Wakilii

Western Uganda Importers & Distributors Ltd v Mwebesa (MISC. APPLICATION No. 22 OF 2017)

High Court · [2019] UGHCCD 12 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal order of earlier miscellaneous application arising from civil suit involving consent judgment
Decision
Application dismissed; dismissal order of earlier miscellaneous application upheld; matter overtaken by events as consent judgment executed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed an application to set aside a dismissal order of an earlier miscellaneous application. The court held that the applicant failed to show sufficient cause for non-appearance, as contradictory explanations were given for counsel's absence. The supporting affidavit was incurably defective for lacking the commissioner for oaths' stamp and particulars. The court further held that the matter was overtaken by events, as the underlying consent judgment had already been executed, and that counsel's authority to represent the applicant company was questionable.

Outcome

Application dismissed; dismissal order of earlier miscellaneous application upheld; matter overtaken by events as consent judgment executed

Facts

The applicant company filed Miscellaneous Application No. 91 of 2016 seeking to set aside a consent judgment entered on 7 May 2015 in Civil Suit No. 1 of 2015 concerning 22 acres of land. On 29 March 2018, the application came up for hearing before Justice Oyuko. All parties attended except the applicant's counsel, David Bwambale. One Hellena Biira Bwambale appeared in court but had no authority to represent the company at the material time, having obtained letters of administration only on 28 June 2017. Justice Oyuko dismissed Miscellaneous Application No. 91 of 2016 with costs for want of prosecution. The applicant then filed the instant application to set aside the dismissal order. Contradictory explanations were given for counsel's absence: Hellena Bwambale told court counsel was indisposed, while John Musede's affidavit stated counsel was attending another case in the Land Division. Three validly elected company executive board members stated they stood by the consent judgment and never appointed David Bwambale to represent the company. The consent judgment had already been executed by the time of the instant application.

Issues

  1. Whether the applicant has shown sufficient cause to warrant grant of the orders sought.
  2. Whether the Power of Attorney of Bylon Mugarura was valid.
  3. Whether the affidavit of John Musede was proper.

Orders

  • Application dismissed with costs.
  • Affidavit of John Musede struck out as incurably defective.

Rules and key headnotes

Civil Procedure — Dismissal of Applications — Reinstatement — Sufficient Cause
Under Order 9 Rule 23(1) of the Civil Procedure Rules, the main test for reinstatement of a dismissed suit or application is whether the applicant honestly intended to attend the hearing and did his best to do so; additional considerations include the nature of the case and whether there is a prima facie defence.
Evidence — Affidavits — Contradictions — Credibility
Where an applicant's evidence contains major inconsistencies or contradictions intended to mislead or amounting to deliberate untruthfulness, such evidence should be rejected, and the court may find that no sufficient cause has been shown.
Civil Procedure — Consent Judgments — Variation or Setting Aside
A consent order made in the presence and with the consent of counsel is prima facie binding on all parties and cannot be varied or discharged unless obtained by fraud or collusion, or by agreement contrary to the policy of the court, or if consent was given without sufficient material facts or in misapprehension or ignorance of material facts.
Evidence — Affidavits — Commissioner for Oaths — Formal Requirements
An affidavit that lacks the stamp, seal, name, and address of the commissioner for oaths is incurably defective and must be struck out; such defects are mandatory requirements under the Oaths Act and not mere technicalities curable under Article 126(2)(e) of the Constitution.
Constitutional Law — Constitutional Interpretation — Article 126(2)(e) — Limits on Application
Article 126(2)(e) of the Constitution, which requires courts not to be constrained by technicalities, was never intended to do away with the substantive rules of procedure or to cure fundamental defects in mandatory statutory requirements.
Administrative Law — Stamps — Admissibility of Unstamped Instruments
Under Section 42 of the Stamps Act, an instrument chargeable with duty is inadmissible in evidence unless duly stamped; however, under Section 38, such unstamped instruments can be rendered admissible on payment of the duty with which the instrument is chargeable, and defects in powers of attorney can be remedied by supplementary affidavit showing payment of stamp duty.

Legislation cited (10)

Cases cited (7)

  • National Insurance Corporation v Mugenyi and Company Advocates [1978] HCB 28
  • Makau Nairuba Mabel v Crane Bank Ltd (HCCS No. 380 of 2009)
  • Attorney General v Kamoga (SCCA No. 8 of 2004)
  • Housing Finance Bank Ltd v Musisi (Court of Appeal Civil Appeal No. 158 of 2010)
  • Tobacco and Commodity Traders International Inc v Mastermind Tobacco (U) Ltd (High Court Companies Cause No. 18 of 2002)
  • Kaggwa v Kiwanuka [1974] HCB
  • Utex Industries v Attorney General (SCCA No. 52 of 1995)

Full judgment

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

Western Uganda Importers & Distributors Ltd Vs Mwebesa (MISC. APPLICATION No. 22 OF 2017) [2019] UGHCCD 12 (7 March 2019)
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.