Wakilii

Payless Super Market Ltd v Dembe Trading Enterprises Ltd (Miscellaneous Application No. 101 of 2011)

High Court · [2011] UGCOMMC 204 · 2011 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections to miscellaneous application arising from civil suit regarding debt satisfaction and security deposited in lieu of arrest before judgment
Decision
First objection succeeded with costs to respondent; second objection dismissed; matter to proceed on remaining grounds after respondent files affidavit in reply

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The court held that there was no evidence that the oaths were improperly administered to the deponents and dismissed the objection that affidavits were defective. The court upheld the objection that the issue of the managing director's passport deposited under the Registrar's order could not be raised in this application without first appealing the Registrar's decision, as required by Order 50 Rule 8 and Section 79(1)(b) of the Civil Procedure Act. The objection on this ground succeeded with costs. The remainder of the application was allowed to proceed.

Outcome

First objection succeeded with costs to respondent; second objection dismissed; matter to proceed on remaining grounds after respondent files affidavit in reply

Facts

The applicant/defendant company applied for return of its managing director's passport which had been deposited in court as security in lieu of arrest under a warrant of arrest before judgment. The passport was deposited on 29 September 2010 under proceedings before the Registrar arising from an attachment before judgment application. The applicant also sought orders that goods deposited with the plaintiff satisfied the debt claim and that the excess be refunded. The respondent/plaintiff raised preliminary objections: first, that the affidavits in support were defective because deponents who were Muslim and Hindu respectively swore instead of affirming; second, that the passport issue could not be raised in this application as it required an appeal from the Registrar's order within seven days under Order 50 Rule 8 and Section 79(1)(b) of the Civil Procedure Act. The application was filed over four months after the passport was deposited.

Issues

  1. Whether affidavits sworn by a Muslim and a Hindu deponent are defective nullities where the deponents swore rather than affirmed.
  2. Whether the applicant can challenge the retention of the managing director's passport deposited as security under an attachment before judgment order in this application.
  3. Whether an appeal from the Registrar's order is required before the issue of the passport can be raised.
  4. Whether Order 25 Rule 6 of the Civil Procedure Rules applies to this application.

Orders

  • The first objection that the applicant cannot raise the issue of the passport without appealing the Registrar's decision succeeds with costs.
  • The second objection that the affidavits are defective is dismissed.
  • The respondent is given an opportunity to file an affidavit in reply.
  • The matter proceeds on the remaining grounds of the application.

Rules and key headnotes

Civil Procedure — Affidavits — Validity — Oaths Act compliance — burden of proof on objector
An objection that an affidavit is defective because a Muslim or Hindu deponent swore instead of affirming cannot succeed in the absence of evidence that the deponent holds that religious belief, that the proper procedure under Section 5 of the Oaths Act was not followed, or that the deponent objected to taking an oath. Religion cannot be inferred from a person's name alone, and such evidence must be placed on record by affidavit, not from the bar.
Civil Procedure — Oaths Act — Section 5 — Muslims and oaths — validity where oath properly administered
Section 5 of the Oaths Act prescribes the form and manner in which an oath may be taken and explicitly provides that a Muslim may swear on the Koran. Where an oath has been duly administered and taken in accordance with Section 5, the fact that the person had no religious belief does not affect the validity of the oath under Section 7 of the Oaths Act. Section 8 permitting affirmation in lieu of oath applies only to persons who object to taking an oath.
Civil Procedure — Appeals — Registrar's orders — time limits — effect of failure to appeal
An appeal from a Registrar's order must be lodged within seven days under Section 79(1)(b) of the Civil Procedure Act and Order 50 Rule 8 of the Civil Procedure Rules. Where a party fails to appeal within the prescribed time, the issue decided by the Registrar cannot be raised collaterally in a subsequent application filed months later. The proper remedy is an appeal, not invocation of the court's inherent jurisdiction.
Company Law — Directors — Personal liability — Arrest before judgment — Lifting the corporate veil
Arrest of a director of a company before judgment under Order 40 Rule 2 of the Civil Procedure Rules is not an illegality per se and does not require lifting of the corporate veil. A company moves and thinks through its directors. A limited liability company cannot be arrested but its directors can be arrested to secure the company's appearance or satisfaction of a claim. A director may be held personally liable for contempt or other acts committed by the company in appropriate circumstances.
Civil Procedure — Inherent jurisdiction — Judicature Act sections 33 and 39(2) — limits on invocation
The inherent jurisdiction of the High Court under Section 33 of the Judicature Act cannot be invoked for a matter that is improperly before the court. Section 39(2) of the Judicature Act, which allows the court to adopt procedure justified by the circumstances where no procedure is provided, does not apply where explicit statutory procedure and timelines for appeals exist. The inherent jurisdiction cannot be used to circumvent prescribed appeal procedures.

Legislation cited (15)

Cases cited (3)

  • Epaja Aloysius v Best Lines Ltd (Miscellaneous Application No. 15 of 2001)
  • [1972] 3 All ER 1041
  • [1970] 1 All ER 189

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Payless Super Market Ltd v Dembe Trading Enterprises Ltd (Miscellaneous Application No. 101 of 2011) [2011] UGCommC 204 (11 March 2011)
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.