Wakilii

Samwiri Kibuuka v Eriya Lugeya Lubanga (High Court Miscellaneous Application No. 656 of 2005)

High Court · [2005] UGCOMMC 56 · 2005 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by Notice of Motion to reinstate proceedings after case was closed in applicant's absence
Decision
Application dismissed for want of proper evidentiary support

Observed later treatment

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Holding

Held that a Notice of Motion supported by affidavit is governed by the specific provisions of Order 48 rule 3 of the Civil Procedure Rules, not the general requirements of Order 6 rule 1(b). An affidavit must distinguish facts based on the deponent's knowledge from those based on information and belief; failure to do so renders the affidavit defective and unreliable. While failure to cite the legal provision is a mere technicality, a defective affidavit means there is no evidence to support the application. Application dismissed.

Outcome

Application dismissed for want of proper evidentiary support

Facts

The respondent closed his case in High Court Civil Suit No. 384 of 2001 on 1 October 2004. The matter was adjourned five times to enable the applicant to produce evidence, but he failed on each occasion. On 25 August 2005, in the absence of the applicant and his counsel, the court ordered the case closed and directed written submissions. On 2 September 2005, the applicant filed an application to reinstate proceedings, claiming counsel had been delayed in another court before Justice Oumo Oguli and had informed the Registrar but the information was not communicated to the court. The respondent opposed the application on three grounds: non-compliance with Order 6 rule 1(b), defective affidavit failing to distinguish knowledge from belief, and failure to cite the legal provision under which the application was brought.

Issues

  1. Whether the application by Notice of Motion was required to comply with Order 6 rule 1(b) of the Civil Procedure Rules by being accompanied by a brief summary of evidence, list of witnesses, and list of authorities.
  2. Whether the affidavit in support was defective for failure to indicate whether facts were based on the deponent's knowledge, information, or belief.
  3. Whether failure to cite the specific provision of law under which the application was made was fatal to the application.

Orders

  • Application dismissed with costs.

Rules and key headnotes

Civil Procedure — Notice of Motion — Requirements for Supporting Documents — Order 6 rule 1(b) versus Order 48 rule 3
A Notice of Motion is governed by the specific provisions of Order 48 rule 3 of the Civil Procedure Rules, which requires only that the notice state in general terms the grounds of application and be accompanied by an affidavit if the motion is grounded on affidavit evidence. Where a specific legislative provision and a general provision address the same matter, the specific provision takes precedence over the general provision. Therefore, a Notice of Motion supported by affidavit is an exception to the general requirements in Order 6 rule 1(b) and need not be accompanied by a separate brief summary of evidence, list of witnesses, and list of authorities.
Civil Procedure — Affidavits — Requirements for Validity — Distinction Between Knowledge and Belief
An affidavit must disclose which matters are based on the deponent's own knowledge and which are based on information and belief. Order 17 rule 3(1) of the Civil Procedure Rules permits statements of belief on interlocutory applications provided the grounds of belief are stated. An affidavit that fails to distinguish between facts within the deponent's knowledge and those based on information and belief is defective and cannot be relied upon.
Civil Procedure — Notice of Motion — Failure to Cite Legal Provision — Technicality
Failure to cite the specific provision of law under which an application is brought is a mere technicality which does not occasion a failure of justice, provided the essence of the application is clearly brought out. In line with Article 126(2)(e) of the Constitution, such technical defects can be disregarded where they do not prejudice the opposing party.

Legislation cited (5)

Cases cited (4)

  • Richard Mwirivumbi v Jada Limited (High Court Civil Suit No. 978 of 1996)
  • Sule Pharmacy Ltd v Registered Trustees of Khoja Shia Janati (High Court Miscellaneous Application No. 147 of 1999)
  • Kabwimukya V/S Kasigwa 1978 HCB 251
  • Patrick Kawoya V/S C. Naava (1975) HCB

Full judgment

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Samwiri Kibuuka v Eriya Lugeya Lubanga (High Court Miscellaneous Application No. 656 of 2005) [2005] UGCommC 56 (30 September 2005)
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.