Wakilii

Kibulwe Simon & Others v Paul Mbazzi Kiggye & Others (Originating Summons No. 10 of 2018)

High Court · [2018] UGHCFD 36 · 2018 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection to validity of supporting affidavits in originating summons arising from estate administration
Decision
Applicants permitted to cure defect by swearing fresh affidavits; main application to proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that affidavits commissioned by a struck-off advocate are defective but not invalid. Section 14A of the Advocates Act as amended protects clients from consequences of their advocate's suspension or cancellation of practicing certificate. No action taken by such an advocate on behalf of a client shall be invalidated. Applicants entitled to swear fresh affidavits before an authorised Commissioner for Oaths.

Outcome

Applicants permitted to cure defect by swearing fresh affidavits; main application to proceed

Facts

The applicants filed an originating summons arising from the administration of an estate. The respondents raised a preliminary objection that the supporting affidavits were invalid because they had been commissioned by Mr. Semakula Augustine, an advocate who had been struck off the roll of advocates by 23 May 2018. The respondents argued that under Section 1(4) of the Commissioner for Oaths Act, the advocate's commission terminated immediately upon being struck off, rendering the affidavits illegal. The applicants relied on Section 14A of the Advocates Act as amended by the Advocates Amendment Act 2002, which protects clients from consequences of actions by advocates whose certificates have been cancelled or suspended.

Issues

  1. Whether affidavits commissioned by an advocate who has been struck off the roll of advocates are valid.
  2. Whether Section 14A of the Advocates Act as amended protects clients from invalidity of documents commissioned by suspended advocates.

Orders

  • Preliminary objection dismissed.
  • Applicants allowed to swear fresh affidavits in support of their application before an authorised Commissioner for Oaths, provided the content remains the same as that in the affidavits sworn before Mr. Augustine Semakula.
  • Prayer for dismissal of the application denied.

Rules and key headnotes

Civil Procedure — Affidavits — Commissioning by Struck-Off Advocate — Validity
Where an advocate who has been struck off the roll of advocates commissions affidavits, the affidavits are defective but not invalid by reason of Section 14A of the Advocates Act as amended, which protects clients from consequences of actions taken by advocates whose practicing certificates have been cancelled or suspended.
Administrative Law — Legal Profession — Protection of Clients — Scope of Section 14A Advocates Act
Section 14A of the Advocates Act as amended provides total protection to clients such that no action taken by an advocate on behalf of a client shall be invalidated by reason of the advocate practicing contrary to Section 14 or being denied audience, and this protection extends to the whole spectrum of actions by the advocate including commissioning affidavits as Commissioner for Oaths.
Civil Procedure — Affidavits — Remedy for Defective Commissioning — Fresh Affidavits
Where affidavits have been commissioned by a suspended or struck-off advocate, the remedy lies in Section 14A(a)(ii) of the Advocates Act which allows the client to be given time to engage another advocate or otherwise make good any defects arising, including by swearing fresh affidavits before an authorised Commissioner for Oaths with the same content.

Legislation cited (6)

Cases cited (1)

  • Professor Saidi Yaka v Islamic University of 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.

Kibulwe Simon & Others v Paul Mbazzi Kiggye & Others (Originating Summons No. 10 of 2018) [2018] UGHCFD 36 (19 September 2018)
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.