Wakilii

Pacific Summit Hotel Ltd v DFCU Bank (U) Ltd (HCT-04-CV-MA-0009 2013)

High Court · [2013] UGHCCD 165 · 2013 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for temporary injunction pending determination of main suit
Decision
Application dismissed with leave to appeal granted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The application for temporary injunction was dismissed because the supporting affidavit violated Order 19 rule 3 of the Civil Procedure Rules. The affidavit failed to distinguish between matters stated on the deponent's knowledge, information, and belief, rendering it incurably defective. Without a valid affidavit, the application could not stand.

Outcome

Application dismissed with leave to appeal granted

Facts

The applicant, Pacific Summit Hotel Ltd, applied for a temporary injunction to restrain the respondents from transferring mortgaged property comprised in Vol. 3455/Fol 18 Bugwere Road, Mbale, and from evicting the applicant pending determination of the main suit. The property had been mortgaged to the 1st respondent, DFCU Bank. The applicant had repeatedly defaulted on the mortgage and had written letters acknowledging default and consenting to sale if default continued. The bank proceeded with sale by public auction and the 3rd respondent purchased the property. The 2nd respondent was the auctioneer. An eviction notice was issued. The application was supported by an affidavit of Mwanga F.K., the Managing Director of the applicant company, who deponed that the family stayed on the property, that eviction would cause irreparable damage, and that the sale was illegal and unfair.

Issues

  1. Whether the failure to place grounds within the chamber summons and only placing them in the affidavit was fatal to the applicant's case.
  2. Whether paragraphs 5, 9, and 20 of the applicant's affidavit rendered the affidavit defective and the application irregular.
  3. Whether the applicant satisfied the conditions for grant of a temporary injunction.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.
  • Leave to appeal granted to the applicant.

Rules and key headnotes

Affidavits — Requirements under Order 19 rule 3 — Distinction between knowledge, information, and belief
An affidavit in support of an interlocutory application must distinguish between facts deponed to on the deponent's own knowledge, facts based on information (with the source of information stated), and facts based on belief (with grounds of belief stated). Failure to make these distinctions renders the affidavit incurably defective.
Affidavits — Effect of defective affidavit on application
Where a chamber summons contains no grounds and relies solely on a supporting affidavit, and that affidavit is found to be incurably defective for non-compliance with Order 19 rule 3, the entire application must fail because it lacks a valid evidentiary foundation.
Affidavits — Deponent deponing to matters outside personal knowledge
Where a deponent who is a Managing Director of a company depones to matters within the specialty of a bank and to legal conclusions without distinguishing what is within his own knowledge from what is based on information or belief, and without disclosing sources or grounds, the affidavit cannot be saved by implying that all matters were within his knowledge.

Legislation cited (5)

Cases cited (16)

  • Kiyimba Kagwa v Katende (High Court 1955)
  • Robert Kavuma v Hotel International (Supreme Court Civil Appeal No. 8 of 1990)
  • Godfrey Kikonyo v Mutabazi (Court of Appeal No. 165 of 2001)
  • Uganda Journalist Safety Committee and Others v Attorney General (Constitutional Petition No. 7 of 1997)
  • Makerere University v. St. Mark Education Institute Others 1994 KLR 682
  • Premchard Richard v. Ouamy Services Ltd (1969) EA 514 at 517
  • Standard Goods Corporation Ltd vs. Harakchard Nahus and Co. (1950) 17 EACA 9
  • Eseza Namirembe v. Musa Kizito (1972) ULR 88
  • Allen Isingoma v Alex Muhairwe and Others (High Court Civil Case No. 39 of 1992)
  • Kiiza Besigye v. Museveni
  • Italian Ashalthaulage Ltd and Others v Assist (U) Ltd (Court of Appeal No. 90 of 2000)
  • C. Katuramu v. Matiya Kiiza and Others HCCVA No. DR/89
  • Fredrick Zabwe v. Mars Trading Co. & OR 1998 KLR
  • Maitha v. Housing Co. of Kenya & or 2003 Vol.1 EAR 133
  • D Luyiga v Stanbic Bank (U) Ltd (Miscellaneous Application No. 2002 of 2012)
  • Savours International (U) Ltd v DFCU Bank Ltd (Miscellaneous Application No. 283 of 2002)

Full judgment

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

Pacific Summit Hotel Ltd v DFCU Bank (U) Ltd (HCT-04-CV-MA-0009_2013) [2013] UGHCCD 165 (19 December 2013)
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.