Uganda Development Bank v MS Kasirye , Byaruhanga and Company Advocates (Civil Appeal 35 of 94) [1995] UGSC 37 (9 May 1995)

Full Case Text

## AT MENGO

PLATT - J. S. C., TSEKOOKO - J. S. C.) (CORAM: $WAMBUZI - C. J.$

## CIVIL APPEAL NO. 35/94

### **BETWEEN**

#### **APPELLANT** UGANDA DEVELOPMENT BANK ::::::::::::::::::::::::::::

### **VERSUS**

#### M/S KASIRYE BYARUHANGA AND CO. ADVOCATES :::::::::::: **RESPONDENT**

(Appeal from the ruling and orders of the High Court of Uganda by (Mpagi-Bahigeine, J) dated 29th September 1994 in Civil Application NO. 168 of 1994 and Civil Misc. Appeal NO. 68 of 1994).

# JUDGMENT OF PLATT - AG. J. S. C.

This appeal affords this Court the opportunity of considering the scope of regulation 8 of the Advocates(Professional Conduct) $\frac{1}{2}$ Regulations 1977(S. I. NO. 79 of 1977). It provides as follows:-

> "8. No advocate may appear before any Court or tribunal in any matter in which he has reason to believe that he 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 will be required as a witness to give evidence whether verbally or by affidavit, he shall not continue to appear.

Provided that this regulation shall not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter or fact in $% \left\vert \mathcal{A}\right\vert$ any matter in which he acts or appears."

This regulation lay at the heart of the objection proceedings in the appeal, and motion, to the High Court on three matters of

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taxation. The appeal turned on whether the parties had made a written agreement on costs dated 30th June, 1994, and if not, whether the learned Taxing Officer was right in taking the terms of the written agreement into account, as he certainly did; and the motion concerned taking additional evidence during the appeal. The appeal and motion were supported by affidavits, which were objected to under regulation 8. The objections were upheld and the motion and the appeal were struck out. Hence, this appeal.

$\overline{2}$

The appeal to the High Court by the Bank against miscellaneous applications NOs 82, 83 and 84 of 1994 was brought under sec 61 of the Advocates Act (NO. 22 of 1970) and rule 3 of the Taxation of costs (Appeals and References) Rules/S. I. $258 - 6$ . Rule 3 is particularly pertinent and provides as follows:-

> "3. Every appeal shall be by way of summons in chambers supported by affidavit, which shall set forth in paragraphs numbered consecutively particulars of the matters in regard to which the taxing officer whose decision or order is the subject of the appeal is alleged to have erred. A copy of the summons and supporting affidavit shall be served on all persons affected by such order or decision, save as provided in rule 10 of these Rules."

(Rule 10 relates to the service of documents).

In accordance with rule 3 above, Mr. Babigumira lodged his chamber summons on 20th September, 1994, which was to the following effect. He asserted that the order of the taxing officer dated 5th September 1994 in applications 82, 83 and 84 of 1994 should be set aside, and retaxed. The Respondent Advocates should refund shillings $14,400,000/$ = advanced to them and the warrant of attachment dated 6th September 1994 be set aside. The grounds for these orders were to be found in the affidavits of Mr. Babigumira and Mr. Sam Mayanja, (whose affidavit was not filed). In brief these were that:-

> $(a)$ the taxing officer had wrongly found that the letter in question, addressed to the Bank's Managing Director merely for approval, was in fact an agreement to pay costs between advocates and client under the Advocate's Act;

> > $...13$

there was error in the holding that objections to the $% \left\vert \mathcal{A}\right\vert$ $(b)$ letter were simply an afterthought;

- the taxing officer had given the impression that $(c)$ he would not rely upon the letter; - there had been mistakes in the calculations in the $% \left\vert \mathbf{r}\right\vert$ $(d)$ letter, and it had been wrong to enforce the letter, $% \left\vert \mathbf{r}\right\vert$ because the alleged agreement was unfair and unreasonable; - the taxing officer was $\;$ wrong to apply the doctrine $(e)$ of estoppel; - the taxing officer had applied the wrong procedure; and $(f)$ - execution process should not have issued on the basis of $(g)$ the taxing officer's certificate.

The Appellant then filed his supporting affidavit as required by $% \left\vert \mathcal{A}\right\vert$ rule 3 set out above. In numbered paragraphs the grounds in the summons were set out in the affidavit and as far as they are relevant are set out below:-

> "4. That I have perused the Court records in connection with misc. applications Nos. $82,\ 83$ and $84$ of $1994$ and the applicants records in connection with the matter that gave rise to the bills of costs in question and the matter deponed to are in respect thereof.

That the letter relied on by the 5. respondents and accepted by the taxing master(sic) as a binding agreement was a mere communication to the $\rm Managing\ Director.$

That the doctrine of estoppel is $\ensuremath{\mathsf{not}}$ 6. applicable to agreements for payment of costs between an advocate and a client.

That the procedures governing taxation of $7.$ bills of costs or application by a party chargeable or an advocate was not complied with.

That the purported letter contravenes the 8. law relating to agreement between clients/advocates for payment of costs.

$...14$

$\mathbf{1}$

However, the appellate High Court considered that this

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affidavit referred to contentious matters. Whether or not that is so, the affidavit supporting the appeal did not adduce any evidence. This affidavit does not fall within the ambit of regulation 8. Indeed, it does not fall within order 17 of the Civil Procedure Rules either.

The deponent Advocate did not need to choose between conducting the appeal or giving evidence; he was summarising the grounds of appeal.

Consequently, the appeal and the supporting affidavit should not have been struck out. The appeal on this part of the proceedings would in my opinion, succeed.

The contest relating to the affidavit supporting the motion to adduce additional evidence is somewhat more complicated to deal with. In itself the arguments are straight foreward enough; it is the effect of the proviso to regulation 8 which has confused the approach to this problem.

In an application to adduce additional evidence, the applicant must come within the well-known rules concerning the admission of further evidence on appeal. The application would have to explain why the new evidence could not have been adduced before, and why its introduction would affect the result of the appeal to the High Court. I need not elaborate on the principles which will let in additional evidence, except to say that if the Court has misled the parties, so that evidence available is not called, then there may possibly be a case for calling additional evidence. That is the alleged problem in this appeal. Mr. Babigumira, in his affidavit has attempted to show that the taxing officer had misled the applicant for taxation, by giving the applicant the impression that the impugned letter would not be relied upon. When, to the Applicant's consternation, the ruling relied entirely on that letter, it was realised that Mr. Sam Mayanja ought to have explained its history and purport, as he was one of the makers of it.

This Court cannot pass any judgment on the merits of the motion. It has simply set out the nature of the application for additional evidence, being well aware of the counter arguments. For the purposes of this appeal, this Court simply takes the supporting affidavit at face value, to asertain whether it does or does not involve regulation 8. As far as they are relevant, the paragraphs in the affidavit are as follows:-

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"4. That Mr. Jonathan Kateera who conducted the proceedings before the taxing master informed me that he objected to the letter signed by Mr. Mayanja for the applicants and Mr. William Byaruhanga for the respondents and the court decided to tax the bills on merit and counsel submitted accordingly.

$\mathsf{S}$

5. That there are the following materials on the certified records of proceeds in miscellaneous applications Nos. 82, 83 and 84 (photocopies attached and marked "A", "B" and "C"); to support the foregoing; particularly in misc. app. no. 82.

- $(a)$ At P.4 (underlined in red) Mr. Kateera made it clear to the taxing master that the said letter was not addressed to court and could not constitute a consent order. - $(b)$ That at the top of $P.5$ (in red) Mr. Kavuma Kabenge counsel for the respondents conceded that the letter had been objected to and applied to proceed with the taxation of miscellaneous application No. 82 was adjourned pending an arbitration award. - $(c)$ That Mr. Kavuma Kabenge presented the bill as follows; "this bill has been made in accordance with the Advocates (rem. and Taxation of costs) rules. "I pray that you pass it as presented." - $(d)$ That at the bottom of P.6 (red) Mr. Kavuma Kabenge made it clear that he was not relying on the letter. - $(e)$ That at P.7 when Mr. Kabenge wanted to re-introduce the issue of the letter Mr. Kateera objected and the taxing master upheld the objection. - $(f)$ That proceedings in miscellaneous application NO. 83 and $\,$ 84 also indicate that Mr. Kateera categorically objected to the letter and bills generally.

6. That the ruling of the taxing master was entirely based on the letter in question (attached and marked "E")."

# Paragraph 4

Apparently Mr. Babigumira had heard from Mr. Kateera how the latter had conducted the argument during taxation, having, as Mr. Kateera thought, been successful in excluding the letter from the $\operatorname{Taking}$ Officer's consideration of the taxation of the bills being presented.

$\epsilon$

Paragraph 4 could mean at least two things: First, that Mr. Babigumira was intending to give evidence of the facts related to him by Mr. Kateera, or secondly, that Mr. Kateera would be called to testify or swear an affidavit as to what he did. It will be recalled that in some circumstances an advocate can be called to testify as to what happened in subsequent proceedings. ( See Halsbury's $\mbox{\em Laws}$ of England 3rd Ed Vol 2 para 102). Mr. Sam Mayanja could be called to explain what the letter really purported to be. As Mr. Kateera was not called upon, nor Mr. sam Mayanja, the impression left was, that Mr. Babigumira had taken it upon himself to give evidence of what Mr. Kateera would explain. As it stands, it would seem to have been hearsay evidence, and as such would probably have been objectionable in any event. But that matter was not argued, and I would not escape from the responsibility of dealing with regulation 8 on that ground.

# Paragraphs 5 and 6,

I will consider now paragraphs 5 and 6. It is not evidence. It is what the Appellant will $_{\text{rely}}$ upon in argument as gleaned from the record and ruling. The record of the proceedings and the ruling speak for themselves and do not have to be proved. They can be challenged as failing to represent what really happened in Court. But until that is done, (and it has not been done as yet, even in the proceedings before the Judge. on first appeal, or on further appeal in this Court,) the record cannot be contradicted. It is not giving evidence to show contradictory passages in the proceedings and ruling as to what the taxing officer is said to have agreed, but did not carry out. The record is the authentic account of what occured in this case, before the Taxing Officer; and otherwise a record forms the basis of every appeal from a Court of record.

$...17$

There is thus only paragraph 4 which can be said to have offered some evidence by Mr. Babigumira, and which called into question regulation 8. On this rather slender footing, (since it might have been discarded as hearsay evidence), I proceed to consider the proper scope of regulation 8.

This regulation, which stems form English practice, aims at drawing a distinction between an advocate practising before a Court, and a witness in the form of the advocate $\mbox{himself.}$ The regulation provides that the advocate should not appear as advocate as well as offer evidence himself, whether by affidavit or oral evidence. While the distinction seems easy to grasp, it is not so easy in practice to deal with as the proviso shows. The general result of the regulation is that an Advocate appearing in a case can give evidence himself in formal or non-contentious matters or fact, but otherwise he may have to choose to be either advocate or witness. That causes one to try to ascertain what matters are not formal or are contentious, on which the $\operatorname{Advocate}$ may have difficulty with regulation 8. ·

Let us return to the statement of the position in England (Halsbury's Laws of England 3rd Ed vol. 2 para 102, 4th Ed vol. 3 para 1187 to the same effect). In the 3rd Ed the passage reads as follows:-

> "A barrister should not act as Counsel and witness in the same case, and he should not accept a retainer in a case in which he has reason to believe that he will be a witness. and if, being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he ought not to continue to appear as Counsel if he can retire without jeopardising the client's interests."

In that statement of the situation, the sole criteria are whether the Advocate before appearing, had reason to believe that he will be a witness in the case, or having appeared, and finding himself a witness, he ought not to continue to appear. There is no problem with the type of proceedings $\frac{\cdot}{r}$ formal or non-contentious as provided for in the proviso to regulation 8. It seems probable that in formal or non-contentious proceedings it was intended that the Advocate would not have reason to believe that he will be a witness, or, having found that he is a witness, will not find any incompatibility between his roles as advocate and witness. Presumably, if there were

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such incompatibility, the Advocate would adopt the reasonable course of choosing one or other role, if that is possible. It is easier for the Advocate to make that choice when he has appeared and the discovery that he is a witness is made while there is time to call other evidence than his own, or stand down permitting a new advocate to represent his clients. It is much more difficult to find a suitable choice when the Advocate's evidence is set out in an affidavit supporting a summons or motion. If the substance of the affidavit is formal or non-contentious, all may be well and good. But what would happen if it were held that the matter is not "formal or non-contentious?" How then will the Advocate choose to separate his tasks? As is well said in Halsbury, he may not be able to retire without jeopardising his client's interests. Then what is to be done with the affidavit, which purports to give the evidence of the Advocate himself? The Courts have been led to find that if an affidavit is "incurably defective," and an application cannot be made except with an affidavit in support, then the whole application fails" (ODONGKARA v. KAMANDA (1968) E. A 210)." Furthermore, the argument presented to us leads to a difficult impasse,

that an affidavit of Counsel which gives evidence of a contentious nature, thereby "offends against regulation 8," and is therefore "defective" and cannot support the application. The application must therefore fail.

That is ,indeed ,how the High Court on first appeal saw this matter. It was said that the affidavit in question referred "to contentious matters" i.e. "the letter/agreement E alleged to have been relied upon or otherwise by the taxing master."

The final conclusion seems to be that

<pre>.... " Mr. Babigumira's affidavits do tell</pre> the tale by themselves and as such Mr. Babigumira cannot be both witness and Counsel in the same matter. The long and the short of it is that the applications stand struck out with costs -ODONGKARA and OTHERS vs KAMANDA (1968) E. A. 210."

Mr. Babigumira has challenged this conclusion, while Mr. Kavuma Kabenge supported it. I need not stress the point that one of these affidavits, and a part of the other have already been found to lie outside regulation 8. But the affidavit in the motion $% \left( \mathcal{L}\right)$

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vince account

raises the question in this appeal squarely albeit narrowly, and Mr. Kavuma Kabenge protested that there was the authority of this Court to support him. Mr. Babigumira sought support in judgments of the High Court.

It must be owned that dicta in the decision of YUNUSU ISMAIL and others vs Alex Kamukama, Civil appeal No. 7 of 1987 (unreported) illustrate the trend followed by the learned Judge:-

> $\hbox{''In the instant case although Mr. Jombwe was}$ entitled to act as Counsel as well as swear an affidavit in support of the application, the affidavit offended against the provisions of regulation 8 above in that it contained contentious matters which were not purely formal."

But it seems that the effective reason why the affidavit $% \left\vert \mathbf{r}\right\rangle$ was not acted upon, was because the source of the information was not disclosed. That meant that the affidavit was not reliable, and consequently it was struck out. But it is no longer clear what evidence in the affidavit "offended" regulation $\mathbf{8}\text{.}$

It appears to me that the effect of regulation 8 was left $\frac{1}{2}$ open. As such, this Court is able to give its own interpretation of regulation 8.

It seems to me unfortunate to find a punitive element in $% \left\vert \mathbf{r}\right\vert$ regulation 8. It is meant to be an aid and protection to Counsel. It is intended also as a safeguard for the Court. If an advocate is to give evidence, then as any other witness, he should stand cross-examination. If, during that process, there is any lapse of honesty, accuracy, or credibility, the Court would have before it an advocate appearing in the case, who was shown to be unreliable. He is an officer of the Court. He would not only spoil his general character, but it would make it difficult for him to represent his client, since the Court might not be able to trust his advocacy. It is therefore much better that the two roles are separated. Yet, it is not that there is an offence under regulation $\mathbf{8}_{\star}.$ Regulation 8 does not provide that an affidavit becomes defective, or that a proceeding must be struck out. The remedy is anodyne - simply cease to appear, and impliedly, offer other evidence if necessary. The fundamental principle in regulation 8 is that a way should be sought of

$\ldots. / 10$

$\mathcal{G}$

presenting the case or application without the overlapping roles $% \left\vert \mathcal{A}\right\vert$ of Counsel.

$10$

This principle has suffered because of the words "formal or non-contentious." They have added nothing to the concept of regulation 8, and much to the confusion in operating it. Now what is non-contentious? Presumably something about which there is $\frac{1}{2}$ no contention. When does that occur? Is it that the subject matter of the application is not in contention, or the evidence $% \left( \mathcal{L}\right)$ about the subject matter is not disputed? Her Ladyship, in this case, noted that the contentious matters in the applications concerned the $% \left( \mathcal{L}\right)$ letter E, alleged to have been relied upon or otherwise by the "taxing master." That was the subject of the general contest. Of course, if the general issues are conceded, no evidence of any kind will need to $% \left\vert \mathbf{r}\right\vert$ be considered. In every $% \left\vert \mathbf{r}\right\vert$ matter which has not been conceded or compromised, there is a general issue, $% \left\vert \mathbf{r}\right\vert$ or $% \left\vert \mathbf{r}\right\vert$ issues, to be resolved $\!$ after a contest. If the High Court's test is correct, then even formal evidence of a step in a contested general matter, would be debateable. Would there be an objection to an $\operatorname{affidavit}$ on the formal step?

There are a number of applications where the nature of the $% \left\vert \mathcal{A}\right\vert$ matter, calls for some evidence as to what an advocate himself has done. Take for instance NORAH N. NAMWANDU vs HOTEL INTERNATIONAL LTD. (1987 H. C. B) relied on by Mr. Babigumira. The deponent had brought an application $% \mathcal{L}_{\mathcal{A}}$ to set aside judgment by default, and he deponed to facts concerning $\mbox{his sickness, which had prevented him from appearing on the listed day}$ without fault on his part. Objection under regulation 8 was made to the evidence of sickness, but was rejected. Counsel for the $% \left\vert \mathcal{A}\right\vert$ respondent had apparently contested the setting aside application. But, as is often the case, he may not have had grounds for contesting $% \mathcal{L}_{\mathcal{A}}$ the fact of sickness. Would the affidavit about counsel's sickness $% \left\vert \mathbf{r}\right\rangle$ concern the contested setting aside of default judgment, or the noncontested fact of sickness? What I venture to suggest is the proper $% \left\vert \mathcal{A}\right\vert$ approach, is that the main question in regulation $\mathbf 8$ is whether or not an advocate is a witness, $% \left\vert \mathbf{r}\right\vert$ and that it is the nature of his evidence which is pertinent, and not merely the general dispute between the parties. Hence, in the present case, it was not the general dispute $% \left\vert \mathbf{r}\right\vert$ about the letter which was important but whether what Mr. Babigumira

$\ldots$ /11 was alleged to have been told that was contested. On this basis, we must then ask, did Mr. Babigumira have reason to think that he would be called as a witness on this point? Probably not, because what Mr. Kateera is said to have told him was more or less recorded on the record of the case. Had Mr. Babigumira though that what Mr. Kateera told him was evidence which would require him to be a witness, then Mr. Babigumira should have called for an affidavit from Mr. Kateera, and remain to prosecute the motion. The issue arose, it seems, after the proceedings began.

$\mathbf{^{11}}$

However, the dispute is easy to resolve. Even if the Court had considered that Mr. Babigumira had given evidence and that his roles were in conflict, he was accompanied by Mr. Charles Twino. The latter could have assumed Mr. Babigumira's mantel and continued with the motion and Mr. Babigumira's affidavit could have remained as supporting the motion. There was no need or authority to strike out the motion and the affidavit.

I would therefore allow the appeal to this Court on each order of striking out the appeal and the motion by the High Court. I would set aside the orders of the High Court striking out these proceedings. I would remit the records to the High Court to hear and determine both proceedings afresh, making such orders as to appearance as may be necessary, preferably before another Judge. The Appellant will have the costs of this appeal. The costs in the High Court will abide the event of the rehearing.

Delivered in Mengo, this $\frac{2}{1}$ day of $\frac{2}{1}$ april, 1995.

Astin

H. G. PLATT, JUSTICE OF THE SUPREME COURT.

# IN THE SUPREME COURT OF UGANDA

## AT MENGO

(CORAM: WAMBUZI - CJ, PLATT - AG. JSC, TSEKOOKO - JSC)

# CIVIL APPEAL NO. 35/94

#### **BETWEEN**

UGANDA DEVELOPMENT BANK ::::::::::::::::::::: APPELLANT $AND$

M/S KASIRYE BYARUHANGA AND CO. ADVOCATES:::::: RESPONDENT

(Appeal from the Ruling and order of the High Court of Uganda by (Mpagi-Bahigeine, J) dated 29th September 1994 in Civil Application No. 168 of 1994 and Civil Misc. Appeal No. $68$ of 1994)

JUDGMENT OF WAMBUZI, CJ

I have had the benefit of reading in draft the judgment prepared by Platt, Ag. JSC and I agree that this appeal should succeed. The facts have already been set out in the Judgment of the learned Justice of the Supreme Court and I wish only to make a few observations.

Regulation 8 of the Advocates (Professional Conduct) Regulations 1977 provides,

> Provided that this regulation shall not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter or fact in any matter in which he acts or appears."

It is generally accepted that the main intention of this regulation is that an advocate should not act as counsel and witness in the same case. This Court so remarked in Yunusu Ismail vs. Alex Kamukama and others, Civil Appeal No. 7 of 1987 (unreported). The intention of the proviso is to make an exception in formal and non-contentious matters. In other words an advocate may not give evidence as a witness verbally by declaration or affidavit in a case in which he acts or appears as an advocate except in formal or non-contentious matters. The expression "reason to believe that he will be required as a witness to give evidence" presupposes that an advocate who acts or appears in a case should know whether or not he will be

required as a witness. If so then he must not appear before a court as an advocate in the case.

In the case before us, two situations were considered. First, there was an appeal to the High Court against three Misc. applications 82, 83 and 84 of 1994 brought under the Advocates Act, 1970 and the Taxation of Costs (Appeals and References) Rules $(S. I 258 - 6)$ .

In considering the relevant affidavit, the learned $% \left\vert \mathbf{r}\right\vert$ judge said,

> "I propose to refer to only 3 paras of Mr. $\frac{1}{2}$ Babigumira's affidavit.

- That the purported letter contravenes the law 8. relating to agreement between clients/advocates for payment of costs. - That even if the letter had been an agreement, $9.$ which it is not, it would have been very unfair and unreasonable for the following reasons. - 11. That I swear this affidavit in support of an appeal against the Taxing Master's order.

In $m\gamma$ view both affidavits depose to contentious matters in the application i.e the letter/agreement $\texttt{``E''}$ alleged to have been relied upon or otherwise by the Taxing Master."

Our attention was drawn to rule 3 of the Taxation of Costs (Appeals and References) Rules which provides as follows,

> "Every appeal shall be by way of summons in chambers supported by affidavit, which shall set forth in paragraphs numbered consecutively particulars of the matters in regard to which the taxing officer whose decision or order is the subject of the appeal is alleged to have erred. A copy of the summons and supporting affidavit shall be served on all persons affected by such order or decision, save as provided in rule 10 of these Rules."

In my view, the affidavit referred to is in the nature of a memorandum of appeal. In the circumstances, I am a little at a loss as to why a memorandum of appeal should be made under oath or affirmation.

Be that as it may, I am inclined to accept Mr. Babigumira's submission that a lay client can hardly be expected to know the rules as to costs and it must be counsel who can say where the Taxing Officer went wrong, if at all, and that, in the circumstances, the affidavit should be sworn by counsel and that whatever is stated in the affidavit alleging grounds where the Taxing Officer went wrong must be viewed in that light. In my view such affidavit could be faulted for failure to disclose any grounds for appeal but not because it gives evidence or refers to contentious matters.

Both regulation 8 of the Advocates (Professional Conduct) Regulations and rule 3 of the Taxation of Costs (Appeals and Reference) Rules are pieces of subsidiary legislation none of which, per se, can exclude or over ride the other. The two rules are designed for different purposes. The one to prevent an advocate giving evidence as a witness in a case which he conducts as an advocate and the other requiring the statement of grounds of appeal on oath or affirmation.

I would accordingly hold that the first appellate judge erred in law when she held that portions of Mr. Babigumira's affidavit made under rule 3 of the Taxation of Costs (Appeals and Reference $\alpha$ ) Rules offended regulation 8 of the Advocates (Professional Conduct) Regulations 1977.

As regards the application to adduce additional evidence, the learned judge in the court below said,

> "Turning to the affidavit in support of this application I consider it sufficient to refer to only two paras,

- That Mr. Jonathan Kateera who conducted the $4$ . proceedings before the Taxing Officer informed me that he objected to the letter signed by $\operatorname{Mr\/}.$ Mayanja for the applicant and Mr. William Byaruhanga for the respondent and the court decided to tax the bills on merit and counsel submitted accordingly. - That the ruling of the Taxing Officer was 6. entirely based on the letter in question (Annex $"E"$ ).

10. That I swear this affidavit in support of an application for admitting Mr. Mayanja's additional affidavit.

I think these paras call for no further explanation. These are clearly averments in connection with the letter in issue "E" which is the basis of the $\frac{1}{2}$ application."

The learned judge went on to consider the second application and concluded,

> "In my view, both affidavits depose to contentious matters in the applications i.e the letter/agreement $\texttt{``E''}$ alleged to have been relied upon or otherwise by the taxing master."

Paragraph 4 may well contain averments connected with the letter in issue (Annexure E), the basis of the application and $% \left( \mathcal{L}\right)$ may well be contentious as was held by the learned judge in the court below, but if these matters appeared in the court record before the Taxing Officer then Mr. Babigumira did nothing more than swear to matters already on the record. Contentious matters they may remain but they become formal matters in that, affidavit or no affidavit the record will read the same. We are not told whether or not these matters are on record. However assuming they were not and Mr. Babigumira sought to rely on them then he would have had to establish these matters, that is to say prove that the letter was objected to and the taxing officer upheld the objection. If it required Mr. Babigumira to give evidence as a witness, then under regulation S of the Advocates (Professional Conduct) Regulations he could not give such evidence and also appear as an advocate in the case.

I agree that if the provisions of regulation 3 are breached the sanction is not nullification of proceedings but prevention of counsel from wearing two hats in the same case. He has to forfeit one of the hats. Either he remains a witness, in which case he must not act or must cease to act as advocate or, he acts as an advocate in which case the evidence must be abandoned.

As Dier JSC also agrees with the Judgment of Flatt Ag. JSC there will be orders in the terms proposed by the learned Acting Justice of the Supreme Court.

Dated at Mengo this $\mathcal{A}$ day of $\mathcal{M}_{\mathcal{A}}$ 1995.

S. W. W. WAMBUIT

CHIEF JUSTICE

IN THE SUPREME COURT OF UGANDA

## AT MENGO

(CORAM: WAMBUZI, C. J., PLATT, AG. J. S. C. & TSEKOOKO, J. S. C.)

CIVIL APPEAL NO. 35 OF 1994

### **BETWEEN**

UGANDA DEVELOPMENT BANK ::::::::::::::::::::::::::: APPELLANT

AND

M/S KASIRYE BYARUHANGA AND CO. ADVOCATES ::::::::::::: **RESPONDENT**

> (Appeal from the Ruling and Order of the High Court of Uganda(Mpagi Bahigaine, J) dated 29th September, 1994.)

> > $IN$

CIVIL APPLICATION NO. 168 OF 1994 AND CIVIL MISC. APPEAL NO. 68 OF 1994

$\mathcal{L}_{\mathcal{L}}$

JUGEMENT OF TSEKOOKO, J. S. C.

$\,$ I have had the benefit of reading in draft the judgment of Platt, Ag. J. S. C., and I agree that this appeal ought to succeed. I have nothing useful to add.

$977$ Dated at Mengo this . $\cdots \cdots 1994$ day of $J. W. N.$ TSEKOOKO JUSTICE OF THE SUPREME COURT

$\mathbf{1}$