Wakilii

Rosette Asiimwe v UAP Old Mutual Life Assurance [2023] UGHC 550

High Court · 2023 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out Civil Appeal No. 40 of 2023; preliminary objection raised regarding competence of affidavit in reply
Decision
Preliminary objection dismissed; application to proceed to hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An advocate who depones an affidavit in personal conduct of a matter at a prior tribunal does not violate Regulation 9 of the Advocates (Professional Conduct) Regulations where the affidavit states facts within his knowledge from that prior matter and where the advocate is not in personal conduct of the current application. The regulation prohibits an advocate from acting as counsel and witness in the same case, but does not prevent an advocate from deponing facts known from conduct of a related matter at a different forum.

Outcome

Preliminary objection dismissed; application to proceed to hearing on merits

Facts

The Applicant brought an application to strike out Civil Appeal No. 40 of 2023. The Respondent filed an affidavit in reply sworn by Jeremiah Dai, an advocate with M/s Ligomarc Advocates. At the hearing on 4 October 2023, counsel for the Applicant raised a preliminary objection that paragraphs 5 to 18 of the affidavit in reply raised contentious issues offending Regulation 9 of the Advocates (Professional Conduct) Regulations and failed to disclose the source of information. The Applicant argued that the advocate would be exposed to cross-examination. The Respondent countered that the matters deponed were within Dai Jeremiah's knowledge as he was counsel in conduct of Insurance Appeals Tribunal Application No. 001 of 2023, from which the civil appeal arose, and that the affidavit properly disclosed sources where information came from others.

Issues

  1. Whether the affidavit in reply sworn by an advocate in personal conduct of the matter at a prior tribunal violates Regulation 9 of the Advocates (Professional Conduct) Regulations SI 267-2.

Orders

  • The preliminary objection is overruled.
  • Miscellaneous Application No. 874 of 2023 should be scheduled for hearing on its merits inter parties.

Rules and key headnotes

Affidavits — Advocates deponing affidavits — Regulation 9 of Advocates (Professional Conduct) Regulations
Regulation 9 of the Advocates (Professional Conduct) Regulations SI 267-2 prohibits an advocate from acting as counsel and witness in the same case, but does not prevent an advocate from deponing an affidavit on matters within his knowledge from personal conduct of a related matter at a different forum, provided the advocate is not in personal conduct of the current application.
Affidavits — Facts within deponent's own knowledge — Order 19 rule 3(1) CPR
Under Order 19 rule 3(1) of the Civil Procedure Rules, affidavits must be confined to facts the deponent can prove from his own knowledge. Where an advocate depones facts within his knowledge by virtue of being counsel in a prior related matter, there is no requirement to disclose the source of that information.
Affidavits — Contentious matters — Exception for formal and non-contentious matters
An advocate may depose an affidavit in formal or non-contentious matters in a case in which he appears as counsel. The regulation only prohibits an advocate from deponing an affidavit in contentious matters where he would be exposed to cross-examination as a witness in the same case in which he acts as counsel.

Legislation cited (5)

Cases cited (3)

  • Uganda Development Bank v Kasirye Byaruhanga & Co Advocates (Supreme Court Civil Appeal No. 35 of 1994)
  • Yunusu Ismail v Aler Kamukama & Ors (Civil Appeal No. 7 of 1987)
  • R-v-Secretary for state for India [1941] 2 ALLER 546

Full judgment

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

Rosette Asiimwe v UAP Old Mutual Life Assurance 2023 UGHC 550 (1 November 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.