Wakilii

Italian Asphalt Haulage Ltd & Ors v Assist (U) Ltd (Civil Appeal No. 9 of 2000 ) (Civil Appeal No. 9 of 2000)

High Court · [2002] UGHC 60 · 2002 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court ruling on application to cancel Special Certificate of Distress
Decision
Appeal dismissed; Chief Magistrate's ruling upholding cancellation application stands; matter remitted to lower court to complete hearing of the Notice of Motion on substance

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that an affidavit is not fundamentally defective where a small portion of annexed receipts (10%) do not relate to the subject matter, provided the dubious receipts can be severed from the good ones and are not vital to proving the core case. Further held that while an affidavit accompanying an originating (non-interlocutory) application offends Order 17 rule 3 if it contains hearsay evidence, this does not render the affidavit fundamentally defective where the hearsay can be safely severed and is confirmed by direct eye-witness evidence in other affidavits. Order 17 rule 3(2) provides for costs sanctions rather than rejection of the affidavit. Article 126(e) of the Constitution requires substantive justice without undue regard to technicalities. Appeal dismissed.

Outcome

Appeal dismissed; Chief Magistrate's ruling upholding cancellation application stands; matter remitted to lower court to complete hearing of the Notice of Motion on substance

Facts

The first appellant leased premises on Block 265, Plot 339 Bunamwaya to the respondent. A dispute arose over outstanding rent. The respondent vacated the premises and moved its property to Nalukolongo. On instructions from the first appellant, the second appellant obtained a Special Certificate of Distress under the Distress for Rent (Bailiff's) Act to levy distress on the respondent's moveable property. The second appellant proceeded to seize the respondent's property (which was no longer at the leased premises) and advertised it for sale. The respondent applied to the Chief Magistrate's Court for cancellation of the Special Certificate. The appellants raised four preliminary objections, all of which they lost. The appellants appealed the Chief Magistrate's ruling on the preliminary objections to the High Court.

Issues

  1. Whether an affidavit is fundamentally defective where some receipts annexed to it do not relate to the matters they purport to prove.
  2. Whether an affidavit accompanying an originating application offends Order 17 rule 3 of the Civil Procedure Rules where it contains hearsay evidence.
  3. If an affidavit offends Order 17 rule 3, whether that renders the affidavit fundamentally defective.

Orders

  • Appeal dismissed with costs.
  • The learned Chief Magistrate's ruling dated 19th January 2000 is upheld.

Rules and key headnotes

Evidence — Affidavits — Defective affidavit — Annextures containing some receipts unrelated to subject matter — Whether fundamentally defective
An affidavit is not fundamentally defective on account of annexed receipts that do not relate to the subject matter where such receipts constitute only a small portion of the total annextures, can easily be separated from the apparently good receipts, and are not vital to proving the core case.
Civil Procedure — Affidavits — Order 17 rule 3 — Hearsay evidence in affidavit supporting originating application — Whether offends Order 17 rule 3
Order 17 rule 3(1) of the Civil Procedure Rules requires that affidavits be confined to facts within the deponent's own knowledge, except on interlocutory applications where statements of belief may be admitted. An affidavit accompanying an originating application (where final rights are to be determined) that contains hearsay or matters based on belief offends Order 17 rule 3(1).
Civil Procedure — Affidavits — Hearsay evidence — Whether affidavit fundamentally defective — Remedy under Order 17 rule 3(2)
An affidavit that offends Order 17 rule 3(1) by containing hearsay is not fundamentally defective and should not be thrown out. Order 17 rule 3(2) provides that the costs of such affidavit shall be paid by the party filing it unless the court otherwise directs. This approach is consistent with Article 126(e) of the Constitution requiring substantive justice without undue regard to technicalities.
Evidence — Hearsay — Reliability — Confirmation by direct evidence
Where an affidavit contains hearsay evidence but is accompanied by other affidavits containing direct eye-witness evidence that confirms the reliability of the hearsay, and where the hearsay can safely be severed without destroying the heart of the case, the affidavit is not fundamentally defective.
Civil Procedure — Appeals — Premature appeal from ruling on preliminary objections — Proper course of action
It is imprudent to appeal to the High Court after merely losing preliminary objections in a lower court. The proper course is to proceed with the substance of the application and appeal once on all matters if dissatisfied with the final outcome, rather than appealing piecemeal on preliminary matters.

Legislation cited (4)

Cases cited (2)

  • Bitaitana v Kananura [1971] 11CR 31
  • Besigye v Museveni (Presidential Election Petition No. 1 of 2001)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Italian Asphalt Haulage Ltd & Ors v Assist (U) Ltd (Civil Appeal No. 9 of 2000 ) (Civil Appeal No. 9 of 2000) [2002] UGHC 60 (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.