Katamba v I.S and L Advocates and Another (Labour Dispute Miscellaneous Application 169 of 2023) [2024] UGIC 30 (2 April 2024)

Full Case Text

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## **THE REPUBLIC OF UGANDA**

# **IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA LABOUR DISPUTEMISCELLANEOUS APPLICATION NO. 169 OF 5 2023 ARISING FROM LDA DISPUTE CLAIM NO.202 OF 2019** *(4* **ANTHONY MUTYABA KATAMBA APPLICANT**

**VERSUS**

## **l. S&L ADVOCATES**

## **2. MTN(UGANDA)** LIMITED **RESPONDENT**

**io** RULING

Before:

The Hon. Ag. Head Judge Linda Lillian Tumusiime Mugisha

Panelists:

- 1. Hon. Katende Patrick - **15** 2. Hon. Julian Nyachwo - 3. Hon. Bwire John Abraham

### **Representation:**

1. Mr. Peter Muchidi Walubiri and Mr. Hannington Mutebi of M/s/KBW Advocates and M/s. Bashasha & Co. Advocates jointly represented the **20** Applicant.

2. Mr. Michela Mafaabi and Mr. Rodney Nganwa of M/s. S & L Advocates represented the Respondent.

#### **The Application**

This application is brought by notice ofmotion under section 33 ofthe Judicature Act, cap 13, Section 64(e ) and 98 ofthe Civil Procedure Act, Cap 71 , Section 1 and 77 ofthe Advocates Act Cap 267, Regulations 4,7,9 and 10 ofthe Advocates (Professional Conduct ) Regulations s. 126, Order 52 rules 1 and 2 of the Civil Procedure Rules SI 71-1 for orders that:

- 1. The 1st Respondent be restrained from appearing in and acting as Counsel for the 2nd Respondent in Labour Dispute Claim No. 202 of 2019 and all applications and appeals arising therefrom. - **35**

**40**

**45**

**30**

2. That the costs ofthis application abide the results ofLabour Dispute Claim No. 202 of 2019.

The grounds ofthe Application are set up in the Affidavit ofthe Applicant, Mr. Anthony Mutyaba Katamba and is summarized a briefly set out as follows:

- 1. That the advocates ofthe 1st Respondents will be required as witnesses to give evidence on the letter which terminated the Applicant's employment with the 2nd Respondent. - 2. That the 1st Respondents are not independent Counsel capable of assisting Court to administer justice because they are compromised by their past conduct and have personal interest in the outcome ofthe litigation so as to vindicate their past actions.

- 3. The interests ofjustice require that the 1st Respondent are restrained from participating in these proceedings as Counsel and that the 2nd Respondent should be represented by an independent Counsel whose overriding duty to court is the due administration ofjustice. - **50** - 4. He cited circumstances that led to his termination under paragraph's 3-37 and 39-42.

#### **1st Respondent's Affidavit in reply**

The Affidavit in opposition was deponed by **Joseph Luswata,** one of the partners ofthe lsl Respondent and is summarized as follows:

**55 60 65** That the application is incompetent and without merit because there is no Advocate-Client relationship between the Applicant and the 1st Respondent. It is not denied that the 1st Respondent is retained as legal Counsel of the 2nd Respondent and in this capacity, different advocates employed by the 1st Respondent advise the 2nd Respondent on varied aspects of law, such as: corporate affairs, tax, labor relations and dispute resolution. That the contents of the Affidavit in support and particularly paragraphs 3 — 37, 39-42 are not relevant to the determination ofthis application because they concern the merits ofthe main claim and the 1st Respondent has neither a personal, actual or potential interest nor a conflict ofinterest regarding the alleged disputed actions which are the subject ofthe main claim nor do any ofthe advocates in personal conduct of the subject claim lack ofindependence as officers of court.

The issues raised by the Applicant are in any event resjudicata having been raised and determined in *Civil Suit No. 168 of 2019\ Anthony Katamba versus The Editor in Chief East African Newspaper and others as well as Civil Suit No. 174*

**70** *of2019: Anthony Katamba versus The Editor in Chief Independent Magazine and others.* Copies ofwhich were attached and Marked "A" and "B" respectively. In any case Labour Dispute No. 202 of 2019 and the actions alleged therein are

between the Applicant and the 2nd Respondent. It is clear that there exists no Advocate- Client relationship between the Applicant and 1st Respondent and there is no reason to believe that any member of the lsl Respondent firm is a potential witness or will be required as a witness or witnesses to give evidence in court in the main claim and none has been listed as such in the joint scheduling memorandum which was signed by both parties, attached on the record marked as "C". Therefore the Application has no merit, and is clearly an afterthought.

#### **80 2nd Respondent's Affidavit in reply**

**75**

Respondent's Affidavit in reply was deponed by Enid Edroma an Advocate in the 1st Respondent is summarized as follows: The 2nd

**85 90** That Counsel in personal conduct of the labour dispute claim before this honorable court has not represented the Applicant in any matter in the Applicant's personal capacity. That the issues raised by the Applicant in his affidavit in support go into the merits of the dispute between the parties to the main claim with the effect that this application pre-judges the trial and the 2nd Respondent like any other individual has a right to determine its Counsel and should not be compelled by the Applicant, its adversary at law, on the choice of Counsel to represent her. Therefore, she should not be coerced by the Applicant on her choice oflegal representation.

#### **Applicant's Submissions**

The application seeks orders that, the lsl Respondent be restrained from appearing in and acting as Counsel for the 2nd Respondent in Labour Dispute Cause No. 202

**95** of 2019 and all applications and appeals arising therefrom, because the 1st Respondents will be required as witnesses to give evidence on the letter which terminated the Applicant's employment with the 2nd Respondent and the 1st Respondents are not independent Counsel capable of assisting Court to

administerjustice but are compromised by their past conduct and have a personal interest.

The following issues were framed for the resolution ofthe application:

**l. Whether the 1st Respondent is required as a witness in Labour dispute Claim No. 202 of 2019?**

105 **2. Whether the 1st Respondent is not an independent counsel and is conflicted in duty to court in prosecuting Labour dispute Claim No. 202 of 2019?**

#### Resolution of the issues

**l. Whether the 1st Respondent is required as a witness in Labour dispute Claim No. 202 of 2019?**

no 115 120 125 It was Counsel's submission that Paragraphs 2, 3, 6, 11, 16, 17, 18, 34, 36, 37, 38, 43, 44, 45 and 46 of the Applicant's affidavit in support of the application clearly show that the 1st Respondent was one of the 2nd Respondent's external lawyers involved in rendering legal advice and guidance during the process of negotiating the renewal of the 2nd Respondent's Second National Operator Licence, therefore in the course oftheir engagement, they were aware ofthe role of the Applicant in this process and all challenges encountered in the process. They were aware ofthe Respondent's Board's decision to terminate the Applicant and actually drafted the Applicant's termination letter giving reasons for termination which they knew were not correct. In addition, they drafted a reply to the Applicant's Claim and Micheal Sekaddede's witness statement which according to Counsel introduced other grounds oftermination not reflected in the letter of termination. Therefore, the 1st Respondents are necessary witnesses to explain to Court the real grounds oftermination and the actual circumstances of termination. In the circumstances, **Regulation 9 ofthe Advocates (Professional conduct) Regulations SI. No. 267-2** bars them from appearing in this matter as Advocates for the 2nd Respondent. Counsel relied on **Uganda Vs. Patricia**

- 130 135 140 **Ojangole, Criminal Case No. 1 Of 2014,** in which Court held that, all lawyers in the Partnership in M/S. Ligomac & Co. Advocates, could not represent the accused because they had authored a document that they had to tender in evidence and they had background information that the prosecution would, rely on against the accused. According to Counsel the 1st Respondent in the instant case authored the Applicant's letter oftermination, and it will cross examine him on this controversial letter alongside other evidence on termination. Therefore, they cannot remain as Advocates in this matter. He also relied on **Sudhir Ruparellia Vs. MMAKS Advocates & 3 Others, Miscellaneous Application No. 1063 of 2017,** in which Court emphasized the "canteen factor" where interactions involving one of the partners is imputed on the other partners. Consequently, if one partner ofthe 1st Respondent is disqualified, the rest ofthe partners are disqualified as well. He also cited Mallesons **Stehen Jaques Vs. KPMG Peat Marwick f** 1990**J** 4 WAR, 357 at 374-5 **and** Linyi **Huatai Battay Manufacturing** Co. Ltd Vs. Muse AF Enterprises Co. Ltd, **Miscellaneous Application** 573 of 2020, in which court found that an affidavit in rebuttal deponed by Counsel in personal conduct of a Contentious matter was held to be fatally defective and struck it. Similarly, the Advocates from S & L Advocates being witnesses in the Labour claim before this court cannot appear as counsel. - 145 150 In reply, the 1st and the 2nd raised a Preliminary Point to the effect that the application was improperly before this and it could neither be saved by **Section 33 ofthe Judicature Act, Cap 13 (as amended) nor by Section 98 ofthe Civil Procedure Act, Cap 98** because the *Advocates (Professional Conduct) Regulations SI 267-2* upon which the application is premised requires that there must be an advocate-client relationship between the Applicant and the 1st Respondent did not have one.

With regard to the Merits of the application, Counsel for the Respondent contended that, the issues in contention in the main claim do not require any of

the Advocates ofthe 1st Respondent as witnesses for either party because it was not true that the 1st Respondent drafted the Applicant's letter of termination or the reply to his claim in the main suit, or the witness statement of Michael Sekadde. Therefore the assertion that its advocates will be required as witnesses to testify on the grounds and circumstances of his termination, cannot hold.

- 160 He argued that the resolution ofthe issues in contention in the main claim do not require any of the advocates of the lsl Respondent as witnesses for either party. In any case none ofthe 1st Respondent's lawyers were listed as witnesses by either party in the joint scheduling memorandum filed in the main claim as stated in *paragraphs 10, 14, 15, 16 and 17 ofthe 1st Respondent's affidavit in reply and annexure C thereof).* - 165 170 175 In the circumstances the case of *Uganda vs Patricia Ojangole, Criminal Case No. 1 of2014* cited by the Applicant is distinguishable since the facts in that case are fundamentally different from the facts of the present case. In the Ojangole case, the accused retained the firm of lawyers as her employer thus Court found that *primafacie* there was a conflict of interest. The court noted that there was a fiduciary duty towards the employer which would conflict with their obligation to another client, the employee. According to Counsel the circumstances under *Uganda vs Patricia Ojangole (supra)* would only be applicable to the present case ifthe Applicant instructed the 1st Respondent to represent him in any action against the 2nd Respondent regarding his termination. Since this is not the case, Court should find that **Uganda** vs **Patricia Ojangole (ibid)** is inapplicable in the circumstances.

Counsel further contended that to require the lsl Respondent Advocates as witnesses for the Applicant would violate the public policy doctrine of legal privilege. In any case, even ifthe 1st Respondent drafted the Applicant's letter of termination (which is denied), on account ofthe advocate-client relationship

between the 1st and 2nd Respondents, the communications between the two

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185 190 195 regarding the Applicant's termination are protected by the doctrine oflegal advice privilege. He insisted that, Legal advice privilege protects communications between an advocate and client made for the sole or dominant purposes ofgiving or receiving legal advice ifthey are legitimate communications in the sense that they are not made in furtherance offraud or crime. The effect ofthe privilege is that neither the client nor the advocate can without the client's consent, be compelled to disclose the communications during legal proceedings. Therefore, ifthis Court finds that the 1st Respondent rendered legal advice ofwhatever nature to the 2nd Respondent regarding the Applicant's termination, requiring the 1st Respondent to disclose any communications in that regard through testimony before the court would amount to an unwarranted violation of the legal advice privilege owed to the 2nd Respondent by the 1st Respondent. Counsel argued that the 1st Respondent is bound by its duty of confidentiality to the 2nd Respondent which bars the 1st Respondent from disclosing or being compelled unjustifiably to disclose the particulars of any communications relating to the termination of the Applicant exchanged between the Respondents. In any case, the Applicant has not provided any justification/exception as to why the legal advice privilege owed to the 2nd Respondent by the 1st Respondent should be waived in the circumstances.

Therefore, the application should therefore be denied.

#### **Decision** of **court**

Regulation 9 of the Advocates(Professional Conduct) Regulations provide as follows:

#### 205 *' Personal involvement in a client9s case*

*"No advocate may appear before any court or tribunal in any matter in which he or she has reason to believe that he or she will be required as a witness to give evidence, whether verbally or by affidavit; and if while*

*appearing in any matter, it becomes apparent that he or she will be required as a witness to give evidence whether verbally or by affidavit, he or she shall not continue to appear; except that this regulation shall not prevent an advocate from giving evidence whether verbally or by declaration or affidavit onformal or non-contentious matter orfact in any matter in which he or she acts or appears.* "

215 220 In our understanding this provision is intended to bar an advocate from appearing before a court on behalf of his or her client in a contentious matter, as a legal representative and at the same time as a witness or potential witness. It is intended to separate the role ofthe advocate from that of witness so that the 2 roles do not overlap, (see **Uganda Development Bank vs Ms Kasirye Byaruhanga and Company** Advocates CA No.35 of 1994).

It is the contention ofthe Applicant in the instant case that ,the 1st Respondents Advocates are necessary witnesses in the main claim, in LDR No. 202 of 2019, to explain to Court the real grounds and actual circumstances ofthe Applicant's termination, therefore, they are barred by **Regulation 9 of the Advocates (Professional conduct) Regulations** from representing the 2nd Respondent in the same claim.

It is not in dispute that the lsl Respondent is indeed counsel for the 2nd Respondent and as such they are entitled to have all communication and information regarding the 2nd Respondent to enable them render legal advice or represent them in litigation in all their causes including the Applicant's Labour dispute LDR 202/2019 which is before this court. Therefore, they have an advocate- client relationship which is what is envisaged under Regulation 9(supra).

235 However regulation 9 would only apply in circumstances where the advocate being counsel in personal conduct of a matter is required to also act as.witness in

the same matter. The Applicant in this case is the 2nd Respondent's adversary at law and has not adduced any evidence to show that there exists an advocate- client privilege between him and the advocates in the lsl Respondent or that the 1st Respondent's advocates will be required to disclose information about the 2nd Respondent that is intended for the commission of fraud or a crime nor did he demonstrate how the 1st Respondent's role as advocate for the 2nd Respondent will prejudice his case. It is not in dispute that the Applicant was an employee of the 2nd Respondent and this in our considered view did not entitle him to enjoy the advocate- privilege in any case he did not place before us any evidence to that effect. Unlike the Ojangole case(supra) where the employee retained the same Advocates as her employer, the Applicant in the instant case has not shown that the 1st Respondent's were his lawyers as well.

250 255 260 Be that as it may, as rightly submitted by Counsel for the 1st Respondent, where there exists an Advocate- client privilege neither the client nor the advocate can without the client's consent, be compelled to disclose the communications during legal proceedings, except where Counsel discovers that the information and communication is intended to further the commission offraud or crime or where they are compelled by operation of law or by Court order. Therefore, to require the 1st Respondent in the instant case to render testimony on behalf of the Applicant without can only be possible the exceptions mentioned exist. Therefore, even if it was a possibility that the 1st Respondent was involved in drafting his termination letter as he alleges, or it was involved in drafting their pleadings in the main claim, this was done in the exercise of their professional duties to the 2nd Respondents as their legal representatives, and they can only be compelled to render testimony about it in exceptional circumstances. As already discussed, an advocate-client privilege fundamentally depends on trust and confidentiality, where the advocate is expected to protect confidential matters entrusted to him or her by the client and he or she cannot voluntarily or be

265 compelled to share such matters without the express permission of the client. Although the privilege is not absolute. Where the advocate in the course of his employment has observed facts showing the commission offraud or crime he or she will be compelled to disclose the same.(See **Kiconco Patrick vs Attorney General and Others HCMisc Cause No. 00086 of 2023).**

270 275 280 This Court has taken cognizance that many institutions engage both external and inhouse counsel as legal advisers in the management of their human resources and particularly in the management of disciplinary proceedings which escalate to court and therefore as their legal representatives in litigation. In the circumstances such lawyers will be expected to have all the communication, information and documentation regarding the employees in disputes which is required to enable them carry out their professional duties as the employers advocates. Therefore, unless it can be demonstrated that the information in their possession regarding such employees is intended for fraudulent or criminal purposes, They would not be compelled to render testimony about it in any matter involving the employees. Court will only compel them to disclose such information if it is established that the employee would be prejudiced ifit is not disclosed and it is only then that, Regulation 9 would apply.

We had an opportunity to peruse the main file and the Joint Scheduling memorandum which was signed by both parties and established that none ofthe parties listed the advocates of the 1st Respondent as witnesses or potential witnesses therein. We are not satisfied that the Applicant has shown that 1st Respondent's advocates will be required to testify in LDR No. 202 of 2019 or that there are exceptional circumstances intended to further the commission of fraud or a crime to warrant restraining the 1st Respondent from representing the 2nd Respondent in LDR No. 202 of 2019.

290 In the circumstances we find no merit in this ground.

## **2. Whether the 1st Respondent is not an independent counsel and is conflicted in duty to court in prosecuting Labour dispute Claim No. 202 of 2019?**

295 300 305 310 Counsel for the Applicant argued these grounds concurrently and stated that, lsl Respondents has a personal interest in LDC 2002 of 2019, especially because they participated in the process of the 2nd Respondent's controversial license renewal which is purported to be the reason the Applicant was terminated. Counsel argued that the 1st Respondent drafted the termination letter and the processes highlighted under paragraphs 3-37 and paragraphs 43, 44, 45 and 46 of the affidavit in support, are evidence that they lacked independence as Counsel. He further contended that a lawyer's duty to his client is subject to the overriding duty to the Court even to the disadvantage of his client, he in not only an agent of his client, but he or she exercises an independent judgment in the interests of the Court. He insisted that the administration ofjustice in the adversarial system of litigation in particular, depended on the faithful exercise by barristers of this independent judgment in the conduct and management of cases, therefore lawyers must not have any interest in the suit. According to him, an interest exists where a solicitor is aware that he or she may be called as a material witness in the proceedings or where allegations against the solicitor are made in the pleadings, requiring him or her to defend his or her professional conduct. He argued that in the instant case, the 1st Respondent is not only required as a witness but there are serious allegations regarding their drafting of a termination letter which to their very knowledge had falsehoods against the Applicant.

He opined that, the 1st Respondent's professional conduct was called into question because their independence as Counsel in Labour Claim No. 202 of 2019, will be overshadowed by the desire to defend their professional integrity. He argued further that, the outcome of the suit and the fate of the termination letter in particular, was a matter of personal interest to the 1st Respondent,

320 325 330 335 therefore in the interest ofjustice, the 1st Respondent should not act in a situation in which they have a personal interest which "far outweighs any small inconvenience which could be suffered by the 2nd Respondent changing her solicitors. He called upon the Court to ensure that the solicitors (Advocates in our jurisdiction) not only perform their duty towards their own clients, but also towards all those against whom they are convened, and that litigation is in the interest of the litigant as opposed to that of Counsel/Advocate. He cited **M/S. Quality Uganda Ltd Vs. Uganda Performing Rights Society & 2 ors, HCCS. 444 of 2019,** and **Shell U Ltd & 9 others Vs. Rock Petroleum U Ltd, Miscellaneous Application No. 645 of 2010,** in which these common law principles were applied in Uganda and ought to be applied in this case because, Advocates are officers of law and owe a duty to court to see that justice is done. He contended that, the 1st Respondents have an interest to vindicate their wrongdoing for drafting the Applicant's termination letter and have an interest in the outcome of the litigation which compromises their independence and overriding duty to assist Court to renderjustice, therefore they should not act as counsel in the proceedings.

lacked independence, is compromised by its past conduct, and has a personal interest in the outcome ofthe litigation. He also contended that, the application is an affront to the 1st Respondent's right to practice law as envisaged under **Article 40(2) of the Constitution of the Republic of Uganda, 1995 (as amended) ("the Constitution")** and to the 2nd Respondent's right to legal representation by Counsel oftheir choice as provided for under **Article 28(3)(d) ofthe Constitution,** therefore the application should not be allowed. He argued that, Advocates should not suffer, or be threatened with suits, prosecution or administrative, economic, or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics and they should be able

In reply Counsel for the Respondent refuted the allegation that the 1st Respondent

to perform all their professional functions without intimidation, hindrance, harassment or improper interference. He argued that the 2nd Respondent has a right to choose its counsel and should not be coerced by the Applicant, its adversary at law, on its choice oflegal representation.

360 365 370 He insisted that this application sought to unjustifiably restrain the 1st Respondent from providing advisory legal support to the 2nd Respondent by depriving the 1st Respondent of its right to represent the 2nd Respondent in subsequent litigation proceedings. It is malicious, brought in bad faith, and amounts to an improper interference with the 1st Respondent's performance of its professional functions. He relied on the applicant quoted **Linyi Huatai Battery Manufacturing Co. Ltd vs Muse AF Enterprises Co. Ltd, Miscellaneous Application No. 573 of 2020,** which the Applicant relied on for the proposition that an affidavit in rebuttal deponed by counsel in personal conduct of a contentious matters is fatally defective, out of context, with the intention to mislead Court, into concluding that, the advocates ofthe 1sl Respondent being witnesses in the main claim cannot at the same time appear as counsel in LDC 202 of 2019. Whereas Counsel who swore the Affidavit in that case was indeed in personal conduct ofthe same case, moreover which was contentious, in the instant case, the 1st Respondent's affidavit was sworn by Joseph Luswata who is an advocate practicing with the 1° Respondent but is not Counsel in personal conduct in this matter. Therefore, the assertion that the 1st Respondent's affidavit in reply is defective has no basis in law and should be rejected by this Court. In any case it is now well-established law that an affidavit may be validly sworn by counsel ifhe/she is not in personal conduct of the matter such as in the instant case where it was only logical that the affidavit could only be sworn by a member ofthe 1st Respondent who is sued.

Regarding the 1st Respondent's independence in its duty as an officer to court, for the reasons advanced in paragraphs 43-46 of the affidavit in support, Counsel submitted as follows:

375 380 385 390 395 l. That the lsl Respondent did not draft the termination letter in dispute and therefore any arguments relating to personal interest arising from the 1st Respondent's drafting ofthe termination letter do not hold and even ifthey did draft the termination letter (which is denied), merely drafting the letter is not sufficient ground to restrain them from representing the 2nd Respondent in any subsequent legal proceedings where the said letter is in dispute. He relied on *Ayebazibwe Raymond vs Barclays Bank Uganda Ltd,* No. 165 of 2012, in which an argument similar to the Applicant's was rejected and prayed that this Court adopts the same position. In that case, the Plaintiff unsuccessfully sought to bar KSMO Advocates from appearing as counsel on the allegation that KSMO having drafted the sales agreement in dispute, its action would be directed at getting a favorable decision to absolve them. Accordingly, this Court should reject the Applicant's argument that the 1st Respondent having drafted the letter of termination, it is constrained to defend its professional integrity and lacks independence in its duty as an officer of Court. Additionally, even if the Applicant's advocates, are officers ofthe court, they are not the proper parties to object to the representation of the 2nd Respondent by 1st Respondent without disclosing or demonstrating how the Applicant would be prejudiced by such representation. In any case the paragraphs 3-37 ofthe affidavit in support and the corresponding submissions, address the merits of the main claim and are a disguised attempt to pre-judge the main claim which this Court should reject.

He contended further that, even ifthe 1st Respondent had a personal interest in the main claim, *Regulation 10 of the Advocates (Professional Conduct) Regulations SI 267-2* would not bar her from acting on behalf of the 2nd Respondent because it only requires the 1st Respondent to disclose the personal interest in the claim and upon s disclosure, the 1st Respondent would be free to continue representing the 2nd Respondent.

Regarding the 1st Respondents advocates being required as witnesses in the main claim, thus rendering them conflicted, Counsel insisted that, none of the advocates are potential or compellable witnesses in the main claim and thus, no conflict ofduty arises in their representation ofthe 2nd Respondent.

In the circumstances, Court should find that the advocates ofthe 1st Respondent are neither potential nor compellable witnesses in the main claim and that the 1st Respondent firm is independent and free from conflict in their duty as officers of the Court and dismiss the application with costs to the Respondents.

## 410 Decision of court

It is a fundamental principle of our justice system that every person has a right to be represented by counsel. In Simba properties Investment Co. Ltd& Others vs Vantage Mezzanine Fund II Partnership & Others Misc. **Appln. No 0414** of 2022, Mubiru J cited the United Nations Basic principles on the role of lawyers ,1990, for the definition ofthe fundamental requirements that guarantee that everyone has access to independent legal counsel and Principle 18 in particular, which provides that, *" lawyers shall not be identifiedwith their clients or their client 's causes as a result of discharging their functions , however popular or unpopular it may be.* His Lordship further stated that ... *identifying lawyers with their clients or client's causes amounts to nothing less than intimidation and harassment prohibited by principle 18 thereof ... An advocate must at all times be allowed to advance a client's right without obstruction or impediment orfear ofsuits or prosecutionfor carrying out his or her duties as an officer ofthe court... "*

425 In light ofthese principles, the lsl Respondent as the 2nd respondent's advocate is entitled to perform her professional duties without undue interference. It is trite that as an advocate, the 1st Respondent while performing their professional functions regarding the 2nd Respondent's causes, is entitled to receive any 430

information, communication or documentation relating to the 2nd Respondent. They equally have an obligation to keep this information confidential to the extent that the 2nd Respondent requires them to do so, unless they are compelled to disclose under exceptional circumstances such as fraud or crime or by order of court. In undertaking their professional role, the 1st Respondent like any other lawyers are called upon to maintain utmost trust and confidentiality which is a fundamental principle underpinning the advocate-client relationship. It is also their role as advocates to ensure that ensure that the interests of his or her client, or the remedy sought before court overrides their own interests. Therefore, as stated by Brett M. R in **Munster vs Lamb (1883) 11 QBD 588,** Brett M. R: *"...*

*A counsel's position is one ofutmost difficulty. He is not to speak ofthat which he knows ; he is not called upon to consider whether the facts with which he is*

- 440 445 *dealing are true orfalse. What he must do, is to argue as best as he can, without degrading himself, in the order to maintain theproposition which will cany with it eitherthe protection or the remedywhich he desiresfor his client. Ifin the midst ofthe difficulties ofhis proposition he were to be called upon during the heat of his argument to consider whether what he says is true orfalse, whether what he* - *says is relevant or irrelevant, he would have his mind so embarrassed that he could not do the duty which he is called upon to perform... "*

450 455 This passage clearing distinguishes the advocate from his or her client and unless there is evidence to show that an advocate's involvement in a matter would be prejudicial to any party, the advocate has the liberty to exercise his or her professional duties regarding in the interest ofthe clients causes whatever they maybe, without fear of reprisal. We are therefore inclined to agree with counsel for the Respondent that, advocates must be allowed to advance their client's rights without any obstruction or impediment or intimidation, in order to meet the ends ofjustice .

that on **Linyi Huatai** Battery Manufacturing Co. Ltd vs Muse AF **Enterprises Co. Ltd, Miscellaneous Application** No. 573 **of 2020(supra)** which the Claimant relied on, is distinguishable, because in that case there existed an advocate-client relationship which the Applicant has not demonstrated in the instant application. He also did not adduce any evidence to show that there were exceptional circumstances that would require the compulsion of the 1st

Therefore, in the absence of any evidence to the contrary, to grant an order restraining the 1st Respondent from representing the 2nd Respondent would not only amount to infringing on the 1st Respondent's independence to exercise their professional duties to advance the rights of their client the, 2nd Respondent in LDC 202 of2019, also to an infringement ofthe 2nd Respondent's right to choose

Respondent's advocates to render testimony in the dispute they were defending.

Therefore given the existence of the advocate-client privilege, between the 1st

Respondent and the 2nd Respondent, even ifthe 1st Respondent may have been

aware ofthe Applicant's role in the 2nd Respondent and particularly his role in

the negotiation of the renewal of the 2nd Respondent's impugned National

Operation License, which he purports to be the reason for his termination and

even ifthey were aware ofthe Board's decision to terminate the Applicant and

even if they may have rendered legal advice regarding the termination letter,

including drafting ofthe 2nd Respondent's pleadings in LDC 202 of 2019, which

is what is expected of an advocate in personal conduct of a client's case, this in

our considered opinion is not sufficient reason to restrain the 1st Respondent from

representing the 2nd Respondent in the subsequent litigation proceedings in the

absence of evidence that their involvement in the proceedings would be

prejudicial to the Applicant. The Applicant has not demonstrated how 1st

Respondent's role as advocates of the 2nd Respondent would prejudice his case

and we respectfully do not accept his assertion that they would be called as

witnesses or potential witnesses, because he failed to prove it. We also believe

485 her own Counsel and therefore an affront to the administration ofjustice. ( see **Simba properties Investment Co. Ltd& Others vs Vantage Mezzanine Fund II Partnership & Others Misc. Appln. No 0414 of 2022(supra), Articcle 40(2) and 28(3)(d) of the Constitution of Uganda , 1995(as amended).**

490 495 500 505 It is unimaginable that an advocate in personal conduct of any matter would be expected to operate from a point of ignorance about the matter in which he or she is expected to render legal advice or represent the client in litigation in court for fear of being compelled to disclose to an adversary in law. Instructions to an advocate include issuance of information, communication and documentation about the matter to enable him or her prepare legal advice or pleadings for litigation. Even if any other advocates were to be instructed by the 2nd Respondent, they would be given the same instructions, communication, and documentation on the claim, even ifthey did not draft the termination letter or the pleadings which they had liberty to use in the interest of the client. In the circumstances we find nothing that creates a conflict of interest in the 1st Respondent's role as the 2nd Respondent's advocate. This is because as legal adviser their role was not to determine whether the decision the 2nd Respondent took to terminate the Applicant was true or false but rather was to render legal advice on the matter and eventually prepare pleadings for litigation in the interest of the 2nd Respondent. We have not found an iota of evidence pointing to any conflict of interest. We respectfully do not agree with the Applicant that delving into the circumstances he believes created a conflict at this stage because this would amount to examining the merits ofthe main claim.

In the circumstances, the Applicant has not satisfied this court that, the 1st Respondent's advocates lack independence and are conflicted and compromised by their past conduct or that they will be required as witnesses to give evidence in the main claim, to warrant being restrained from representing the 2nd Respondent. / |

In conclusion, we are inclined to agree with Counsel for 2nd Respondent that to restrain the 1st Respondent from performing their role as advocates in representing the 2nd Respondent in LDR No. 202 of2019, would be an affront to the administration ofjustice which should not be condoned.

This application lacks any merit it is hereby dismissed. Costs shall abide in the main.

Delivered and signed by:

The Hon. Ag. Head Judge Linda Lillian Tumusiime Mugisha

## 520 **Panelists:**

l. Hon. Katende Patrick

2. Hon. Julian Nyachwo

3. Hon. Bwire John Abraham

DATE: 2/04/2024

525