Wakilii

Apollo Bright Bweyakye and Others v Professor Sam Tulya-Muhika (Civil Application 239 of 2023)

Court of Appeal · [2025] UGCA 234 · 2025 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for leave to appeal to the Supreme Court against a decision of the Court of Appeal
Decision
Leave to appeal to the Supreme Court granted; costs to abide the outcome of the appeal

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Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On an application for leave to appeal to the Supreme Court, the Court of Appeal held that Regulation 9 of the Advocates (Professional Conduct) Regulations bars an advocate who is a witness from appearing in the matter, not from deponing an affidavit where the advocate is not in personal conduct of the case; the preliminary objection to the affidavit in reply was overruled. The intended appeal, arising from a land dispute, raised serious questions of public importance meriting determination by the Supreme Court. The applicants' follow-ups to have the application signed and fixed showed they were not guilty of dilatory conduct. Leave to appeal was granted, with costs to abide the outcome of the appeal.

Facts

The respondent filed Civil Suit 046 of 2015 at the High Court at Kabale against the applicants, administrators of the estate of the late Saulo Bweyakye, seeking orders that they sign transfer and mutation forms for 27.3 acres he claimed to have purchased from a beneficiary. The suit was dismissed on 21 January 2019 as time-barred. The respondent filed a Notice of Appeal 35 days later without leave, then filed a fresh suit (Civil Suit 024 of 2019) which was also dismissed. He later filed Civil Application No. 100 of 2020 seeking to file the record of appeal out of time, which the Court of Appeal granted on 29 May 2023. The applicants, aggrieved by that grant, applied for leave to appeal to the Supreme Court, contending there was no valid notice of appeal. The respondent opposed, alleging the applicants' delay in serving the application amounted to dilatory conduct.

Issues

  1. Whether the respondent's affidavit in reply, deponed by an advocate at the respondent's firm, is defective, incompetent and illegal.
  2. Whether the application discloses the existence of prima facie grounds of appeal which merit serious consideration by the Supreme Court.
  3. Whether the applicants are guilty of dilatory conduct disentitling them to leave to appeal.

Orders

  • The preliminary objection to the respondent's affidavit in reply is overruled.
  • The application is allowed and leave is granted to the applicants to appeal to the Supreme Court against the ruling and orders of the Court of Appeal in Civil Application No. 100 & 103 of 2020.
  • Costs shall abide the outcome of that appeal.

Key headnotes

Civil Procedure — Affidavits — Advocate as Deponent — Advocates (Professional Conduct) Regulations reg.9
Regulation 9 of the Advocates (Professional Conduct) Regulations does not bar an advocate from giving evidence on behalf of a client; it bars an advocate who is or becomes a witness from continuing to appear in personal conduct of the matter, and there is no contravention where the deponent advocate does not act in personal conduct of the case.
Civil Procedure — Preliminary Objection — Order of Determination
A preliminary objection, once raised, must be determined first before the court goes into the merits or substance of the matter, and failure to do so amounts to an incurable procedural irregularity.
Civil Procedure — Leave to Appeal — Test for Grant
An applicant for leave to appeal must prove the existence of prima facie grounds of appeal that merit serious consideration, or that the intended appeal has reasonable chances of success, and that the applicant has not been guilty of dilatory conduct.
Civil Procedure — Leave to Appeal — Court Not to Determine Merits of Intended Appeal
On an application for leave to appeal, the court should not delve into the merits of the intended appeal, as doing so would render the application nugatory and usurp the powers of the appellate court; the court need only be satisfied that serious questions exist for the higher court to determine.
Civil Procedure — Leave to Appeal — Dilatory Conduct
Dilatory conduct is the deliberate neglect or delay in taking essential steps to pursue an appeal or application, indicating bad faith; where a party makes physical and written follow-ups to have an application signed and fixed for hearing, such conduct evidences a genuine effort to have the matter determined and is not dilatory.

Legislation cited (9)

  • Judicature Act, Cap 16 s.33
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.40
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.41
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.38
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.76(1)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.76(2)
  • Advocates (Professional Conduct) Regulations S.I 267-2 reg.9
  • Civil Procedure Rules O.7 r.11(d)
  • Civil Procedure Rules O.3 r.1

Cases cited (11)

  • Herbert Semakula Musoke & Anor v Laurence Nsamba & 2 others (Civil Appeal No. 22 of 2019)
  • Utex Industries Ltd v Attorney General (Civil Appeal No. 52 of 1995)
  • Kananura Andrew Kansiime v Richard Henry Kaijuka (Civil Reference No. 15 of 2016)
  • Kabogere Coffee Factory v Haji Tutalib Kigongo (Civil Appeal No. 10 of 1993)
  • Livingstone Kagaga Kizito v Charles Waligo (Civil Appeal No. 80 of 2012)
  • Bank One Limited v Simba'nnango Estates Limited (Miscellaneous Application No. 645 of 2020)
  • Attorney General of Uganda v Media Legal Defence Initiative & 19 others (Appeal No. 3 of 2016)
  • Shah v Attorney General [1971] EA 50
  • Scrngo Bay Estates Ltd & Ors Vs Dresdner Bank A.G (1972) EA 77
  • Degeya Trading Stores (U) Ltd v Uganda Revenue Authority (Civil Application No. 16 of 1996)
  • Namuddu v Rwebuganda Godfrey (Civil Appeal No. 4 of 2015)
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.