Wakilii

Livingstone Kato V Filimoni Kagwa (CIivil Suit No.9 of 1992)

High Court · [1993] UGHC 3 · 1993 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion for leave to set aside exparte judgment and for stay of execution during court vacation
Decision
Application dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application for leave to set aside an exparte judgment during court vacation. The court held that the applicant failed to demonstrate urgency, as the warrant of attachment had expired and a hearing date had been fixed. Further, the affidavit in support was defective: it contained false statements regarding service and failure to attend, and did not properly distinguish between matters deponed to from knowledge and those from information and belief, as required by Order 17 rule 3 of the Civil Procedure Rules.

Outcome

Application dismissed with costs to the respondent

Facts

The applicant/defendant in a civil suit sought leave during court vacation to set aside an exparte judgment obtained by the plaintiff and to stay execution. The plaintiff had obtained judgment on 17 June 1993 and a warrant of attachment against the applicant's property. The applicant claimed he did not attend the hearing because his counsel advised him the matter had been adjourned. The hearing date of 23 September 1992 had been fixed by consent of both counsels. On 22 September 1992, the applicant's counsel sent a letter requesting an adjournment, which the trial judge refused to accept. The applicant deposed that neither he nor his counsel was served with a hearing notice and that the procedure was irregular. By the time of the application hearing, the warrant of attachment had expired on 18 July 1993 without renewal, and a hearing date had been fixed for the substantive application to set aside the judgment.

Issues

  1. Whether the application to set aside the exparte judgment was an urgent matter that could be heard during court vacation.
  2. Whether the affidavit in support of the application was defective due to falsehoods and failure to distinguish between matters of knowledge and belief.

Orders

  • Application to set aside the exparte judgment as an urgent matter to be heard during court vacation dismissed.
  • Costs of the application to the respondent/plaintiff.

Rules and key headnotes

Court Vacation — Urgency — Application to Set Aside Exparte Judgment
An application to set aside an exparte judgment will not be heard as an urgent matter during court vacation where the applicant has failed to adduce evidence demonstrating urgency, particularly where the threat of execution has ceased and a hearing date has been fixed for the substantive application.
Affidavits — Defective Affidavits — False Statements
Where an affidavit in support of an application contains deliberate falsehoods and material inconsistencies, the affidavit becomes suspect and cannot be acted upon. The court will reject such an affidavit and dismiss the application. An applicant must come to court with clean hands and tell the truth.
Affidavits — Knowledge, Information and Belief — Order 17 Rule 3 CPR
An affidavit is defective under Order 17 rule 3 of the Civil Procedure Rules where the deponent states that matters are deponed to according to knowledge and belief without specifically distinguishing which facts are true to his knowledge and which facts are stated out of belief from information received, and without stating the source of information and the grounds of belief.
Adjournments — Mode of Application — Letter to Court
A letter to the court is not the proper mode of applying for an adjournment. Where counsel is unable to attend, he should instruct the party to appear in court and apply for the adjournment.

Legislation cited (3)

  • Court Vacation Rules S.I. 41-7 r.4
  • Civil Procedure Rules O.48 r.1
  • Civil Procedure Rules O.17 r.3

Cases cited (3)

  • Baintane v Kananura (1977)
  • Corporative Bank v Kasiko (1983)
  • In re Kikoma Saw Millers Co (1976)

Full judgment

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

Livingstone Kato V Filimoni Kagwa (CIivil Suit No.9 of 1992) [1993] UGHC 3 (19 August 1993)
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.