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Simbamanyo Estates Limited and Anor v Equity Bank (U) Limited and 3 Others (Civil Miscellaneous Application No. 224 of 2021)

High Court · [2021] UGCOMMC 30 · 2021 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Deputy Registrar's order that Civil Suit No. 837 of 2020 abated for failure to take out summons for directions in time
Decision
Appeal struck out on a preliminary objection for defective affidavits. Applications dismissed. Costs to the Respondents.

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Holding

Appeal struck out. Affidavits deponed by advocates instructed to represent the appellants on substantive and contentious matters in the appeal were defective and rendered the appeal incompetent. Counsel cannot swear affidavits on substantive matters in proceedings where they appear as advocates. Regulation 9 of the Advocates (Professional Conduct) Regulations prohibits advocates from appearing in matters where they will be required as witnesses. The preliminary objection was upheld and the appeal struck out for being founded on defective affidavits.

Outcome

Appeal struck out on a preliminary objection for defective affidavits. Applications dismissed. Costs to the Respondents.

Facts

The appellants filed Civil Suit No. 837 of 2020 challenging the sale and transfer of their properties. After respondents filed written statements of defence, the 2nd respondent applied for an order that the suit had abated under Order XIA Rule 1(6) for failure to take out summons for directions in time. The Deputy Registrar ordered on 17 February 2021 that the suit had abated. The appellants appealed against that order, seeking to set aside the abatement order and reinstate the suit. The appellants contended that pleadings had not closed because they had not received the written statements of defence from the 2nd and 4th respondents, and therefore they were not required to take out summons for directions. The appellants also contended that a pending appeal (Miscellaneous Appeal No. 3 of 2021) excused them from taking out summons for directions. The appeal was supported by affidavits deponed by two advocates instructed to represent the appellants.

Issues

  1. Whether the appeal filed before the court was valid and competent.
  2. Whether the affidavits in support of the appeal were defective.
  3. Whether this application disclosed sufficient grounds for setting aside the abatement order and reinstatement of Civil Suit No. 837 of 2020.

Orders

  • Miscellaneous Appeal No. 3 of 2021 for setting aside the orders of the Registrar is dismissed.
  • Miscellaneous Application No. 370 of 2021 for stay of proceedings in Miscellaneous Appeal No. 3 of 2021 is overtaken by events.
  • Miscellaneous Application No. 718 Of 2021 for stay of execution is hereby dismissed.
  • Costs of this appeal; Miscellaneous Appeal No. 3 of 2021; Miscellaneous Applications No. 370 of 2021 and No. 718 Of 2021 are awarded to the Respondents.

Rules and key headnotes

Affidavits — Competence — Affidavits deponed by advocates on substantive matters
An affidavit deponed by an advocate instructed to represent a party on substantive and contentious matters in a proceeding is defective and renders the application or appeal incompetent, as advocates are prohibited by Regulation 9 of the Advocates (Professional Conduct) Regulations from appearing in matters where they will be required as witnesses.
Affidavits — Distinction between formal and substantive matters
While an advocate with knowledge of the facts may swear an affidavit on formal and non-contentious matters, an affidavit sworn by counsel in personal conduct of the matter on substantive matters is fatally defective. Substantive matters refer to the essence of the claim or the subject matter in a proceeding without which nothing exists.
Preliminary objections — Competence of appeal — Defective affidavits
Where affidavits in support of an appeal are defective for being deponed by advocates on substantive matters in which they appear as counsel, the appeal is incompetent and liable to be struck out under Order 6 Rule 29 of the Civil Procedure Rules.

Legislation cited (16)

Cases cited (13)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696
  • Bishop Patrick Baligasiima v Kiiza Daniel & 16 Others (H.C.M.A No. 1495 of 2016)
  • MHK Engineering Services (U) Limited v MacDowell Limited (H.C.M.A No. 825 of 2018)
  • Mugoya Construction & Engineering Limited v Central Electricals International Limited (H.C.M.A No. 699 of 2011)
  • Nakibira Agnes & Others v Kelemera Edward (H.C.M.A No. 403 of 2018)
  • Jayanth Amratlal Bhimji & Anor v Prime Finance Company Limited (H.C.M.A No. 225 of 2008)
  • Mohammad Kaliisa v Gladys Nyangire Karumu (Civil Reference No. 139 of 2013)
  • Chandran & Associates v URA (H.C.C.S No. 0917 of 2019)
  • Magem Enterprises Limited v Uganda Breweries Limited (H.C.C.S No. 462 of 1991)
  • National Resistance Movement v Kampala Modernity & Printers Ltd (Misc. Appeal No. 6 of 2016)
  • Adonia v Mutekanga [1970] EA 429
  • Yunusu Ismail T/A Bombo City Store v Alex Kamukamu & others T/A OK Bazaar (1992) 3 KALR 113
  • Uganda Development Bank v Muganga Construction Co. Ltd (1981) HCB 35

Full judgment

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

Simbamanyo Estates Limited and Anor v Equity Bank (U) Limited and 3 Others (Civil Miscellaneous Application No. 224 of 2021) [2021] UGCommC 30 (30 July 2021)
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.