Wakilii

Kabenge Advocates v Mineral Access Systems (U) Ltd (HCT-00-CC-MA 565 of 2011)

High Court · [2012] UGCOMMC 108 · 2012 Preliminary Objection Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection in miscellaneous application arising from civil suit
Decision
Affidavit in reply struck out; respondents given 14 days to file proper affidavit

Observed later treatment

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Holding

The court struck out an affidavit in reply deponed by counsel on behalf of her client because the deponent did not state she was authorised by the client under Order 3 rule 1 CPR, did not disclose her source of information, and the affidavit involved contentious matters that could expose counsel to cross-examination contrary to professional conduct rules. The respondents were given 14 days to file a proper affidavit in reply.

Outcome

Affidavit in reply struck out; respondents given 14 days to file proper affidavit

Facts

The applicant raised a preliminary objection to an affidavit in reply deponed by Ms. Eva Nalwanga, an advocate in the law firm representing the respondents. The applicant contended that the affidavit contained contentious matters not within the deponent's knowledge, violated Order 3 rule 1 CPR by not showing the deponent was authorised as an agent of the respondent, and constituted hearsay contrary to Order 19 rule 3 CPR. Additionally, the applicant objected that a court fees receipt had been reused on several documents. The respondents argued that the deponent had stated her source of information and that court fees were not required for affidavits in reply. The court noted this was one of several preliminary objections arising from the head suit, and that poor preparation had been evident on both sides.

Issues

  1. Whether an affidavit in reply sworn by counsel for the respondent containing contentious matters not within her knowledge should be struck out.
  2. Whether the affidavit complied with Order 3 rule 1 CPR regarding authorisation to swear on behalf of a client.
  3. Whether the affidavit in reply constituted hearsay evidence contrary to Order 19 rule 3 CPR.

Orders

  • The preliminary objection is upheld.
  • The affidavit in reply by Ms. Nalwanga is rejected and struck out.
  • The respondents are given 14 days from this ruling to file a proper affidavit in reply.
  • The respondents are ordered to pay all relevant fees in the head suit and all applications with evidence to court before the hearing of the main suit.
  • No order as to costs.

Rules and key headnotes

Affidavits — Affidavit by Counsel on Behalf of Client — Authorisation Requirement
An affidavit sworn by counsel on behalf of a client in contentious matters must state that the deponent is authorised by the client to do so under Order 3 rule 1 of the Civil Procedure Rules; failure to state such authorisation renders the affidavit defective and liable to be struck out.
Affidavits — Disclosure of Source of Information — Hearsay
Where an affidavit deposes to facts not within the deponent's personal knowledge, the deponent must disclose the source of information; a mere statement that the contents are true to the best of the deponent's knowledge and belief without disclosing sources is defective and constitutes inadmissible hearsay.
Affidavits by Counsel — Professional Conduct — Risk of Cross-Examination
Counsel should not swear affidavits on contentious matters on behalf of clients because doing so exposes counsel to the possibility of cross-examination, which contravenes Rule 9 of the Advocates (Professional Conduct) Regulations; clients should make their own affidavits and leave advocates with the function of representation.

Legislation cited (3)

Cases cited (4)

  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 8 of 1998)
  • Mugoya Construction V Central Electricals International Ltd MA 699 of
  • Eng Yashwant Sidpra & ors v Sam Odaka & ors (MA No. 365 of 2007)
  • Caspir Ltd v Harry Gandy [1962] EA 414

Full judgment

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

Kabenge Advocates v Mineral Access Systems (U) Ltd (HCT-00-CC-MA 565 of 2011) [2012] UGCommC 108 (27 August 2012)
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.