Wakilii

Yunus Ismail t a Bombo City Store v Alex Kamukamu and Others (Civil Appeal 7 of 1987)

Supreme Court · [1988] UGSC 10 · 1988 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory civil appeal from a High Court order overruling preliminary objections to an application to set aside a temporary injunction
Decision
Appeal dismissed; High Court order overruling the preliminary objections upheld and hearing of the application to proceed

Observed later treatment

Treatment recorded in citing cases applied in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Good law Followed in 0 cases and applied in 1 case, with no adverse treatment recorded. Citations rising — 12 citing cases on record, 6 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Supreme Court dismissed an interlocutory appeal challenging a High Court order that overruled preliminary objections to an application to set aside a temporary injunction. The Court held that where partners are sued and engage an advocate, the advocate may enter a single appearance stating the partners' individual names; O.27 r.6 does not require separate appearances, and in any event the respondents were sued in their individual names. The affidavit of the managing partner was valid, he having express (and implied) authority to swear it. Although counsel's own affidavit improperly contained contentious matter contrary to regulation 8 of the Advocates (Professional Conduct) Regulations, the valid affidavit of the managing partner sufficiently supported the application, so the appeal failed.

Outcome

Appeal dismissed; High Court order overruling the preliminary objections upheld and hearing of the application to proceed

Facts

In 1973 the appellant was allocated business premises (Shop No. 5, Plot 4 South Street, Kampala) and traded there as Bombo City Store. In 1983 the Departed Asian Property Custodian Board allocated the same premises to the respondents, who traded as OK Bazaar. The appellant's complaints to the Ministry of Commerce and the Custodian Board failed. In 1987 he sued the respondents seeking a declaration that he was the rightful allottee and that the allocation to the respondents was void, a permanent injunction, and special damages for trespass. He obtained a temporary injunction. The respondents, represented by Jombwe & Co. Advocates, entered appearance and applied by notice of motion to set aside the injunction, supported by affidavits sworn by their counsel Mr. Jombwe and by the second respondent Jimmy Kyeyune. The appellant raised preliminary objections to the appearance, the affidavits, and counsel acting as both advocate and deponent. The trial judge overruled the objections and ordered the application to proceed, prompting this appeal.

Issues

  1. Whether partners sued in the firm name and represented by an advocate must each enter a separate appearance under O.27 r.6 of the Civil Procedure Rules.
  2. Whether an affidavit sworn by one partner in support of the application was defective for want of authority to swear on behalf of the other partners.
  3. Whether an advocate may both act as counsel and swear an affidavit in the same case under regulation 8 of the Advocates (Professional Conduct) Regulations 1977.
  4. Whether the application to set aside the temporary injunction was rendered incurably defective by reason of a defective affidavit.

Orders

  • Appeal dismissed with costs to the respondents.

Rules and key headnotes

Civil Procedure — Appearance of Partners — Firm Sued in Firm Name — Representation by Advocate
Where partners are sued in the firm name and engage an advocate to enter appearance on their behalf, the advocate may do so by stating the names of the partners individually in a single memorandum of appearance; O.27 r.6 of the Civil Procedure Rules does not require partners so represented to enter separate appearances and does not conflict with O.3 r.1.
Civil Procedure — Appearance of Partners — Defendants Sued in Individual Names
Where defendants are sued in their individual names and merely described as trading under a firm name, they are not sued in the firm name within the meaning of O.27 r.6, that rule is not strictly applicable, and they are entitled to file a joint memorandum of appearance through their advocate.
Partnership — Authority of Active or Managing Partner — Implied Authority to Defend
An active or managing partner of a business firm has implied authority to take such steps as are necessary to defend an action brought against the firm, including employing an advocate and swearing affidavits; dormant partners are taken to have given that authority.
Evidence — Affidavits — Authority of Deponent
A statement in an affidavit that the deponent has been authorised by the other partners to swear it is evidence of authority, and the burden lies on the opposing party to produce contrary evidence to rebut the claim.
Legal Profession — Advocate as Counsel and Witness — Affidavits on Contentious Matter
An advocate may not act as counsel in a matter in which he is required as a witness; under regulation 8 of the Advocates (Professional Conduct) Regulations 1977 he may swear an affidavit only on formal or non-contentious matters of fact, and an affidavit deposing to contentious matters, or to matters received on information without disclosing the source, is materially defective.
Civil Procedure — Notice of Motion — Sufficiency of Supporting Affidavit
An application need not be supported by more than one affidavit; where the notice of motion incorporates the grounds set out in an annexed affidavit, one valid affidavit is sufficient to support the application notwithstanding that another supporting affidavit is defective.

Legislation cited (5)

  • Civil Procedure Rules O.27 r.6
  • Civil Procedure Rules O.3 r.1
  • Civil Procedure Rules O.48 r.3
  • Advocates (Professional Conduct) Regulations 1977 (Statutory Instrument No. 79 of 1977) reg.8
  • Rules of the Court r.84

Cases cited (11)

  • Ellis v Wadeson (1899) 1 QB 714
  • Opa Pharmacy v Howse & McGeorge (1972) 1 ULR 113
  • Posts & Telecommunications v Terrazo Paviors (1973) EA 344
  • Horra v Horra (1959) EA 98
  • Court v Berlin (1897) 2 QB 396
  • Tomlinson v Broad Smith (1896) 1 QB 386
  • R v Secretary of State for India (1941) 2 All ER 546
  • Jafferah & Another V. Borrison & Another (1972) E.A. 165
  • Gandesha v Killing Coffee Estate Ltd (1969) EA 1129
  • Gaspair Ltd v Harry Candy (1962) EA 414
  • Castelino v Rodrigues (1972) EA 223

Cases citing this judgment (10)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Yunus Ismail t a Bombo City Store v Alex Kamukamu and Others (Civil Appeal 7 of 1987) [1988] UGSC 10 (9 December 1988)
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.