[1999] UGHC 29

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 947 OF 1999 (Original Civil Suit No. 1076 of 1996)

# SUDHIR RUPARRELIA :::::::::::::::::::::::::::::::::::: $\tau \to \tau^N$

#### **VERSUS**

# G. MAGEZI & ANOTHER ::::::::::::::::::::::::: RESPONDENT/PLAINTIFF BEFORE THE HON. "USTICE RICHARD O. OKUMU WENGI.

# $RULING:$

This is an application for stay of execution of a decree by which the applicant was ordered to pay the defendant Shs. 20 Million. The application was made by Notice of Motion accompanied by the affidavit of advocate Innocent Ngobi Ndiko. L his deposition Advocate Ngobi Ndiko stated that a Notice of Appeal had been filed together with a formal request for proceedings in the trial court. This court was inclined to dismiss this application outright as there had been no undertaking whatsoever in the affidavit of the advocate in support of the Motion as regards security for payment of the decretal sum in case the appeal or further appeals failed. There was however another error or irregularity pointed out. The annextures to the affidavit which were essentially the letter requesting proceedings and the notice of appeal were not sealed by the Commissioner. This court accepted an undertaking made from the Bar to provide security for payment of the decretal sum and allowed the application reserving its opinion on the issue of the affidavit sworn by a Lawyer and its annextures.

This ruling therefore relates to the objection raised by counsel for the Respondent Mr. Wycliff Birungi in which he contended that by failing to provide verified annextures the affidavit filed in support of this application offended rule 8 of the First Schedule to the Commissioner for Oaths (Advocates) Cap 53 and should be rejected and the application dismissed. In answer Mr. William Byaruhanga learned counsel for the Applicant cited the recent decision of Hon Engwau J. A. in Uganda Corporation Creameries Ltd vrs Reamaton Ltd CA 44 of 1998. In that decision which Mr. Byaruhanga presented as the antidote to the objections of counsel the Justice said :

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"As long as an affidavit is properly sworn before a Commissioner for Oaths it is competent. It is also my very well considered view that such an affidavit may or may not have exhibits attached to it. In the event of exhibits having been attached to affidavits then all such exhibits must be sealed by the Commissioner for Oaths and must be marked..."

The learned Justice of Appeal applied the Blacks Law Dictionary definition of 'Exhibit' and concluded that the word exhibit cannot be interchangeably used with the word annexture as exhibit is used in a trial or hearing in proof of facts. In the case before that court the Judge held that no exhibits had been produced and exhibited and the annextures to the affidavit were not in dispute and the affidavits were still competent to support the Motion even if the annextures were detached. The court also said that rule 8 though mandatory was procedural and did not go to the root as to competence of affidavits.

Osborn's Concise Law Dictionary (6^th Edition) also defines Exhibit to mean " a document or thing produced for a witness or referred to in a deposition: or a document referred to in, but not annexed, to an affidavit. According to Strouds Judicial Dictionary (5^th Edition) exhibit is " a document or other thing shown to a witness and referred to in his evidence more particularly a document or thing referred to by affidavit. Any person entitled to see the affidavit is entitled to see the exhibit also (per Smith L. J. in Re: Hinchliffe (1895) 1 Ch. 117.

In the above case an application was made before the master for leave to join a lunatic as a co-plaintiff. In order to do this an affidavit in the Lunacy of the person was made by the Committee of the Lunacy to support the application. The opinion of counsel and the case filed were Documents annexed to this affidavities "annexed hereto and marked with letters C and D respectively." The affidavit and the documents were kept by the Committee but the executor of the lunatic who had since died, needed these to be produced. The Committee resisted production on grounds that the documents were documents of title, the property, not of the lunatic but of the Committee and that they are privileged. Herschell the Lord Chancellor ordering their production on the basis of the fact that the affidavit and the documents had been used to induce the master decide affecting the rights of the lunatic stated thus $\frac{1}{2}$ .

"The documents may be the property of the Committee prepared and taken for her own satisfaction. It may be that, being her property production of them could not have been ordered in the action. But she

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$\mathbf{I} \in \mathbb{R}^{n-1}$

chooses to bring them before the court herself as pat of her affidavit in order to induce the court to act in a manner which may affect and may prejudice the function rights. I cannot in the absence of authority, see any ground on which the lunatic, if she had become sane, or her executor if she were dead, could be refused inspection of these documents. They form as much part of the affidavit as if they had been actually adnexed to and filed with it..." (emphasis added).

The two Lord Justices of Appeal agreed. Lindley L. J. said :-

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"I agree. I think that the application for inspection of the case and opinion of counsel said to be annexed to the affidavit does not turn upon questions of property or privillege. It is only a matter of convenience that exhibits are not lodged in the master's office with the affidavit. In my opinion any one has also a right to see an exhibit referred to in the affidavit so as to be made part of it, just as if it were annexed to the affidavit. That is all I need to say on the question." (emphasis added)

For his part Smith L. J. stated:-

"When a person makes an affidavit and states therein that he refers to a document marked with a letter A, the effect is just the same as if he had copied it out in the affidavit. It is only made an exhibit to save expense. Therefore any person who is entitled to see the affidavit is equally entitled to see the see the document referred to therein." (emphasis added)

In a subsequent Case, however, Sloane vrs Britain SC Co. (1897) (1) QB 185 the Court of Appeal decided that in cases where a Plaintiff was suing in forma pauperis no order for inspection of the affidavit and the exhibits relied on to secure leave to sue could be made. The court decided that in such cases affidavits were meant for information of the Judge only and not for the opposite party and it was immaterial whether the case and opinion were made exhibits to the affidavit and liable to inspection as in Re: Hinchliffe's Case.

According to Halsburys Laws of England (3^rd Edition Vol. 15 at 467) the position is stated thus :-

$\mathcal{A} = \mathcal{A}$

"Documents referred to by affidavit must not be annexed to the affidavit or refered to in the affidavit as annexed but must be referred to as exhibits (0.38 rule 23 RSC). Every Certificate on an exhibit

signed by the Commissioner or officer before whom the affidavit is sworn must be marked with the short title of the Cause or matter. Whenever possible originals of documents should be exhibited. Certificates of birth, marriage or death should be exhibited separately."...

It seems that the above cases and statements attempt to explain the terms "exhibits" and "annextures" to affidavits and do so in respect of the rules and practice obtaining in England. No doubt the Law Dictionaries have condensed their definitions from those rules and the practice in England. It can be said that exhibits in England are lodged separately with the master but (with some exceptions), an adversary has a right to inspect them and cross examine a person on it if that person referred to such an exhibit in his affidavit. The rule we see dealing with namely Rule 8 in the First Schedule to Commissioners For Oaths (Advocates) Act Cap 53 provides as follows:

"8. All exhibits to affidavits shall be securely sealed thereto under the seal of the Commissioner and shall be marked with serial letters of identification. $\checkmark$ (emphasis added)

This rule has before U en discussed in several cases. In the case of Feroz Kassam vrs The Commissioner for Land Registration and Meera Investiments Ltd the learned Lady Justice Sebutinde of this court said –

"I respectfully diagree and emphasise that affidavits being special documents, the contents of which are deponed to as being the truth court cannot take chances in doing away with the provisions of the rule quoted above which was obviously intended to protect or guarantee the probative value. If the practice does exist amongst advocates, it is a shoddy practice that is unjustified and cannot be condoned by this court."

The judge found that as none of the annextures to the applicants affidavit complied with the rule (Rule 8) this rendered the affidavit the more irregular and incompetent. See also the decision of the Principal Judge of tis Court in Interid vrs Uganda Oxygen Ltd CS 1064 of 1995 and that of Justice E. Mwangusya in Re: George William Lutaya MA No. 1248 of 1998. Indeed there are many decisions of this court on this issue.

It is the view of this court that the rule seems to imply that exhibits to affidavits shall be securely sealed thereto, (namely to the affidavit), under the Seal of the Commissioner. This means that the exhibits must be sealed with wax as of old to the affidavit. In other words the practice in England

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where exhibits are lodged separately with the master does not obtain in Uganda. It would also imply that exhibits to affidavits must be annextures to the affidavit "securely sealed thereto under the Seal of the Commissioner ..." It is possible that while perhaps not all annextures to affidavits need be exhibits, exhibits must be annexed (or at least copies thereof) should be annexed and sealed etc. Sealing a document to an affidavit means annexing it securely.

This view is probably accepted by Engwau J. A. in his ruling cited to this court where he stated that :-

" In my view, whether or not those annextures have been securely sealed with the seal of the advocates who commissioned the affidavits thereof does not offend rule 8 because they were not exhibits produced and exhibited to a court during a trial or hearing in proof of facts. In any case the annextures in the present case are not in dispute. Even if those annextures were detached to affidavits thereof would still be competent to support the Notice of Motion."

It can therefore respectfully be said that where a deponent seeks by exhibits annexed to an affidavit to prove a fact such exhibit must be securely sealed to the affidavit under the seal of the Commissioner and shall be marked with the serial letters of identification. Failure to do this would diminish greatly the potency of the annextures and indeed of the affidavit to render probative value to an application that relies on certain facts to the point of worthlessness as evidence. This cannot be the purpose of affidavit evidence.

In the present case, perhaps because a Notice of Appeal and a request for proceedings were already on record the advocate deponent only annexed copies of these documents and as such they were not exhibits to prove facts. This was also poor practice in this courts view as there is a way of presenting records of court proceedings or pleadings and judgments as proof of them in an interlocutory or other proceeding. The court in deciding such a case should therefore take into account the nature of the documents annexed as exhibits to affidavits and their pivotal significance to the relief sought to correctly decide the effect of non compliance with the mandatory provisions of rule 8 to an application of this nature. This application has already been allowed, not because the court has endorsed the defiance of rule 8 but because the annextures were clearly not intended to be used as exhibits to prove any facts not before the court. This court would love to see the wax seals binding affidavits to their annextures (exhibits) but if such bonding were achieved otherwise in less solemn form but sealed by commissioner the

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exhibits will be given the serious attention they deserve. The ritual procedure for sealing apart it is the view of this court that in hearings where evidence is by affidavit, whether or not a deponent can be examined on his deposition, such evidence is substantive and not symbolic.

In the present case this Court granted a Stay of Execution as the Applicant has undertaken to deposit the decretal sum and interest thereon (said to be Shs. 58 Million or thereabouts) in this court in whatever form. He has stated that he shall exhaust his statutory right to appeal to get Justice. Accordingly this court c dered him to deposit the money within 21 days by way of a valid bankers cheque.

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RICHARD O. OKUMU WENGI

$\mathcal{A}^{\text{max}}$

Ag. JUDGE 23/09/1999. $\mathcal{A} = \mathcal{B}^{\top} \mathcal{A}$