[2001] UGCA 45

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA

#### cotail HON ATII. JASTICE AMOS TWIAIOMUJUNI, JA (SIAIGI. E JUDGD)

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## CIVIL APPLICATION NO.17 OF 2OOI

#### N{ILLY MASI]]\IBI! APPLICANT

#### VS

I SUGAR CORPORATION UGANDA LIMITED

2 RICIIARD KAGIRI :::::::::::::::::::::::::::::: RESPONDENT

### IIULIN(I:

The applicant filed this application seeking fbr ordels that:

a) Consent.judgnrent entered into on 12109100 be set aside

b) Applicant's bill of costs be taxed.

c) Costs of this application be awarded to the applicant.

The notice of motion was signed by solneolle,

# "for M/s Parrl Tusubira and Co. Aclvocates counsel for the applicant/appellant. "

On 4'r'July 2001, Mr. Paul Palia Kiapi on behalf of M/s Rukutana & Co. Advocates (who claimed to have represented tlre applicant when the consent judgment was entered) filed an affidavit in rvhich he deponed that the Notice of Motion in this applicdtion was actually signed by one Natharl Twinonugisha u,ho did not have a practicing certificate in March 2001

when he signed it. On the sarne day M/s Mwesigwa Rukutana & Co. Advocates wl'ote to M/s Paut Tusubira & Co. Advocates st.ating that at the hearing of this application, lie would raise a pretiminary objection on the grounds, among other grounds that the application was incompetent because it was filed by an advocate rvho had no practicing certificate. M/s Paul Tusubira did not file an affidavit to challenge the assertion that Mr. Nathan Tu,inonrugisha is the one u,ho filed the application or tllat he did not possess a practicing certiflcate at lhe tillre.

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B), the tirne this application c4me up for hearing both parties had cltanged advocates. The applicant rvas being represented by Mr. Edmund Wakida of Odele & i.'valyanya Advocates rvhile the respondeut u,as represented by Mr'. Nasser Lumrveno ol'M/s Lurnwerto & Co. Advocates.

At the hcaring oi the application, It4r. [,untivcno luiscrl a prcliurinary ob.icction to the eltcct that tlre application rvas liled bv art advocatc rvitlrout ^apracticing certificate. l-le relied on tlie evidence in thc affidavit of Paul Kiapi already relerred to the above to the elfcc( that he recognised the signature ol' Nathan Tlvinomugisha on the Notice o{' Motion and tirat he knew as a fact tlrat at the time of rhe filing Mr. Twinomugisha had no practicing certificate. He also produced a letter fronr the Chief Registrar of the Courts of Judicature dated 4'r' September, 2001 to the effect that according to available records; "Mr. Natlrun Tv,inonutgislta last retrcwed his I'racticittg Certi.l'icate on l&t' Mo1,,2000". l-le submitted tlrat since the affidavit of Paul Kiapi on the matter was not challenged in an affidavit in reply, then it must be treated as unchallenged evidence and accepted. He

relied on the case of H. G. Gandeslm & another v.s G. J. Lutaya SCCA No.14/89,fi9941 lllIALR 20 in su pport of submission. Mr. Lumweno further submitted that documents filed by an advocate who has no pt'acticing certificate, after the time of grace allowed for obtaining the certificate, are invalid and cannot comlnence a valid application or cause. Ile relied on the case of Pro.f. Syed HUQ -lrS- The Islanic University itt Ugattda Civil Appeal No. 47 of ¹⁹⁹⁵ (.so) r-rnrepresented to support the l)roposrtlou.

In reply Mr. Edmund Wakida conceded that documents fited by an advocate who has no practicing certif icate are invalid. I:lowever, he submitted that the name of Nathan Twinomugisha did not appear anywhere on the application and theLe ri,as no proof that it u,as hin rvho signed

"flor M/s Paul Tusubira & Co Atlvocates counsel for the Applicant/Appellant".

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To this, Mr. Lurns,eno replied that once the al'fidavit of Paul Kiapi raised the issue that it rvas Nathan Twinornugisha rvho signed the Notice of Motion. in this application, unless an atTidavit u,as filed to the coutrary, such evidence cannot be cl.rallenged from the bar as Mr. Wakida rvas trying to do here.

I have carefully considered the subrnissions of both parties in this application. It is trite, and it is conceded, tliat urhele a rnaterial issue of do so in an al'l'idavit in reply and not frorr the bar during a hcraring, see: Gandcslm -r's- I-uta),a (supra). It is equally indisputable that documents fact is raised in an afl-idavit, a party seeking to challenge the rnatter nlust

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filed by an advocates without a practicing certificate outside the period of grace for obtaining the certificate are invalicl and incapable bf cornrnencing a valid app Iication or cause - see; Prof. IIuq -Vs- Islarnic Uriversity Iu Uganda (supra)

I have some sympathy for Mr'. Wakida u,ho u,as instructed to prosecute this application only a matter of days ago. It is possible he did not have sufficient time to notice that the mattel ol the person who signed the Notice of Motion not having a practicing certificate rvas made an issue in this application as early as last July and if the applicant did not accept it, an affidavit sliould have been filed in reply to state rvho actually filed the aliplication and rvhether he/she had a valid practicing certitlcate. In absence clf t'i,idence on oath to tlie contrar'), this court llrust accept the respondent's o,idcucc that this applicatiou rvas liled by ML. Nathan Tri,inonrugisha an advocate who did uot ha\/e a Practicing Certificate at the ruraterial tinrc. lt lbllows that the application is inconrpetcnt and nrust be struck out witlr costs to the respondent.

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Dated at Kampala this ll'h day of October 2001.

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