Wakilii

Hussein Mohammed v Mayanja & 5 Ors (Civil Suit No. 0178 of 2009)

High Court · [2017] UGHCLD 107 · 2017 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to have counsel for 2nd defendant step down from representation due to alleged conflict of interest under Advocates (Professional Conduct) Regulations
Decision
Counsel for 2nd defendant permitted to continue representation; application to have him step down dismissed

Observed later treatment

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Holding

An advocate cannot be compelled to step down from representation under Regulation 9 of the Advocates (Professional Conduct) Regulations based on an opponent's future intention to call him as a witness where the advocate is not listed as a witness by any party. Regulation 9 requires that an advocate have reason to believe he will be required as a witness before appearing, or that it becomes apparent during proceedings. A speculative future intention by opposing counsel does not satisfy this threshold. The advocate retains the discretion to choose between continuing as counsel or testifying as a witness where evidence is not by affidavit.

Outcome

Counsel for 2nd defendant permitted to continue representation; application to have him step down dismissed

Facts

During a hearing in Civil Suit No. 0178 of 2009, counsel for the plaintiff sought to call counsel Tibaijuka, who represented the 2nd defendant, as a witness regarding documents Tibaijuka had authored. These documents included an application for removal of caveat and a sale agreement dated July 2007 relating to property LRV 147 Folio 10 Plot 4 Mengo. Plaintiff's counsel contended that Tibaijuka should excuse himself from representing the defendants due to this involvement. Tibaijuka was not listed as a witness by either party. The plaintiff's witness list named three other witnesses. Counsel Tibaijuka opposed the application, arguing that his non-listing as a witness, the speculative nature of the plaintiff's intention, and the availability of other witnesses to introduce the documents meant he could not be compelled to step down.

Issues

  1. Whether Counsel Tibaijuka should be ordered to step down from representing the 2nd defendant on grounds that the plaintiff intended to call him as a witness regarding documents he had authored.
  2. Whether Regulation 9 of the Advocates (Professional Conduct) Regulations requires an advocate to disengage from representation based on a future intention to call him as a witness when he is not listed as a witness by any party.

Orders

  • Application dismissed.
  • Counsel Tibaijuka to continue representing the 2nd defendant.
  • Costs to abide the main cause.

Rules and key headnotes

Civil Procedure — Professional Conduct — Advocates (Professional Conduct) Regulations Regulation 9 — Advocate as Witness — When Advocate Must Step Down
Under Regulation 9 of the Advocates (Professional Conduct) Regulations, an advocate cannot be compelled to step down from representation based solely on opposing counsel's future intention to call him as a witness where the advocate is not listed as a witness by any party and the matter has not progressed beyond the pleadings stage.
Civil Procedure — Professional Conduct — Regulation 9 Interpretation — Reason to Believe Test
The proper test under Regulation 9 is whether the advocate, before appearing, had reason to believe he would be a witness in the case, or having appeared and finding himself a witness, whether he ought to continue. A speculative future intention by opposing counsel does not satisfy the 'reason to believe' threshold.
Civil Procedure — Professional Conduct — Advocate Authoring Documents — Choice Between Counsel and Witness Role
Where an advocate has authored documents in controversy but has not sworn an affidavit as a witness, Regulation 9 gives the advocate the option to choose between being a witness or continuing as counsel. The advocate cannot be compelled to testify for the opposing party where he is not listed as a witness.
Civil Procedure — Witness Lists — Order 6 Rule 2 Compliance Required
An advocate sought to be called as a witness must be listed as such under Order 6 Rule 2 of the Civil Procedure Rules by the party intending to call him. Failure to list the advocate as a witness at the pleadings stage renders an application to compel his disengagement premature and speculative.

Legislation cited (3)

Cases cited (8)

  • Uganda Development Bank v Kasirye Byaruhanga & Co. (Supreme Court Civil Appeal No. 35 of 1994)
  • Hon. Mukasa Fred Mbidde & Michael Mabukke v LDC (Court of Appeal No. 51 of 2013)
  • Dynasty Africa Ltd v Moses Mugabi & Others (Commercial High Court Civil Suit No. 246 of 2007)
  • Yunusu Ismail v Alex Kamukama & Others (Civil Appeal No. 7 of 1987)
  • Lwandasa v Kyasa Global Trading Co. Ltd (Miscellaneous Application No. 865 of 2014)
  • Ayebazibwe Raymond v Barclays & 3 Others (High Court Civil Suit No. 165 of 2012)
  • Yunusu Ismail T/a Bamboo City Stores versus Alex Kamukama ad Ors T/a Buzari (1992) 3 KALR 113 (SEU) 119
  • RV Secretary of state for India (194) 2 ALL ER 546

Full judgment

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

Hussein Mohammed v Mayanja & 5 Ors (Civil Suit No. 0178 of 2009) [2017] UGHCLD 107 (14 December 2017)
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.