Muwanga v Sun (Miscellaneous Application 129 of 2019) [2024] UGHC 618 (3 July 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA **MISCELLANEOUS APPLICATION NO. 129 OF 2019** (ARISING FROM MISCELLANEOUS APPLICATION NO.85 OF 2019) (ARISING FROM CIVIL SUIT NO.32 OF 2017) MUWANGA DANIEL :::::::::::::::::::::::::::::::::::: **VERSUS** SUN HUAWEN :::::::::::::::::::::::::::::::::::: **BEFORE: HON LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

#### **RULING**

#### **Introduction**

This is a ruling in respect to a preliminary objection raised by Counsel for the Applicant to the effect that the Affidavit in Reply deponed by Counsel Maloba Rita was defective and improper before this court.

#### **Representation**

Jacob Osillo represented the Applicant while Mangeni Ivan Geoffrey represented the Respondent.

## **Determination**

Based on Regulation 9 of the Advocates (Professional Conduct) Regulations, Counsel for the Applicant submitted that this matter is contentious before the court, on grounds that an advocate of the Respondent is barred from swearing an affidavit on behalf of his client. He argued that the Respondent's counsel Mangeni Law Chambers was involved in the preparation of the transaction which is the subject of this litigation involving both parties. He further argued that Ritah Maloba an advocate from Mangeni Law Chambers swore an affidavit on behalf of the Respondent which makes the affidavit defective and cannot be entertained on that basis. Counsel relied on the authority of Jayath Amritlal and Anor V **Prime Finance Company ltd to buttress his submission.**

In reply, Counsel for the Respondent submitted that firstly, the matter before this court is not contentious. He argued that a perusal of the affidavit in question reveals that its contents are regurgitating what transpired on the court record. Secondly, he submitted that the law firm Page 1 of 4

M/S Mangeni Law Chambers cannot be barred from representing the Respondent because one of their lawyers swore an affidavit in respect to this matter. He argued that the Regulation 9 of the Advocates (Professional Conduct) Regulations is personal in nature and does not preclude other members of the law firm from representing the respondent. He relied on the decisions of M/S Quality (u) Ltd and Anor V Uganda Performing Rights Society and others civil suit No.444/2019 and Uganda Development Bank V Kasirye Byaruhanga and Co. Advocates to buttress his case. Finally, he submitted that in any case, Ritah Maloba was not included on the list of witnesses in the application.

In rejoinder, Counsel for the Applicant submitted that much as Ritah Maloba was not included on the list of witnesses in the pleadings in this matter, she volunteered herself as a witness by deponing the affidavit in reply. He also resubmitted that this application before the court is contentious.

I have carefully read and considered the submissions by both counsel and shall now move to determine this Application.

It is alleged by the applicant that there is a likelihood that the advocates of the respondent will testify in the applications before this court which is contrary to Regulation 9 of the Advocates (Professional Conduct) Regulations.

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

### "Personal involvement in a client's 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 on a formal or non-contentious matter or fact in any matter in which he or she acts or appears."

The above provision has been subject to interpretation in several cases. In Uganda Development Bank vs. Kasirye, Byaruhanga and Company Advocates SCCA No. 35 of 1994, it was held that the regulation aims at distinguishing between an advocate practicing

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before the court and a witness. In such cases the advocate has to choose either to be a witness or Counsel in contentious matters and not both. The sole criteria are whether the advocate before appearing, has reason to believe that he would be a witness in the case; or having appeared, and finding himself a witness, he ought not to continue to appear.

In Henry Kaziro Lwandasa vs Kyas Global Trading Co. Ltd, HCMA No. 865 of 2014, **Madrama J.** (as he then was) held thus:

"The regulation bars an advocate who may be required to appear as a witness to give oral or affidavit evidence in any contentious cause or matter from appearing before any court or tribunal hearing the matter. The regulation is permissive on one part and mandatory on another part ... The first duty is placed on an advocate and is subjective in that it is upon the advocate, based on his or her belief about the facts and circumstances of the case that he or she will be required to appear before the court or tribunal as a witness, to decide whether to represent a party in the proceedings. This first part of the regulation is couched in permissive terms and imposes a duty on an advocate to step down once he or she believes that he or she will be required to appear as a witness ... The second part of regulation 9 however makes it imperative for an advocate to cease appearing for a client when it appears or becomes apparent during the proceedings that he or she will be required to give evidence in the cause or matter before the court or tribunal. When it becomes apparent, the advocate shall not continue with the representation of a client in the cause or matter."

Clearly, to me, the rule is straightforward. Where an advocate who will be required to appear as a witness also wishes to appear before the court as an advocate, the options are clear in that regard. But that is not the issue before the Court in the present matter. In this case, it is on record that Counsel Ritah Maloba is one of the advocates that works for Mangeni Law Chambers. Mageni Law Chambers is the law firm representing the Respondent. So, the question before this court is whether a law firm is barred from representing its client due to the fact that one of its advocates swore an affidavit on behalf of a particular client.

In Henry Kaziro Lwandasa vs Kyas Global Trading Co. Ltd (supra) the Court held that the entire partnership cannot be excluded on the basis of Regulation 9 of the Advocates (Professional Conduct) Regulations SI $267 - 2$ . The court held the view that the regulation deals with individuals as required witnesses and not the firm. As such, it is only an individual Page 3 of 4

who can be a witness and not the firm. Indeed, as a matter of principle, Justice Madrama was of the view that Regulation 9 of the Advocates (Professional Conduct) Regulations deals with the incompatibility of the role of advocate and witness in the same case and not conflict of interest. I am persuaded by the above finding by the Learned Judge (as he then was). It is not a correct legal proposition that where an advocate in a firm is a witness or potential witness in a matter the entire law firm is thereby conflicted.

I therefore do not find that there is a contravention of Regulation 9 of the Advocates (Professional Conduct) Regulations as asserted by Counsel for the Applicant. Much as Ritah Maloba swore an affidavit on behalf of the client she is the one that is conflicted in her personal capacity from representing the client in this same matter. This conflict does not extend to the other advocates in M/S Mangeni Law Chambers.

Before I take leave of this matter, I should however note, that in a case where an advocate testifies on behalf of the client in a contentious matter, it does not make the evidence bad in law warranting its striking off the record. Regulation 9 does not in any way infer that an affidavit sworn by an advocate in the personal conduct of a matter shall be defective. Rather the regulation states that such an advocate shall cease to represent their client in respect of that matter before the court. (See Uganda Development Bank vs. Kasirye, Byaruhanga and *Company Advocates supra.*)

In the circumstances therefore, this preliminary point of law is overruled and the costs shall be in the cause.

I so order.

FARIDAH SHAMILAH BUKIRWA NTAMBI

JUDGE JUDGE<br>Delivered on this $\mathcal{B}^{r\text{cl}}$ day of $\mathcal{J}^{\text{ul}}$ 2024

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