Wakilii

Okweyo & Anor v Odeke & Anor (HCT-04-CV-MA-217-2012)

High Court · [2014] UGHCCD 55 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of miscellaneous application and stay execution
Decision
Application dismissed with costs to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an affidavit sworn by counsel on behalf of their own client is defective under Order 19 rule 3(1) of the Civil Procedure Rules as it constitutes hearsay and does not confine itself to matters within the deponent's own knowledge. Further held that an application to set aside a dismissal made under Order 17 rule 4 cannot be brought under Order 9 rule 27, which applies only to exparte decrees against defendants. Application dismissed with costs.

Outcome

Application dismissed with costs to the respondents

Facts

The applicants sought to set aside the dismissal of Miscellaneous Application No. 16 of 2012 and to stay its execution. The applicants' counsel deponed in an affidavit that they had attempted several times to have the matter fixed for hearing without success and were never served with a hearing notice. When the matter came before court on 15 January 2014, the parties consented to file written submissions by 13 February 2014. The applicants failed to file their submissions by the agreed date. The respondents objected to the application on two grounds: first, that the affidavit in support was sworn by counsel for the applicants (Agoe Priscilla) in violation of procedural rules; and second, that the application was brought under the wrong provision of the Civil Procedure Rules.

Issues

  1. Whether the affidavit in support of the application was defective for being sworn by counsel for the applicants.
  2. Whether the application was brought under the correct provision of the Civil Procedure Rules.
  3. Whether the dismissal of Miscellaneous Application No. 16 of 2012 should be set aside.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Evidence — Affidavits — Competency of Deponent — Affidavit Sworn by Counsel
An affidavit sworn by counsel on behalf of their own client is defective and constitutes hearsay, as it offends Order 19 rule 3(1) of the Civil Procedure Rules which requires an affidavit to be confined to facts the deponent is able of their own knowledge to prove, and to distinguish statements made on belief from those made on knowledge.
Civil Procedure — Setting Aside Orders — Dismissals under Order 17 Rule 4 — Inapplicability of Order 9 Rule 27
A dismissal made by the court under Order 17 rule 4 of the Civil Procedure Rules is a decision of the court and cannot be set aside under Order 9 rule 27, which applies only to exparte decrees passed against a defendant.
Civil Procedure — Failure to File Submissions — Indicative of Lack of Diligence
Where an applicant fails to file written submissions by a date agreed by consent and subsequently fails to attend court proceedings, such conduct is indicative of a failure to prosecute the matter with due diligence and may be relied upon as a ground for dismissing the application.

Legislation cited (5)

Cases cited (4)

  • Jinja Cr. Case No. MJ 478/74 (1974) HCB 2014
  • Bingira v Uganda [1966] EA 445
  • Sebugulu v Katuda [1979] HCB
  • Salem Zaidi v Faud Humadan [1960] EA 92

Full judgment

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

Okweyo & Anor v Odeke & Anor (HCT-04-CV-MA-217-2012) [2014] UGHCCD 55 (9 April 2014)
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.