Wakilii

MK Financiers Ltd v Shah & Co Ltd & 4 Ors (Miscellaneous Application appeal No. 343 of 2015)

High Court · [2016] UGHCCD 15 · 2016 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Deputy Registrar's decision to withdraw civil suit with costs, with preliminary points of law raised
Decision
Affidavit struck out as defective; 4th respondent disqualified from representing respondents; respondents given opportunity to file reply through different counsel within 7 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the affidavit in reply sworn by the country director of the first respondent was defective for failure to demonstrate written authority to swear on behalf of the other respondents as required by Order 3 Rule 5(2) of the Civil Procedure Rules. The court further held that the respondents had not filed a valid response. The court ruled that the 4th respondent, being an advocate who had drafted and sealed documents for the respondents and was likely to be called as a witness, could not represent the respondents due to conflict of interest under Regulation 9 of the Advocates (Professional Conduct) Regulations, but the respondents could instruct another lawyer of their choice.

Outcome

Affidavit struck out as defective; 4th respondent disqualified from representing respondents; respondents given opportunity to file reply through different counsel within 7 days

Facts

The appellant and respondents had a dispute in Civil Suit No. 382 of 2014. On 3 September 2015, the Deputy Registrar of the High Court Civil Division withdrew the civil suit with costs. The appellant, dissatisfied with this decision, filed an appeal (No. 343 of 2015). When the matter came up for hearing, the appellant, through its managing director Male Mabirizi Kiwanuka, raised preliminary points of law. The respondents filed an affidavit in reply sworn by Parikh Hetal, the country director of the first respondent company. Mr. Ekirapa Isaac Obiro, who was the 4th respondent, appeared as counsel for the respondents. The appellant challenged the validity of the affidavit in reply and the propriety of Mr. Ekirapa representing the respondents.

Issues

  1. Whether the affidavit on court record is defective, incompetent and should be struck out of court record.
  2. Whether the respondents filed a valid response on court record.
  3. Whether Mr. Ekirapa, who is the 4th respondent, can validly represent himself and the other respondents.

Orders

  • The affidavit in court is defective and incompetent.
  • Mr. Ekirapa who is the 4th respondent cannot act as counsel in personal conduct of this matter but the respondents can instruct another lawyer of their choice.
  • The costs of this application shall be in the cause.
  • The respondents may apply for extension of time in which to file a reply under section 96 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules within 7 days.

Rules and key headnotes

Civil Procedure — Affidavits — Representative Actions — Authority to Swear on Behalf of Others
An affidavit sworn by a person on behalf of others is defective and incompetent where the deponent fails to demonstrate written authority from those on whose behalf the affidavit is sworn, as required by Order 3 Rule 5(2) of the Civil Procedure Rules, which mandates that the instrument of appointment be filed in court.
Evidence — Admissions — Failure to Reply to Affidavit
Where certain facts are sworn to in an affidavit and the opposing party fails to deny them in reply, those facts are presumed to have been accepted and admitted.
Administrative Law — Legal Profession — Advocates — Conflict of Interest — Appearing as Counsel While Being a Party and Potential Witness
An advocate who is a party to proceedings and who has drafted, signed and sealed documents for other parties to the same proceedings is disqualified from representing those parties under Regulation 9 of the Advocates (Professional Conduct) Regulations S.I. 207-2 where there is reason to believe he or she will be required as a witness, as such representation creates a conflict of interest and places the advocate in a fiduciary relationship that may be abused.

Legislation cited (14)

Cases cited (9)

  • Lena Nakalema Binaisa & 3 Others v Mucunguzi Myers (High Court Miscellaneous Application No. 460 of 2013)
  • Lt. Col. John Kaye v Attorney General (Constitutional Application No. 25 of 2012)
  • Akankwasa v Registrar of Titles (Miscellaneous Cause No. 33 of 2008)
  • Taremwa Kamishana Tomas v Attorney General (High Court Miscellaneous Application No. 38 of 2012)
  • Vincent Kafeero and 11 Others v Attorney General (High Court Civil Miscellaneous Application No. 048 of 2012)
  • Mukuye and 106 Others v Madhvani Group Limited (Miscellaneous Application No. 0821 of 2013)
  • Makerere University v St. Mark Education Institute & Others (High Court Civil Suit No. 378 of 1993)
  • Uganda v Patricia Ojangole (Criminal Case No. 1 of 2014)
  • Commonwealth Bank of Australia v R and Anor (1991) 102 ALR 453

Full judgment

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

MK Financiers Ltd Vs Shah & Co Ltd & 4 Ors (Miscellaneous Application_appeal No. 343 of 2015) [2016] UGHCCD 15 (13 April 2016)
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.