Byamukama and Another v Buregyeya (Civil Suit 5 of 2021) [2022] UGHC 148 (4 October 2022)


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HIGH COURT CIVIL SUIT NO 5 OF 2021**

- **1. DR. DANIEL BYAMUKAMA ---------------------------- PLAINTIFFS** - **2. KAMUGISHA ARTHUR**

### **VERSUS**

**APOLLO BUREGYEYA ---------------------------------- DEFENDANT**

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Before: Hon. Justice Nshimye Allan Paul. M.

## **RULING ON A PRELIMINARY OBJECTION**

#### 15 **REPRESENTATION**

Adv. Ngaruye Ruhindi for the Plaintiffs Adv. Rachael Tumwebaze for the defendant.

### **BACKGROUND**

20 This suit was filed by the plaintiffs represented by M/S Ngaruye Ruhundi Spencer & Co Advocates who drafted the plaint and filed it in court on 18th January 2021. On the other hand, the defendant's written statement of defence and counter claim were drafted by M/S Legal Counsel, Eco Concrete Limited and filed in court on 5th February 2021. When the matter came up in court on the 19th September 2022 for scheduling, 25 counsel for the plaintiff indicated to court that he desired to raise a preliminary objection.

### **APPLICATION**

Counsel for the plaintiffs orally submitted that the preliminary objection (P. O) was in 30 respect to the law firm that drafted the written statement defence and he prayed that court permit him submit on this issue.

It is a principle of law that any party shall be entitled to raise a point of law, and any point so raised shall be disposed of by the court at or after the hearing as is provided 35 in Order 6 rule 28 of the Civil Procedure Rules (CPR). In regard to the disposal of the

proposed Preliminary objection in this case, I am mindful of the fact that the Court has discretion to dispose off the preliminary objection immediately or defer its ruling until after hearing the whole case **(see THE ATTORNEY GENERAL V. MAJOR GENERAL DAVID TINYEFUNZA, S. C. CONSTITUTIONAL APPEAL NO. 1 OF 1997).** The court in this 5 case has in accordance to Order 6 rule 28 CPR decided to set down the point of law for disposal before the hearing of the main suit.

### **SUBMISSIONS**

Counsel for the plaintiffs submitted that the written statement of defence and trial 10 bundle are drafted by Eco Concrete Limited which is not a law firm. He relied on a letter of the Law Council signed by the Secretary Law Council dated 16th September 2022 titled "Legal status of Eco Concrete Limited," where the Law Council stated that;

*"According to our records, M/s Eco Concrete Limited does not appear in our lists* 15 *of approved law firms / legal departments for the years 2020, 2021 & 2022".*

Counsel for the plaintiffs further submitted that they proceeded to the Uganda Registration Services Bureau (URSB) where they confirmed that Eco Concrete Limited is a construction firm. He relied on a certificate of incorporation of Eco Concrete Limited dated 13th 20 January 2016 certificate number 214679 as well as the memorandum and articles of incorporation of the company. All these documents were then placed on court record by counsel for the plaintiff

Counsel for the plaintiffs then prayed that the written statement of defence and trial 25 bundle be struck off with costs.

#### **SUBMISSION IN REPLY**

Counsel for the defendant submitted in reply that the defendant is a shareholder of Eco Concrete Limited. That he has now instructed M/S PNK Advocates to take on the 30 conduct of his defence and she made reference to a notice of change of advocates filed on court record dated 29th August 2022. She submitted that court should adopt the pleadings after all any illegality in drafting does not affect the substance and as such court should apply Article 126 (2)(3) of the Uganda constitution because that this is a matter of technicality and not substance.

Counsel for the defendant admitted that M/s Eco Concrete Limited is not a law firm. She further submitted that if court is inclined to disregard the pleadings on record, then it should allow amendment under the powers as stipulated in section 98 of the Civil Procedure Act so that the technicality does not prejudice the defendants case.

## **SUBMISSION IN REJOINDER**

- 5 Counsel for the plaintiffssubmitted in rejoinder that firstly this is not a technicality and it goes to the substance. Secondly that when you that you are changing of Advocates (PNK advocates), who are you changing from? Thirdly that when a defence is drafted by a law firm that doesn't exist it is nullity. He stated that if the defendant wants they can file an application to file a defence out of time, otherwise he restated his prayers - 10 that the written statement of defence and trial bundle be struck out with costs.

#### **DETERMINATION**

Two issues arise in determining this preliminary objection application.

- 1. Whether pleadings drafted for a party to a suit by an entity that is not an - 15 approved law firm are a nullity. - 2. What are the remedies available to the parties?

#### **ISSUE 1:**

## **Whether pleadings drawn and filed on behalf of a party to a suit by an entity that is** 20 **not an approved law firm are a nullity.**

It is the law in section 70 of the Advocates Act as amended, that a body corporate commits an offence when it acts in a manner as though it is qualified to act as an advocate when it is not legally authorized. Section 70 of the Advocates Act, whose 25 heading is "*Offences by bodies corporate*" states that;

*"If any act is done by a body corporate or by any director, officer or servant of the body corporate, of such a nature or in such a manner as to be calculated to imply that the body corporate is qualified, or recognised by law as qualified to* 30 *act as an advocate, the body corporate commits an offence and is liable on conviction to a fine not exceeding fifty currency points and, in the case of an act done by any director, officer or servant of the body corporate, he or she, without prejudice to the liability of the corporation, commits an offence and is liable on conviction to a fine not exceeding twenty currency points or imprisonment for a* 35 *period not exceeding six months or to both."( emphasis mine)*

It is not in doubt that the written statement of defence and the defendants trial bundle are marked as having been drawn and filed by Eco Concrete Limited. Eco Concrete Limited is a company that was incorporated in Uganda on the 13th day of January 2016 going by the certificate of incorporation on court record. It is also not in doubt that Eco

5 Concrete Limited is not a law firm, a fact admitted by counsel for the defendant on court record and confirmed by the secretary of Law Council in her letter dated 16th September 2022, that the company is not on the list of approved law firms.

In my analysis I know that a company incorporated in Uganda such as Eco Concrete 10 Limited is a body corporate because it has by incorporation attained its own legal rights and responsibilities. I find that in drawing and filings a defence and counterclaim for the defendant, Eco Concrete Limited was carrying out work that should have been done by a firm licenced and approved to carry out legal business by the Law Council. To that extent Eco Concrete Limited committed an offence stipulated in section 70 of 15 the Advocates Act .

I am mindful of Section 14A of the Advocates Act meant to protect clients, who innocently obtain services from advocates who are not permitted to practice at that time they carry out the clients work due to suspension or failure to renew their 20 practicing certificates. In my view this is not the scenario in this case, where the main question is on the body corporate that drafted and filed on court record pleadings of the Defendant. Eco Concrete Limited has never been a law firm, and it has never obtained approval of the Law Council for any of its departments to practice law, therefore the provisions of Section 14A of the Advocates Act are not applicable to the

- 25 facts of this case. I note that there is a growing trend of individuals, companies and associations carrying out duties that ought to be carried out by entities approved by the Law Council. - I therefore find that the actions of Eco Concrete Limited in drawing pleadings for the 30 defendant and filing the same in court was illegal by dictates of section 70 of the Advocates Act as such they cannot be left to stand.

#### **ISSUE 2:**

### **What are the remedies available to the parties?**

35 I have already found that the actions of Eco Concrete Limited in this case are in breach of section 70 of the Advocates Act. I also know that it settled law that that an illegality once brought to the attention of court cannot be allowed to stand, as was held in MAKULA INTERNATIONAL LTD V. HIS EMINENCE CARDINAL NSUBUGA & ANOR, (1982) HCB 11 and restated in PHILEMON WANDERA & ORS VS YESERO MUGENYI & ANOR SUPREME COURT CIVIL APPEAL NO. 11 OF 2018. I therefore find that the defendants pleadings on court record that where drawn and filed by Eco Concrete Limited cannot be left to stand on the record.

$\mathsf{S}$

I will have to also consider the defendant's prayer that if court is inclined to disregard the pleadings on record, it should allow for amendment under its powers as stipulated in Section 98 of the Civil Procedure Act. In considering this prayer, I am of the opinion that an illegality cannot be rectified by an amendment, this requires fresh filling if the law permits it.

The court is empowered law in section 33 of the Judicature act and section 98 of the Civil Procedure Act to invoke its inherent powers by making orders to foster the ends of justice as well as save time. In this regard court will grant leave to the defendant if he so desires to get an approved law firm to draw and file pleadings on his behalf within a time that this court stipulate.

This ruling does not preclude any entity such as the Uganda Law Society pursuant to its mandate in the Uganda Law Society Act to pursue the matter in a Magistrate's Court 20 as stipulated section 78 of the Advocates Act, with a view of seeking the conviction of Eco Concrete Limited for its acts calculated to imply that it is qualified, or recognized by law as qualified to act as an advocate whereas not, which is in breach of the provisions of the Advocates Act cap 267.

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In conclusion, the court orders that;

- 1. The defendant's written statement of defence are struck out with costs - 2. The defendant's counterclaim is struck out with costs. - 3. The defendant's trial bundle is struck out. - 4. The defendant is granted leave to file a written statement of defence prepared 30 by an approved law firm within 21 days of this ruling. - 5. The costs shall be paid jointly by the defendant and Eco Concrete Limited.

MARIX . . . . . . . . . . . . . . . . . . . .

Nshimye Allan Paul M. JUDGE 04-10-2022

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