Wakilii

Kasule v Fina Bank (U) Ltd & Anor (Civil Revision No. 5 of 2015)

High Court · [2015] UGHCLD 43 · 2015 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Revision application from Kira Magistrate's Court seeking to set aside eviction orders where the trial court had found it lacked jurisdiction
Decision
Preliminary objections dismissed; revision application to proceed to hearing on merits

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that an advocate without a valid practicing certificate is not precluded from swearing an affidavit as a witness. Section 14A(1)(b)(i) of the Advocates (Amendment) Act 2002 provides that documents made by an advocate denied audience shall not be invalidated. An affidavit sworn by an advocate on matters of law within their professional knowledge does not constitute hearsay. The burden of proof lies on the party alleging lack of a valid practicing certificate, and mere assertion without evidence is inadmissible. Preliminary objections overruled.

Outcome

Preliminary objections dismissed; revision application to proceed to hearing on merits

Facts

The applicant sought revision of orders issued by Kira Magistrate's Court which had ordered eviction and vacant possession from property comprised in Block 223 Plot 171, despite the magistrate having found the court lacked jurisdiction over the suit property. The revision application was supported by an affidavit sworn by Kizito Farouk, an advocate. The first respondent raised two preliminary objections: first, that the affidavit was defective for containing hearsay and being sworn by an advocate who did not handle the matter in the lower court; second, that the advocate who swore the affidavit had no valid practicing certificate for 2015. The respondent provided no documentary evidence to support the allegation regarding the practicing certificate, relying only on oral submissions referencing a judiciary website search.

Issues

  1. Whether an affidavit sworn by an advocate without a valid practicing certificate is invalid.
  2. Whether an affidavit sworn by an advocate who did not handle the matter in the lower court and containing matters of law constitutes inadmissible hearsay.
  3. Whether the preliminary objections to the revision application should be sustained.

Orders

  • Preliminary objections overruled and dismissed with costs.
  • Application for revision to proceed.

Rules and key headnotes

Civil Procedure — Affidavits — Validity — Advocate Without Valid Practicing Certificate
An advocate without a valid practicing certificate is not precluded from swearing an affidavit as a witness in support of an application. Section 14A(1)(b)(i) of the Advocates (Amendment) Act 2002 provides that where an advocate is lawfully denied audience, no document made by the advocate shall be invalidated and the client's case shall not be dismissed by reason of such event. The validity of a practicing certificate is not what makes an advocate; it is only a licence to practice law, and its absence does not invalidate an affidavit sworn by the advocate as a witness.
Civil Procedure — Affidavits — Hearsay — Matters Within Advocate's Legal Knowledge
An affidavit sworn by an advocate on matters of law within their professional knowledge does not constitute hearsay evidence. Where an advocate deposes to matters concerning jurisdiction of a court and locus standi of parties, these are issues ordinarily within the advocate's personal legal knowledge and need not be sworn to the best of information or belief. Such depositions do not offend Order 19 of the Civil Procedure Rules.
Civil Procedure — Burden of Proof — Allegations Made from the Bar
The burden of proof lies on the party who asserts the existence of a fact. Where a party alleges that an advocate has no valid practicing certificate, that party must furnish proof to support the assertion. Mere reference to a website without producing documentary evidence does not satisfy the burden of proof under sections 101-103 of the Evidence Act. Assertions made from the bar without supporting evidence are inadmissible.
Civil Procedure — Revision — Procedural Requirements — Flexibility
A formal application by notice of motion is not a strict requirement in revision matters. Section 83 of the Civil Procedure Act permits the High Court to call for the record of any case determined by a magistrate's court where the court exercised jurisdiction not vested in it, failed to exercise jurisdiction, or acted illegally or with material irregularity. Revision can be brought to the court's attention even by letter. Procedural formality is of secondary importance where the fundamental issue of jurisdiction is raised.

Legislation cited (5)

Cases cited (7)

  • Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1998)
  • Simon Tendo Kabenge & Co. Advocates v Mineralacessystems (U) Ltd (High Court Miscellaneous Application No. 565 of 2011)
  • Prof. Syed Huq v Islamic University in Uganda (Supreme Court Civil Appeal No. 47 of 1995)
  • Mohan Musisi v Asha Chand (Supreme Court Civil Appeal No. 14 of 2002)
  • Dr. Vincent Karuhanga t/a Friends Polyclinic v National Insurance Corporation & Uganda Revenue Authority (High Court Civil Suit No. 617 of 2002)
  • Takiya Kaswahili & Anor v Kajungu Denis (Court of Appeal Civil Appeal No. 85 of 2011)
  • Law Development Centre v Edward Mugalu (1990-1991) 1 KALR 103

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Kasule v Fina Bank (U) Ltd & Anor (Civil Revision No. 5 of 2015) [2015] UGHCLD 43 (16 December 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.