Wakilii

KCB Bank (U) Ltd v Kalema (Miscellaneous Application No. 704 of 2018)

High Court · [2019] UGCOMMC 14 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection to miscellaneous application arising from main suit HCCS No. 623 of 2018
Decision
Application dismissed as incompetent due to incurably defective affidavit

Observed later treatment

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Holding

The court held that an affidavit sworn by counsel containing statements of fact not within the deponent's knowledge and failing to disclose the source of information is incurably defective under Order 19 Rule 3 CPR. Non-disclosure of the source of information is a fundamental breach going to the foundation of the affidavit, distinguishable from mere falsehoods which can be cured by severance. The preliminary objection was upheld and the application dismissed.

Outcome

Application dismissed as incompetent due to incurably defective affidavit

Facts

KCB Bank Uganda Limited brought a miscellaneous application arising from HCCS No. 623 of 2018. The affidavit in support was sworn by Terence Kavuma, counsel conducting the matter. At the hearing, counsel for the respondent Kalema Deus raised a preliminary objection that paragraph 5 of the affidavit contained statements of fact not within the deponent's knowledge and failed to disclose the source of information, contrary to Order 19 Rule 3 CPR. The paragraph stated that alleged wrongs committed by the first and second defendants were committed on the third defendant. Applicant's counsel argued the affidavit was sworn by counsel in conduct of the matter in support of a point of law, and that any offending paragraph could be severed. The court found that the statements in paragraph 5 were matters of fact that counsel could not have known by virtue of his role but only as information from parties or elsewhere, and that the source should have been disclosed.

Issues

  1. Whether the affidavit in support sworn by counsel was fatally defective for failure to disclose the source of information in paragraph 5 contrary to Order 19 Rule 3 of the Civil Procedure Rules.

Orders

  • Affidavit in support struck out.
  • Preliminary objection upheld.
  • Miscellaneous Application No. 704 of 2018 dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Affidavits — Requirements for Valid Affidavit — Disclosure of Source of Information
An affidavit must be confined to facts within the deponent's own knowledge, and where statements are based on information received from others, the source of that information must be disclosed as required by Order 19 Rule 3 of the Civil Procedure Rules.
Civil Procedure — Affidavits — Defects — Incurable Defects Distinguished from Falsehoods
Non-disclosure of the source of information in an affidavit is a fundamental breach of law that renders the affidavit incurably defective, and is distinguishable from a falsehood which can be cured by severing the offending paragraphs and saving the rest of the affidavit.
Civil Procedure — Affidavits — Counsel as Deponent — Knowledge Requirement
Where an affidavit is sworn by counsel in conduct of a matter, statements of fact that counsel cannot have had knowledge of by virtue of their role as counsel but only as information from parties or elsewhere must disclose the source of such information.
Civil Procedure — Affidavits — Consequence of Incurable Defect — Effect on Application
Where an affidavit in support of an application is struck out as incurably defective for non-disclosure of the source of information, the application cannot stand unsupported and becomes incompetent.

Legislation cited (1)

Cases cited (5)

  • Pacific Summit Hotel v DFCU Bank and Others (Miscellaneous Application No. 09 of 2013)
  • Allan Isingoma v Alex Muhairwe and 2 Others (Criminal Case No. 29 of 1992)
  • Katuramu Vs Matiya Kizza
  • PremChand Richard v Ouamy Services Ltd (1969) EA 514
  • Eseza Namirembe v Musa Kizito (1972) ULR 8

Full judgment

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

KCB Bank (U) Ltd v Kalema (Miscellaneous Application No. 704 of 2018) [2019] UGCommC 14 (22 March 2019)
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.