Wakilii

Hon. Ssewante & 15 Others v Yudaya & 3 Others (Miscellaneous Application 25 of 2024)

High Court · [2024] UGHC 169 · 2024 Preliminary Objection Upheld — Counsel Disqualified AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objection to advocates' appearance arising from miscellaneous application to be added as parties
Decision
Two counsel disqualified from representing the 4th Respondent; 4th Respondent to appoint other advocates

Observed later treatment

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Holding

The court upheld the preliminary objection and disqualified two advocates from representing the 4th respondent on the ground that their membership in the General Assembly of the Uganda Muslim Supreme Council created a conflict of interest, undermining their duties to the court and their client, particularly where issues concerning the General Assembly's conduct were before the court.

Outcome

Two counsel disqualified from representing the 4th Respondent; 4th Respondent to appoint other advocates

Facts

The applicants, who are members of the General Assembly of the Uganda Muslim Supreme Council, filed a miscellaneous application seeking to be added to ongoing applications. When the matter came for hearing, counsel for the applicants raised a preliminary objection contesting the appearance of Counsel Musa Kabega and Counsel Adam Kibwanga Makmot as advocates for the 4th respondent (Uganda Muslim Supreme Council). The objection was grounded on the fact that both advocates were themselves members of the General Assembly as evidenced by an annexure listing all members. The applicants argued that the advocates were potential witnesses and that their appearance violated Regulation 9 of the Advocates (Professional Conduct) Regulations. The 4th respondent's counsel argued they had no intention to testify, their names were not on any witness list, and they had been duly instructed by the General Assembly to represent the 4th respondent.

Issues

  1. Whether the preliminary objection was properly raised before Court.
  2. Whether Counsel Adam Makmot-Kibwanga and Musa Kabega have a conflict of interest in the application before this court.
  3. What are the remedies available to the parties?

Orders

  • Preliminary objection upheld.
  • Counsel Musa Kabega and Counsel Adam Kibwanga Makmot disqualified from representing the 4th Respondent.
  • Costs of this application shall be in the cause.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Raising Points of Law
A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings. Under Order 6 rule 28 of the Civil Procedure Rules, a point of law can be raised at any time during the proceedings and the court is seized with jurisdiction to determine it.
Professional Conduct — Advocates — Conflict of Interest
Conflict of interest in the context of legal representation is founded on the existence of a fiduciary relationship between a lawyer and client. It concerns a real or seeming incompatibility between one's private interests and one's public or fiduciary duties. Both the actual conflict and the perception of conflict matter when tracing conflict of interest.
Professional Conduct — Advocates — Advocate as Witness
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, and if it becomes apparent during proceedings that the advocate will be required to give evidence, he or she shall not continue to appear except on formal or non-contentious matters.
Professional Conduct — Advocates — Dual Role as Party and Advocate
An advocate cannot competently represent a client while simultaneously being a quasi-party or member of the governing body whose conduct is in issue before the court. Such fusion of roles would compromise the advocate's duty to the court, as the advocate may selectively use evidence to serve their own interests rather than the interests of justice.
Professional Conduct — Fiduciary Duty — Single-minded Loyalty
The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. A fiduciary must act in good faith, must not make a profit out of his trust, must not place himself in a position where his duty and his interest may conflict, and may not act for his own benefit or the benefit of a third person without the informed consent of his principal.
Professional Conduct — Advocates — Disqualification
Where advocates are members of the supreme governing body of their institutional client and issues concerning the conduct of that governing body are before the court, their continued representation will not achieve the ends of justice and runs counter to the Advocates (Professional Conduct) Regulations, warranting disqualification.

Legislation cited (8)

Cases cited (7)

Full judgment

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Hon. Ssewante & 15 Others v Yudaya & 3 Others (Miscellaneous Application 25 of 2024) [2024] UGHC 169 (15 April 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.