Wakilii

Hard Rock Quarry (U) Limited v Commissioner Land Registration & Another (Civil Appeal No. 115 of 2015)

High Court · [2019] UGHC 25 · 2019 Affidavit Struck Off — Application to Proceed Ex Parte AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of Commissioner Land Registration seeking to set aside decision and reinstate appellant as registered proprietor
Decision
Respondent's affidavit struck off; matter to proceed ex parte against both respondents pending applicant's written submissions

Observed later treatment

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Holding

An affidavit commissioned by an advocate who has been struck off the roll and barred from practice is incompetent and must be struck off. The commission to act as a Commissioner for Oaths goes with the practising certificate—once an advocate ceases to practice, the commission also ceases. Section 14(1)(b) of the Advocates (Amendment) Act 2002 applies only where an advocate with a valid licence acts contrary to their station or is denied audience, not to disbarred advocates. The court exercised discretion to award no costs given the innocent litigant's reliance on defective legal services.

Outcome

Respondent's affidavit struck off; matter to proceed ex parte against both respondents pending applicant's written submissions

Facts

Hard Rock Quarry (U) Limited applied by motion to set aside a decision of the Commissioner Land Registration dated 16 September 2015 and to be reinstated as registered proprietor of land comprised in LRV JJ/0346 volume JJA74 Folio 7 Plot 68-72 Jinja Municipality. The 1st respondent did not file any response. The 2nd respondent, Steel Rolling Mills Limited, filed an affidavit in reply sworn by Abid Alam and commissioned by Augustine Ssemakula. At the hearing on 29 May 2019, counsel for the applicant raised a preliminary objection that Ssemakula had been barred from practice since 2014 and never reinstated, rendering the affidavit a nullity. The Chief Registrar confirmed that Ssemakula was barred from practice and could not act as a commissioner for oaths. Counsel for the 2nd respondent argued that the disqualification should not invalidate the pleadings and requested time to file a fresh affidavit.

Issues

  1. Whether an affidavit commissioned by an advocate who has been struck off the roll and has no practising certificate is competent evidence.
  2. Whether the provisions of Section 14(1)(b) of the Advocates (Amendment) Act 2002 validate pleadings made by a disbarred advocate.
  3. Whether the court should exercise its discretion to allow the 2nd respondent to file a fresh affidavit after striking off the defective affidavit.

Orders

  • Mr. Abid Alam's affidavit in reply is struck off the record as incompetent.
  • No costs awarded on account of the order striking off the affidavit.
  • Application to proceed ex parte against both respondents.
  • Applicant to file written submissions within 21 days.
  • Ruling to be delivered within 30 days after filing of submissions.

Rules and key headnotes

Evidence — Affidavits — Validity — Commissioner for Oaths without Practising Certificate
An affidavit commissioned by an advocate who has been struck off the roll and has no practising certificate is incompetent and constitutes a nullity that must be struck off the record.
Commissioners for Oaths — Authority — Effect of Suspension from Practice
The commission to act as a Commissioner for Oaths under the Commissioners for Oaths (Advocates) Act is granted to practising advocates and goes with the practising certificate; once an advocate has ceased to practice or is suspended, the commission also ceases.
Advocates (Amendment) Act 2002 s.14(1)(b) — Scope and Application — Distinction between Licensed and Disbarred Advocates
Section 14(1)(b) of the Advocates (Amendment) Act 2002, which preserves pleadings made by an advocate who is lawfully denied audience or acts contrary to their station, applies only to advocates with valid practising certificates, not to advocates who have been struck off the roll and barred from practice.
Costs — Discretion — Innocent Litigant Prejudiced by Advocate's Misconduct
Where a litigant innocently instructs and relies upon lawyers who present an affidavit commissioned by a disbarred advocate, and the litigant is not shown to have been negligent or to have acquiesced in seeking services of a non-practising lawyer, the court may exercise discretion to award no costs against that party when striking off the defective affidavit.

Legislation cited (8)

Cases cited (1)

  • Prof. Syed Huq v The Islamic University in Uganda (Supreme Court Civil Appeal No. 47 of 1995)

Full judgment

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

Hard Rock Quarry (U) Limited v Commissioner Land Registration & Another (Civil Appeal No. 115 of 2015) [2019] UGHC 25 (11 December 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.