Wakilii

CTM Uganda Ltd & 2 Ors v Allmuss Properties Uganda Ltd & 3 Ors (Miscellaneous Application No. 1389 of 2017)

High Court · [2018] UGCOMMC 32 · 2018 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal to the Court of Appeal against the decision in Miscellaneous Application No. 904 of 2015 (which itself arose from Civil Suit No. 467 of 2013)
Decision
Application for leave to appeal dismissed following striking out of supporting affidavit

Observed later treatment

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Holding

The court struck out the supporting affidavit where the deponent, who had sworn the affidavit on his own behalf and purportedly on behalf of others without demonstrating authority, failed to appear for cross-examination despite material contradictions. The contradictions centered on whether the 4th Respondent had authority to enter the consent judgment — the central issue in the application. Since the entire affidavit hinged on this disputed question of authority, little would survive severance. With no evidential foundation remaining, the application for leave to appeal was dismissed with costs.

Outcome

Application for leave to appeal dismissed following striking out of supporting affidavit

Facts

The applicants (CTM Uganda Limited, Prime Holdings Limited, and Joseph Magezi) sought leave to appeal against a High Court decision in Miscellaneous Application No. 904 of 2015. That earlier application had sought to set aside a consent judgment entered in Civil Suit No. 467 of 2013. The consent judgment, signed by the 4th Respondent on behalf of the 1st Applicant, required CTM Uganda to pay USD 1,650,000 to the Italtile Group and to phase out use of Italtile intellectual property. The applicants had argued the consent was entered without authority, but the court in Misc. Application No. 904 of 2015 found that a resolution dated 12 November 2005 had empowered the 4th Respondent to deal with the 1st Applicant's liabilities, shares, and assets. In the present application for leave to appeal, the 3rd Applicant Joseph Magezi swore the supporting affidavit, stating he did so on his own behalf and on behalf of his brothers Timothy and Paul Magezi (shareholders in the 1st Applicant). The affidavit asserted that the consent was entered without authority, contradicting the earlier court finding about the resolution. The Respondents sought leave to cross-examine the 3rd Applicant on these contradictions. The court granted leave for cross-examination, but the deponent failed to appear.

Issues

  1. Whether the supporting affidavit should be struck out where the deponent failed to appear for cross-examination despite material contradictions.
  2. Whether an application for leave to appeal can proceed without evidential support after the striking out of its supporting affidavit.

Orders

  • The supporting affidavit is struck out.
  • The application for leave to appeal is dismissed.
  • Costs awarded to the Respondents.

Rules and key headnotes

Affidavit Evidence — Cross-Examination — Consequences of Non-Appearance
Where a deponent fails to appear for cross-examination after leave has been granted on the basis of material contradictions in the affidavit, the court may strike out the affidavit.
Affidavit Evidence — Severance — Central Contradictions
Although faulty paragraphs in an affidavit may be severed to preserve unaffected paragraphs, where the central issue of the application is the subject of the contradiction and almost the entire affidavit hinges on that issue, little if anything survives severance.
Applications — Evidentiary Basis — Consequence of Struck Affidavit
An application by notice of motion that is left without evidential support following the striking out of its supporting affidavit must be dismissed.

Cases cited (1)

  • Col. (Rtd) Dr. Kizza Besigye v Museveni Yoweri Kaguta and Electoral Commission (Election Petition No. 1 of 2001)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

CTM Uganda Ltd & 2 Ors v Allmuss Properties Uganda Ltd & 3 Ors (Miscellaneous Application No. 1389 of 2017) [2018] UGCommC 32 (17 September 2018)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.