Wakilii

DFCU Leasing Co Ltd v Nasolo Faridah (HCT-00-CC-MA 74 of 2007)

High Court · [2007] UGCOMMC 25 · 2007 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for consolidation of two civil suits, with preliminary objections raised by the respondent
Decision
Preliminary objections dismissed; application to proceed to hearing on merit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the misquotation of the statutory instrument number was a minor procedural irregularity that did not mislead the respondent and could be overlooked under Article 126 of the Constitution which requires courts to administer substantive justice without undue regard to technicalities. The failure to attach formal lists under Order 6 rule 2 did not warrant striking out the application where the documents were annexed to the supporting affidavit and there was no ambush of the opposing party. Both preliminary objections overruled.

Outcome

Preliminary objections dismissed; application to proceed to hearing on merit

Facts

The applicant DFCU Leasing Co Ltd brought an application by chamber summons seeking consolidation of two civil suits, HCCS No. 432 of 2006 and HCCS No. 536 of 2006. The application was brought under Order 11 rules 1 and 2 of the Civil Procedure Rules but mistakenly cited Statutory Instrument 75-1 instead of the correct Statutory Instrument 71-1. The application was accompanied by an affidavit sworn by Mrs. Ruth Sebatindira which had attached master lease agreements and vehicle lease schedules. The respondent Nasolo Faridah raised two preliminary objections: first, that the application cited a non-existent law; and second, that the application failed to comply with Order 6 rule 2 CPR by not attaching lists of witnesses, documents and authorities to be relied upon.

Issues

  1. Whether the application was brought under the correct statutory instrument and could proceed despite citing Statutory Instrument 75-1 instead of 71-1.
  2. Whether non-compliance with Order 6 rule 2 of the Civil Procedure Rules rendered the application defective for failure to attach lists of witnesses, documents and authorities.

Orders

  • The preliminary objection is overruled.
  • The application shall proceed to be heard on its merit.
  • Costs shall be bound by the order as to costs in the main application.

Rules and key headnotes

Civil Procedure — Procedural Irregularities — Misquotation of Statutory Instrument — Application of Article 126 of the Constitution
Where an application is brought under the correct procedural rule but mistakenly cites the wrong statutory instrument number, this is a minor procedural irregularity that can be overlooked under Article 126 of the Constitution where it does not mislead the opposing party or prevent the court from hearing the application on its merits and administering substantive justice.
Civil Procedure — Pleadings — Order 6 rule 2 Requirements — Lists of Witnesses, Documents and Authorities
The requirement under Order 6 rule 2 of the Civil Procedure Rules to attach lists of witnesses, documents and authorities is subject to their being necessary for the particular pleading. Where documents are already annexed to the supporting affidavit and the witness is the deponent, the failure to attach formal lists does not warrant striking out the application as there is no ambush of the opposing party.
Civil Procedure — Substantive Justice — Test for Overlooking Procedural Defects
The test for whether a procedural irregularity can be overlooked is whether the irregularity is serious enough to prevent the court from hearing the application and determining it on its own merit. If the non-observance of procedural rules would not lead to injustice, the court should be willing to overlook it.

Legislation cited (4)

Cases cited (9)

  • Development Finance Company of Uganda Ltd v Stanbic Bank Uganda Ltd & Another (CC Misc. Application No. 88 of 1999)
  • Alcon International Vs Kasirye Byarugaba & Co Advocates (1995) III KALR 91
  • Besigye v Museveni & Electoral Commission (SC Electoral Petition No. 1 of 2001)
  • Intraship (U) Ltd Vs GN Combine (U) Ltd (1994) VI KALR 42
  • Remonde Enterprises Ltd v Florence Atto & Another (HC Miscellaneous Application No. 403 of 2006)
  • Kenfreight (U) Ltd v Henry Sebuunya (HC Misc. Appl. No. 353 of 1998)
  • Sule Pharmacy Ltd v The Registered Trustees of the Khoja Shia Hana Shar Janati (HC Misc. Appl. No. 1 of 1999)
  • Rajab Kyangwa v Pallisa Town Council & Another (HC Misc. Appl. No. 19 of 2000)
  • Richard Mwirumubi v Jada Ltd (HCCS No. 978 of 1996)

Full judgment

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

DFCU Leasing Co Ltd v Nasolo Faridah (HCT-00-CC-MA 74 of 2007) [2007] UGCommC 25 (22 March 2007)
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.