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
This is an application brought by Notice of Motion where Mr. Jonathan Abaine of M/S Abaine-Bwengyera and Co. Advocates represents the Applicant, Christopher Othieno. The application is supported by an affidavit and another affidavit in rejoinder both deponed to by Mr. Abaine.
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:-
“No advocate may appear before any court or tribunal in any matter in which he or she has reason to believe that he or she will be required as a witness to give evidence, whether verbally or by affidavit, and if, while appearing in any matter, it becomes apparent that he or she will be required as a witness to give evidence whether verbally or by affidavit, he or she shall not continue to appear; except that this regulation shall not prevent a advocate from giving evidence whether verbally or declaration or affidavit on a formal or non contentious matter or fact in any matter in which he or she act or appears.”
In Halsbary’s Law of England Vol 3 para 102 it is said:
“He (an advocate should not accept a retainer in a case in which he has reasons to believe he will be a witness, and if being engaged in a case it becomes apparent that he is a witness a material question of fact, he ought not to continue to appear as Counsel of he can retie without jeopardising his clients interest”
In Yunusu Ismail t/a Bombo City Store Vs Alex Kamukamu & Other S.C.C.A No. 7 of 1978 (1992) III KALR 173, and affidavit had been sworn by Mr. Jambwe Counsel for the respondents. It was held that the affidavit offered against the provisions of regulation 8 (now regulation 9) in that it contained contentious matters which were not purely formal. Justice Odoki (JSC as he then was) observed that the rule is not only a rule of practice but a rule of professional conduct.
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:-
“I may find it necessary to cross-examine Mr. Abeine:
Counsel has not yet made up his mind. In the Tanzanian case of Jaffrali and Another Vs Borroson and Another (1971) EA 165, Justice Bramble held that the rule, that an advocate should not act as Counsel and witness in the same case, it not violated until the advocate is called as a witness and Court cannot make an order to prevent an anticipated violation. I agree with that holding.
Hon. Mr. Justice Lameck N. Mukasa
Considering all the above the application to disqualify Mr. Abeine from the conduct of the Applicant’s case is rejected and dismissed with costs.
4th April 2008