Automated Summary
Key Facts
The court addressed a preliminary objection regarding the validity of an affidavit supporting an application to stay and set aside an order for the removal of caveats in Kyadondo Block 192-Plots 3334-3335, Buwate. The applicant, Huthy Dat Mutumba, argued through counsel that the affidavit, sworn by Mr. Mutegyeka Nicholas of Katarikawe & Co. Advocates, was valid as it stated his capacity as an advocate with knowledge of the case. The respondent challenged the affidavit's legitimacy, asserting it lacked explicit authority from the applicant. The court ruled the description of the deponent's capacity sufficient under the Civil Procedure Rules and Uganda Civil Justice Bench Book, finding the affidavit not defective. The preliminary objection was overruled with costs in the applicant's favor.
Issues
Whether the Applicant's affidavit in support is defective and should be struck off the court record?
Holdings
The court determined that the affidavit supporting the application, sworn by Mr. Mutegyeki Nicholas, was not defective. It found that his description as an advocate with knowledge of the case facts was sufficient under the Civil Procedure Rules and the Uganda Civil Justice Bench Book. The preliminary objection was overruled, and the application proceeds without dismissal.
Remedies
The court overruled the Respondent's preliminary objection regarding the defective affidavit and awarded costs to the Applicant in the cause.
Legal Principles
The court relied on Order 3 r 1 of the Civil Procedure Rules, which permits an advocate with knowledge of the facts to swear an affidavit. It also referenced Regulation 9 of the Advocates (Professional Conduct) Regulations and the case of Ismail T/a Bombo City Stores v Alex Kamukamu (1987), affirming that an advocate must not act as both a witness and counsel in the same matter. The ruling clarified that the deponent's description in the affidavit was sufficient to establish their capacity as an advocate with factual knowledge, not as a representative under Order 1.
Precedent Name
Ismail T/a Bombo City Stores v Alex Kamukamu & Others T/aBazari
Cited Statute
- Civil Procedure Rules
- Advocates (Professional Conduct) Regulations
Judge Name
Hon. Lady Justice Olive Kazaarwe Mukwaya
Passage Text
- That I am an advocate working with M/S Katarikawe & Co Advocates and well conversant with facts pertaining to this application.
- This court finds that the description of the deponent in paragraph 2 of the affidavit is sufficient to explain the capacity under which Mr. Mutegyeki swore the affidavit; not as a representative of the Applicant under Order 1 of the Civil Procedure Rules, or an advocate in personal conduct but an advocate with knowledge of the facts pertaining to the application. The affidavit is therefore not defective.
- Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his or her recognised agent, or by an advocate duly appointed to act on his or her behalf, except that any such appearance shall, if the court so directs, be made by the party in person.