High Court Reaffirms The Law on Defective Affidavits and Late Amendment of Pleadings

Waboga David
Jul 4
3 min read

Facts

This application was brought under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act, and Order 6 Rules 19 & 31 and Order 41 of the Civil Procedure Rules, S.I. 71-1.

The Applicants sought leave to amend their Written Statement of Defence, Counterclaim, and Witness Statements. The application was supported by an affidavit deponed by the 1st Applicant, Mr. Lubega Ahmed Kasumba, on behalf of the 2nd to 5th Applicants.

The Respondents, led by Ms. Badda Elaisha Grace, opposed the application, raising two key objections:

The supporting affidavit was allegedly defective for lack of valid written authorization from the co-applicants.
The proposed amendments, sought after the Respondents had closed their case, were said to be late, prejudicial, and made in bad faith.

Court’s Determination on Affidavit Validity and Authorization

Issue 1: Whether the affidavit was defective for lack of authorization

The Respondents relied on Order 1 Rule 12 of the Civil Procedure Rules and the case of Taremwa Kamishana Tomas v Attorney General to argue that the affidavit was invalid. They contended that the written authority attached was outdated and related to a different application.

However, the Court rejected this argument and held that the affidavit was valid as it was deponed in respect of matters arising from the main suit (Civil Suit No. 968 of 2020). Relying on Namutebi Matilda v Ssemanda Simon and Dr. Lam Lagoro James v Muni University HCMC No. 07 of 2016, the Court emphasized that affidavits are evidence and do not necessarily require authorization from co-parties. Modern precedent dispels the notion that lack of authorization renders affidavits incurably defective.

🔹 Holding

The preliminary objection was overruled. The affidavit was admissible.

Court’s Determination on Leave to Amend Pleadings

Issue 2: Whether there were sufficient grounds for amendment

The Applicants sought to change their pleading from “adverse possession” to “lawful purchase” of the suit land, arguing that the initial position was a legal misrepresentation made by former counsel.

The Court evaluated the request under Order 6 Rule 19 of the Civil Procedure Rules and the principles laid down in Gaso Transport Services (Bus) Ltd v Martin Adala Obene, SCCA No. 4 of 1994, which permit amendments so long as:

They are not made in bad faith.
They do not prejudice the other party.
They do not contravene any law.
They serve to resolve the real issues in controversy.

The Court held:

The Application was brought too late, after the Plaintiffs had presented their entire case and the Court had closed their side. The proposed change introduced a new factual basis—from adverse possession to lawful purchase, which the Respondents would not have the opportunity to rebut. This amounted to trial by ambush, violating Article 28(1) of the Constitution (right to a fair hearing). The omission of a proposed amended pleading, while not fatal, hindered the Court’s ability to properly assess the amendment’s scope.

🔹 Holding

The amendment sought was prejudicial, made in bad faith, and aimed at derailing trial.

The application was dismissed with costs.

Practice Guidance

a) Affidavits and Representation

A party may depone to an affidavit on behalf of others if there is a general authority covering the matter at hand, especially if it arises from the same suit.
Defects in affidavits arising from representation are not fatal, provided the deponent has personal knowledge of the facts.

b) Timeliness and Scope of Amendments

Amendments to pleadings are not absolute and will be denied if:

Sought after the opposing party has closed their case.
They introduce new, unpleaded facts.
They prejudice the opposing party’s opportunity to respond.
They appear to be tactical moves to prolong litigation or rectify strategic errors post facto.

c) Trial by Ambush Is Impermissible

Where amendments deny the other side a fair opportunity to rebut, they violate the right to a fair hearing under Article 28(1) of the Constitution.