Court name
Commercial Court of Uganda
Judgment date
27 September 2013

V.G Keshwala v Shonubi Musoke & Co. Advocates (Miscellaneous Application-2013/501) [2013] UGCommC 166 (27 September 2013);

Cite this case
[2013] UGCommC 166

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISC APPLICATION NO 501 OF 2013

(ARISING FROM HCCS NO 43 OF 2010)

V.G. KESHWALA}............................................................................APPLICANT

VERSUS

SHONUBI MUSOKE AND CO ADVOCATES}......................................RESPONDENT

BEFORE HON MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicant filed this application under regulations 4 and 7 of the Advocates (Professional Conduct) Regulations SI 267 – 2, section 98 Civil Procedure Act Cap 71, section 33 of the Judicature Act and order 52 rules 1 and 2 of the Civil Procedure Rules for orders that much as the Shonubi Musoke and Company Advocates are restrained from continued to represent the defendant/counterclaimant in HCCS number 43 of 2010 which the presentation is contrary to the Advocates (Professional Conduct) Regulations SI 267 – 2 and prejudicial to the Applicant as their former client. It is further for an order that the costs of the application are awarded to the Applicant.

The grounds of the application are contained in the affidavit of VG Keshwala in support of the application and are also summarised in the notice of motion. The Applicant’s case is that the Messieurs Shonubi, Musoke and Company Advocates and Solicitors appearing for the Respondent in this application were formally retained by the Applicant as his lawyers in matters materially related to issues arising from HCCS number 43 of 2010. Secondly the continued participation and conduct of HCCS number 43 of 2010 by Messieurs Shonubi, Musoke and Company Advocates and Solicitors as the defendant’s lawyers is highly prejudicial to the Applicant, ethically embarrassing to the advocates and contrary to The Advocates (Professional Conduct) Regulations SI 267 – 2. Thirdly the continued participation and conduct of the said lawyers as the defendant's advocates is likely to deny or greatly inhibit the Applicants a right to a fair hearing. Finally the Applicant asserts that it is just, fair, and equitable and in the interest of justice that the application is allowed.

The affidavit of VG Keshwala in support of the application deposes that he is a male adult British citizen of sound mind and the defendant in the Respondents counterclaim in HCCS number 43 of 2010. He has been a resident and doing business in Uganda for a long time and Messieurs Shonubi, Musoke and company advocates were retained by him as lawful attorneys and Counsel for a long time. His contention is that the Messieurs Shonubi, Musoke and Company Advocates and Solicitors advised him on different aspects an accomplished the number of assignments on his instructions and dealings involving his individual or trade names. That in the course of acting as his attorneys, the Respondents became privy to personal and business information and season such information, this same advocate stand at a vantage position to curtail his strength and exploit his vulnerabilities already known to them, to the benefit of his opponent who is the defendant in court. That the Respondents or by his former retain the lawyers have since acted on behalf of his opponent and filed adverse pleadings in HCCS number 43 of 2012 and related matters, which question or bring into issue not only his identity but also his very existence. On the advice of his lawyers Messieurs Muwema and Mugerwa advocates, he believes that the continued participation and conduct of HCCS number 43 of 2010 by the Respondents on behalf of his "opponent" is highly prejudicial, ethically embarrassing to the advocates and contrary to the Advocates (Professional Conduct) Regulations. The participation of the Respondents is likely to inhibit his right to a fair hearing especially as the principal witness in the matter he would be vulnerable to cross examination by formally retained advocates who are well seized of his emotional strengths and vulnerabilities. The Applicant through his lawyers requested his former advocates/the Respondents to disqualify themselves but they declined to do so. The prejudicial effect complained about it is apparent to the Respondents were admitted 12 acted as his lawyers in correspondences attached on the ground that the Applicant consented to them representing his opponent in court. The Applicant asserts that he has never discussed or consented to the Respondent’s appearance on behalf of the defendant/counterclaimant in HCCS number 43 of 2010 or any other related matters.

The affidavit in reply is sworn by Peters Musoke of Messieurs Shonubi, Musoke and Company Advocates who is also a partner in the firm. The first primary contention is that the Applicant is not the defendant/Respondent in the counterclaim of High Court civil suit number 43 of 2010 and the defendant/Respondent in HCCS number 43 of 2010 is V.G. Keshwala and Sons and not VG Keshwala the Applicant. Secondly the question of identity of the plaintiff/Respondent to the counterclaim in HCCS number 43 of 2010 was considered in High Court miscellaneous application number 543 of 2011 which was an application for amendment of the plaint in HCCS number 43 of 2010 to substitute V.G. Keshwala and Sons with VG Keshwala T/A V.G. Keshwala and Sons. The High Court made the ruling on that matter. Thirdly the Respondent firm has never acted for the Applicant under the name of VG Keshwala and neither has it acted for V.G. Keshwala and Sons which is the plaintiff and Respondent to the counterclaim in HCCS number 43 of 2010. Peters Musoke further deposes that there has never been a retain the agreement between the Applicant and the Respondent and the affidavit clearly shows that the Respondent acted for Ranmal V Keshwala and not VG Keshwala and that the legal work was for the preparation of the relevant agreements and powers of attorney. Furthermore the business name of Ranmal V Keshwala was known to the Respondent and was Sawan Distributors and Sagar Trading Company at no time did the Respondent represent V.G. Keshwala and Sons which are the subject contention in HCCS number 43 of 2010. In reply to paragraph 3 Peters Musoke disposes that the statutory declaration in verification of the Applicant’s names is invalid and inadmissible in law and evidence. The Applicant’s failure to disclose the name Giga on all his official documents shows that it is trying to assume in name of his deceased father in order to mislead the court. Paragraph 4 of the affidavit in support is not true in that the Applicant is not a party to HCCS number 43 of 2010 and the information relating to Ranmal V Keshwala attached to the affidavit in support is not relevant to HCCS number 43 of 2010 where the plaintiff’s identity is in issue.

The Applicant has further failed to provide evidence to show that V.G. Keshwala and Sons was registered as his business names. Furthermore Viram Giga Keshwala is the father of the Applicant Ranmal Viram Keshwala. His father died on 29 April 2005 and Ranmal Viram Keshwala purporting to be the deceased applied and obtained letters of administration of the estate of his father. The Respondent is not barred from appearing on behalf of the defendant in HCCS number 43 of 2010 in which the Applicant is purporting to be a party whereas he is not. All the previous work done by the Respondent was done for Ranmal Viram Keshwala. Consequently the Applicant's allegations are intended to divert the honourable court from the pertinent issue relating to the identity of the plaintiff/Respondent to the counterclaim in HCCS number 43 of 2010. In reply to all the paragraphs of the affidavit in support which imply that the Applicant was a party to HCCS number 43 of 2010, Peters Musoke deposes that the Respondent has never done work for V.G. Keshwala and Sons and consent of the Applicant to the Respondent's appearance in HCCS number 43 of 2010 is unnecessary.

VG Keshwala deposes a further affidavit in rejoinder in which he asserts that the Respondent’s affidavit in reply raises matters which are without basis in that the Respondent was overruled in miscellaneous application number 538 of 2011. He therefore reiterates his deposition that he is the Respondent to the counterclaim in HCCS number 43 of 2010 and entitled to raise issues in this application. That the Respondents did not only act for him but also for V.G. Keshwala and Sons according to annexure "B" to the affidavit which is a letter from Messieurs Shonubi, Musoke and company advocates advising Mr Ranmal Keshwala that the original certificate of title for a seven property was duly transferred to V.G. Keshwala and Sons. That the Respondents admitted having represented the Applicant and after a purported consent which he never gave. The instrument verifying the Applicant’s names is truthful and reliable evidence. The Applicant deposes that as the Respondent counterclaim in HCCS number 43 of 2012, is potentially proceedings in the suit and Santa be prejudiced by the Respondent firm, appearing as Counsel for the defendant/counterclaimant. He is one and the same person as the Respondents admitted, client called Ranmal Viram Keshwala and was prejudicial to him in the Respondents appeared for his opponent where the issue of his identity or existence is being challenged. Furthermore information provided by the deponent relating to his father, the death of his father and the fact of his being an administrator of his father's a suit all or part of the privileged information the Respondent law firm accessed by virtue of the Applicant being their client and the Applicant is therefore prejudiced in using the information against him. Finally the name “GIGA” is a family name used by the father of the Applicant which the Applicant rightly an ordinarily used in business as part of his name.

The Applicant is represented by Muwema and Mugerwa Advocates while the Respondent firm is represented by Messieurs Kalenge, Bwanika, Ssawa and Company Advocates. Counsels filed written submissions.

The Applicants Case

The Applicants case is grounded on the affidavit of the Applicant which has been summarised above. In the written submissions, the Applicants Counsel clarifies that the Applicant's complaint is not that the Respondent have hitherto been Counsel or made appearances for the Applicant in the subject matter of HCCS number 43 of 2010 which is a dispute about a trademark. The Applicant's complaint is that in the course of prosecuting the above suit as the defendant's advocates, the Respondent firm has filed pleadings and raised contentious issues or objections in particulars contained in the affidavit which directly relate to or touch on information and knowledge about the Applicant, held by the Respondents firm by virtue of their privileged position as the former advocates of the Applicant. In those circumstances the Respondents are prohibited by law from appearing against the Applicant as their former client in relation to contentious matters in which they are possessed of facts, information and knowledge acquired by them in their privileged position as his advocates which information is or may be prejudicial to the Applicant's case in HCCS number 43 of 2010. The information in possession of the Respondents is material to controversies in HCCS number 43 of 2010 regarding the legal status of V.G. Keshwala and Sons and the identity of the Applicant which puts the Respondents in the position of potential witnesses for the defendant in HCCS number 43 of 2010. Discretion was ethically embarrassing, irregular and contrary to the law for the Respondents to appear as Counsel for the defendant in the matter. The Respondent’s appearance for the defendant and against the Applicant is likely to undermine the Applicant’s right to a fair hearing as guaranteed under article 28 of the constitution the Republic of Uganda.

The Applicants Counsel raises two issues for consideration by the court to resolve the application. This is whether the Applicant it is a former retained client of the Respondent firm? Secondly, whether the Respondents should be restrained from further appearance for the defendants in HCCS number 43 of 2010?

Counsel relied on the definition of the term "retainer" in relation to advocate/client relationships in Halsbury's laws of England fourth edition volume 44 (1) at page 83 and 84 paragraphs 99 and 101. It is the act of authorising or employing a solicitor to act on behalf of a client which constitutes the solicitors retainer by the client. A retainer need not be in writing. The Respondent admitted having acted for the Applicant and the position in paragraphs 3, 7, 9, 10, and 19 of the Respondent’s affidavit in reply are manifested be based on falsehoods and inconsistent. The depositions are to the effect that the Applicant has never retained the Respondents as his Counsel.

Counsel relied on the law as stated in the case of BITAITANA versus KANANURA [1979] HCB 34 that the inconsistencies in affidavits cannot be ignored because a sworn statement is not a document to be treated lightly. Where it contains falsehood, it becomes suspect and amounts to lying on oath. He prayed that the affidavit of Peters Musoke is struck off the court record as it is founded on falsehoods and is unreliable and inconsistent. And consequentially that the court ought to grant the Applicant's application.

Alternatively if the court is not inclined to strike off the affidavit, Counsel relied on the duty placed on the Respondents and that the Advocates (Professional Conduct) Regulations and particularly regulations 4, 7 and 9 which prohibits advocates from doing the following acts namely:

Firstly acting or appearing in court in a manner that is likely to put their former client prejudice. Secondly not to divulge or use information accessed and shall abide them in the course of their privileged fiduciary position as advocates for the Applicant to the Applicants detriment. Thirdly Counsels should not appear in matters as Counsel in court where they are apparent or potential witnesses.

Counsel submitted that to do the above forbidden acts would be to condone breach of the Respondent’s obligation to the Applicant as a former client. He relied on the law as to a solicitors obligation to his client as stated in Halsbury's Laws of England 4th edition volume 44 (1) at page 121 and paragraph 148. It provided therein that obligations of the Solicitor towards his client may be viewed from two aspects, that of equity and that of the common. In equity, the relationship of a Solicitor and client is recognised as a fiduciary relationship and carries with it obligations on the Solicitors part to act with strict fairness and openness to his client. Counsel submitted that the overall review of the evidence was that the Respondent's advocates were not acting with strict fairness and openness to the Applicant as their former client.

Where a Solicitor acts for opposing interests, the position of law is stated in Halsbury's laws of England 4th edition volume 44 (1) at page 121 and paragraph 150. It is to this effect that a solicitor is an obligation not to disclose confidential information which has come to his knowledge as a solicitor for the client. The duty is in the higher degree than that of an agent because of the fiduciary position of the solicitor as an officer of the court and the privileges which the law allows the legal professional; he is bound to observe the utmost good faith towards his client. Thirdly the court will grant an injunction to prevent breach of those obligations and award damages for actual breach. Counsel emphasised that the statement of law in Halsbury's laws of England (supra) is that as an officer of the court, the obligations of the solicitor are stricter and the court has jurisdiction under section 16 of the Advocates Act to enforce it. The advocate is not relieved of his confidentiality obligation to the clients on the basis that the client has given consent to represent his opponent. The advocate is obliged to act in utmost good faith with regard to his/her clients past or present. Prejudice from the act complained about need not be proved and all the court needs to establish is that prejudice is likely to be occasioned by the solicitor/advocate acting. The law also highlights the principal that justice must not only be done but must also be seen to be done.

Counsel contended that it cannot be said in the circumstances that the Respondents are acting in utmost good faith in regard to the Applicant as their former client. This is apparent by the defence that they had secured the consent of the former client before taking on and handling HCCS number 43 of 2010 against him. Peters Musoke deposes as an afterthought that the consent of the Applicant for the representation of the defendant in HCCS number 43 of 2010 is unnecessary.

There is apparent concealment and want of professional commitment on the part of the Respondents to hold the sanctity and inviolability of information or knowledge acquired or held by them by virtue of their privileged position as the Applicants former advocates. Counsel supported his contention with some judicial authorities namely the case of Cholmondeley versus Lord Clinton (who citation is not given though the decision is attached). Where it was held that it was not possible for an advocate in his new situation to divest himself of the knowledge he had acquired in the defendants services and bound himself by his oath as a solicitor to use it for his benefit and which therefore disables him from performing his duty to his new client.

Counsel further relied on the decision of this court in LARB (U) Ltd And Others versus Greenland Bank and Another (Miscellaneous Application Number 421 of 2010 arising from HCCS number 253 of 2010) where the court highlighted the duties of advocates and the rules for and seven of the advocates (professional conduct) regulations and interpretation thereof in the case of Uhuru Highway Development Ltd versus central bank of Kenya and others (2002) EA 654. It is to the effect that knowledge acquired by an advocate were acting for the client should be treated as confidential and should not be disclosed to anyone else without the clients consent. The fiduciary relationship exists even after conclusion of the matter for which the retainer was created. Counsel submitted that the decision of the court in that case applies to the Respondents matter in this application. He prayed that the court grants the application and restrains the Respondent from further appearance for the defendant in HCCS number 43 of 2010.

The Respondent's Case

The Respondents Counsel on the other hand strongly opposed the application and submitted that it was misconceived, incompetent and an abuse of court process and ought to be struck out with costs. Counsel relied on the affidavit of Peters Musoke in reply to the Applicant’s application. Peters Musoke is a partner would Messieurs Shonubi, Musoke and Company Advocates and Solicitors. For purposes of this ruling, the contents of the affidavit need not be repeated as they have been summarised at the beginning of this ruling.

Counsel submitted that the two issues framed be answered in the negative. The first issue is whether the Respondent's appearance on behalf of the defendant in HCCS number 43 of 2010 amounts to conflict of interest? Secondly whether the Respondent should be restrained from further appearance on behalf of the defendant in HCCS number 43 of 2010? The law governing advocate/client privilege is set out under the advocates (professional conduct) regulations SI 267 – 2 and 4 thereof which provides that an advocate shall not accept instructions from any person in respect of the contentious or non-contentious matter if the matter involves a former client and is aware of any fact which may be prejudicial to the client in that matter.

The Respondents Counsel firstly maintained that the Applicant is not a former client of the Respondent and there is no matter before the court that involves the Applicant so as to warrant invoking the injunction against the Respondent on the grounds of client/advocate privilege. He submitted that there was no general rule that a solicitor who acted for some person either before or after litigation had begun could in no case act for the opposite side. The court must be satisfied in each case that the mischief would result from his so acting. Counsel contended that article 28 of the Constitution which enshrines the right to a fair hearing includes a right to legal representation and which right cannot be derogated from under article 44 (c) of the Constitution. The court has to ensure that a client's right to choose an advocate is not fettered. He contended that there was a limited availability of reputable private law offices from which clients could choose. If the court were to issue injunctions against lawyers from representing a client solely on the basis of having previously acted for another client in the previous matter, it would deprive litigants of the right to representation and also bankrupt lawyers.

Courts have evolved a test to be applied to determine whether a conflict of interest exists so as to preclude the advocate from conducting a case before the court. In the case of Rakusen vs. Ellis, Munday and Clarke [1912] 1 Ch 831 on establishing in a similar situation that there was no risk of disclosure, an injunction granted by the trial judge restraining a solicitor from acting was lifted. The Court of Appeal held that there was no general rule that a solicitor who had acted for some person either before or after the litigation had begun could in no case act for the opposite side. The court must be satisfied that in each case, mischief would result before granting an injunction. In Re a Firm of Solicitors [1992] 2 WLR 809 the Court of Appeal laid down tests for determining whether a conflict of interest exists to warrant an injunction against an advocate from conducting a matter. It was that a firm of solicitors will not be permitted to act for an existing client against a former client if a reasonable man would knowledge of the facts would reasonably anticipate that there was a danger that information gained while acting for the former client would be used against him or that there would be some degree or likelihood of mischief. Counsel submitted that there were three major tests laid down in the above case. Firstly there has to be an existing client and the former client but having retained it, advocate in a matter pending litigation or that which is similar. Secondly that the visit danger of using the information obtained while acting for the former client and that there has to be some degree of likelihood of mischief. Thirdly the test applied is that of a reasonable man with the knowledge of all the facts. The tests were applied by the House of Lords in the case of Prince Jefri Bolkiah versus KPMG (A Firm) (1998 of 1999) Judgments of the House of Lords.

Counsel submitted that there was no connection between the Applicant and the plaintiff in civil suit number 43 of 2013 as the court ruled in miscellaneous application number 543 of 2011. The Respondent acted for Ranmal Viram Keshwala and has never acted for the defendant V.G. Keshwala and Sons either as a body corporate or as Mr VG Keshwala in his personal capacity or as a sole trader.

Secondly the affidavit in support of the application contains annexure "B" which is an affidavit in verification of remittance disposed to by one Viram Giga Keshwala Ranmal to the effect that the name refers to VG Keshwala as one and the same person. This statutory declaration does not only purport to reverse and fetter the court ruling in miscellaneous application number 543 of 2011 where it was decided that the Applicant is not the defendant in HCCS number 43 of 2010 but is also inadmissible in evidence as it was not embossed for non-payment of stamp duty. As far as the contention about payment of stamp duty is concerned, Counsel relied on section 42 of the Stamps Act cap 342 laws of Uganda. In the case of Proline Soccer Academy versus Lawrence Mulindwa and 4 others HCMA number 495 of 2009 where it was held that failure to pay duty chargeable on an instrument makes the instrument inadmissible in evidence. Consequently the purported affidavit in confirmation of the name is inadmissible in evidence and only seeks to mislead the court and ought to be struck off the record.

Thirdly the Respondents Counsel contends that the Applicant has not pleaded any information in the possession of the Respondent that was obtained in the course of the retainer that relates to HCCS number 43 of 2010 with some degree of likelihood of causing mischief in the suit. Consequently the Applicant's application is misconceived and only intended to abuse the process of court and delay justice.

Lastly Counsel submitted for the Respondent that nothing in the pleadings can by any stretch of imagination be construed as a breach of client advocate privilege in the mind of a reasonable man having regard to all the facts surrounding the application.

The Respondents Counsel further submitted that the Applicants Counsel attempted to smuggle on the court record an affidavit in reply allegedly filed in the registry on 15 August 2013 and served on the Respondents Counsel on 19 August 2013. The affidavit in reply was filed and served out of time and as such should be struck off the record for offending order 8 rule 18 (1), (2), (4) and (5) of the Civil Procedure Rules. The affidavit in rejoinder was filed out of time without the leave of court and ought to be struck off from the record. The Applicant’s application ought to be dismissed with costs against the Applicant.

The Applicant further filed written submissions in rejoinder on 19 September 2013.

Applicants Submissions in Rejoinder

The Applicants Counsel submits that the Respondent from clearly acknowledges in paragraph 10 of the affidavit of Peters Musoke in reply that the Applicant also known as VG Keshwala was their client. He therefore reiterated submissions that the Applicant is one and the same person as the Respondents, client and the Respondents cannot be allowed to file pleadings and appear for the defendant against the Applicant in a matter involving contentious objections to the Applicants existence or identity and illegality of V.G. Keshwala and Sons both of which relate to knowledge and information in possession of the Respondent firm by virtue of their privileged position as the Applicants former advocates.

Counsel reiterated submissions that challenging the existence of identity of the Applicant when in fact the Respondent firm or its partners have knowledge and information about the Applicants existence, identity and other personal details which the holder by virtue of their privileged position as his former advocates offends the rule. Secondly the Respondents that challenging the legality or existence of "V.G. Keshwala and Sons" when the Respondent firm had in fact either to acted for and executed transactions including transfer of the land title into the names of VG Keshwala on behalf of the Applicant.

On the submission that there was no connection between the Applicant and HCCS number 43 of 2010, in Miscellaneous Application Number 538 of 2011 this court clearly rejected similar contentions. In that application, the Applicant was allowed to file a reply to the defendant's counterclaim.

In the reply to the contention that the affidavit in verification of names in annexure "B" to the affidavit in support of the application fetters this honourable court's ruling in miscellaneous application number 543 of 2011, the ruling referred the issue regarding the names of the plaintiff to a later stage when evidence can be presented. Consequently the Applicant has every opportunity to present any evidence proving his existence and clarifying his names and full identity at a later stage. The same argument had been presented by the Respondents Counsel in miscellaneous application number 538 of 2011 concerning the names of the Applicant and the court ruled on the same. Consequently the submission that the affidavit in verification of names fetters the ruling of the court is baseless and ought to be rejected.

In reply to this submission that the affidavit in verification of names annexure "B" to the affidavit in support of the application is in admissible, the verification was meant to prove that the Applicant uses the name of VG Keshwala (Viram Giga Keshwala) is the same person as Ranmal Viram Keshwala which fact is admitted in paragraph 15 of the affidavit in reply of Peters Musoke.

Secondly the registration of unmanned the registration of a document has no bearing on its validity or invalidity as held in the case of Proline Soccer Academy Ltd versus Lawrence Mulindwa and others (supra). Thirdly before the court relies upon the instrument such as the affidavit, there must be evidence that stamp duty was paid. Paragraph 6 of the affidavit in rejoinder and annexure "C" reveals an embossments showing payment of stamp duty.

On the question of whether the Applicant’s affidavit in rejoinder was served out of time, there was a consent order filed by Counsels that the parties would file written submissions according to agreed schedule. The objection is therefore an ambush an afterthought. Counsel further submitted that order 8 relied upon by the Respondent’s deals with defences to a suit commenced by plaint. Interlocutory applications are governed by order 12 rules 3 of the Civil Procedure Rules. The rule does not set in the timeline for the filing of an affidavit in rejoinder to a reply which has been filed and served. Secondly the Respondent has not shown that it was prejudiced by the filing and service of the affidavit in rejoinder.

Ruling

I have carefully considered the Applicants application, the affidavit in reply and the written submissions of Counsel together with the attached authorities.

The only question to be determined is whether the representation by the Respondent firm of advocates of the defendant is prejudicial to the Applicant. To answer this question, there is a question of fact to be determined as to whether the Applicant is a former client before considering whether the representation would be contrary to the law and ethics.

The Applicant is admittedly and formerly known as Ranmal Viram Keshwala. The question of the identity of the Applicant initially arose in miscellaneous application number 543 of 2011 arising from HCCS number 43 of 2010. That application was brought by V.G Keshwala T/A as V.G Keshwala and Sons for amendment of the plaint. The ruling of the court was delivered on 9 December 2011. The plaint of the plaintiff is entitled as brought by V.G Keshwala and sons. In the plaint paragraph 1 thereof describes the plaintiff as a company registered in Uganda though not incorporated at the time. Subsequently miscellaneous application number 543 of 2011 was filed to amend the plaint on the ground that there was a mix-up or mistake by Counsel which mistake should not be visited on the Applicant. The application was supported by the affidavit of VG Keshwala. In that application the Respondent submitted that the Applicant had no locus standi to bring the application for amendment of pleadings. The court noted that there were two matters to be borne in mind in the application. The first one was to note that V.G. Keshwala and Sons is a business name and not a company name and the second is to include the name of Mr VG Keshwala as a proprietor of a firm trading under the business name. Finally the court would deal with the obvious problem of the description of the Applicant as a firm or partnership. The question was whether there was a misnomer in the description of the Applicant/plaintiff. Consequently the court found that the matter before the court narrowed down to establishing whether there was an error of drafting, misnomer or whether there was a question of identity and capacity to sue. At page 29 of the ruling, the court held that the amendments sought relate to the question of identity which is material as far as the merits of the suit are concerned. The court further held that the issue could not be concluded on the basis of materials on record and would require further evidence that the Applicant is the proper party to bring the application for amendment. Consequently the court held that the ground of inconsistencies or incoherence relating to identity were not matters to be taken lightly and required further investigation. The court concluded that previous proceedings were brought in a business name which is the name under which the trademark is registered. The previous proceedings suggest a partnership and not a sole proprietorship. Consequently the Applicant's application for amendment of the plaint was dismissed with costs.

The matter did not rest there because subsequently and in Miscellaneous Application Number 538 of 2011 the Applicant filed an application for extension of time to file and serve a reply to the Respondents/defendants counterclaim in HCCS number 43 of 2010. That application was brought by VG Keshwala T/A V.G. Keshwala and Sons. Again the Respondent objected to the application for extension of time on the ground that the Applicant had no locus standi to make the application. The ruling of the court is dated 21st of February 2013. In that ruling the court extended time for the plaintiff to file a reply to the Respondent's counterclaim. The court noted that the issue of law deals with the names of the Applicant and not of the fact of the person behind the names. This is in the relation to the affidavit. The court found that the affidavit in support of the application could not be a false because it contains averments of fact. The court found that it is not a name that gives instructions but the individual behind the business name. Secondly there was an objection that the application was not filed by the same party. The court held that there was no mistake as to who the parties are since the names more or less are the same. This is made more pertinent by the fact that it is not a company and therefore it is the individual behind the name who is liable. Secondly it is something that can be addressed in the trial of the suit on the merits.

The question of identity is therefore central or one of the important controversies that has arisen between the parties and has already been the subject of consideration in two rulings of this court.

The basis of the Applicant's application is that he is a former client of the Respondent firm namely Messieurs Shonubi, Musoke and Company Advocates and Solicitors who represent the defendant. The question of whether the Applicant is also the plaintiff was supposed to wait adducing of evidence as far as the previous Miscellaneous Application Number 543 of 2011 is concerned. This was the application for amendment of pleadings. Secondly the court repeated the central controversy in Miscellaneous Application Number 538 of 2011 that the question of who is the individual behind the name and which individual is liable is something that can be addressed in the trial of the suit on the merits.

The Applicant contends that the representation of the defendant by Messieurs Shonubi, Musoke and Company Advocates is highly prejudicial to the Applicant, ethically embarrassing to the advocates and contrary to the Advocates (Professional Conduct) Regulations SI 267 – 2.

From this background, the first question is whether the Applicant is indeed a former client of the Respondents. Secondly and in a related question, is the Respondent’s assertion that they have never represented V.G. Keshwala and Sons or indeed VG Keshwala. They rely on the question of fact which the Applicant does not deny that the Applicant was known and indeed his names are Ranmal V Keshwala. In fact annexure "A1" to the affidavit in support of the application is an affidavit drawn by the Respondents and sworn by the Applicant whose names were described therein as Ranmal V Keshwara proprietor of Sawan Distributors. Annexure "A" is a debt settlement agreement between Sawan Distributors and Alice Rukundo dated 3rd of December 2002. The agreement was drawn by the Respondent firm. Annexure "A 4" is another agreement dated 4th of June 2003 drawn by the Respondent firm between Ranmal V Keshwara and Mr Robert Fred. Annex "A5”, "A6" and all documents drawn by the Respondent firm on behalf of Ranmal Keshwara trading as Sawan Distributors or Sagar Trading Co Ltd.

In annexure "B" to the affidavit in support of the application, is another affidavit in verification of names sworn on 25 April 2013 which is hotly contested by the Respondent firm on the ground that no stamp duty was paid therefore. The affidavit does not purport to be filed anywhere and is attached to the affidavit in support of the application. It is stated to be in the matter of the Oaths Act and is not a statutory declaration. The affidavit in verification of names is attached to paragraph 3 of the affidavit in support of the application. There is no indication whatsoever as to how the affidavit was used. It however evidence attached to another affidavit. For purposes of this application, there is no need to refer to this annexure "B". Suffice it to say that the Respondents defence to the application as contained in the affidavit of Peters Musoke, a partner with the Respondent is that the Applicant is that the defendant/Respondent in the counterclaim in HCCS number 43 of 2010. Secondly that the Respondent never acted for the Applicant under the name of VG Keshwala and neither has it acted for V.G. Keshwala and Sons. He confirmed that the Respondent acted for Ranmal V Keshwala and other business names namely Sawan Distributors and Sagar Trading Company.

In paragraph 15 he avers that the Applicant is the son of Viram Giga Keshwala who passed away on 29 April 2005 and thereafter the Applicant is purporting to be Viram Giga Keshwala and had applied for letters of administration administer the estate of his father as attached to the affidavit in reply annexed as "C1 - C6. Annexure "C1" is a short death certificates for Giga Viram Keshwala issued on the 11th of May 2005. Annexure "C" is a medical certificate of cause of death. Annexure "C3" is a declaration by Ranmal Viram Keshwala and also letters of administration are attached as annexure "C5". Paragraph 15 of the affidavit in reply of Peters Musoke does not indicate the source of his information.

I have carefully considered the plaint in HCCS number 43 of 2010, the plaint was filed on 11 February 2010. It was consequently filed after the demise of the father of Ranmal Viram Keshwala. It is alleged in the written statement of defence in that suit that matters proceeded before the assistant registrar of trademarks in Uganda and the defendant proceeded with the advice of his lawful attorneys to make another application. The second application was opposed by the plaintiff on the ground that the trademark "Baby Wax safety matches" was similar to the trademark "Toto Wax Safety Matches". I find it puzzling that the said application were commencing after the said death of the Applicants father. There must have been somebody behind the name also referred to as the plaintiff in the written statement of defence of the defendant.

Finally the parties relied on regulation 4 of the Advocates (Professional Conduct) Regulations. The head note of this section is that an advocate is not to prejudice the former client and it reads as follows:

"An advocate shall not accept instructions from any person in respect of a contentious or non-contentious matter if the matter involves a former client and the advocate as a result of acting for the former client is aware of any facts which may be prejudicial to the client in that matter.

The regulation speaks for itself. Firstly it puts the duty on the advocate not to accept instructions from any person in both contentious or none contentious matters if the matter involves a former client. Secondly it must be during acting for the former client that the advocate becomes aware of facts which are prejudicial to the client in that matter.

Starting with the question of fact, it is true that the Applicant is a former client and a son of VG Keshwala. It is also a fact that the Respondent firm dealt with Ranmal Viram Keshwala who was trading under different trading names other than V.G. Keshwala and Sons. The question is whether the Respondents are aware of facts which are prejudicial to the client in that matter.

A critical assessment of the application leads to the conclusion that the crucial question relates to the identity of the Applicant. And the obvious question is whether the Applicant is VG Keshwala. The ruling of the court in miscellaneous application number 538 of 2011 being an application to file a reply to the counterclaim out of time, makes one crucial observation. Whether the business name is V.G. Keshwala and Sons or another name, so long as it is not a limited liability company, the question of who is liable deal with the individual behind the name. However, who is the proper party to the plaint cannot be a fact which is to be concealed. The fact is relevant to question of who pays the court fees, who is liable for costs and verification of identity or revelation of the identity particularly as to who is the plaintiff or the partners behind the plaintiff or the individual behind the plaintiff is not supposed to prejudice anybody. Because members of the partnerships are personally liable or a sole proprietor is personally liable, revealing the identity cannot be prejudicial. In fact it is necessary for Counsels to investigate the identity of any party to a suit of someone who registers a business name. This is a requirement of law and the information is deemed to be in the public domain under the Business Names Registration Act.

Before considering the provisions of the Business Names Registration Act, it is a requirement under order 7 rules 1 (b) of the Civil Procedure Rules that the plaint shall contain the name, description and place of residence of the plaintiff for service. Order 7 rule 1 (b) of the Civil Procedure Rules is mandatory. It is mandatory for the plaint to contain the name, description and place of residence of the plaintiff. Apart from the requirement for the plaintiff to plead the address for service so as to be open to service of court process, it is absolutely necessary that the plaintiff is identifiable and any orders made against the plaintiff are enforceable against a particular person.

It is particularly important that a business name is owned by an identifiable person or the particulars of which notice is given of the ownership is given to the public. Consequently members of the public would know whom they are dealing with. The application is made by VG Keshwala and the original plaint is filed by V.G. Keshwala and Sons which is a business name. It can therefore be assumed that V.G. Keshwala and Sons is a registered business name by virtue of section 2 (1) of the Business Names Registration Act cap 109 which provides as follows:

            "2. Firms and persons to be registered

(1) Subject to this Act—

(a) every firm having a place of business in Uganda and carrying on business under a business name which does not consist of the true surnames of all partners who are individuals and the corporate names of all partners who are corporations without any addition other than the true Christian names of individual partners or initials of such Christian names;

(b) every individual having a place of business in Uganda and carrying on business under a business name which does not consist of a true surname without any addition other than his or her true Christian names or the initials thereof;

(c) every individual or firm having a place of business in Uganda who, or a member of which, has either before or after the passing of this Act changed his or her name, except in the case of a woman in consequence of marriage,

shall be registered in the manner directed by this Act.”

It is therefore a mandatory requirement for firms and persons with a business name to be registered under the Business Names Registration Act Cap 109. Section 4 of the Act further provides for the particulars of registration. In other words certain particulars are supposed to be registered. Section 4 provides as follows:

            "4. Manner and particulars of registration.

(1) Every firm or person required under this Act to be registered shall furnish by sending by post or delivering to the registrar at the register office a statement in writing in the prescribed form containing the following particulars—

(a) the business name;

(b) the general nature of the business;

(c) the principal place of the business;

(d) where the registration to be effected is that of a firm, the present Christian name and surname, any former Christian name or surname, the nationality, and, if that nationality is not the nationality of origin, the nationality of origin, the usual residence and the other business occupation, if any, of each of the individuals who are partners, and the corporate name and registered or principal office of every corporation which is a partner;

(e) where the registration to be effected is that of an individual, the present Christian name and surname, any former Christian name or surname, the nationality, and, if that nationality is not the nationality of origin, the nationality of origin, the usual residence, and the other business occupation, if any, of such individual; (f) where the registration to be effected is that of a corporation, its corporate name and registered or principal office;

(g) if the business is commenced after the passing of this Act, the date of the commencement of the business;

(h) where the registration to be effected is that of a firm, the age of each of the firm’s partners;

(i) where the registration to be effected is that of an individual, the age of such individual, but where any such person is of or over the age of twenty-one years, it shall be sufficient to state his or her age as “full age”.

(2) Where a business is carried on under two or more business names, each of those business names shall be stated.”

It is a requirement for the name and residence of the owners of the business to be given. Under section 8 of the Business Names Registration Act, it is an offence not to give the particulars required under the Act.

The case of the Applicant against the Respondents according to paragraph 5 of the affidavit in support of the application is that the Respondents are bringing into an issue not only the identity of the Applicant but his very existence. It is the duty of the Applicant’s lawyers and the Applicant to disclose to the court the very identity and existence under Order 7 rule 1 of the Civil Procedure Rules. Because the information is supposed to be open to the public, it cannot be prejudicial to the conduct of the Applicant’s case and is not a confidential matter affected by the advocate/client privilege. Advocates owe a duty to court to disclose the identity of the client. The grievance of the Applicant as stated in the written submissions of the Applicants Counsel at page 4 thereof is that the information in possession of the Respondents which is material to the controversies in HCCS number 43 of 2010, regarding the legal status of V.G. Keshwala and Sons and the identity of the Applicant makes the Respondents in the possession potential witnesses for the defendant in HCCS number 43 of 2010. The legal status of V.G. Keshwala and Sons is a matter that can be established from the registry of business names. Secondly the particulars of the owners can also be established from the Business Names Registry. The information is not covered by an advocate/client privilege. To conceal such information would be an offence under section 8 of the Business Names Registration Act if the particulars required are not contained in the registry of business names. In the case of Rakusen vs. Ellis, Munday and Clarke [1912] 1 CH 831, Fletcher Moulton LJ at page 840 summarised some fundamental principles as follows:

"In my opinion the fundamental principle remains the same as in other cases of confidential employment, and I accept with regard to this the dictum of Jessel M.R. 'that, although there was no law that, because the solicitor had acted for a person, he might not afterwards act against him, it was not to be supposed that he was at liberty to disclose the secrets of his former client to his opponent in the subsequent proceedings, and that the court could always, on general principles, restrain the solicitor (from disclosing ) clients secrets.' That is the law with regard to all confidential employment, and it applies therefore to confidential employment of the solicitor by a client. But although the fundamental law is not different its application varies widely in degree, and for two reasons. In the first place the degree of the confidential character of the relation between the client and the solicitor and of the communications made by the client to the solicitor is in the eyes of the law is the very highest – so high that the solicitor is absolutely privileged and cannot be made to state what passed between him and his client. To that extent the solicitor is made, as it where, a part of his client for the purposes of those communications. The second reason is that the court is not bound to accept in that case the standard of sensibility which it may feel is all that it can enforce on people in general who are in confidential relations one with the other.… The court must act in each case according to the circumstances of the case.…

At page 841… As a general rule the court will not interfere unless there be a case where mischief is rightfully anticipated."

In the Applicant’s case, no confidential information is involved. None can be anticipated on the question of the identity and status of V.G. Keshwala and Sons. Thirdly the question of whether the Applicant is a proprietor of V.G. Keshwala and Sons is not confidential information but information liable to be registered with the registrar of business names. There is no mischief to be anticipated and none can be discerned for the moment. The question of whether the plaintiff is also the Applicant is a matter for trial in the main cause. I must emphasise that that information is supposed to be readily forthcoming from the plaintiff himself so that the defendant and counterclaimant can proceed against the right party namely the plaintiff. Finally I wish to make a reference to regulation 9 of the Advocates (Professional Conduct) Regulations.

Regulation 9 prohibits an advocate from appearing 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. The first part of the regulation deals with the belief of the advocate. The second part is when it becomes apparent that the advocate will be required as a witness to give evidence whether verbally or by affidavit, he or she shall not continue to appear. It has not become apparent at this stage that any member of Messieurs Shonubi Musoke and Company Advocates will be required to appear to give evidence on the identity of Messieurs V.G. Keshwala and Sons or the status thereof. All the correspondences and documents attached to the Applicant’s application do not contain any confidential information and they are not related to the plaintiff’s case. The only related matter is the identity of the Applicant. Because it is a legal requirement to register the identity and address of the members trading under a business name, the Applicant’s application lacks merit and is accordingly dismissed with costs.

Ruling delivered this 27th day of September 2013

 

Christopher Madrama Izama

Judge

Judgment/Ruling delivered in the presence of:

Brian Kabayiza for the Applicant

Musinguzi Mark in attendance on behalf of the Respondent firm.

Charles Okuni: Court Clerk

 

Christopher Madrama Izama

Judge

27th September 2013