Wakilii

Mujwisa v Qwicart Uganda Limited (Civil Appeal 40 of 2019)

High Court · [2024] UGCOMMC 246 · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate Court ruling dismissing application to set aside default judgment on ground that supporting affidavit was incurably defective
Decision
Appeal dismissed with costs to the Respondent

Observed later treatment

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Holding

An appeal from a magistrate's ruling dismissing an application to set aside default judgment was itself dismissed. The High Court held that the magistrate correctly found the supporting affidavit incurably defective where the deponent admitted in cross-examination that she signed the affidavit and sent it to her lawyer for commissioning without appearing before the Commissioner for Oaths. Subsequent affidavits filed without leave of court after pleadings closed and not served on the respondent were properly disregarded. No miscarriage of justice occurred.

Outcome

Appeal dismissed with costs to the Respondent

Facts

The Appellant landlord entered into a tenancy agreement with Brighter Monday Uganda Limited, which was later assigned to the Respondent. After the Appellant re-entered the premises on 31 June 2017, the Respondent secured alternative premises and sued for a refund of advance rent paid. Default judgment was entered against the Appellant on 8 October 2018 awarding USD $1,800 as unutilised rent, USD $1,100 general damages, UGX 400,000 aggravated damages, and costs. The Appellant filed an application to set aside the default judgment, alleging she was never served. During the hearing, the Respondent raised a preliminary objection that the Appellant's supporting affidavit was defective because she admitted in cross-examination that she signed it and sent it to her lawyer for commissioning without personally appearing before the Commissioner for Oaths. The Chief Magistrate upheld the objection and dismissed the application. The Appellant appealed.

Issues

  1. Whether the Learned Trial Magistrate erred in law and fact when he upheld the preliminary objection based on a defective affidavit.
  2. Whether the ruling caused a miscarriage of justice against the Appellant.
  3. Whether the appeal was competent given that it arose from an order under Order 9 Rule 12 of the Civil Procedure Rules.

Orders

  • Appeal dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Evidence — Affidavits — Commissioning — Requirement for Personal Appearance
A deponent must appear before a Commissioner for Oaths and take oath on the contents of his or her affidavit for it to be valid. An affidavit where the deponent signs and forwards it to a commissioner for oaths without being present is incurably defective and must be struck out.
Evidence — Burden of Proof — Defective Affidavits
Where a deponent admits in sworn testimony that she never appeared before a Commissioner for Oaths when her affidavit was commissioned, the respondent has discharged the burden of proving the affidavit defective through that cross-examination. The burden does not rest on the respondent to prove the Commissioner was not present at counsel's chambers.
Civil Procedure — Supplementary Affidavits — Filing After Pleadings Close
Where pleadings have closed with the filing of an affidavit in reply, a party is not at liberty to file a supplementary affidavit after the closure of pleadings without seeking the court's leave and giving the other party an opportunity to respond to the additional averments. Affidavits filed without leave of court after hearing has commenced and not served on the opposite party are illegally filed.
Civil Procedure — Appeals — Leave to Appeal — Appealability of Orders
Orders made under Order 9 Rule 12 of the Civil Procedure Rules are not provided for under Order 44 of the Civil Procedure Rules as appealable as of right. However, where leave to appeal has been granted by the trial court and both parties participated in the leave hearing, a subsequent preliminary objection that the appeal is incompetent is overruled.

Legislation cited (15)

Cases cited (5)

  • Kakooza John Baptist v Electoral Commission and Yiga Anthony (Election Petition Appeal No. 11 of 2007)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Uganda Telecom Ltd v ZTE Corporation (Supreme Court Civil Appeal No. 3 of 2017)
  • Surgipharm (U) Ltd v Uganda Investment Authority & Anor (High Court Miscellaneous Cause No. 65 of 2021)
  • Makula International v His Eminence Cardinal Nsubuga & Anor [1982] HCB 11

Full judgment

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

Mujwisa v Qwicart Uganda Limited (Civil Appeal 40 of 2019) [2024] UGCommC 246 (13 August 2024)
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.