Busonya & 2 Ors Vs Giruli (CIVIL APPEAL NO.11 OF 2017) [2018] UGSC 50 (28 September 2018);


Search Summary: 

This was a second appeal from the orders of
the court of appeal ordering a re-trial of the
case in the high court. The background is that
appellant sued on behalf of the estate for
recovery of suit money and at trial; the judge
held that the appellant were entitled to such
pay as the affidavit of the respondent had been
fatally defective as it didn’t disclose the

acknowledgement of payment on the loan sum.
On appeal, the court of appeal held that the
defects with the affidavit in support were not
fatally defective. That the affidavit would be
cured by article 126 (2) (e) and ordered the
matter to be retried by the high court.
The appellant contests the re trial order on the
grounds of error of the holding of the justices
of appeal on the effect of the non-
commissioned affidavit annexures, improper
evaluation of evidence and the order of a retrial
that allegedly caused a miscarriage of justice.

Headnote and Holding: 

The court held that the failure of the
commissioner for oaths to seal and identify the
annexures doesn’t ipso facto make the affidavit
fatally defective and inadmissible. That as it
was a fact on record that the affidavit had
complied with the rules, it shouldn’t have been
struck altogether. That in the circumstances,
the justice of the case required the
determination of the allegation of fraud and
hence the retrial wasn’t erroneous.


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