Wakilii

Muwonge v Musoke & Another (Miscellaneous Application 42 of 2022)

High Court · [2023] UGHC 386 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside dismissal of civil suit arising from non-appearance
Decision
Application dismissed with costs to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application to set aside dismissal of the underlying civil suit. The advocate appearing in personal conduct of the matter deponed the supporting affidavit on a contentious matter, violating Regulation 9 of the Advocates (Professional Conduct) Regulations. The affidavit was fatally defective and struck off. Without a valid supporting affidavit, the application could not stand.

Outcome

Application dismissed with costs to the respondents

Facts

The applicant sought to set aside the dismissal of Civil Suit No. 58 of 2018. The suit was dismissed on 15 March 2022 for non-appearance. The applicant's counsel Bbaale Sadat swore an affidavit stating that he was involved in a road accident at Lukaya on the morning of the hearing while travelling to court, and arrived at 11:00 a.m. after the matter had been dismissed. He also stated that the applicant was unwell. The second respondent opposed the application, contending that the applicant had repeatedly failed to attend court without viable explanation. In rejoinder, counsel stated that the applicant had been diligent but lost track due to the pandemic and was elderly and sickly. Counsel Bbaale Sadat deponed both the supporting affidavit and the rejoinder affidavit, and also appeared in personal conduct of the application at the hearing.

Issues

  1. Whether the affidavit in support of the application is fatally defective due to the advocate's dual role as deponent and counsel.
  2. Whether the application to set aside the dismissal can stand without a valid supporting affidavit.

Orders

  • The affidavit in support of the application is struck off the record.
  • The affidavit in rejoinder is struck off the record.
  • The application is dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Advocates — Professional Conduct — Dual Role as Counsel and Witness
An advocate who appears in personal conduct of a contentious matter cannot lawfully depone to an affidavit in support of that matter, and such an affidavit is fatally defective and must be struck off the record.
Applications — Validity of Supporting Affidavit — Effect of Defective Affidavit
Where there is only one affidavit in support of an application and that affidavit is invalid or fatally defective, the application cannot stand because it is not supported by any valid affidavit.
Advocates — Professional Conduct Regulations — Prohibition on Dual Roles
Regulation 9 of the Advocates (Professional Conduct) Regulations bars an advocate from appearing before a court on behalf of a client when the advocate is at the same time a witness or potential witness in a contentious matter; an advocate in such a situation must choose to act either as witness or as counsel, but not both.

Legislation cited (4)

Cases cited (11)

  • Nicholas Roussos v Golam Hussein and Another (Civil Appeal No. 9 of 1993)
  • National Insurance Corporation v Mugenyi and Co. Advocates 1987 HCB 28
  • Captain Phillip Ongom v Catherine Nyero (Supreme Court Civil Appeal No. 14 of 2001)
  • Rosette Kizitio v Administrator General and Others (Supreme Court Civil Appeal No. 9 of 1986)
  • Florence Nabatanzi v Naome Binsobodde SCCA. 1987
  • Sipiriya Kyaturesire v Justine Bagambe (Court of Appeal No. 20 of 1995)
  • Monaco Cosmetics Ltd and 2 Others v Old Stanley Hotel Ltd (Miscellaneous Application No. 593 of 2016)
  • Hussein Nsubuga and Another v Administrators of the Estate of the Late Gladys Ndagire Taaka (Miscellaneous Application No. 726 of 2011)
  • Uganda Development Bank v Kasirye Byaruhanga & Co. Advocates (Supreme Court Civil Appeal No. 35 of 1994)
  • Linyi Huatai Battery Manufacturing Company Ltd v Musa AF Enterprises Co. Ltd (High Court Miscellaneous Application No. 573 of 2020)
  • Abaho Anania and Others v Rwasbushaija and Others (High Court Miscellaneous Application No. 258 of 2022)

Full judgment

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

Muwonge v Musoke & Another (Miscellaneous Application 42 of 2022) [2023] UGHC 386 (7 September 2023)
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.