Court name
Commercial Court of Uganda
Judgment date
8 May 2015

Excell High School Ltd & 4 Ors v Baingana (Miscellaneous Application-2014/1019) [2015] UGCommC 79 (08 May 2015);

Cite this case
[2015] UGCommC 79

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 1019 OF 2014

(ARISING FROM HCCS NO 105/2011)

  1. EXCELL HIGH SCHOOL LIMITED}
  2. BYONABWE FRED}
  3. MAANIGAMUKAMA REUBEN}
  4. BYAMUKAMA WILSON}
  5. KIZZA DANIEL}.......................................................................APPLICANTS

VERSUS

JOHN PAUL BAINGANA}.................................................................RESPONDENT

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicants filed this application by Notice of Motion under the provisions of Regulation 4 of the Advocates (Professional Conduct) Regulations S I 267 – 2 for orders to bar the Respondent from representing Hon. Kabakumba Masiko in HCCS No. 105 of 2011 against the Applicants/Plaintiffs. Secondly, the applicant prays for costs of the application.

The grounds of the application set out in the Notice of Motion are that the Respondent previously served as legal Counsel for the Applicants in a matter involving the sale of three schools to Ms Kabakumba Masiko. Secondly the Respondent had previously served as legal Counsel for the Applicants in other matters. Thirdly during the course of the Respondents service as legal Counsel for the Applicants, the Respondent came across confidential information, which he now seeks to use to the prejudice of the Applicants in HCCS 105/2011. Fourthly the Respondents continued representation of the Defendant in HCCS No. 105/2011 is prejudicial to the Applicants. Lastly it is just and equitable that the application is allowed.

The application is supported by the affidavit of Fred Byonabye, the second applicant. He deposes that in 2008 and 2009 he and the other Applicants in their respective personal capacities as well as in their collective capacities as directors of the first applicant school hired the services of Messieurs Tumwesigye, Baingana and company advocates and particularly that of Mr John Paul Baingana as their legal Counsel during the sale of the three schools namely Excel High School, Excel Boarding and Masindi Academy to Hon. Ms Kabakumba Masiko. For the legal services rendered Counsel John Paul Baingana charged a fee of Uganda shillings 30,000,000/= according to a fee note dated 4th of January 2010. Pursuant to their joint instructions, the Respondent drew the asset purchase agreement in which the Applicants agreed to sell the three schools to the buyer/client of the Respondent. During the course of preparation and execution of the asset purchase agreement, the Respondent was privy to all discussions including on the matter regarding the payment of a sum of Uganda shillings 40,000,000/= owed by Excel High School Ltd to Mr Kiza Daniel as a creditor. That the Respondent acted for the Applicants when he drew a memorandum of understanding dated 14th of April 2009 which he also witnessed.

Following the sale of the three schools, the Applicants further instructed the Respondent to handle all creditor claims against the second, third, fourth and fifth Applicants and a list of the creditors’ claims were disclosed and annexed to the asset purchase agreement at its execution. On 7 April 2009 and on their instructions Mr John Paul Baingana drew the transfer of shares from the Applicants to the Defendant in respect of the shares in Excel High School. During the execution of the instructions given in the personal capacities of the Applicants, Mr John Paul Baingana obtained confidential information which he now seeks to use in a manner prejudicial to the Applicants in the conduct of the main suit. Some of the documents exhibited in the trial bundle placed before the court on behalf of the Defendant are documents to which Mr John Paul Baingana became privy by virtue of having acted as legal Counsel of the Applicants. Furthermore Mr John Paul Baingana has since supplied the Defendant and continues to disclose before the court information confidentially received from the Applicants in his capacity as their legal Counsel. The information is relied upon by the Defendant in her witness statement.

An example of such confidential information which the Defendant was not privy but which she seeks to rely on in her witness statement is a list of personal creditors confidentiality passed over to Mr John Paul Baingana on the understanding that he would settle them on behalf of the Applicants upon receipt from the Defendant, money due to the Applicants under the asset purchase agreement. On 2 October 2014 and during cross examination of Mr Wilson Byamukama, John Paul Baingana sought to use confidential information earlier furnished to him in his capacity as their legal Counsel, and he personally acknowledged that before this court. Furthermore he sought to cross-examine Mr Byamukama about debts with DFCU Bank, FINCA Bank, Peter Katusiime and others when he obtained confidential information about those debts while acting as the legal Counsel of the Applicants. Before the Applicants contracted him in the matter of sale of the school, the Applicants had contracted him in the case of Kwolekya vs. Excel High School in the Chief Magistrate’s Court of Hoima in civil suit No. 085 of 2008 whereupon he drafted a consent agreement on 2 January 2009. Armed with such knowledge on 2 October 2014 John Paul Baingana asserted in court that the Applicants were heavily indebted even before the sale.

In the premises the deponent deposes that all the Applicants would be prejudiced if Mr John Paul Baingana continues the conduct of HCCS 105 of 2011 as he will seek to use against the confidential information that he became privy to while acting as their Counsel.

In reply Counsel John Paul Baingana opposed the application and deposes that he read and understood the affidavit in support of the application. In December 2008 he was instructed by honourable Kabakumba to carry out due diligence on Excel High School which she intended to purchase. He did carry out the due diligence and established that the schools were due for sale by DFCU bank to which they were mortgaged. He also established that the directors had taken out a mortgage with Post Bank (U) Ltd. He further established that the Applicants were indebted to various people and had issued cheques to various people which bounced and they were on the run for fear of arrest. Upon reporting to honourable Kabakumba Masiko, the parties agreed that all creditors be disclosed and that the honourable Kabakumba would take over their debts portfolio. The issue of debts was included in the main agreement with the honourable Kabakumba Masiko where it was provided that honourable Kabakumba Masiko would clear the debt through him and it was not a secret at all. Consequently the 2nd - 5th applicant’s signed a novation with DFCU bank indicating that the honourable Kabakumba Masiko was to clear the outstanding loan. In the transaction John Paul Baingana maintains that he as the purchaser’s advocate and was entitled to some payment from the vendor's as well but that did not make him the vendor's advocate. Secondly he was aware that the Kwolekya case was handled during the time of execution of the agreement with the Defendant who paid all monies due to Kwolekya. The list of the applicant’s creditors was handed over to him as an advocate of the Defendant and not as Counsel for the Applicants. He handled the matter substantially where the parties obtained a judgment by consent and that the issues remaining for trial were the claims for general damages, interest and costs which issues depend on the discretion of the learned judge. The indebtedness of the Applicants, the issuance of cheques that bounced and the act of keeping house was so notorious that it was public knowledge of the community of Masindi, Hoima and Kiryandongo districts. In the circumstances the facts averred in the affidavit in support are false and impute bad faith on the part of the Applicants.

In rejoinder Fred Byonabye deposes that the schools were not for sale by December 2008. Secondly it was not true that the schools were due for sale by DFCU bank by December 2008 as no final demand note was issued by the bank until after the sale on 20 January 2009. It was the applicant’s who divulged information to the Respondent that the schools had a loan with Post bank and DFCU bank, following their decision to sell the schools in January 2009. He deposes that the applicant’s have never been on the run from creditors until after the Defendant failed to pay the purchase price for the school within 60 days from 20 February 2009 according to the stipulation in the Asset Purchase Agreement. It was pursuant to the breach of the asset purchase agreement by the Defendant that the parties agreed according to the memorandum of understanding dated 14th of April 2009, that the Defendant takes over and pays all creditors including non-bank creditors and a list of creditors was supplied to Counsel John Baingana on 8 April 2009 according to the attachment marked annexure "H". Under those circumstances it is not true that the asset purchase agreement arrogated to the Defendant power to settle the non-bank creditors.

A fee note issued by Counsel John Paul Baingana demonstrates that he acted for both parties according to annexure "A" to the affidavit in support. Furthermore the consent judgment in the Kwolekya case was concluded before the negotiations for the asset purchase agreement and did not involve honourable Masiko Kabakumba. Furthermore the debt due to Kwolekya was only included on the list of non-bank creditors pursuant to the memorandum of understanding dated 14th of April 2009 and after breach of the asset purchase agreement.

It was before 8 April 2009 that the applicant’s applied to Mr John Paul Baingana as the advocate a list of creditors to be paid on their behalf upon receipt to his law firm of the consideration due to them under the asset purchase agreement.

On the basis of advice he deposes that the continued representation of honourable Kabakumba Masiko in the main suit and reliance for that purpose on prejudicial facts obtained while acting as the Applicants advocate would prejudice the Applicants in relation to issues left for consideration by the judge.

In light of the facts he deposes that the affidavit of John Paul Baingana contains falsehoods.

At the hearing of the application the Applicants were represented by Counsel Festus Akunobera while the Respondent Counsel John Paul Baigana represented himself.

In support of the application, the applicant’s Counsel relies on the facts in the affidavit in support of the application and in the rejoinder by Mr Fred Byonabye. He also relies on the grounds set out in the notice of motion which do not need to be repeated here. The applicant’s Counsel relies on regulation 4 of the Advocates (Professional Conduct) Regulations that 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. He further relies on section 1 (3) of the Advocates Act for the definition of a client as a person with any capacity to retain or employee and retains or employs or is about to retain or employ an advocate and any person who is or may be liable to pay an advocate any costs.

The applicant’s further relied on the case of VG Keshwala and sons versus Shonubi Musoke and Company Advocates High Court Miscellaneous Application No. 501 of 2013 arising from HCCS No. 43 of 2010 in which regulation 4 of the Advocates (Professional Conduct) Regulations was considered. It was held in that case that the regulation puts the duty on the advocate not to accept instructions from any person in both contentious and non-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. The applicant’s Counsel concluded that the present application adduce evidence within the purview of regulation 4 of the Advocates (Professional Conduct) Regulations. Under those regulations it must be shown that an advocate/client relationship existed between the Applicants and the Respondent. Secondly as a result of acting for the Applicants, the Respondent became aware of facts which are prejudicial to the Applicants in the matter presently before the court namely in HCCS No. 105 of 2011.

On the basis of the affidavit in support and in rejoinder of Fred Byonabye, Counsel for the Applicant concluded that an advocate/client relationship existed between the Respondent and the Applicants. Secondly on the question of whether the Respondent as a result of acting as the Applicants advocate, became aware of facts which are prejudicial to the applicant in HCCS No. 105 of 2011, he submitted that collectively the instructions referred to show a long and continued trusts relationship between advocate and client in the course of which confidential information would be expected to be and indeed was passed on by the Applicants to the Respondent.

He submitted that during the process leading to the execution of the asset purchase agreement dated 20th January 2009 and the memorandum of understanding dated 7th of April 2009 between the Applicants and honourable Kabakumba, the Respondent was party to discussions between and among the Applicants during the course of which he obtained confidential information. In paragraph 11 of the affidavit in support it is shown that some of the documents exhibited in the trial bundle earlier filed by the Respondent on behalf of honourable Kabakumba are documents to which the Respondent became privy as a result of acting for the Applicants.

It is further shown that the Respondent has disclosed to the Defendant information on the non-bank creditors which the Respondent was retained to settle on behalf of the Applicants upon receipt of monies due to the Applicants under the asset purchase agreement. Furthermore the claim by the Respondent that all creditors including non-bank creditors were disclosed to honourable Kabakumba under the asset purchase agreement is rebutted by paragraph 7 of the affidavit in reply and is a falsehood. This is because a review of clauses 2.2, 3.1, and 3.2 of the asset purchase agreement show that the non-bank creditors were not among the disclosed creditors therein. The Respondent in this capacity as the applicant’s Counsel had earlier on received from the Applicants a confidential list of creditors that is not the same as that set out in annexure "H". However the Respondent appears to be undeterred in the quest to disclose this information in his line of cross examination on 2 October 2014. On 2 October 2014 at the hearing of HCCS 105 of 2011, the Respondent at the onset of his cross-examination of Mr Byamukama Wilson began to raise matters confidentially learned as a result of acting for the Applicants i.e. confidential information obtained in the Kwolekya case, a fact that the Respondent acknowledged before the court prompting the application. In the premises the Respondent as a result of acting for the Applicants, became aware of facts which are prejudicial to the Applicants in HCCS No. 105 of 2011. As such there is a real and substantial prejudice to be suffered by the Applicants if the Respondent is not barred from the further conduct of HCCS No. 105 of 2011 on behalf of the Defendant in that suit. In the premises this honourable court should bear and preclude the Respondent from further conduct of HCCS No. 105 of 2011 on behalf of the Defendant and should also pay the costs of the application.

In reply the Respondent submitted that HCCS No. 105 of 2011 against honourable, Kabakumba Masiko seeks a declaration that the Defendant's actions constitute a repudiatory breach of the asset purchase agreement and the memorandum of understanding. Secondly it seeks vacant possession of the schools and handing over or proprietary information and documentation related to the said properties. It is for an account for all monies collected from the schools and the properties under the asset purchase agreement; general damages for breach of contract, interest at 25% per annum from the date of judgment till payment in full and costs of the suit. The Defendant filed a defence through Messrs Tumwesigye, Baingana and Company advocates. The parties eventually compromised the suit culminating into a consent judgment as stipulated in the court record. It was also agreed that the areas not agreed upon in the consent judgment would be set for trial. The issues that were reserved for adjudication were:

  1. Whether the Defendant should pay the monies accruing to NSSF?
  2. Whether the Defendant should pay general damages, interest and costs?

A scheduling conference was conducted and a trial bundle is filed when PW1 was cross examined whereupon the Applicants applied for disqualification of the Defendants Counsel.

The facts of the Respondent’s opposition to the application to disqualify him are contained in the affidavit of John Paul Baingana referred to above.

The Respondents Counsel agrees with the law under regulation 4 of the Advocates (Professional Conduct) Regulations. The first issue framed is whether the Applicants are the Respondent’s clients or former clients? Secondly whether the position that the Respondents are aware of any facts which may be prejudicial to the applicant in that matter?

On the issue of whether an advocate/client relationship existed between the applicant and the Respondent, the Respondent submitted that the Applicants failed to prove by affidavit that an advocate/client relationship existed or exists at all. In respect of the purchase of the schools transaction, the Applicants claimed to have retained the Respondent while the Respondent claims that he was retained by honourable Kabakumba Masiko. Counsel agrees with the fee note annexure "A" to the affidavit in support addressed to the former directors of Messieurs Excel High School Limited who are also the Applicants. He submitted that the letter did not cover the first applicant at all (the first applicant is Excel High School Limited).

He submitted that under the Advocates (Remuneration and Taxation of Costs) Regulations it is provided under regulation 22 (2) that where an advocate acts for both defender and the purchaser, he or she shall be entitled to charge the purchaser's advocates charges and one half of the vendor's advocates charge. He submitted that any reasonable advocate will easily understand that a transaction worth Uganda shillings 1,200,000,000/= does not attract Uganda shillings 30,000,000/= only under the rules. It can easily be discernible that it was honourable Kabakumba who discharged the full conveyance fees because he was the purchaser and the Respondent acted as the purchaser’s advocate.

With reference to civil suit number 85 of 2008; Kwolekya versus Excel High School Limited, during the due diligence process he established that the school was attached by bailiffs in execution to recover money due to the plaintiff. Annexure "G" to the affidavit in support of the application was made between the parties and the appointed bailiffs. However the applicant cannot show that there were instructions to defend the suit and the defence filed in the matter. This agreement was executed on 2 January 2009 and by that time the Respondent was already in the process of carrying out a due diligence. 20 January 2009 is the date of execution of the agreement but the process started much earlier. It was on 2 January 2009 that the Applicants resolved to sell the school and on page 3 of the asset purchase agreement paragraph "C" to the applicant’s affidavit in support of the application it is indicated that the directors by resolution on 2 January 2009 warrant to the purchaser that the company has authority to sell to the buyer. Consequently the civil suit in question was part of the due diligence process. The transaction commenced before execution date and as such the benchmark date should not be 20th of January 2009 when the agreement was finally executed. In the premises there was no advocate client relationship that was created.

If issue number one is answered in the affirmative, the issue is whether the Respondent became aware of facts which are prejudicial to the Applicants in HCCS No. 105 of 2011. Counsel submitted that the matter as earlier submitted was partially settled and the parties have disclosed all material facts required in the completion of the trial. All parties have filed witness statements and the trial bundle has been filed. The reason why the Applicants believe the participation of the Respondent is prejudicial to their case is found in paragraph 13 of the affidavit in support of the application. Counsel contends that the list of creditors which was the bone of contention was central to the discussion and could not be a confidential matter. Furthermore the creditors had provided valuable services to the school which was the property on sale. The issue of due diligence continued even after execution of the asset purchase agreement which among other things caused the execution of a memorandum of understanding that amended the main sale agreement of 20th of January 2009. Under the agreement paragraph 2 thereof the Defendant as told and agreed to settle all several statutory and individual debts accruing against Excel High School. Consequently the list of creditors was part of the memorandum of understanding.

On the basis of that the Respondent prayed that the court finds that the application is tainted by falsehoods which go to the root of the affidavit evidence in support of the application. He submitted that it was an issue of due diligence to find out who claims against the intending seller. Consequently the court should find that the creditors were disclosed to the purchaser honourable Kabakumba Masiko. Secondly honourable Kabakumba Masiko the intending buyer was entitled to the list of creditors. Thirdly the information on creditors given to the Respondent as Counsel for honourable Kabakumba Masiko is not prejudicial to the applicant’s case. He submitted that according to the case of VG Keshwala versus Shonubi Musoke and company advocates HCMA No. 401 of 2013, it is a general rule that the court will not interfere unless it is a case where mischief is rightfully anticipated. Consequently the Respondent maintains that even if the court found that there existed a client/advocate relationship between the Applicants and the Respondent, the reasons advanced by the Respondent show that there is no reason to anticipate mischief. In the premises the matter ought to be dismissed with costs.

Ruling

I have duly considered the applicant’s application together with the affidavit evidence in support and opposition to the application. I have also read the submissions of Counsel which have been summarised above.

The first question presented for consideration is whether the Applicants were the Respondent’s clients or former clients.

The basis of the contention that the Applicants were the Respondents clients is a fee note annexure "A" to the application and secondly the assertion of fact that the Respondent represented the Applicants in other matters.

The Respondent on the other hand contends that he acted for honourable Kabakumba Masiko, the Defendant in the main suit.

I have carefully considered the evidence in support of the contention that the Respondent represented the Applicants. The Applicants rely on the fee note dated 4 January 2010 with regard to the sale agreement executed between the Applicants and honourable Kabakumba Masiko in respect of Messieurs Excel High School Limited properties. The wording of paragraph 1 of the fee note clearly indicates that the Respondent acted for both parties. The question of whether the Respondent acted for a former client is proved. The Respondent acted for both the purchaser and the vendor in the matter of the sale of Excel High School Limited and the transfer of shares.

Regarding the case at the Chief Magistrate's Court of Hoima in civil suit number 85 of 2008 Kwolekya Fred versus Excel High School Limited, the consent judgment was drawn by Messieurs Tumwesigye Baingana and company advocates. The mere fact that it the court document was drawn jointly by the Respondent’s firm is proof that the Respondent acted for Messieurs Excel High School Limited. The consent judgment is dated 2nd of January 2009. Judgment was entered on the consent agreement on 27 January 2009. The agreement the subject matter of the sale of Excel High School was executed on 20 January 2009. However prior to the execution of the sale agreement the Respondent had indicated in the fee note annexure "A" to the affidavit in support that he had acted for both Excel High School Limited and honourable Kabakumba Masiko.

In this application it is indicated that Excel High School Limited is one of the Applicants. The application was filed on 18 November 2014. Prima facie according to annexure "F" the shares of the Applicants were transferred to honourable Kabakumba Masiko on the 7 April 2009. I agree with the Respondents submissions that this suit challenges the sale agreement and any transaction there under because it seeks a declaration that there was a repudiatory breach of the asset purchase agreement and memorandum of understanding by the acts of the Defendant. Strangely the Plaintiffs/Applicants also seek an account of monies collected from the school and the properties under the asset purchase agreement. I also agree with the Respondent that the parties partially compromised the suit by consent judgment. In the consent judgment it was agreed that the Defendant shall pay the Applicants thereby compromising the issue of whether the Applicants are directors of Messieurs Excel High School. The remaining issues for trial are whether the Defendant should pay the monies accruing to NSSF (a creditor) and whether the Defendant should pay general damages interests and costs. It is therefore not possible for Messieurs Excel High School to bring an action or application against the Defendant’s advocate on the ground of having accepted instructions against it. Consequently what remains for trial is narrow in scope and any prejudicial facts that the Applicants must disclose must relate to facts causing prejudice to the Applicants in the trial of the remaining issues. Perhaps it would affect the question of whether the Defendant should pay general damages, interests and costs to the Applicants. In that picture Messieurs Excel high school Ltd cannot be aggrieved because no damages can be awarded in its favour since it is the subject of the sale agreement executed in favour of the Respondent’s client.

Regulation 4 of the Advocates (Professional Conduct) Regulations provides as follows:

"An advocate shall not accept instructions from any person in respect of a contentious or noncontentious 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."

In this particular case the advocate has already accepted instructions and substantially handled this suit on behalf of the Defendant who is also a former client together with the Applicants in the asset purchase agreement. That notwithstanding the question is whether the advocate is aware of any facts which may be prejudicial to the former client. The affidavit in support of the application in paragraph 13 deposes that an example of such confidential information to which the Defendant was not privy but which she now seeks to rely on in her witness statement is the list of personal creditors confidentially passed over to Mr John Paul Baingana on the understanding that Mr John Paul Baingana would pay the same on their behalf upon receipt from honourable Kabakumba Masiko money due to them under the asset purchase agreement.

I do not for the moment understand what mischief such information would occasion to the Applicants since it cannot affect their entitlement under the consent judgment. I agree that there is some discomfort owing to the fact that the Respondent acted for both parties to the main suit in the asset purchase agreement. However the Respondent conducted this suit from the year 2011 up to 2014 without the Applicants having raised any bar. The remaining issues deal with whether the Defendant should pay money to NSSF. Secondly the issue is whether the Defendant should be held liable in damages, interest and costs. For the most part several other orders had been sought against the Defendant which orders were compromised by consent judgment. The Applicants sought a declaration that the Defendant's action constitutes a repudiatory breach of the asset purchase agreement and memorandum of understanding. At this stage of the proceedings the Applicants have agreed to receive money as consideration for the sale. Secondly the applicant’s sought vacant possession of the schools and hand over of all proprietary information and documentation relating to the property of the schools. The question of who owns the school is resolved by upholding the sale agreement and accepting to receive consideration for the purchase by the Defendant. The payments under the consent agreement are matters of execution only. Thirdly the applicant’s sought an account of all monies collected from the schools and the properties under the asset purchase agreement. The Defendant would not be obliged as a proprietor of the schools to account to the Applicants. I therefore agree that what is left is the prayer for general damages for breach of contract, and whether interest should be paid and the costs of the suit. Should the Respondent be barred from representing the Defendant, it is the Defendant who is likely to be prejudiced because of the advanced stage at which the Respondent has conducted the matter. The matter is made more complicated by the fact that the Respondent acted for both parties in the sale agreement.

It is my humble conclusion that the Applicants waived any right to object to the Respondent as Counsel for the Defendant when then executed a consent judgment. Furthermore they waived their right when they allowed the Respondent to conduct the Defendant’s defence against their suit in several appearances for a period of about three years. At this stage of the proceedings the Respondent had accepted instructions and conducted the proceedings for three years without any objection from the Applicants. The Respondent was involved in negotiations leading to partial settlement of the suit. In such a situation an objection ought to have been raised at the very earliest opportunity because regulation 4 of the Advocates (Professional Conduct) Regulations clearly envisages a bar to the acceptance of instructions. It places the duty on the advocate not to accept instructions in respect of a contentious or noncontentious matter if it involves a former client. However the advocate must be aware of a matter which is prejudicial to the former client or even aware of confidential information which should not be divulged.

The Respondent accepted instructions even when he and the Applicants knew that the dispute arose out of the noncontentious transaction of sale of property which later became contentious. In the premises having accepted instructions without objection and having taken significant steps in the prosecution of the defence to the extent that the issues were narrowed down and partial judgment was entered, the Applicants waived their right to object to the conduct of the defence of the Defendant by the Respondent. They are also barred by the doctrine of estoppels under section 114 of the Evidence Act Cap 6 from objecting to the Defendant. Section 114 (supra) provides that:

            “114. Estoppel.

When one person has, by his or her declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he or she nor his or her representative shall be allowed, in any suit or proceeding between himself or herself and that person or his or her representative, to deny the truth of that thing.”

The Applicants made the Respondent believe that there was no prejudicial information the Respondent had and it was okay for him to represent the Defendant. This is apparent by their failure to object to the numerous matters the Respondent handled in this suit.

In this application it is alleged that the Respondent has already disclosed certain confidential information to the Defendant. If there is any mischief, it has already been done because it is alleged that the information has been given to the Defendant and the Defendant has included it in her written witness testimony. I cannot at this stage comment about the merits of that allegation. The rule is meant to prevent the disclosure and use of confidential and prejudicial information. In the premises the applicant's application cannot be granted and is accordingly dismissed with each party to bear his or her own costs.

 

Ruling delivered in open court on the 8th of May 2015

 

Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Godfrey Akena for the plaintiff

Respondent absent

Charles Okuni: Court Clerk

 

Christopher Madrama Izama

Judge

8/May/2015