Wakilii

Italian Asphalt Haulage Ltd & Anor v Assist (U) Limited (Civil Appeal 9 of 2000)

High Court · [2002] UGHC 126 · 2002 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from ruling of Chief Magistrate's Court on preliminary objections in application to cancel Special Certificate of Distress
Decision
Appeal dismissed; matter remitted to Chief Magistrate's Court to proceed with the substantive hearing of the Notice of Motion

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An affidavit accompanying a non-interlocutory application that contains hearsay evidence and matters of belief offends Order 17 rule 3(1) CPR, which requires affidavits to be confined to facts within the deponent's personal knowledge except on interlocutory applications. However, such an affidavit is not fundamentally defective where the hearsay can be severed and direct eye-witness evidence from other affidavits confirms its reliability. Article 126(e) requires substantive justice without undue regard to technicalities. The appropriate remedy is a costs order, not striking out the affidavit.

Outcome

Appeal dismissed; matter remitted to Chief Magistrate's Court to proceed with the substantive hearing of the Notice of Motion

Facts

The 1st appellant rented premises on Block 265 Plot 339 Bunamwaya to the respondent. A dispute arose over outstanding rent. The respondent vacated and moved its property to Nalukolongo. On instructions of the 1st appellant, the 2nd appellant obtained a Special Certificate of Distress under the Distress for Rent (Bailiffs) Act s.3 to levy distress on the respondent's moveable property. The 2nd appellant seized property from the new location at Nalukolongo and advertised it for sale. The respondent applied to the Chief Magistrate's Court to cancel the Special Certificate. The appellants raised four preliminary objections, all of which were dismissed by the Chief Magistrate on 19th January 2000. The appellants appealed to the High Court against that ruling on preliminary objections.

Issues

  1. Whether Laery's affidavit dated 10th September 1999 was fundamentally defective on account of receipts which did not relate to repairs of the suit premises.
  2. Whether Laery's affidavit offended Order 17 rule 3 of the Civil Procedure Rules.
  3. If the affidavit offended Order 17 rule 3, whether that fact rendered the affidavit fundamentally defective.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondent.
  • Chief Magistrate's ruling dated 19th January 2000 upheld.

Rules and key headnotes

Evidence — Affidavit Evidence — Hearsay in Affidavits — Interlocutory vs Non-interlocutory Applications
Order 17 rule 3(1) of the Civil Procedure Rules requires affidavits to be confined to facts within the deponent's personal knowledge, except on interlocutory applications where statements of belief may be admitted provided grounds are stated. An affidavit accompanying a non-interlocutory application that contains hearsay or matters of belief offends Order 17 rule 3(1).
Evidence — Affidavit Evidence — Effect of Non-compliance with Order 17 Rule 3 — Severance
An affidavit that offends Order 17 rule 3(1) by including hearsay is not automatically fundamentally defective. Order 17 rule 3(2) provides that the remedy for unnecessarily setting forth hearsay is a costs order against the party filing the affidavit, not striking out the affidavit. Where hearsay can be safely severed without destroying the heart of the case, and where direct eye-witness evidence from other affidavits confirms the reliability of the hearsay, the affidavit should stand.
Civil Procedure — Constitutional Principles — Substantive Justice Over Technicalities
Article 126(e) of the Constitution requires that substantive justice be administered without undue regard to technicalities. A technical defect in an affidavit should not result in striking it out where other evidence supports the substance of the case and where severance of the defective portions is possible.
Evidence — Affidavit Evidence — Annexures — Effect of Inclusion of Irrelevant Documents
Where a small portion of receipts annexed to an affidavit do not relate to the matter in issue but the majority support the deponent's case, and where the irrelevant receipts can be separated from the truthful ones, the affidavit is not fundamentally defective on account of the irrelevant annexures.

Legislation cited (5)

Cases cited (2)

  • Bitaitana vs Kananura [19^ HCB 3^
  • Besigye v Museveni (Presidential Election Petition No. 1 of 2001)

Full judgment

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Italian Asphalt Haulage Ltd & Anor v Assist (U) Limited (Civil Appeal 9 of 2000) [2002] UGHC 126 (28 May 2002)
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.