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Dr. Wanzige Magoola v Makerere University Business School and Another (Civil Miscellaneous Application No. 417 of 2020)

High Court · [2021] UGHCCD 107 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for contempt of court arising from alleged non-compliance with a court order for reinstatement
Decision
Application struck out as incompetent for lack of valid supporting affidavit

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Holding

The High Court struck out the contempt application on preliminary objection. The court held that affidavits commissioned by Augustine Ssemakula, who had been struck off the roll of advocates since 2014, were incurably defective and illegal. An application by notice of motion unsupported by valid affidavit evidence is incompetent and cannot be considered on its merits.

Outcome

Application struck out as incompetent for lack of valid supporting affidavit

Facts

The applicant, Dr. Isaac Wanzige Magoola, sought orders for contempt of court against Makerere University Business School and Prof. Waswa Balunywa for alleged non-compliance with a court order dated 29 May 2020 that quashed his suspension and ordered his reinstatement as Dean and Senior Lecturer. The order was extracted and served on 12 June 2020. The respondents filed a notice of appeal and an application for stay of execution. The applicant's affidavit in support and affidavit in rejoinder were commissioned by Augustine Ssemakula. The respondents raised preliminary objections that Ssemakula had been struck off the roll of advocates since 2014 and that the affidavit in support was undated.

Issues

  1. Whether affidavits commissioned by a person struck off the roll of advocates are valid.
  2. Whether an undated affidavit is curable under Article 126(2)(e) of the Constitution.
  3. Whether an application unsupported by valid affidavit evidence is competent before the court.

Orders

  • The affidavit in support of the application is struck out.
  • The application is struck out for being incompetent.
  • Costs awarded to the Respondents.

Rules and key headnotes

Civil Procedure — Affidavits — Validity — Commissioning by Person Struck Off Roll of Advocates
An affidavit commissioned by a person who has been struck off the roll of advocates is incurably defective and illegal. Section 1(4) of the Commissioner for Oaths (Advocates) Act provides that every commission terminates immediately upon the holder ceasing to practice as an advocate. A person struck off the roll is no longer an advocate and cannot act as a Commissioner for Oaths.
Civil Procedure — Affidavits — Judicial Notice — Status of Advocate
Where multiple courts of record have made findings that a particular individual has been struck off the roll of advocates, and those findings have not been challenged or reversed, the fact becomes judicially noticed and requires no further evidence. The court may take judicial notice of such a settled matter without requiring a supplementary affidavit.
Civil Procedure — Affidavits — Distinction Between Advocate Without Practising Certificate and Person Struck Off Roll
An advocate who has not renewed their practising certificate remains an advocate on the roll, and pleadings filed by such an advocate do not become invalid. However, a person who has been struck off the roll of advocates is no longer an advocate and takes the position of an impostor. Documents commissioned by such a person are invalid.
Civil Procedure — Applications — Competence — Unsupported by Valid Affidavit
An application by notice of motion that is unsupported by valid affidavit evidence is incompetent and cannot be considered on its merits. Where the supporting affidavit is struck out as incurably defective, the application must be struck out.
Civil Procedure — Affidavits — Undated Affidavit — Curable Defect
An undated affidavit is a curable defect under Article 126(2)(e) of the Constitution, which provides that substantive justice shall be administered without undue regard to technicalities. However, an affidavit commissioned by a person struck off the roll of advocates cannot be cured even by the principles of substantive justice.

Legislation cited (12)

Cases cited (13)

  • Hard Rock Quarry (U) Ltd v Commissioner Land Registration and Another (High Court Civil Appeal No. 115 of 2015)
  • Prof. Syed Huq v The Islamic University in Uganda (Supreme Court Civil Appeal No. 47 of 1995)
  • Balikuddembe Jumba Peter and 2 Others v Jjagwe Mbuga and Another (High Court Miscellaneous Application No. 976 of 2012)
  • Teddy Namazzi vs. Anne Sibo 1986 HCB 58
  • Time Trader Transporters v PPDA and Others (High Court Miscellaneous Application No. 02 of 2016)
  • Hussein Mohammed v Mayanja Bashir and 5 Others (High Court Civil Suit No. 178 of 2009)
  • Noble Builders (Uganda) Limited v Balwinder Kaur Sandhu (Court of Appeal Civil Appeal No. 70 of 2009)
  • Jesse Gulyetonda vs. Henry Muganwa Kajura [1996] III KALR 44
  • Nabukeera Hussein Hanifa v Kibuule Ronald and Another (High Court Election Petition No. 17 of 2011)
  • M/S Job Connect (U) Ltd v DFCU Bank Ltd (High Court Miscellaneous Application No. 627 of 2014)
  • Saggu vs. Roadmaster Cycles (U) Ltd [2002] 1 EA 258
  • Standard Chartered Bank (U) Ltd v Mwesigwa Geoffrey Philip (High Court Miscellaneous Application No. 477 of 2012)
  • Kaingana v Dabo Boubou 1986 HCB 59

Full judgment

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

Dr. Wanzige Magoola v Makerere University Business School and Another (Civil Miscellaneous Application No. 417 of 2020) [2021] UGHCCD 107 (28 June 2021)
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.