Wakilii

Kapampa and 2 Others v Cooperative Bank Limited ( in liquidation) (Miscellaneous Application No. 45 of 2003)

High Court · [2023] UGHCCD 4 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order and reinstate civil suit originally filed by deceased applicant, with current applicants substituted as administrators of the deceased's estate
Decision
Application dismissed on procedural grounds; the underlying civil suit remains dismissed and not reinstated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application dismissed. While the court found sufficient cause for non-appearance due to improper service on wrong counsel, and rejected arguments of inordinate delay, the original application was fatally defective because the founding affidavit was not commissioned as required by law. An unsworn affidavit cannot constitute valid evidence before a court. The amended application filed by the estate administrators could not cure this fundamental defect in the original motion.

Outcome

Application dismissed on procedural grounds; the underlying civil suit remains dismissed and not reinstated

Facts

The late Francis Musenene was the registered proprietor of property mortgaged to the respondent bank in 1997 by one Bitwire under power of attorney for a loan of UGX 27,000,000. Following default, the bank advertised the property for sale in December 2001. Musenene filed suit seeking return of title and permanent injunction. The suit was dismissed on 6 March 2003 when neither Musenene nor his counsel appeared. Service had been effected on his former counsel Ayiguhugu who declined it, having been discharged, though new counsel Nyamutale had appeared on record in August 2002. Musenene filed the instant application on 2 September 2003 to set aside the dismissal order, but died before the hearing. On 19 November 2004 his administrators obtained letters of administration and were substituted as parties. The court ordered amended pleadings in 2012, prompting the amended application.

Issues

  1. Whether the applicants demonstrated sufficient cause for non-appearance when the suit was called for hearing on 6 March 2003.
  2. Whether the applicants were guilty of inordinate delay in filing and prosecuting the application.
  3. Whether the original application was incurably defective by reason of an unsworn affidavit, and whether the amended application could cure that defect.

Orders

  • Application dismissed.
  • Each party to bear its own costs.
  • Civil Suit No. 005 of 2003 remains dismissed and is not reinstated.

Rules and key headnotes

Civil Procedure — Reinstatement of Dismissed Suits — Service of Process — Sufficient Cause for Non-Appearance
Where service of a hearing notice is effected on counsel who no longer represents a party and has declined service on that ground, and the court record shows that new counsel appeared for that party, such service is improper and constitutes sufficient cause for non-appearance under Order 9 rule 23 Civil Procedure Rules.
Civil Procedure — Reinstatement of Dismissed Suits — Delay — Reasonable Time
There is no fixed limitation period for filing an application to set aside a dismissal order. The application must be brought within a reasonable time, and what constitutes reasonable time depends on the circumstances of each case. An application filed six months after dismissal does not, without more, amount to inordinate delay.
Evidence — Affidavits — Validity — Commissioning Requirement
An affidavit not sworn before a Commissioner for Oaths in accordance with the Commissioner for Oaths (Advocates) Act is not valid in law and cannot constitute evidence before a court. The failure to properly commission an affidavit is a matter of substantive law, not mere procedural irregularity that can be cured or dispensed with under Article 126(2)(e) of the Constitution.
Civil Procedure — Notice of Motion — Defective Affidavits — Amendment — Incurable Defects
Where a Notice of Motion is supported by an affidavit that is invalid because it was not properly sworn, the defect is fundamental and incurable. A subsequently filed amended motion with a properly sworn affidavit cannot cure the original defect, as what is null and void ab initio remains so.

Legislation cited (10)

Cases cited (8)

  • National Insurance Corporation v Mugenyi & Company Advocates [1967] HCB 28
  • Lucas Marisa v Uganda Breweries Ltd [1988-1990] HCB 131
  • Giruko v Acan & Sons (U) Ltd [1971] EA 448
  • Uganda Micro Finance Union Ltd v Sebuufu Richard & Another (Miscellaneous Application No. 610 of 2007)
  • Bawa Singh Bhari (Properties) Ltd v Estate Consultants Ltd & Others (Civil Appeal No. 331 of 1997)
  • Eric Tibebaga v Begumisa & Others (Civil Application No. 18 of 2002)
  • Attorney General v A.K.P Lutaya (Civil Application No. 1 of 2007)
  • Igweta v Methaa & Another [2001] LLR 3502 (CAL)

Full judgment

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

Kapampa and 2 Others v Cooperative Bank Limited ( in liquidation) (Miscellaneous Application No. 45 of 2003) [2023] UGHCCD 4 (17 January 2023)
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.