Last updated on August 16th, 2024 at 10:18 am
Topic: Illegality, Leave to Appeal, Advocates giving Evidence
Date of Judgment: 14 June 2024
Court: High Court of Uganda at Mbarara
Case Number/Citation: Miscellaneous Application 242 of 2023, 2024 UGHC 460
Judge: Justice Nshimye Allan Paul M.
Summary Facts of the Case
The Applicants, Rukokoma Mixed Farming Cooperative Society Limited and Banya Francis, sought leave to appeal from an order of the High Court in Miscellaneous Application No. 001 of 2022, which had set aside a consent judgment between the applicants and Ibanda District Local Government at the instance of the respondent.
The Applicants contended that the Court should have set aside the terms of settlement captured in the Memorandum of Understanding on which the consent Judgement was based but not the consent Judgement itself.
The consent Judgement in question was in respect to a transfer of Ibanda Forest Reserve to the Applicants yet it had not been degazzated by Parliament pursuant to Section 11 of the National Forest and Tree Planting Act implying that the transfer was illegal and therefore the consent Judgement was invalid.
During this Application, the respondent raised preliminary objections challenging the applicant’s witness who was an Advocate swearing an affidavit in support of the Application yet he was from the same firm of Advocates (CMS & Co Advocates) representing the Applicant, and that there was no evidence on record that the Applicants authorized him to swear an affidavit on their behalf especially considering this was a contentious matter.
This, the respondent contended, violated the provisions of Regulation 9 of the Advocates (Professional Conduct) Regulations that prohibit advocates from acting as Counsel and Witness in the same case and Order 19 Rule 3(1) of the Civil Procedure Rules that demands persons giving evidence on others to be authorized by the persons they are giving evidence on behalf of.
Legal Issues Before the Court
- Whether the applicants should be granted leave to appeal.
- Whether the affidavit in support of the application, sworn by the applicants’ counsel, was legally valid.
Decision of the Court
The Court declined to grant the applicants leave to appeal and overruled the preliminary objections raised by the respondent.
The court held that the applicants had not presented a prima facie case meriting judicial consideration in the Court of Appeal.
Specifically, the Court decided that in light of the illegality of the consent judgment owing to the fact that Parliament had not degazzeted the forest reserve the subject thereof, Court could not close its eyes to the illegality and condone it pursuant to the authority of Makula International v His Eminence Cardinal Nsubuga.
As regards the respondent’s preliminary objections, the Court held that the Applicant’s witness despite being from the same firm of advocates that represented the Applicants was not enlisted on the record as Counsel for the Applicants and did not stand in as their legal representative.
As to the lack of authority to swear an affidavit on behalf of the Applicants, the Court held that an advocate is one of the persons precluded from furnishing authority to swear an affidavit under Order 3 Rule 1 of the Civil Procedure Rules.
Key Quote: ” It is not in doubt that Ibanda Forest Reserve was not degazzeted. This means that what was done in the MOU and the Consent Judgement was against public policy considering that forest reserves are protected in Article 237 (2) (b) of the Ugandan Constitution and the land of a forest reserve can only be dealt with after the Ugandan Parliament has degazzeted the same. This means that the MOU and consent Judgement were founded on illegalities since they did not follow the law as provided in Section 11(5) of the National Forest and Tree Planting Act 2003 before dealing with the forest reserve land. It is the law that when an illegality is brought to the attention of Court, it takes precedence and it cannot be sanctioned…” – Justice Nshimye Allan Paul
Law Applied By the Court
- Regulation 9 of the Advocates (Professional Conduct) Regulations SI 267-2; Prohibition against lawyer being Counsel and Witness in the same case.
- Sango Bay Estates & Others v Dresdner Bank AG [1971] EA 17: Principles for the grant of leave of Appeal
- Electromaxx Uganda Limited v Oryx Uganda Oil Uganda Limited HCMA 251 OF 2020: Lawyers among persons precluded from furnishing authority to swear affidavits
- Article 237 (2) (b) of the Ugandan Constitution; Forest Reserves are gazzeted as protected areas
- Section 11(5) of the National Forest and Tree Planting Act 2003
Counsel on Record:
- For the Applicants: Maureen Nuwamanya holding brief for Asaph Agaba from M/s CMS & Co. Advocates
- For the Respondent: Anna Kanyago from the Attorney General’s Chambers
Conclusion
This case illustrates the principle that Court will not grant a leave to appeal where an illegality in the proceedings giving rise to the would be appeal case has been drawn to its attention.
As a Court of law, Court is not supposed to condone or sanction upon illegalities whenever they are brought to its attention.
This case also sets precedent that a lawyer despite being from the same firm of advocates representing a party can give evidence for that party if not enlisted as Counsel for that party.