THE REPUBLIC OF UGANDA
IN THE HIGH OF UGANDA AT KAMPALA
(COMMERCIAL COURT DIVISION)
MISC. APPLICATION NO 35 OF 2007
(ARISING OUT OF HCT-00-CC-MA-0631-2007)
(ARISING OUT OF HCT-00-CC-CS-0678-2007)
CHRISTOPHER OTHIENO ……………………… APPLICANT/DEFENDANT
DFCU LEASING LTD ………………………….RESPONDENT/PLAINTIFF
BEFORE: HON MR. JUSTICE LAMECK N. MUKASA
When the when the application came up for hearing Mr. Isaac Walukaga, Counsel for the Respondent, raised a preliminary objection that Mr. Abaine being Counsel for the Applicant and at the same time the deponed to the affidavits in support of the application raises a conflict of interest. That one cannot be Counsel as well as a witness in the same case. He therefore submitted that Mr. Abaine should either disqualify himself or be disqualified for the conduct of the Applicants case as he himself was a potential witness. Mr. Walukaga stated that he may find it necessary to cross examined Mr. Abeine on his averments in the affidavit in support.
Regulation of the Advocates (professional conduct) Regulations states:-
In Halsbary’s Law of England Vol 3 para 102 it is said:
Mr Abeine refused to disqualify himself. He submitted that the regulation does not perse bar counsel who is handling a matter from swearing an affidavit in support thereof. He argued that an Advocate can swear an affidavit on a point of law or procedure.
I have carefully studied the two affidavits deponed to by Mr. Abaine. I have noted that the matters deponed to therein relate to he circumstances or facts which resulted into the dismissal of the Applicant’s Head application in Misc. Application No 631 of 207. The circumstances which led to the dismissal of that application can easily be verified from the Court record. I therefore agreed with Mr. Abeine that the matters he depones to not necessitate his cross examination. Further Mr. Walukaga has not yet made an application to call Mr. Abeine for cross examination his statement was:-
Considering all the above the application to disqualify Mr. Abeine from the conduct of the Applicant’s case is rejected and dismissed with costs.
Hon. Mr. Justice Lameck N. Mukasa
4th April 2008