Wakilii

Kasajja v Iga & Anor (HCT-04-CV-MC-004-2014)

High Court · [2015] UGHCCD 32 · 2015 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by Notice of Motion seeking taxation of advocate/client bill of costs and entry of judgment for sum certified due
Decision
Application for taxation of advocate's bill dismissed on grounds of applicant's lack of qualification at time services were rendered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that affidavits in reply commissioned by counsel representing the respondents offended Regulation 9 of the Advocates (Professional Conduct) Regulations and Rule 7 of the Commissioner for Oaths Rules, and were struck out. The court further held that the applicant, who was not enrolled as an advocate and did not hold a practising certificate when he commenced rendering legal services, could not recover costs for those services. Section 65 of the Advocates Act prohibits unqualified persons from practising as advocates, and section 59 bars recovery of costs for acts constituting offences under the Act. Application dismissed with each party to bear own costs.

Outcome

Application for taxation of advocate's bill dismissed on grounds of applicant's lack of qualification at time services were rendered

Facts

The applicant, purporting to be an advocate, sought taxation of an advocate/client bill of costs for services allegedly rendered to the respondents. The applicant claimed he had received instructions from the respondents in March 2012 to demand that Equity Bank (U) Ltd quit and handover vacant possession of certain premises, and that he had successfully executed these instructions. The respondents opposed the application. During the proceedings, it emerged that the applicant had only been enrolled as an advocate on 27 February 2013 and obtained a practising certificate on 7 May 2013. The applicant admitted these facts and attempted to argue that the court should only allow recovery for services rendered after he obtained his practising certificate. The court was also confronted with preliminary objections regarding the competence of the respondents' affidavits in reply.

Issues

  1. Whether the respondents' affidavits in reply were competent where they were deponed before and commissioned by an advocate from the same firm representing the respondents.
  2. Whether an affidavit in reply sworn by a third party not named in the pleadings is properly before the court.
  3. Whether the applicant was entitled to recover costs for legal services rendered when he was not enrolled as an advocate and did not hold a practising certificate at the time the services were rendered.

Orders

  • Application dismissed.
  • Each party to bear their own costs.

Rules and key headnotes

Civil Procedure — Affidavits — Advocate as Commissioner for Oaths — Conflict of Role
An advocate who commissions an affidavit as a Commissioner for Oaths in a case where the same advocate's firm represents a party and the affidavit refers to advice given by that firm offends Regulation 9 of the Advocates (Professional Conduct) Regulations and Rule 7 of the Commissioner for Oaths Rules. Such an advocate becomes a potential witness, and it is wrong for counsel to act as counsel and witness in the same case. The affidavit is liable to be struck out unless it relates only to formal and non-contentious matters.
Civil Procedure — Affidavits — Affidavit in Reply by Third Party
An affidavit in reply can only be sworn by a party to the matter before the court. Where a third party not named in the pleadings seeks to respond to matters raised, the proper procedure is to file a supplementary affidavit, not an affidavit in reply.
Employment & Labour — Advocates — Qualification to Practise — Enrolment and Practising Certificate
Section 65 of the Advocates Act prohibits any person from practising as an advocate unless enrolled and holding a valid practising certificate. An unenrolled person who purports to render legal services is not entitled to recover costs for such services. Section 59 of the Advocates Act provides that no costs shall be recoverable in respect of anything done the doing of which constitutes an offence under the Act.
Civil Procedure — Pleadings — Departure from Pleadings — Clean Hands Doctrine
Parties must conform to their pleadings. Where an applicant discovers that his pleadings are fatally flawed by illegality, he cannot circumvent the consequences by seeking to have the court ignore parts of his pleadings and deal only with matters that comply with the law. The equitable maxim that he who comes to equity must do so with clean hands applies. Where illegality is brought to the attention of the court, it overrides all questions of pleadings including any admissions made thereon.
Civil Procedure — Burden of Proof — Duty of Applicant
Whether a respondent files an affidavit in reply or not, it remains the applicant's duty to put up a credible case. The absence of a reply does not ipso facto improve the applicant's case. An applicant must prove his application on its merits.

Legislation cited (21)

Cases cited (8)

  • Ismail T/a Bombo City Stores v Alex Kamukamu and Others T/a Bazari (Supreme Court Appeal No. Unknown of 1992)
  • Ismail T/a Bombo City Stores v Alex Kamukamu and Others T/a Bazari (Supreme Court Appeal No. Unknown of 1992)
  • R. V. Secretary for State for India (1941) 2 ALL ER 546
  • Shelton Okobo v. Standard Chartered Bank U Ltd (1992) 2 KALR 115
  • Management Committee of Rubaga Girls School v. Dr. Bwogi (1999) KALR 586
  • Makula International v. His Eminence Cardinal Nsubuga (1982) HCB Page 11
  • Gandy v. Casper Air Charta Ltd (1956) 23 EACA 139
  • Patel v. Fleet Transport Co. Ltd (1980) EA 1025 (CA-K)

Full judgment

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

Kasajja Vs Iga & Anor (HCT-04-CV-MC-004-2014) [2015] UGHCCD 32 (17 March 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.