[1977] UGHCCD 2
The court held that an application to set aside an ex-parte judgment cannot succeed if it is supported by a false affidavit, as the applicant does not approach the court with clean hands. The court further held that failure to enter appearance after being served with summons deprives the party of locus standi, and...
Source-derived case information.
- Citation
- [1977] UGHCCD 2
- Parties
- Appellant: Sirasi Bitaitana & 4 Others; Respondent: Emanuel Kananura
- Court
- HC: Civil Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- Civil Appeal No. 47 of 1976
- Procedural Posture
- Civil Appeal / Judgment on Appeal
- Outcome
- appeal dismissed with costs
- Judges
- Allen, J
- Legal Topics
- Ex Parte Judgment, Affidavit Falsehood, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sirasi Bitaitana & 4 Others
Appellant
Emanuel Kananura
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal
Legal Issues
- 1 Whether an application to set aside an ex-parte judgment can succeed when supported by a false affidavit.
- 2 Whether failure to enter appearance after service of summons deprives a party of locus standi.
- 3 Whether inconsistencies in affidavits can be ignored in civil procedure.
Ratio Decidendi
The court held that an application to set aside an ex-parte judgment cannot succeed if it is supported by a false affidavit, as the applicant does not approach the court with clean hands. The court further held that failure to enter appearance after being served with summons deprives the party of locus standi, and such failure cannot be excused by ignorance of procedure except in exceptional cases. The inconsistencies in the affidavit were material and rendered the entire affidavit suspect, justifying the dismissal of the application. Consequently, the appeal was dismissed with costs.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
**THE OF REPUBLIC OF UGANDA**
**IN THE HIGH COURT OF UGANDA AT KAMPALA**
**Sirasi Bitaitana & 4 Ors. v. Emanuel Kananura**
**(Civil Appeal No. 47 of 1976)**
**Judgement**
**Civil Procedure - Applications - Application will be dismissed if the affidavit supporting such application is false.**
**Civil Procedure - Effect of non-entrance of appearance - if party does not enter an appearance in response to summons to enter appearance, the party so failing puts itself** **out of court and has no locus standi.**
**Evidence - Affidavits - an affidavit is a serious document once it contains falsehood in one part, the whole becomes suspect.**
**This was an appeal against the ruling of the Magistrate Grade 1 at Mbarara on 9th February, in which he dismissed applications by the present five appellants/defendants to set aside an ex-parte judgement entered against them.**
**The respondent/plaintiff had sued for the return of his weighing scale or its value (Shs. 1,500/=) and general damages for its unlawful seizure and detinue by the five appellants. This suit followed criminal proceedings against the appellants in the same matter. The trial magistrate gave judgment after hearing formal proof in favour of the respondent/plaintiff for the scale or their value of Shs. 1,500/- and Shs.200/- general damages and costs. The appellants never entered an appearance after being served and no defence was filed.**
**The appellants then filed a notice of motion to set aside the ex-parte judgment and applying for stay of execution supported by the affidavit of one of the appellants which was adopted by each of the other appellants. The magistrate who heard that application found the affidavit to be false on the grounds that paragraph six of the affidavit was inconsistent with paragraph two of the notice of motion which it purported to support. He held that the lie in the affidavit went to the root of the application.**
**On appeal it was suggested for the appellants that the inconsistency be ignored and the application be decided upon other paragraphs. It was, however, a contention of the respondents that since the applicants were served with summons to enter appearance and failed to enter an appearance or file a defence, there was no merit in the application.**
**Held: 1. The inconsistencies in affidavits cannot be ignored however minor, since a sworn affidavit is not a document to be treated lightly. If it contains an obvious falsehood, then it all naturally becomes suspect.**
1. **An application supported by a false affidavit is bound to fail because tf applicant in such a case does not go to court with clean hands and tell the truth.** 2. **Since the appellants had been served with summons to enter appearance they failed to respond to them, then they had, by that failure put themselves out of court and had no locus standi.** 3. **Ignorance of the procedure is no defence, except in very exceptional cases especially constitutional ones - Katikiro of Buganda v. Attorney General of** **Uganda. [1958] E. A. 765.**
**Appeal dismissed with costs.**
**Allen, J**
**January 20th, 1977**
**Cases Cited:**
**1. Dyson v. Att. Gen., [1911] 1 K. B. 410**
**2. Katikiro of Buganda v. Att. Gen. of Uganda, [1958] E. A. 765.**