[2024] UGHC 220

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

#### 3 **HCT – 01 – CV – LD – CS – 10 OF 2022**

## **ANNOINTED CHURCH OF JESUS CHRIST ……………….. PLAINTIFF**

#### **VERSUS**

## 6 **1. PR. BYABASAIJA FRANK**

#### **2. ANNOINTED SOUL WINNERS MINISTRY**

# **3. THE COMMISSIONER LAND REGISTRATION …... DEFENDANT**

# 9 **BEFORE: HON. JUSTICE VINCENT WAGONA RULING ON A POINT OF LAW.**

Mr. Kateeba A Cosma learned counsel for the plaintiff raised a point of law under

12 Rule 4 of the Advocates (Profession Conduct) Regulations challenging the propriety of M/s Mugabe- Luleti & Co. Advocates as counsel for the plaintiff. He contended that J. Musana & Co. Advocates which was inherited by M/s Mugabe – Luleti & Co. Advocates represented the 1 st and 2nd 15 defendant in the former suit vide FPT – 00 – CV – LD – CS – 050 of 2011, Kabaseke Joseph v Annointed Soul Winners Ministries International Ltd and the dispute was over the land currently in dispute. That the 1st defendant was a senior pastor in the 2 nd 18 defendant's ministry thus the current law firm became aware of the facts regarding the acquisition of the suit land by the 1st and 2nd defendant which is confidential and privileged. That if they are 21 allowed to represent the plaintiff, there is high likelihood of using such information to the prejudice of the 1st and 2nd defendants an act which is barred under regulation

4 of the Advocates (Professional Conduct) Regulations and in breach of regulation

24 10.

Mr. Kateeba also invited me to the decision of *Sudhir Ruparelia v MMAKS Advocates & 3 others, HCMA No. 1063 of 2017* where *Wangutuzi J* (as he then 3 was) held thus:

*"The understanding here is that where the matter in contention touches those that the advocate used to handle on behalf of the applicant, then the* 6 *irrefutability of the presumption of imputed knowledge of confidences is enhanced and the Advocate must be disqualified."*

Learned counsel contended that M/s Mugabe- Luleti & Co. Advocates had 9 previously handled a matter concerning the very suit land before court on behalf of the 1st and 2nd defendants. For that reason, they are seized with confidential and privileged information from the said defendants which they may use against them. 12 That as such the firm should be disqualified from representing the plaintiff.

In reply, Mr. Mugabe Robert of M/s Mugabe – Luleti & Co. Advocates argued that they never represented the 1 st and 2nd defendant in *FPT – 00 – CV – LD – CS – No.*

- 15 *050 of 2011; Kabaseke Joseph v Annointed Soul Winners Ministries International Ltd.* That the said suit was filed in 2011 by Kabaseke Stephen against Annointed Church of Jesus Christ before the 2nd defendant was incorporated per the joint - 18 scheduling memorandum in the said suit which was attached. That per the scheduling memorandum dated 11th August 2012, attached to the submissions, the 2 nd defendant formally accepted to be a pastor of the plaintiff's branch at Rwengoma - 21 hence a legal representative of the plaintiff and testified in that capacity.

That the 1st defendant in his testimony in the former suit indicated that the 2nd defendant only used to affiliate to Annointed Church of Jesus Christ (current plaintiff) and that the suit land was owned by the 2nd 24 defendant and it was titled land.

That the certificate of title to the suit land was secured on 17th August 2016 when the case was long filed in 2011.

- That the 1st 3 defendant who has been fraudulent from the beginning misled Court to believe that the correct defendant was the current 2nd defendant and proceeded as if it was true without amendment of the pleadings. That as such the name appearing in - 6 the judgment was an error which court did not notice. The client for M/s Mugabe Luleti & Co. Advocates has been the plaintiff and not the defendants. Learned counsel also contended that the subject matter in the former suit revolved on - 9 blocking an access for the plaintiff and not ownership of the suit land as claimed by the defendants. He contended that the point of law at hand is misplaced and such should be dismissed with costs to the plaintiff.

# 12 **Consideration by Court:**

Regulation 4 of *The Advocates (Professional Conduct) Regulations, Statutory Instrument 267—2* provides thus:

15 *An advocate shall not accept instructions from any person in respect of a contentious or non contentious matter if the matter involves a former client and the advocate as a result of acting for the former client is aware of any* 18 *facts which may be prejudicial to the client in that matter.*

# Regulation 10 adds thus;

*An advocate shall not use his or her fiduciary relationship with his or her* 21 *clients to his or her own personal advantage and shall disclose to those clients any personal interest that he or she may have in transactions being conducted on behalf of those clients.*

The point of contention is whether or not M/s Mugabe Luleti& Co. Advocates were attorneys of the defendants in the former suit and as a result of such relationship got 3 access to information which may be prejudicial to the defendants?

Section 1 (b) of The Advocates Act defines "client" as including any person who has power, express or implied, to retain or employ, and retains or employs, or is 6 about to retain or employ, an advocate and any person who is or may be liable to pay to an advocate any costs. It is thus the act of authorizing or employing an advocate

to act on behalf of a client which constitutes the advocate's retainer by the client (see

9 *Halsbury's laws of England, 4th edition, vol. 44 (1) at p 83 and 84, paras. 99 and 101).*

The consequential effect of regulation 4 is a direct bar to an advocate or the law firm 12 that such advocate practices in from appearing in a case that is contrary to the interests of the former client in relation to a subject matter or issue which the advocate has prior information from the advocate. The rationale or mischief that 15 regulation 4 sought to cure is protection of privileged information between advocate and client and to ensure that a client reveals information to an advocate with the assurance that such advocate shall not use such information to the detriment of the

- 18 client. It is intended to regulate two competing scenarios that is; an advocate being at liberty to represent a client of his choice *vis-à-vis* an advocate taking advantage of information revealed by a former client as a basis of claim against him which in - 21 due course would jeopardize trust of information to an advocate by a client.

Lightman J, in *Re a Firm of Solicitors, [1997] Ch 1, [1995] 3 All ER 482* gave the import of regulation 4 above thus:

24 *"The law regulating the freedom of a solicitor who, or whose firm, has at one time acted for a client subsequently to act against that client reflects the*

*need to balance two public interests. First there is the interest in the entitlement of that client to the fullest confidence in the solicitor whom he* 3 *instructs and for this purpose that there shall be no risk or perception of a risk that confidential information relating to the client or his affairs acquired by the solicitor will be disclosed to anyone else…Second there is* 6 *the interest in the freedom of the solicitor to obtain instructions from any member of the public, and of all members of the public to instruct such solicitor, in all cases where there is no real need for constraint; there must* 9 *be good and sufficient reason to deprive the client of the solicitor or the solicitor of the client of his choice."*

The main consideration therefore in applications of this nature is for court to examine 12 the nature of information that was revealed by the client to the advocate in the course of the interaction and instruction and establish how such information is prejudicial to the client in the subsequent suit. Mubiru J in *Hermon Tesfalident Ghebrat v*

15 *Marlin Advocates &Anor, HCMA No. 196 of 2020*, considered the said issue where he observed thus:

*The issue whether the advocate is possessed of relevant confidential* 18 *information cannot be decided on the basis of a general allegation. It has to be stated with sufficient particularity as to the nature of the confidential information. Information acquired in a prior representation may have been* 21 *rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. Information that has been disclosed to the public or to other parties adverse* 24 *to the former client ordinarily will not be disqualifying….. A conclusion about the possession of such information may be based on the nature of the services* *the advocate provided to the former client and information that would in ordinary practice be learned by an advocate providing such services*."

- 3 It therefore follows that whether information was acquired by the advocate through the former instructions from the client and whether it is pre-judicial to such client in the former suit is a question of fact that varies from case to case. Thus court must - 6 examine the nature of information disclosed by the client and how it is likely to prejudice such client in the subsequent suit. It is not a general principle of law that if an advocate represented a client in the former suit no matter the dispute in issue - 9 automatically disqualifies the advocate. The applicant must demonstrate that such information would disadvantage him or her in the subsequent suit. Therefore the applicant must plead those facts or set of information that was disclosed to the 12 advocate in the former suit and relate the same with the subsequent suit and show

how the applicant would be prejudiced by the same.

In the case before me, the complaint by the defendants is that the current law firm of

15 *M/s Mugabe – Luleti & Co. Advocates* formerly represented them in *FPT – 00 – CV – LD – CS – 050 of 2011 (Kabaseke Joseph v Annointed Soul Winners Ministries International Ltd*). That they got knowledge of how the defendants 18 acquired the suit land and such information may be used in the current suit in a manner that is prejudicial to the defendants.

I have examined the judgment of court in the said suit *(FPT – 00 – CV – LD – CS –*

21 *050 of 2011 (Kabaseke Joseph v Annointed Soul Winners Ministries International Ltd*). The defendant in that suit was '*Annointed Soul Winners Ministries International Ltd*' who is the 2nd defendant in the current suit led by the 1st 24 defendant. The subject matter in the former suit related to an allegation by Kabaseke Joseph that the defendant (*Annointed Soul Winners Ministries International Ltd*)) had blocked the access road. The evidence which was submitted before court was limited or restricted to enabling court resolve whether an access road existed or not. The title challenged by the plaintiffs in this suit and other documents on which the

3 defendants paged their defense were not relied upon by the defendant in the former suit.

The defendants have not pointed out with certainty as to the information that the 6 current lawyer had knowledge of in the former suit that would be prejudicial to them in the current suit.

Lastly, I have read and internalized the case by the plaintiff in the current suit and

- 9 the gist of the dispute in the former suit and found them to be completely different and not in any way related. There appears to be no information in the former suit that has a big bearing on the current suit before court. I therefore find no merit in - 12 this point of law and the same is overruled with no orders as to costs since the point of law was raised over a legitimate concern for court's investigation.

I so order.

Vincent Wagona **High Court Judge / Fortportal**

18 **DATE: 19/04/2024**