Wakilii

Hon. Ikojo and Another v Arrow Link (U) Limited (Civil Miscellaneous Application 28 of 2023)

High Court · [2024] UGHC 554 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte proceedings from Civil Suit No. 16 of 2018
Decision
Application dismissed with costs to the respondent

Observed later treatment

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Holding

Held that an affidavit sworn by a person holding themselves out as counsel when they are not enrolled as an advocate is defective and must be expunged. The Advocates Act prohibits unqualified persons from acting as advocates, and such conduct is both illegal and criminal. Where the supporting affidavit is expunged, the application is left without evidence and cannot succeed. Application dismissed with costs.

Outcome

Application dismissed with costs to the respondent

Facts

The applicants sought to set aside ex parte proceedings conducted on 2 March 2023 in Civil Suit No. 16 of 2018. They claimed their counsel mistakenly recorded the hearing date as 3 March 2023 instead of 2 March 2023, causing non-appearance. The application was supported by an affidavit sworn by Apio Pamela, who described herself as counsel for the applicants. The respondent opposed the application and filed a supplementary affidavit stating that after inquiring with the Chief Registrar, it was confirmed that no advocate by the name Apio Pamela was enrolled on the Roll of Advocates. The Chief Registrar's letter dated 29 May 2023 confirmed that their records did not contain any advocate by that name. The applicants' firm subsequently wrote a letter suggesting the court was functus officio and that they had opted to appeal, but did not formally withdraw the application through proper procedure.

Issues

  1. Whether the affidavit in support of the application sworn by a person not enrolled as an advocate is valid and can be relied upon by the court.
  2. Whether the court should set aside ex parte proceedings conducted on 2 March 2023.
  3. Whether a letter to the Deputy Registrar constitutes proper withdrawal of an application under the Civil Procedure Rules.

Orders

  • The affidavit sworn by Apio Pamela in support of the application is expunged from the record.
  • The application is dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Evidence — Affidavit Evidence — Validity of Affidavit — Person Not Enrolled as Advocate
An affidavit sworn by a person who holds themselves out as counsel for a party but who is not enrolled as an advocate is defective for lack of authority and must be expunged from the record.
Legal Profession Regulation — Unqualified Persons — Acting as Advocate
Under sections 64 and 65 of the Advocates Act, any person other than an enrolled advocate who acts as an advocate or pretends to be an advocate commits an offence. The legal profession is a closed shop and whoever purports to act as an advocate without qualification commits both an illegal and criminal act.
Civil Procedure — Withdrawal of Application — Proper Procedure
Under Order 25 rules 1 and 7 of the Civil Procedure Rules, withdrawal of an application must be by summons in chambers. A letter to court suggesting withdrawal or stating that the court is functus officio is of no legal consequence where proper procedure has not been followed.
Civil Procedure — Applications — Effect of Expunging Supporting Affidavit
Where the affidavit in support of an application is expunged, the application is left unsupported and without evidence to back it. Such an application is unacceptable and must be dismissed.

Legislation cited (8)

Full judgment

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Hon. Ikojo and Another v Arrow Link (U) Limited (Civil Miscellaneous Application 28 of 2023) [2024] UGHC 554 (28 June 2024)
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.