Wakilii

Ayebazibwe v Barclays Bank Uganda Ltd & 3 Ors (HCCS 165 of 2012)

High Court · [2013] UGCOMMC 91 · 2013 Preliminary Objection Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections raised during pre-trial conferencing in a civil suit
Decision
One counsel barred from appearing pending compliance with procedural requirements; the other counsel may continue to appear

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court overruled the preliminary objection against Dr James Akampumuza on the ground that it was premature to conclude he would be a material witness, as no caveat formed part of the pleadings or trial bundle. However, the court sustained the objection against Counsel Simon Tendo Kabenge, holding that he could not appear without filing a formal notice of joint instructions, as such notice is necessary for professional accountability and taxation of costs.

Outcome

One counsel barred from appearing pending compliance with procedural requirements; the other counsel may continue to appear

Facts

During pre-trial conferencing on 7 May 2013, the third defendant's counsel raised two preliminary objections. First, he objected to the appearance of Dr James Akampumuza on the basis that he had witnessed a caveat lodged on the suit property and was therefore likely to be called as a witness, which would contravene regulation 9 of the Advocates (Professional Conduct) Regulations. Second, he objected to the appearance of Counsel Simon Tendo Kabenge on the ground that no notice of joint instructions had been filed. Counsel for the plaintiff responded that both objections were reactionary and afterthoughts. He submitted that Dr Akampumuza was not listed as a witness and the alleged caveat was not in the trial bundle or pleadings. As for Counsel Kabenge, he had appeared on record in previous proceedings, participated in scheduling meetings, and was copied on correspondence without objection.

Issues

  1. Whether Dr James Akampumuza should be barred from appearing as counsel because he witnessed a caveat and may be required as a witness.
  2. Whether Counsel Simon Tendo Kabenge had the right to appear without having filed a notice of joint instructions.

Orders

  • The preliminary objection against Dr James Akampumuza is overruled.
  • Dr James Akampumuza is put on notice that he might be a material witness if he has knowledge about encumbrances on the suit property.
  • Counsel Simon Tendo Kabenge is barred from appearing in the proceedings unless and until he files a notice of joint instructions.
  • The preliminary objection concerning Counsel Simon Tendo Kabenge is allowed.

Rules and key headnotes

Civil Procedure — Advocates — Professional Conduct — Advocates Likely to Be Witnesses
Under regulation 9 of the Advocates (Professional Conduct) Regulations, an advocate may not appear before any court in any matter in which he or she has reason to believe that he or she will be required as a witness. The rule is both subjective (where the advocate believes he or she may be a witness) and objective (where it becomes apparent during proceedings that the advocate will be required as a witness). An objection to an advocate's appearance on this ground is premature if the alleged matter on which the advocate would testify does not form part of the pleadings or trial bundle and has not become apparent from the proceedings.
Civil Procedure — Advocates — Right of Audience — Notice of Joint Instructions
Although the question of whether counsel represents a party is a matter of fact between advocate and client, a formal notice of joint instructions is a procedural requirement necessary for professional accountability, service of documents, and taxation of costs. An advocate who has not filed such a notice may not participate in proceedings even if he has actual instructions from the client and has appeared in earlier stages of the case without objection.
Civil Procedure — Preliminary Objections — Timing and Irregularity
An illegality, once brought to the attention of the court, overrides all questions of pleadings including admissions. A preliminary objection based on alleged illegality is not time-barred merely because it was not raised at an earlier stage of the proceedings.

Legislation cited (7)

Cases cited (1)

  • Makula International v Cardinal Nsubuga [1982] HCB 11

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ayebazibwe v Barclays Bank Uganda Ltd & 3 Ors (HCCS 165 of 2012) [2013] UGCommC 91 (14 May 2013)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.