Wakilii

Barungi and Another v Kawesa and Another (Miscellaneous Application 220 of 2024)

High Court · [2024] UGHCLD 155 · 2024 Preliminary Objection Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out counterclaim arising from Civil Suit No. 1003 of 2023
Decision
Matter adjourned pending proper representation for the 1st Applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court sustained a preliminary objection to the 2nd Applicant's representation of the 1st Applicant. Regulation 9 of the Advocates (Professional Conduct) Regulations prohibits an advocate from appearing as counsel in a case where they will be required to give evidence, whether verbally or by affidavit. The 2nd Applicant had authorised the 1st Applicant to depose an affidavit on his behalf, thereby serving as a witness. The matter being contentious, the exception for formal or non-contentious matters did not apply. The 1st Applicant was directed to find alternative representation.

Outcome

Matter adjourned pending proper representation for the 1st Applicant

Facts

The Applicants brought a chamber summons seeking to strike out the Respondents' counterclaim in Civil Suit No. 1003 of 2023, alleging it disclosed no cause of action, was res judicata, and constituted an abuse of process. The Respondents opposed, claiming the counterclaim addressed fraudulent land transfers in 2023. The 2nd Applicant, Counsel Muhangi George, represented both himself and the 1st Applicant. The Respondents raised a preliminary objection, arguing that Muhangi George was in conflict because he had authorised the 1st Applicant to depose an affidavit on his behalf, thereby acting as both counsel and witness. The court examined Regulation 9 of the Advocates (Professional Conduct) Regulations, which prohibits advocates from appearing as counsel when they will be required to give evidence.

Issues

  1. Whether the 2nd Applicant (Counsel Muhangi George) could represent the 1st Applicant while simultaneously acting as a witness by authorising an affidavit on his own behalf.
  2. Whether Regulation 9 of the Advocates (Professional Conduct) Regulations prohibits an advocate from serving as both counsel and witness in the same contentious matter.

Orders

  • Preliminary objection sustained.
  • The 1st Applicant is directed to find another Advocate.
  • The application to proceed for hearing on its merits after proper representation is secured.

Rules and key headnotes

Legal Representation — Conflict of Roles — Advocate as Witness and Counsel
Regulation 9 of the Advocates (Professional Conduct) Regulations prohibits an advocate from appearing as counsel in a case where the advocate will be required to give evidence, whether verbally or by affidavit.
Legal Representation — Exception for Non-Contentious Matters
The exception under Regulation 9 permitting an advocate to give evidence in formal or non-contentious matters does not apply to contentious proceedings involving attack and defence by opposing parties.
Legal Representation — Witness Status by Affidavit Authority
An advocate who authorises another party to depose an affidavit on the advocate's behalf is deemed to be giving evidence and is thereby disqualified from acting as counsel in the same matter under Regulation 9.
Professional Conduct — Distinction Between Conflict of Interest and Witness-Counsel Incompatibility
Regulation 9 of the Advocates (Professional Conduct) Regulations addresses the incompatibility of the roles of advocate and witness in the same case, not conflict of interest, which is governed by Regulations 4 and 10.

Legislation cited (8)

Cases cited (6)

  • M/s Quality Uganda Ltd v Uganda Performing Rights Society & 4 Others (High Court Civil Suit No. 444 of 2019)
  • Henry Kaziro Lwandasa Vs Kyas Global Trading Co. Ltd
  • Hermon Tesfald Ghebrat v Marlin Advocates & Another (High Court Miscellaneous Application No. 196 of 2020)
  • Ayebazibwe v Barclays Bank (U) Ltd (Civil Suit No. 162 of 2012)
  • Uganda Development Bank v Kasirye, Byaruhanga & Co. Advocates (Supreme Court Civil Appeal No. 35 of 1994)
  • M.P Electronics Ltd & Another v DFCU & Others (High Court Miscellaneous Application No. 510 of 2023)

Full judgment

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

Barungi_and_Another_v_Kawesa_and_Another_(Miscellaneous_Application_220_of_2024)_[2024]_UGHCLD_155_(23_May_2024)
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.