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

u n d e r

i t s

d i s c r e t i o n a r y

p o w 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