Lex Uganda Advocates & Solicitors v Attorney General (Miscellaneous Application 322 of 2008) [2008] UGHC 177 (19 September 2008)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **MISCELLANEOUS APPLICATION NO.322 OF 2008** ARISING OUT OF MISC. CAUSE 123/2007 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

# AND

### FOR THE PREROGATIVE ORDER OF CERTIORARI **BY**

## LEX UGANDA ADVOCATES & SOLICITORS:::: APPLICANT **VERSUS**

### ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

### **RULING**

#### **BEFORE HON. LADY JUSTICE. E. MUSOKE**

This is an application by way of Notice of Motion brought under sections 33 and 36 of the Judicature Act Cap 13, Order 46A rule 4 of the Civil Procedure Rules, and section 98 of the Civil Procedure Act, Cap 71, seeking for an order of certiorari to quash a decision of the Law Council requiring the applicant to change its firm name and drop the use of the word "Uganda" from the said firm name.

The grounds on which the relief is sought are that the Law Council directive is unlawful and void because:-

$a)$ It purports to give retrospective application to the Advocates (Use of Generic Names by Law firms) Regulations, Statutory Instrument (S. I) No 16 of 2006;

- It purports to enforce S.5 (b) and (c) of S.1 16/2006, which $b)$ provision does not exist. - It denies the applicant the use of its full name when the same $c)$ does not violate any provision of the said regulations. - The regulations do not forbid the use of the word "Uganda". $d)$ - The directive was applied in a discriminatory manner against $e)$ the applicant as other law firms have been approved when their names include the word "Uganda".

The application was supported by an affidavit in verification and another one in rejoinder, both sworn by Edmund Wakida, a partner in the applicant firm, on the 15/7/2008, and 21/8/2008, respectively. The respondent opposed the application, relying on two affidavits in reply sworn by Hellen Obura, the acting Secretary of the Law Council, on the 19/8/2008, and 28/8/2008, respectively.

Mr. Kamugisha Gabriel represented the applicant, while Ms Christine Kaahwa represented the respondent.

The facts/events which led to this application, as gathered from the affidavits, attachments and statement, are as follows:

The Law Council is a body mandated by the Advocates Act Cap 267 of the Laws of Uganda, to exercise general supervision and regulate matters pertaining to professional legal practice in Uganda; and to this end it has power to make regulations with regard to any matter concerning the professional practice, conduct and discipline of advocates.

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In 2006 the Law Council issued the Advocates (Use of Generic Names by Law Firms) Regulations 2006, to regulate the use of generic names, by law firms, after it came to the Council's attention that several law firms were using generic names without disclosing the names of their partners. Consequent upon the passing of the said regulations, the Law Council. directed the applicant to, among other things, drop the use of the word "Uganda" from its name as it contravened the provisions of the regulations. The applicant appealed to the Law Council to review its decision to no avail.

The applicant was not amused by the stand of the Law Council on the matter, so they applied to court on 12/9/2007 for leave to file an application for judicial review. Leave was granted by this court on 2/07/2008. In the meantime, the Law Council, in a bid to ensure compliance, did on the 8/4/2008 direct the Chief Registrar/Courts of Judicature, not to issue practicing certificates to the applicant firm's advocates, or if they had been already issued, to revoke them until advised otherwise. On his part, the Chief Registrar issued an ultimatum to the advocates to either comply with the requirements of the Law Council by 20/6/2008, or have their certificates revoked. Consequent upon the said ultimatum, the applicant complied and dropped the word "Uganda" from their firm name, as they awaited the outcome of their application for Judicial Review.

When the matter came up for hearing, the respondent's Counsel raised a point at the beginning of the respondent's case that the applicant. Lex Uganda Advocates and Solicitors, ceased to exist when the name was changed to Lex Advocates and Solicitors. She referred court to the Certificate of Registration of the applicant, which indicated that the

applicant's name had been changed to Lex Advocates on 12/6/2008. Ms. Kaahwa submitted that the applicant was a non-existent entity not recognised in law, and, therefore, with no locus standi to bring this application. If the court were to go ahead and make a decision in favour of the applicant, it would be rendered nugatory, since the applicant is non-existent.

In response, Mr. Kamugisha, for the applicant retorted that the thrust of the respondent's argument should be looked at from the perspective that at the time of filing the application in 2007, the applicant had not changed its name, and even then, the change to Lex Advocates and Solicitors was done pending the determination by this court of this application. He stated that under rule 4(10) of Order 46A of the Civil Procedure Rules, the grant of leave by court operated as a stay of the decision of the Law Council. For that reason, although the applicant, through coercion, had changed its name, the applicant did not go ahead to change other things like the domain name.

Having examined the affidavits and attachments thereto, and also listened to the arguments of both counsel, the court finds that the respondent is, by admission, aware that Lex (Uganda) Advocates and Solicitors, the applicant, changed its name to Lex Advocates and Solicitors. In fact the Certificate of Registration of the applicant on which the registration of the change was endorsed, was annexed by the respondent to their affidavit in reply dated 19/8/08, as R1. This change of name was registered in compliance with section 7 of the Business Names Registration Act Cap 109, which requires any change in a business name to be registered with the Registrar. In court's view the above is enough proof that Lex Advocates and Solicitors succeeded Lex (Uganda) Advocates and

Solicitors who instituted these proceedings. They are one and the same entity. Lex Advocates and Solicitors, therefore, have locus standi to continue with the proceedings filed by Lex Uganda Advocates and Solicitors.

The court therefore holds that the firm of Lex Advocates and Solicitors is a proper applicant to this application.

The applicant has applied for the prerogative order of certiorari. It is pertinent at this point to examine the scope and efficacy of prerogative orders, in particular, the prerogative order of Certiorari. The High Court derives the power to grant prerogative orders from section $36(1)$ of the Judicature Act, Cap 13, and Order 46A of the Civil Procedure Rules regulates the procedure for applying for, and granting of prerogative orders.

Prerogative orders are remedies for the control of exercise of power by those in public offices, and they are available to give relief where a private person is challenging the decision or actions of a public authority or public body, or anyone acting in the exercise of a public duty.

The orders, which may be for declaration, mandamus, certiorari or prohibition are discretionary in nature, and, in exercising its discretion, the court must act judicially and in accordance with settled principles. Such principles may include common sense and justice, whether the application is meritorious, whether there is reasonableness; vigilance and not any waiver of rights by the applicant. See John Jet Tumwebaze vs Makerere University Council and 2 others – Civil Application No.353 of 2005.

Certiorari (which is the subject of this application) is a discretionary remedy which a court may refuse to grant even when the requisite grounds for its grant exist. The court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining. The discretion of the court, being a judicial one, must be exercised on the basis of evidence and sound legal principles. See Halsbury's Laws of England 4th Edition volume II page 805 paragraph 1508.

The court in deciding whether or not to grant an order in judicial review, has to bear in mind that on a judicial review application, the court will not act as a "court of appeal" from the body concerned, nor will the court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within that body's jurisdiction, or the decision is unreasonable. The function of the court is to see that lawful authority is not abused by unfair treatment. If the court were to attempt itself, the task entrusted to that authority by the law, the court would, under the guise of preventing the abuse of power, be guilty itself of usurping power. See Chief Constable of North Wales Police vs Evans [1982] 1 WLR 1155, at page 1173.

R. O. Okumu Wengi, J, while laying down the scope of judicial review in Pius Niwagaba Vs Law Development Centre, Miscellaneous Cause No.125 of 2005, stated that the court sitting in judicial review concerns itself with questions of unfairness, impropriety, unreasonableness, or outright illegality. To do this the court examines the impugned decision to see whether the decision making authority exceeded its powers,

committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal would have reached or abused its powers. The test is whether something went wrong in the process or the decision and its content is of such a nature and degree which requires intervention of the court on account of arbitrariness, bias or mala fides. The court would intervene where there was a breach of the rules of fairness as in fair hearing and equal protection of law to rule out discrimination. There is the possibility of other grounds for judicial review arising as the boundaries of administrative justice are not closed: See also Council of Civil Service Unions vs Minister for the Civil Service (1985) LRC (cons) 948. The court must also scrutinize the substance of the decision, to see whether injustice was occasioned to the applicant or whether the fundamental freedom and rights of the applicant have been violated calling for a remedy.

Bearing the above legal principles in mind, I will now turn to the merits of the application.

The applicant filed this application calling for the quashing of the directive of the Law Council to the applicant to drop the use of the word "Uganda", after the Law Council rejected their appeal.

Since these proceedings are for certiorari, the affidavits filed in court by, and for the respondent to the application constitute the record with regard to the decision and acts complained of by the applicant in these proceedings. See R Vs Southampton Justices ex-parte Green [1976] Q. B. 11 at 22.

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The first ground upon which relief is sought, is that the impugned directive purports to give retrospective application to the Advocates (Use of Generic Names by Law Firms) Regulations;

Mr. Kamugisha argued that the Rules were not supposed to act retrospectively to affect existing law firms and they do not suggest so. The rules do not require existing law firms to seek clearance from the Law Council before continuing the use of existing names. All that the rules require is that law firms using a generic name must show all its partners on it letter heads, which the applicant has always complied with. Counsel further argued that the rules would have applied to the applicant if there had been a complaint against the firm as a result of the use of the name. As it is, Law Council acted as the complainant, prosecutor and judge. Even if the rules were to apply retrospectively, there is nothing in the rules that is offended by the name Lex Uganda Advocates and Solicitors.

Ms Christine Kaahwa, in response, referred court to Article 28 (7) and (8) of the Constitution of the Republic of Uganda provides that no person may be charged or convicted with criminal offence that was not a crime at the time of commission. She argued that the rule against retrospective application of laws only applied in criminal matters. The applicant was given more than 6 months to comply, and there was need to regulate the use of generic names. The respondent was doing its duty.

The issue, as I see it, is whether by requiring the already existing law firms to change their names in compliance with the new regulations, the Law Council was in effect applying the regulations retrospectively, and, therefore, unlawfully.

It is not disputed that the applicant had, since 15.07.2003, used the name Lex Uganda Advocates and Solicitors, and that the Law Council had always approved the firm's chambers under the said name until S. I No.16 of 2006 came into force.

The general rule of statutory interpretation is that no law shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the law, or arises by necessary and distinct implication. See West Vs Gwynne (1911) 2 Ch 1.

It appears to court that S. I 16 of 2006 was meant to apply to all law firms without discrimination. The Advocates Act empowers the Law Council to make regulations with regard to any matter concerning the professional practice, conduct and discipline of advocates. If S. I 16 of 2006 was not made to apply to all Law firms its application would be discriminatory. If because of its intention to apply the law uniformly to all law firms practising in Uganda, the Law Council is said to be applying the law retrospectively, then this should be seen to be among the exceptions to the general rule of statutory interpretation already referred to. Such a construction arises by necessary implication. This ground therefore fails.

The second ground advanced by the applicant is that the Law Council directive is unlawful and void in that it purported to enforce section 5 (b) and (c) of S. I No 16 of 2006, which provision does not exist.

At first glance one may dismiss this ground as a splitting of hairs by the applicants, who one may assume, ought to have known what provisions the respondent was referring to. However, on a closer examination of the affidavits and their attachments, the issue takes on a more serious dimension

The relevant part of the letter from the Law Council, dated 21st April 2006, and communicating the impugned directive to the applicant states as follows:

"At the meeting of the Law Council that was held on the 23rd March, 2006, your application was considered and it was resolved that you should remove "Uganda" from your name as it contravenes S.5 (b) and (c) of the Advocates (Use of Generic Names by Law Firms) Regulations $2006.$ 39

Because the regulations cited above do not exist in S. I No 16 of 2006, the applicant, in their letter of appeal dated 21st April 2007, volunteered and suggested to the Law Council that probably what was meant was regulations 3(6) (b) and (c). The relevant part of the applicant's letter reads as follows:

"There is nothing like $s.5(b)$ and (c) in the Regulations. The letter probably intended to refer to Regulation 3(6) (b) and (c) of the Regulations which provides that a generic name shall not be associated with or suggest any connection with any government, parastatal or a non-governmental organisation, and shall not be misleading.

If that is the correct reference, our name does not offend this regulation as it does not imply any association or connection with any government or parastatal or non-governmental organisation. Neither is it misleading."

Despite the above suggestion which begged for confirmation, the Law Council in their response dated 19th June 2007, never bothered to inform to the applicant which regulation the use of the name "Uganda" offended. One would then assume, just probably, that the regulation suggested by the applicant was the one the Law Council meant. However, paragraph 14 of respondent's affidavit in reply dated 19th August 2008, states:

"That in particular the applicant was directed to drop the use of the word Uganda which was in contravention of Regulation 3(5), 3(6) (b) and (c) of the said regulations".

Law Council is for the first time, and this is during its reply to the affidavit in support, revealing the provisions under which they issued Surprisingly though, the revelation also included their directives. regulation $3(5)$ , which the applicant did not even have in mind while they were at their guessing game, and hence their appeal did not address regulation $3(5)$ . Regulation $3(5)$ states as follows:

"A generic name shall not make any reference, actual or derived, to any symbolic, cultic, political, religious, sectarian, discriminatory, or specialty classification."

No attempt was made in the affidavit or indeed anywhere else to clarify which aspect of the above regulation the applicant's name offended. Surprisingly again, even at the hearing Counsel for the respondent made no attempt to canvass this regulation, to show how the name of the applicant had offended it.

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The court therefore finds that apart from quoting a non-existent law, the Law Council failed to put clearly to the applicant the regulations which their name was alleged to have offended.

The above failure by the Law Council also went against the principles of natural justice as shall be dealt with later in this ruling. This ground therefore succeeds.

Another ground relied on by the applicant is that the directive was applied in a discriminatory manner against the applicant as other law firms have been approved when their names include the word "Uganda". Counsel for the applicant referred court to paragraph 17(e) of the affidavit in verification, and Annexture 6 thereto, which is a list of Law firms whose chambers had been approved by the Law Council to practice law in Uganda. He particularly pointed out the firms listed under No.119 -M/S Law and Advocacy for Women in Uganda, No.262 - Uganda Association of Women Lawyers, and No. 263 - Uganda Electricity Transmission Co. Ltd, as firm names approved with the name "Uganda" Counsel argued that if the word "Uganda", by being in them. geographical, is to be deemed to be associated with Government, then the other Law firms using the word "Uganda" should be condemned.

Counsel also referred court to Law Firm Nos. 64 - Jinja Law Office, 78 -Kampala Associated Advocates, 79 - Kampala Attorneys and Solicitors, 80 - Kampala Solicitors, and 141 - Mbale Law Chambers, whose names, he argued, had geographical connotations, but which firms are still practicing under those very names.

In response, Ms Kaahwa submitted that the Law Firms referred to by Mr. Kamugisha, i.e. Law Advocacy for women in Uganda, and Uganda Association of Women Lawvers were Non-Governmental Organisations (NGOs) whose law chambers have been approved by Law Council. They are connected to NGO's who need to practice law in Uganda. Such chambers are not given a different name from that of their parent organisation because they do practice from the same offices as the NGO. In this case even if the NGO's name included "Uganda" they are not asked to drop it.

Counsel submitted further that firms which are part of corporations, and companies which are formed under different laws from law firms are left to use the word "Uganda" as part of their names, giving the same example of Uganda Electricity Transmission Company Ltd, which counsel for the applicant had pointed out.

It is noted that paragraph 17 of the respondent's affidavit in reply of $19/08/2008$ , states that the directive was not applied in a discriminatory manner against the applicant, or any other law firms, and no law firm is operating in Uganda with the word Uganda inclusive in their trade names. Paragraph 18 states that the name appearing on Annexture 6 of the affidavit in verification at $No.119 - M/s$ Law and Advocacy for Women in Uganda, is an NGO and it is only its legal department that is approved as chambers, but not its name.

I should point out that Annexture 6 to the Affidavit in verification relates to the approval of chambers for the year 2004, and the advertisement was put up in 2004, long before S.1.16 of 2006 was passed. One would, therefore, wonder whether it could be used to prove discrimination in respect of actions, and directives issued in 2006. However, the court concluded that the information in the said Annexture as referred to by the applicant, still obtained as correct even as at the date of hearing. The reason for this conclusion is that the respondent did not at any point controvert the validity of the applicant's reference to the 2004 document. Further still, the respondent also referred to the contents of the same document in while advancing their arguments, as indicated above.

Be the above as it may, having examined the pleadings, and also listened to the arguments of both Counsel on this matter, the court agrees with the applicant that the impugned directive was discriminatory against the applicant. By allowing the Law firms under M/S Law and Advocacy for Women in Uganda, Uganda Association of Women Lawyers, Uganda Electricity Transmission Co Ltd, to use the word "Uganda", but prevent the applicant law firm to use the same, the respondent applied double standards to these firms, and was therefore discriminatory against the applicants. In my view, Counsel for the respondent shot herself in the foot with the argument that the first two are chambers connected to NGOs and so the name of the NGO is not required to change. This is strange because regulation $3(6)(b)$ of S. I 16 of 2006 also provides that a generic name shall not be directly or indirectly associated with or suggest any connection with any government, parastatal, or a non-governmental organisation; (emphasis mine) Clearly the three firms in question have direct association and, or connection with either NGOs or Government, and yet the Law Council, despite the fact that the Regulations forbid this, allowed them to practice under their respective generic names. In court's view, the mischief the regulations were meant to prevent was not intended to target only dedicated law firms, otherwise the rules would have stated so. The mentioned law firms practice under the names of their

parent NGO or companies, which are generic names for all intents and purposes. The continued approval of their chambers constitutes discriminatory application of the rules by the respondent.

I therefore find that the impugned directive is discriminatory against the applicant for the stated reasons. This ground therefore succeeds.

Another ground advanced by the applicant is that the regulations do not forbid the use of the word "Uganda". (See paragraph 17 of the applicant's affidavit in verification). The regulations stated by the respondent to be offended by the use by the applicant of name "Uganda" are the following:

$1.$ Regulation 3(5) which states as follows:-

> "A generic name shall not make any reference, actual or derived;" any symbolic, cultic, political, religious, to. sectarian. discriminatory or specialty classification".

$2.$ Regulation $3(6)$ (b) and (c) state as follows:-

"A generic name shall not be

$\mathbf{b}$ ) directly or indirectly associated with or suggest any connection with any government, parastatal or non-government organisation.

$a)$ *Misleading*".

Ms Kaahwa submitted that the name Lex "Uganda" Advocates & Solicitors, just by looking at it, suggests an association with the Government of Uganda. Further, it was also misleading, despite the clarification offered by the applicant that 'Lex' means 'Law' and

'Uganda' was just a geographical name. She further submitted that the applicant's name had a connotation that all the Ugandan lawyers belong to that organisation. The name also suggested a connection with a parastatal or an NGO because most NGO'S use the name Uganda, for example the NGO'S already referred to in Annexture 6 to the affidavit in verification.

As already pointed out, the respondent has never indicated how the use of the name "Uganda" offended regulation 3(5) even in their submissions. As for Regulation 3(6) (b) and (c), neither the submissions, the letter communicating the impugned decision, nor affidavits in reply mentioned which parastatal or NGO the name of the applicant, "Lex Uganda Advocates and Solicitors", appeared to be connected with, or confused with. Neither is there stated to be any complaint from any body to that effect in all the five years the applicant has used the name. And if the use of the name "Uganda" had any connotation of being part of government, then the Registrar would not have accepted the name for registration as a business name. Section 16 of the Business Names Registration Act, Cap 109, forbids registration of business names with connotations of being connected to the Government. It states as follows:

"The Registrar shall not register any business name containing any word or words expressing or implying the sanction, approval, or patronage of the Government, the administration of a district or of any office thereof except with the approval of the Minister".

Since the Registrar allowed the registration of Lex Uganda Advocates and Solicitors as a business name all the way from 2003, and there is no suggestion that the Minister was involved in the process, one can safely

conclude that to the Registrar's judgment, the name of the applicant did not suggest any connection with any Government.

The main argument advanced by Ms. Kaahwa on this matter is that it is parastatals and NGO's who use the word Uganda. This is not supported by empirical evidence. Further, there are many companies with no connection to the Government who use the name "Uganda". If foreign companies, like MTN Uganda; Celtel Uganda, Transami (Uganda), Micro Uganda and many others can use the name "Uganda" without being connected with Government, why should a Ugandan law firm not be free to use the name "Uganda" to distinguish itself from law firms from other countries using the word "Lex"? In Court's view, Uganda is just the name of a country, and it is not synonymous with Government, parastatal or NGO.

The name was also said to be misleading and to suggest that all the Ugandan Lawyers belong to it. No complaint has ever been registered in the 5 years of the use of the said name by the applicant, that the name is either misleading as the respondent has claimed, or that it suggests any connection with Government, a parastatal or an NGO. In any case firms whose names have the word "Uganda" in them, and which are even connected to government and/or NGO's, are allowed by the Law Council to practice.

The court finds nothing in the regulations forbidding the use of the word "Uganda", and, therefore, rules that the applicant's use of the word "Uganda" did not offend Statutory Instrument No 16 of 2006. This ground also succeeds.

The other ground advanced was that the decision of the respondent was unlawful and void in that it denied the applicant the use of its full name when the same does not violate any provision of the said regulations.

This ground is more or less connected to the ground just disposed of. The court has already found that the Law Council had no justification to direct the applicant to drop the name "Uganda". The reasons given in disposing off the immediate past ground are also valid here. It is not in dispute that the Law Council is the body mandated by the Advocates Act Cap 287, to exercise general supervision and regulate matters pertaining to professional legal practice in Uganda, and to this end the Law Council has power to make regulations with regard to any matter concerning the professional practice, conduct and discipline of advocates. These powers should be exercised judicially and judiciously. In this respect the powers were not exercised judicially, for reasons already given. The name of the applicant did not offend S. I 16 0f 2006. This ground also succeeds.

The last ground in support of the application was that the respondent, in issuing the impugned directive, did not give the applicant any hearing.

In paragraph 19 of their affidavit in reply dated 19/8/2008, the respondent stated that whereas the Law Council did not call the applicant to appear before it, the decision was arrived at after the applicant had made all its submissions to the Law Council in writing. Ms. Kaahwa referred Court to authorities that audi alteram partem does not mean that a person must be heard orally. She however did not avail court the authorities themselves. Mr. Kamugisha on the other hand argued that paragraph 19 referred to above was an admission by the respondent that there was no hearing afforded to the applicant. The respondent was sitting as a quasi-judicial body exercising duties, and making decisions that affect the rights of citizens. It ought to have given the applicant a hearing, even if the Law Council would have reached the same decision. He referred court to Marko Matovu and Brothers vs Mohammed Seviri and Another, CA 7/78 and General Medical Council vs Spackman [1943] 2 ALL 337. where it was held that if principles of natural justice are violated in respect of a decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from principles of natural justice. The decision must be declared to be no decision.

The issue to be resolved is whether the Law Council afforded a fair opportunity for the applicant to present their case before making the decision that is said to have adversely affected the applicant. Whereas the applicant states that they ought to have been afforded a chance to be heard so as to present their case before the Law Council, the respondent insists that even if the applicant was not orally heard, the decision was reached after the Law Council received submissions from the applicant in which the applicant presented all it had to submit in defence of their name.

The letters from the respondent dated 21/4/2008 and communicating the impugned decision to the applicant read as follows:-

"At the meeting of the Law Council that was held on the $23^{rd}$ of March. 2006, your application was considered and it was resolved that you should remove the word "Uganda" from your name as it contravenes S.5(b) and (c) of the Advocates (Use of Generic Names by Law Firms) **Regulations 2006.**

Please note that in accordance with the Regulations, the word "Advocate" must be added on your new name in the same line and font. The letterheads must carry the names of legal staff practicing under the firm clearly indicating who the partners are".

The applicant did not have any problem with the rest of the instructions except the part relating to the use of the word "Uganda" in their name. They responded by way of an appeal in a two and a half page letter, giving the history, genesis, and meaning of the name Lex Uganda Advocates and Solicitors, and denying that their name did offend against the regulations. They used the word "Uganda" to distinguish their law firm from other legal firms around the world with "Lex" in them, like Lex Mundi, Lex Canada, Lex Marcartoria etc, and that firms like MTN Uganda and Celtel Uganda who use the word "Uganda" cannot be said to be misleading, or to suggest any connection with government. Lastly, that the firm name was now internationally known, and Law Council was estopped from stopping the applicant's use of the name after approving the same since 2003. Lastly the applicant urged that in any case, the regulations were being applied retrospectively.

The response from the respondent dated 19th June 2008, was as follows:-"19th June 2007 M/S Lex Uganda APPEAL TO THE LAW COUNCIL ARISING FROM ITS DECISION REGARDING YOUR GENERIC NAME.

Reference is made to the above captioned matter which was placed before the Law Council for consideration. The Council deliberated on

the matter at its meeting held on 23rd may 2007 and allowed it subject to the following conditions:

- That the word "Uganda" be dropped from the firm name so that instead it becomes Lex Advocates. This is because of the reason communicated to you earlier to the effect that the use of the word "Uganda" clearly offends the Advocates (Use of Generic Names by Law Firms) Regulations, 2006. - That the names of all practicing advocates in your firm and their qualifications should be printed on your letter head.

• That you are given a grace period of up to 31st December, 2007, to comply with the above during which period you should be able to utilise the already printed stationery. We hope you will find this compromise acceptable to you. Hellen Obura (Mrs)

AG. SECRETARY, LAW COUNCIL".

There is no doubt that when the impugned directive was first communicated, on 21st April 2006, the applicant was being directed to change the name they had used for over 4 years without affording them a hearing.

The letter was very bare and did not indicate the reasons why the Law Council felt the name offended the regulations. The word "Uganda" is nowhere mentioned in the regulations, therefore one would expect some explanation as to how the use of that word offended the regulations, and which regulation in particular. The letter instead quoted non existent regulations.

The respondent's argument that the applicant made written submissions is not, in court's view, true. What the respondent calls written submissions are, the first letter applying for approval of chambers, and the other which was by way of appeal. These so called submissions were not solicited by the Law Council, and neither were they meant to replace the right to be heard. Even when the respondent made the appeal, also wishing to know the regulation their name had offended; still the Law Council did not clarify on which regulation they based their directive, or afford the applicant a hearing before confirming their final stand. This is despite the fact that in the appeal the applicant had indicated that the directive would cost the applicant, in terms of their clientele both local and international, apart from other attendant costs.

Further, although the letter stated that the Law Council had deliberated on the appeal and allowed it subject to some conditions, the subject of the appeal, that is to say, the directive to drop the name "Uganda", had been rejected in total. Again no reasons were given, and no attempt was made to respond to the various grounds of appeal contained in the applicant's appeal.

The view of this court is that not all proceedings by public/statutory bodies where decisions are taken affecting individuals' rights would necessarily call for oral hearing. Whether oral hearing is necessary would depend on the law applicable and/or circumstances pertaining to each individual case. However, oral hearing appears to be the rule, rather than the exception.

In the present case, the Law Council did not deem it necessary to afford an opportunity to the applicant for oral hearing before issuing the impugned directives. Neither did they seek for any submission from the applicant, either before issuing the first directive, or before determining the appeal. The points of appeal were taken by Law Council to constitute all that the applicant had to say on the matter. And by failing to state clearly which regulations were offended by the use of the word "Uganda", and the reasons why the Law Council came to the determination as they did, the Law Council did not afford the applicant a chance to appropriately respond/appeal, and hence no just and fair hearing was afforded to the applicant. Even when clarification was sought, the only response was to confirm their earlier directive.

Article 42 of the 1995 Constitution of the Republic of Uganda made the right to a just and fair hearing constitutional by ensuring that any person appearing before an administrative official or body had a right to be treated fairly and justly, and to apply to a court of law in respect of any administrative decision taken against him. Further, Article 44 states that there shall be no derogation from the enjoyment of the right to fair hearing.

It is important to note that the applicant did not challenge the powers of the Law Council under the Advocates Act to regulate the conduct and discipline of advocates. Neither did the applicant challenge the validity of the regulations made under S. I No 16 of 2006. The gist of the complaint is that despite the fact that the applicant's name did not offend the regulations, the Law Council did not afford the applicant a hearing before directing that the word "Uganda" be dropped from the applicant's name, which name was known world wide, the applicant having

registered with several international directories, including Martindale, and Chambers Law and International Financial Lawyers.

The Law Council probably took this as part of their routine work, which did not require much participation from the persons affected by their decisions. They appear to have already made a pre-determined decision that the use of the word 'Uganda' by dedicated law firms would not be allowed, and the decision would not change whatever those affected had to sav.

Rules of natural justice require that a reasonable opportunity to be heard must be afforded in clear terms without it having to be gleaned from, or read into correspondence. The reasons for the need to comply with the rules of natural justice were well captured in John vs Rees [1970] Ch 345 at 402, which was cited with approval in the Kenyan case of Oloo Vs Kenya Posts and Telecom Corporation Court of Appeal Civil Appeal No 56 of 1981. Megarry J, had this to say:

"It may be that there are some who may decry the importance which the courts attach to the observance of the rules of natural justice. 'When something is obvious', they may say, 'why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start'. Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were, of unanswerable charges, which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor

are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."

The above describes the importance courts put on the observance of rules of natural justice. And although Courts are generally unwilling to interfere with the decisions of statutory bodies, especially highly respected bodies like the Law Council, courts will interfere to quash decisions of any such bodies when moved to do so where it is manifest, like in the present case, that decisions have been made without fairly and justly hearing the person concerned, or the other side.

The decision of the respondent directing the applicant to drop the word "Uganda" from its name was, therefore, null and void as it was in breach of the principles of natural justice. This ground also succeeds.

Finally, the court finds that the applicant has made out a case, and grants an order of certiorari quashing the decision of the Law Council directing the applicant to drop the word "Uganda" from its name, on the grounds that:-

- the Law Council did not give the applicant any hearing; $a)$ - $b)$ the directive was applied in a discriminatory manner against the applicant; - $c)$ the applicant was denied the use of its name when the same did not violate any provisions of the Statutory Instrument No. 16 of 2006.

Statutory Instrument No.16 of 2006 does not forbid the use of $d)$ the word "Uganda".

The application is granted in the above terms, with costs to the applicant.

Elizabeth Musoke JUDGE 19th September 2008.

Judgment read in the presence of:

- 1) Kamugisha Gabriel .............. for the applicant - 2) Ms Christine Kaahwa ................. for the respondent - 3) Imelda Naggayi ....................................

Elizabeth Musoke JUDGE