Wakilii

Kamulindwa v Alpha Gama Engineering Ltd (HCT – 01 – CV – CA No. 025 of 2015)

High Court · [2017] UGHCCD 22 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court ruling dismissing application for leave to appear and defend summary suit
Decision
Lower court ruling dismissing application for leave to appear and defend set aside; matter remitted for consideration of leave application on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a defect in commissioning an affidavit—where the affidavit is sworn in one place but the Commissioner for Oaths has a different postal address—is not an incurable defect but a mere technicality that can be rectified. The trial Chief Magistrate erred in dismissing the application for leave to defend on this ground. The court further held that the appellant's affidavit disclosed triable issues warranting leave to appear and defend the summary suit. Appeal allowed; lower court decision set aside.

Outcome

Lower court ruling dismissing application for leave to appear and defend set aside; matter remitted for consideration of leave application on merits

Facts

The respondent instituted a summary suit against the appellant. The appellant applied for leave to appear and defend. The application was dismissed on a preliminary point of law by the Chief Magistrate at Fort Portal on 4 September 2013. The Chief Magistrate held that the affidavit in support of the application was incurably defective because it was sworn in Fort Portal but commissioned by a Commissioner for Oaths with a Kampala address. Dissatisfied with this dismissal, the appellant appealed to the High Court.

Issues

  1. Whether the trial Chief Magistrate erred in dismissing the appellant's application for leave to appear and defend on the ground that the supporting affidavit was incurably defective for having been sworn at Fort Portal and commissioned by a Commissioner for Oaths with a Kampala address.
  2. Whether the trial Chief Magistrate erred in not finding that the appellant's application disclosed sufficient facts or triable issues to justify granting leave to appear and defend the summary suit.
  3. Whether dismissing the application amounted to a denial of fair hearing.

Orders

  • Appeal allowed.
  • Decision of the lower court set aside.
  • Costs in the cause.
  • Right of appeal explained.

Rules and key headnotes

Affidavits — Commissioning — Defects in Place of Commissioning
A discrepancy between the place where an affidavit is sworn and the postal address of the Commissioner for Oaths who commissions it is not an incurable defect. Such a defect is a mere technicality that may be rectified by the court and should not form the basis for dismissing an application.
Commissioner for Oaths Act — Section 5 and Section 6 Requirements
While Section 5 of the Commissioner for Oaths Act requires a Commissioner to state truly the place and date where an oath or affidavit is taken, a postal address of the Commissioner does not necessarily refer to the place where the Commissioner administered the oath. The postal address is irrelevant to the validity of the commissioning.
Summary Suits — Leave to Appear and Defend — Test for Granting Leave
Under Order 36 Rule 4 of the Civil Procedure Rules, a defendant seeking leave to appear and defend a summary suit must show by affidavit that there is a bona fide triable issue of fact or law. The applicant is not required to demonstrate a good defence on the merits but must satisfy the court that there is a prima facie triable issue in dispute warranting determination.
Appeals — Duty of First Appellate Court
A first appellate court is bound to subject the evidence on record to fresh scrutiny and come to its own conclusions as a way of retrial.

Legislation cited (8)

Cases cited (6)

  • Mujuni Ruhema v Skansa Jensen (U) Limited (Court of Appeal Civil Appeal No. 56 of 2000)
  • Col. (Rtd) Dr. Kiiza Besigye v Museveni Yoweri Kaguta and Electoral Commission (Supreme Court Election Petition No. 1 of 2001)
  • Nabukeera Hussein Hanifa v Kibuke Ronal & Another (Election Petition No. 17 of 2011)
  • John Baptist v Electoral Commission and Another (Supreme Court Election Appeal No. 11 of 2007)
  • Mahad Sentongo v Asia Rizo Nabiseere (High Court Miscellaneous Application No. 843 of 2013)
  • Uganda Telecom Ltd v Kilembe Investments Ltd (HCT-01-CV-MA-0142 of 2015)

Full judgment

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

Kamulindwa v Alpha Gama Engineering Ltd (HCT – 01 – CV – CA No. 025 of 2015) [2017] UGHCCD 22 (30 March 2017)
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.