, Cap. 19. Section 5 of the Commissioners for Oaths states as follows:"Every Commissioner for Oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat attestation at what place and on what date the oath or affidavit is taken or made." This is totally missing from Mr. Matsikos affidavit. Section 6 of the Oath Act also states: "Every Commissioner for Oaths of notary public before whom any oath of affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date or affidavit is taken is made. I n m y v i e w , t h e f a i l u r e b y M r . M a ts i k o t o swear his affidavit is not just a matter of a procedural anomaly upon which this court c a n e x e r c i s e i t s d i s c r e t i o n a r y p o w e r

u n d e r

R u l e 2 ( 2 ) a s i n v i t e d b y c o u n s e l f o r applicant. I t i s a

m a t t e r o f s u b s t a n t i v e law that w hat he filed is not an affidavit in law . Court cannot be convinced that it has sufficient reason merely on statements contained in the body of the application. I t h a s t o b e c o n v i n c e d b y s w o r n a f f i d a v i t evidence. This was not there in this case. In the result I find that the application is incompetent and I accordingly strike it out with costs to the respondent.

Dated at Mengo this29thday of.March,..2007.

Bart M. Katureebe JUSTICE OF THE SUPREME COURT