IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA

COMMERCIAL DIVISION
Reportable
Miscellaneous Application No. 0802 of 2024
(Arising from Civil Suit No. 0576 of 2014)
In the matter between

AMOS NZEYI APPLICANT

And

MENNA TEWAHADE RESPONDENT

Heard: 20 June, 2024.

Delivered: 09 September, 2024.

Advocates - Conflict of interest - A conflict of interest is a situation where the advocate owes
separate duties to act in the best interest of two or more parties in the same or related matters
- A conflict of interest exists if there is a significant risk that an advocate’s ability to consider,
recommend or carry out an appropriate course of action for the client will be materially limited
as a result of the advocate’s other responsibilities or interests - Regulation 4 of The Advocates
(Professional Conduct) Regulations - the duty of confidentiality owed to a former client may
conflict with the duty of candour owed to a current client if information from the former matter
would be relevant to the current matter - an advocate who has formerly represented a client
in a matter or whose present or former firm has formerly represented a client in a matter
cannot thereafter: (a) use information relating to the representation to the disadvantage
of the former client except as these Regulations would permit or require with respect
to a client, or when the information has become generally known; or (b) reveal information
relating to the representation - The only duty to the former client which survives the
termination of the client relationship is a continuing duty to preserve the confidentiality of
information imparted during its subsistence - Only clients and former clients have standing to
seek to restrain a lawyer from acting.

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Advocates - Disqualification on account of being required as a witness to give evidence
whether verbally or by affidavit in a matter in which the advocate appears - advocate has to
choose either to be a witness or Counsel in contentious matters and not both - Regulation 9
of The Advocates (Professional Conduct) Regulations - the expression “will be required as a
witness” should be interpreted restrictively to mean that the advocate is a necessary witness
- imputation of knowledge of client confidences between members of a law firm - The
presumption of shared information is rebuttable and the burden of discharging it is not set too
high - the partners and associates of an advocate who will be a witness are disqualified by
imputation only where another advocate in the firm is likely to be called as a witness on a
significant issue on behalf of the client or an adversary, and it is apparent that the testimony
may be prejudicial to the objector.

Civil Procedure - final judgments - A decision in a suit does not become a final judgment
merely because it is so entitled; it is a final judgment only if it satisfies the criteria of a final
judgment - to be final, a judgment must dispose of all issues and parties, but such disposition
need not always be express - any relief claimed in a suit, which is not expressly granted by
the decree, is deemed to have been refused - date of a decree - the operative date of the
judgment is the one upon which it is eventually pronounced - the decree is required to bear
the date on which the judgment was pronounced - The decree comes into existence on the
date the judgment is pronounced, which is the date of the judgment, though it is signed later
- Order 21 rule 6 (1) of The Civil Procedure Rules requires the decree to agree with the
judgment; to bear the date of the day on which the judgment was delivered - A decree with a
date at variance with that in the judgement is defective, but such is considered to be an
accidental slip or omission curable by correction.
______________________________________________________________________
RULING
______________________________________________________________________
STEPHEN MUBIRU, J.
Introduction:
[1] The applicant and the respondent had a long history of different business
relationships. In one of the transactions, by a Shares Sale Agreement dated 31st
August, 2009, the respondent sold his shares in M/s Innscor Uganda Limited, to
the applicant for an agreed sum of US $ 400,000. The company was involved in
different business activities, including operating the “Nando’s Chicken land”
Franchise under a Master Franchise Agreement. The applicant had only paid US
$ 50,000 when the Master Franchise agreement was terminated. In H. C. Civil Suit
No. 288 of 2011; Menna Tewahade v. Amos Nzeyi, the respondent sued the

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 applicant for the recovery of US $ 350,000 being the price for shares in M/s Innscor
(Uganda) Limited he purchased from the respondent. Later during the trial, the
applicant paid another US $ 50,000. The applicant filed a counterclaim against the
respondent for a sum of US $ 100,000 being a refund of deposits paid for want of
consideration, damages for breach of contract, interest and costs. The respondent
filed a reply to counterclaim. A judgment in the suit was delivered against the
respondent on 3rd December, 2018 in the sum of US $ 230,000 and costs.

[2] On 7th December, 2018 the applicant filed a Notice of Appeal and a request for a
certified record of proceedings. The record of appeal was not provided until 17th
April, 2024 and the applicant has since filed an appeal, Civil Appeal No. 312 of
2024 before the Court of Appeal. In the meantime, the respondent had filed an
application No. 0061 of 2019 for review of the judgment contending that awarding
him a sum of US $ 230,000 as opposed to US $ 300,000 and the award of US $
230,000 as opposed to US $ 300,000 was an error apparent on the face of the
record. In a ruling delivered on 26th September, 2023, the Court declined to re-
evaluate the evidence to come to the respondent’s desired conclusion which, in its
view, would be going beyond the scope of applications for review. The application
was dismissed with each party ordered to meet its costs.

The application;

[3] The application by Notice of motion is made under the provisions of sections 34
and 98 of The Civil Procedure Act, section 33 of The Judicature Act, The
Advocates Act, The Advocates (Professional Conduct) Regulations, and Order 22
rule 23, and Order 52 rules 1and 2 of The Civil Procedure Rules. The applicant
seeks orders that; - (i) the Decree extracted on 14th November 2023 be set aside;
(ii) the Garnishee Order Nisi issued in Misc. Application No. 0490 of 2024 be set
aside; (iii) in the alternative, stay of execution of the decree in HCCS 288 of 2011
dated 14th November, 2023 be ordered; and (iv) that the respondent’s counsel be

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 restrained from participating in any proceedings arising out of HCCS No.288 of
2011.

[4] It is the applicants’ case that the respondent unilaterally extracted a decree with
material irregularities and errors apparent. The garnishee was fixed for hearing
without requisite notice or service upon the applicant. The court is yet to deliver a
final decree that conclusively determines the suit and counterclaim. The applicant
has filed an appeal raising serious triable issues that merit consideration by the
court of appeal. If execution of the decree is not stayed, the appeal will be rendered
nugatory. The respondent’s counsel is embroiled in a conflict of interest. The
application has been filed promptly with sufficient cause, and its grant will not
occasion any prejudice to the respondent.

[5] M/s MMAKS Advocates, formerly known as M/s. Mugerwa & Matovu Advocates,
acted for M/s Innscor (Uganda) Limited, the family business of the applicant. That
law firm drew up the memorandum and articles of association of M/s lnnscor
(Uganda) Limited, and thereafter acted as the company’s solicitors. At all material
times, M/s lnnscor (Uganda) Limited’s flagship business was an internationally
renowned fast food franchise trading as “Nando’s” under a Master Franchise
Agreement (MFA) to which the respondent was party, surety and signatory. The
applicant and the respondent subsequently entered into a sale agreement for
1,710 shares in M/s lnnscor (Uganda) Limited at a purchase price of US $ 400,000
payable in four agreed instalments, ending 31st March, 2011. After the sale and
departure of the respondent, Mr. Humphrey Nzeyi took over as Managing director
of M/s lnnscor (Uganda) Limited and commenced dealings with “Nando’s BV” in
that capacity.

[6] M/s “Nandos BV” were aggrieved that the respondent had sold his shares and
resigned as a director, acts they deemed material breaches of the MFA.
Accordingly, “Nando’s” terminated the franchise by letter dated 29th January, 2010
before payment of the first instalment for the shares was due i.e. 31st March, 2010.

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 The suit dispute arose from non-payment for shares by the applicant due to
termination of the MFA by “Nando’s BV,” a contingent agreement to payment. This
was a central issue in the suit. Prior to the suit, Mr. Humphrey Nzeyi had
extensively consulted and received advice from M/s MMAKS Advocates on
termination of the MFA by M/s “Nando’s BV,” including advice to withhold
information that the respondent had sold his stake in the business and emigrated
to USA. This untruth brought the applicant’s integrity into question, and aggravated
Nando’s BV’s resolve to maintain the termination.

[7] At all material times, M/s MMAKS Advocates had access to, or been privy to
confidential and privileged information about my father including his bank accounts
and credits thereon obtained within the course of retainer as legal counsel; and
within the course of retainer as Company Secretary, and in interactions with M/s
Deliotte & Touche, the company auditors; and as empanelled counsel for Stanbic
Bank (Uganda) Limited with custody of the applicant’s financial affairs. M/s
MMAKS Advocates as counsel for the respondent, as company secretary to M/s
lnnscor (Uganda) Limited, as legal advisor to M/s lnnscor (Uganda) Limited
especially on termination of the MFA, as legal advisor to the beneficial owners of
M/s lnnscor (Uganda) Limited and as empanelled counsel of Stanbic Bank
(Uganda) Limited, now sued as garnishee, are in a continuously adverse position
to the applicant, a former client. They represent the respondent in the dispute
which entirely revolves upon termination of the MFA, a matter upon which they
previously advised one of the related parties. M/s MMAKS Advocates have relied
upon this privileged information to procure a garnishee order nisi to the prejudice
of the applicant, and in breach of fiduciary duty to him.

The affidavit in reply;

[8] In the respondent’s affidavits in reply, it is contended that the underlying suit arose
out of a Share Sale Agreement dated 31st August 2009, pursuant to which the
respondent sold all his shares in M/s lnnscor (Uganda) Limited to the applicant at

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 an agreed sum of US $ 400,000 out of which an initial payment of US $ 50,000
was made by the applicant. The said agreement was prepared by M/s Omoding,
Ojakol & Okallany Advocates. Immediately before the said sale, the applicant was
the majority shareholder and Chairman, while the respondent was the Managing
Director of M/s lnnscor (Uganda) Limited which, inter alia, ran the “Nando’s”
franchise in Uganda pursuant to a franchise agreement. Upon that sale, the
respondent resigned as Managing director of the said company, a role which he
understands was then taken up by Mr. Humphrey Nzeyi, son of the applicant, upon
appointment of the same by his father, the applicant. At the time of the
respondent’s departure, the Company still operated the “Nando’s” franchise.

[9] Following the applicant’s refusal to settle the balance of the purchase price, the
respondent instituted Civil Suit No. 288 of 2011 seeking to recover the balance of
the purchase price. In his defence, the applicant alleged that his refusal to pay the
balance was by reason of the franchise agreement being terminated by “Nando’s.”
Termination of the franchise agreement was way after the respondent had left the
Company and was, as set out in the letter of termination which was tendered by
the applicant, due to alleged material breaches by M/s lnnscor (Uganda) Limited.
During the course of the proceedings in Civil Suit No. 288 of 2011, the applicant
paid the respondent an additional sum of US $ 50,000 for the shares. The suit was
eventually decided in the respondent’s favour. The respondent’s advocated then
extracted the decree in the terms of the Judgment, which decree does not at all
differ from the judgment. Indeed, the same was signed off by the Registrar of this
Court upon confirmation that it was in the terms of the Judgment.

[10] In the course of the proceedings, both the applicant and his son Mr. Humphrey
Nzeyi tendered evidence and were extensively cross examined on both the Share
Sale Agreement and the Franchise Agreement and at no time did they suggest,
whether remotely or directly, that MMAKS Advocates ever acted for Mr. Amos
Nzeyi in any matter, or specifically in this matter relating to the share sale. Mr.
Nzeyi’s attempt to raise a conflicts issue where indeed none to the respondent’s

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 knowledge exists is an afterthought which in any event cannot be the basis for
refusing to settle the decretal amounts or setting aside the Judgment in the
respondent’s favour. There is no conflict of interest since MMAKS Advocates has
never acted for Mr. Amos Nzeyi in any matter, or specifically in this matter relating
to the share sale, as he alleges.

Submissions of counsel for the applicant;

[11] Counsel for the applicant submitted that the application is unopposed since the
respondent’s affidavit in reply was not notarised. The date of judgment is the date
of delivery, not signature. Although the judgment was signed on 30th October, 2018
the judgment notice was issued on 28th November, 2018. The date of judgment
indicated as 30th October, 2019 is false, should be 3rd December 2019. The
applicant’s current advocates filed a notice of change of advocates on 24th
February, 2019 whereas the impugned decree was extracted on 14th November
2023. Upon filing a notice of change of advocates, all court process is served on
the new firm on record and the former lawyers cease having locus standi in the
matter. In any event, the former M/s Barya, Byamugisha & C0., Advocates
confirmed the draft decree was not served upon them either.

[12] The respondent’s application to garnishee was supported by the affidavit of Mr.
Eriya Mikka, an associate at MMAKS Advocates, deposing of own knowledge that
the applicant has funds at Stanbic Bank, also their client. This privileged
information was acquired by his employer during a previous lawyer/ client
relationship with the applicant, and this was a violation of professional ethics. In
any event, Advocates should not swear affidavits on behalf of clients when their
clients are readily available. Order 21 r.7 (1) of The Civil Procedure Rules
stipulates that a decree shall bear the date of the day on which the judgment was
delivered. The purported decree sought to be executed is dated 30th October,
2019, about five years old. Order 22 r.19 (1) (a) of The Civil Procedure Rules
stipulates that where an application for execution is made more than one year after

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 the date of the decree, the court should issue notice to the person against whom
execution is applied for requiring him to show cause why the decree should not be
executed. No requisite Notice was issued before issuing a Garnishee Nisi.

[13] The Garnishee Order Nisi was served on the bank on 8th April for hearing on 11th
April, with a public holiday (Eid) falling in between on 10th April 2024. This violated
requirement to give seven (7) days’ notice to judgment debtor as prescribed by
0.23 r. 1 (3) of The Civil Procedure Rules. The judgment debtor is also entitled to
7 days’ notice under 0.23 r. 1 (3) so as to have opportunity to be heard on
objections. No notice of hearing was served on the applicant by the respondent.
The garnishee process was illegally hushed and rushed to ensure the judgment
creditor is denied audience while the garnishee is made absolute.

[14] HCCS 288 of 2011 involves a pending counterclaim and costs for which no
judgment has been delivered. Accordingly, the matters remained in controversy.
What was delivered was a preliminary decree despite its being captioned “final
judgment.” The affidavits in support of the application affirmatively state the
respondent has no assets or business within jurisdiction, and this has not been
rebutted. The respondent submits he sold his shares to raise money for treatment
of his wife’s illness. That ipso facto corroborates impecuniosity. The applicant
nevertheless sympathized with the respondent and paid him a deposit of US
$100,000 under an Agreement for Settlement of Dispute on condition he fulfils
certain obligations which he failed to do. A total pay-out of US $ 330,000 relative
to the respondent’s means, station in life and in all respects is a large sum of
money.

[15] The remedy of restitution is not available because it is common ground the
respondent is permanently domiciled in USA. Whereas he submits that recovery
proceedings for the decretal sum can be instituted against him in USA, the
respondent has not proved he owns his address there, or assets anywhere. His
admission of need for subsequent proceedings to recover the decretal sum ipso

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 facto militates against execution. To aggravate matters, there is no bilateral treaty
or multilateral convention between the USA and Uganda on reciprocal recognition
and enforcement of judgments enabling recovery. Lastly, the applicant will have to
retain American counsel to advise on feasibility of recovery, and instructions to
recover the executed sum. If the appeal is disallowed, separate proceedings
nonetheless have to be filed to compel the respondent execute a transfer of the
1,710 shares paid for. This needless expense and burden makes the case for stay
of execution.

[16] MMAKS Advocates represented the applicant’s corporation M/s lnnscor (Uganda)
Limited where he is the beneficial owner generally and specifically. The decree
arises out of sale of shares in that company. The information they are privy to has
been used to his detriment in execution. Counsel for the judgment creditor have
applied to garnishee the account of their former client, Misc. Application No. 490
of 2024. They got to know about his banking details and the money of that account.
This was in para 4 of the agreement. They could only have obtained the private
account of the applicant holding funds. Paragraph 15 and 16 of the applicant’s
affidavit, he shared confidential information. Paragraph 13 of the affidavit the son
says he instructed to render an opinion. The payments were using personal funds
to meet cooperate liabilities. They say there are funds on the account. They are a
potential witness. The entire firm is should be disqualified. The canteen factor
should be taken into account.

[16] The Affidavit in rejoinder shows that Mr. Phillip Karugaba was personally involved
in giving legal advice, this was around the year 2010 advising the applicant on the
termination of the franchise. He shared the letter with current judgment creditor.
The business was Nando’s but the franchise was terminated. This was a sale of
shares without the consent of the franchise. They advised the client to lie about
the sale and that he remained interested in the business. Nando’s discovered the
lie. They were unable to advise the other. They claimed they were conflicted and

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 they declined to advise him further. MAKKS filed a suit in 2011. There was a trial
and the judgment was entered. The email was in 2013.

[17] There were many attempts to settle the matter and it was the applicant’s position
that his former lawyers he mistakenly believed they would put the two parties
together. A settlement agreement was drafted and filed on court record. Even after
the decree we managed the advocates and there was a suggestion for settlement.
It is now that the detriment has emerged that they acting to his detriment. An
advocate is not permitted to act in a matter where he is potential witness. Mr. Eriya
Mikka swore. The canteen effect disqualifies them all. He swore to facts he could
only have known through other members.

Submissions of counsel for the respondent;

[18] Counsel for the respondent submitted that the respondents Affidavit in Reply was
deposed in Addis Ababa, Ethiopia and it bears the signature and stamp of a notary
public. The Judgment was handed down and signed by the trial Judge on 30th
October, 2018. The judgment notice of 3rd December, 2018 was issued after
Judgment had already been handed down. Not having not been on record at the
time of handing down the Judgment, the applicant’s current counsel cannot
contend that the draft of the decree was not shared with the lawyers on record at
the time. No affidavit from the former lawyers is on record to confirm that this was
not done. The Judgement on the face of it is clear unequivocal. It states “Final
Judgement.” In awarding the respondent the balance of the purchase price the
Court effectively determined the Counterclaim as it would have been a
contradiction and indeed an absurdity if on the one hand it had awarded the
respondent the balance on purchase price, and on the other ordering for a refund
the part payment received from the applicant for the share sale.

[19] Payment of the Judgment sum wouldn’t lead to any loss, substantial or otherwise
as to-date the applicant remains in full control of the company. The applicant

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 retains the powers over the strategic direction of the Company including investing
in new areas and taking benefit of the same. The respondent’s not being a
Ugandan, should not be used as a basis for denying him the fruits of litigation. The
respondent not being a Ugandan is not something the applicant has just
discovered. He has known this for over thirty (30) years. The respondent sold his
shares for purposes of raising funds for the treatment of his wife who was
diagnosed with a terminal illness, a fact the Applicant was fully aware of. The
respondent’s principal place of residence is known and in the unlikely event of
success of the appeal, recovery can be made against him. The applicant is
Chairman of multiple businesses, an individual of vast means capable of
instructing lawyers in any jurisdiction to recover from the respondent. The
respondent’s not being a Ugandan, should not be used as a basis for denying him
the fruits of litigation.

[20] The application for stay of execution was filed in April, 2024 i.e., almost six (6)
years after handing down of the judgement. This was done upon failure of
settlement discussions to settle the judgment sum which connotes bad faith. In any
event, this application was filed inordinately late. The applicant has not provided
security for due performance of the decree. He however states his willingness to
provide it. In the unlikely event that this Court is inclined to grant this application,
the respondent prays that the applicant be ordered to deposit into Court the entire
decretal amount being a sum of US $ 230,000 together with the taxed costs of shs.
25,000,000/= within seven (7) days from the date of the Order. The alleged conflict
of interest is without merits. It is prompted by a garnishee application supported by
Mr. Eriya Mikka. It does not specify any bank account. There was no personal
involvement and it was entirely handled by Counsel Phillip Karugaba. The firm
does not have confidential information from the applicant. The email between
Karugaba and Nzeyi. Annexure “H” at page 225 is dated 6th February, 2010.

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 The decision.

[21] This is an omnibus application because it seeks four different categories of reliefs
in one application, namely; (i) setting aside the Decree extracted on 14th November
2023; (ii) the setting aside the Garnishee Order Nisi issued in Misc. Application No.
0490 of 2024; (iii) in the alternative, stay of execution of the decree in HCCS 288
of 2011 dated 14th November, 2023; and (iv) that the respondent’s counsel be
restrained from participating in any proceedings arising out of HCCS No.288 of
2011.

[22] The combination of more than one distinct relief or applications in one application
is not barred by any law. On the other hand, there is also no hard and fast rule of
practice developed by Courts to discourage the combination of two or more distinct
reliefs in one application. A combination of two or more reliefs in one application is
encouraged where the purpose is to avoid a multiplicity of applications, provided
the reliefs sought are not diametrically opposed to each other. An omnibus
application will be found incompetent for combining two or more distinct reliefs
governed by different laws whose determinations requires different yardsticks and
different Jurisdictions or timelines. That not being the case in the instant application
where the applicants seek four reliefs, each will now be considered separately.

i. Restraining the respondent’s counsel from participating in any

proceedings arising out of HCCS No. 288 of 2011;

[23] Implicit in the right to a fair hearing is the right to representation by a lawyer of
one’s choice (see Ssejemba Israel v. Attorney General, Constitutional Petition No.
037 of 2014). However, the existence of conflict of interest, or even the possibility
that such conflict will arise, poses serious ethical considerations in the enjoyment
of that right where the lawyer’s ability to represent a client will be adversely affected
by the lawyer’s responsibilities to another client, or to a third person. A conflict of
interest is a situation where the advocate owes separate duties to act in the best

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 interest of two or more parties in the same or related matters. Nevertheless, the
parties’ exercise of their constitutional right to choose counsel is a critically
important and intensely personal decision. Therefore, Courts will not lightly require
that a party retains a different advocate, which would unnecessarily deprive the
individual of his or her right to be represented by the advocate of his or her choice.
In objections of this nature, the court needs to balance three competing interests:
the litigant’s right to representation of his choice; the other litigant’s complaint of
the advocate; and the public interest in maintaining the highest standards of
administration of justice.

a) Disqualification on account of the potential violation of the

duty of loyalty and confidentiality.

[24] Overall, the responsibility for determining whether conflicts of interest exist and, if
so, whether their existence may impair the effective assistance of counsel, must rest
with the advocate involved. If an actual conflict of interest which may impair the
effectiveness of the representation does indeed exist, the advocate has an ethical
duty to withdraw from the case. If the advocate fails to disclose the conflict and the
court has reason to believe that a conflict may exist, the court has a duty to inquire
into the possibility of such a conflict. Regulation 4 of The Advocates (Professional
Conduct) Regulations provides as follows;

An advocate shall not accept instructions from any person in

respect of a contentious or no 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 facts which may be
prejudicial to the client in that matter.

[25] The implications of this rule are that; (i) an advocate who has formerly represented
a client in a matter cannot thereafter represent another person in the same or a
substantially related matter in which that person’s interests are materially adverse
to the interests of the former client unless the former client gives informed consent,
confirmed in writing; (ii) an advocate cannot knowingly represent a person in the

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 same or a substantially related matter in which a firm with which the advocate
formerly was associated had previously represented a client; (a) whose interests
are materially adverse to that person; and (b) about whom the advocate had
acquired information protected by Regulation 4 that is material to the matter;

[26] Unless the former client gives informed consent, confirmed in writing; (iii) an
advocate who has formerly represented a client in a matter or whose present
or former firm has formerly represented a client in a matter cannot thereafter: (a)
use information relating to the representation to the disadvantage of the
former client except as these Regulations would permit or require with respect
to a client, or when the information has become generally known; or (b) reveal
information relating to the representation except as the Regulations would permit
or require with respect to a client.

[27] In addition to the duty of representation arising from a retainer, the law imposes
other duties on the advocate, particularly the duty of loyalty. Aspects of the duty of
loyalty include: the duty of commitment to the client’s cause, the duty of candour
and the duty of confidentiality. An advocate cannot render effective professional
service to a client unless there is full and unreserved communication between
them. At the same time, the client must feel completely secure and entitled to
proceed on the basis that, without any express request or stipulation on the client’s
part, matters disclosed to or discussed with the advocate will be held in strict
confidence. An advocate owes the duty of confidentiality to every client without
exception and whether or not the client is a continuing or casual client. The duty
survives the professional relationship and continues indefinitely after the advocate
has ceased to act for the client, whether or not differences have arisen between
them.

[28] The rule on conflict of interest protects all of these duties from impairment from a
conflicting duty or interest. An advocate has the duty at all times to hold in strict
confidence all information concerning the business and affairs of a client acquired

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 in the course of the professional relationship and must not divulge any such
information unless: (a) expressly or impliedly authorised by the client; (b) required
by law or a court to do so; (c) required to deliver the information to the Uganda
Law Council; (d) an advocate may disclose confidential information, but must not
disclose more information than is required, when the advocate believes on
reasonable grounds that there is an imminent risk of death or serious bodily harm,
and disclosure is necessary to prevent the death or harm; or (e) when otherwise
permitted by Court. This rule must be distinguished from the evidentiary rule of
advocate and client privilege under section 125 of The Evidence Act, concerning
oral or documentary communications passing between the client and the advocate.
The ethical rule is wider and applies without regard to the nature or source of the
information or the fact that others may share the knowledge.

[29] The duty of confidentiality reflected in Rule 4 of The Advocates (Professional

Conduct) Regulations is owed to both current and former clients and it forbids an
advocate from accepting 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 facts which may be
prejudicial to the client in that matter. A client’s interests may be seriously
prejudiced unless the advocate’s judgment and freedom of action on the client’s
behalf are as free as possible from conflicts of interest. In situation where there
may be a conflict of interest, the advocate must not act. The rule does not permit
an advocate to act where there would be actual impairment rather than merely the
risk of impairment the duty of confidentiality. There is a conflict only when there is
a substantial risk of impairment of the duty of confidentiality owed to one by the
duty of candour owed to the other.

[30] Since the duty of confidentiality continues after the retainer has been completed,
the duty of confidentiality owed to a former client may conflict with the duty of
candour owed to a current client if information from the former matter would be
relevant to the current matter. Advocates also have a duty not to act against a

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 former client in the same or a related matter even where the former client’s
confidential information is not at risk. In order to determine the existence of a
conflict of interest, an advocate should consider whether the representation of the
current client in a matter includes acting against a former client. Rule 4 of The
Advocates (Professional Conduct) Regulations deals specifically with the
advocate’s obligations when acting against a former client.

[31] Duties owed to another current client can impair client representation and loyalty.
Concurrent conflicts of interest can arise from the advocate’s responsibilities to
another client, a former client or a third person or from the advocate’s own
interests.

[32] The following are examples of situations where conflicts of interest involving
current clients may or will arise: (i) acting for opposing parties in a dispute; (ii)
acting in a joint retainer where the interests of the parties diverge; (iii) acting for
more than one client in separate but related matters because of the nature of the
retainers; and (iv) acting for clients in unrelated matters where the duty of
confidentiality owed to one client may be inconsistent with the duty of candour
owed to another client depending on whether information obtained by the advocate
during either retainer would be relevant to both retainers.

[33] By virtue of Rule 4 of The Advocates (Professional Conduct) Regulations an

advocate cannot act directly adverse to the immediate legal interests of a current
client without the clients’ consent, even if the work done for two clients is
completely unrelated. The rule recognises that the advocate-client relationship
may be irreparably damaged where the advocate’s representation of one client is
directly adverse to another client’s immediate legal interests. One client may
legitimately fear that the advocate will not pursue the representation out of
deference to the other client, and an existing client may legitimately feel betrayed
by the advocate’s representation of a client with adverse legal interests. The client
as to whom the representation is directly adverse is likely to feel betrayed, and the

16
 resulting damage to the client-advocate relationship is likely to impair the
advocate’s ability to represent the client effectively.

[34] In addition, the client on whose behalf the adverse representation is undertaken
reasonably may fear that the advocate will pursue that client’s case less effectively
out of deference to the other client, i.e., that the representation may be materially
limited by the advocate’s interest in retaining the current client. The rule though
does not apply in circumstances where it is unreasonable for a client to expect that
the client’s law firm will not act against the client in unrelated matters.

[35] The rule governing conflicts of interest is founded in the duty of loyalty which is
grounded in the law governing fiduciaries. The advocate-client relationship is a
fiduciary relationship and as such, the advocate has a duty of loyalty to the client.
To maintain public confidence in the integrity of the legal profession and the
administration of justice, in which advocates play a key role, it is essential that
advocates respect the duty of loyalty. Arising from the duty of loyalty are other
duties, such as a duty to commit to the client’s cause, the duty of confidentiality,
the duty of candour and the duty not to act in a conflict of interest. A client must be
assured of the advocate’s undivided loyalty, free from any material impairment of
the advocate and client relationship. The relationship may be irreparably damaged
where the advocate’s representation of one client is directly adverse to another
client’s immediate legal interests. One client may legitimately fear that the
advocate will not pursue the representation out of deference to the other client.

[36] A “conflict of interest” connotes the existence of a substantial risk that an

advocate’s loyalty to or representation of a client would be materially and adversely
affected by the advocate’s own interest or the advocate’s duties to another client,
a former client or a third person. The risk must be more than a mere possibility:
there must be a genuine, serious risk to the duty of loyalty or to client
representation arising from the retainer. The test is the existence of a risk of
impairment rather than actual impairment; the likelihood of the impairment as

17
 opposed to its nature or severity. A substantial risk is one that is significant and
plausible, even if it is not certain or even probable that it will occur. There must be
more than a mere possibility that the impairment will occur. It is for the client and
not the advocate to decide whether to accept the risk. To determine whether a
conflict of interest exists, an advocate should adopt reasonable procedures,
appropriate for the size and type of firm and practice, to determine in both litigation
and non-litigation matters the persons and issues involved, by; - 1) clearly
identifying the client or clients; 2) determining whether a conflict of interest exists;
3) deciding whether the representation may be undertaken despite the existence
of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the
clients affected.

[37] Disclosure is an essential requirement to obtaining a client’s consent and arises

from the duty of candour owed to the client. Where it is not possible to provide the
client with adequate disclosure because of the confidentiality of the information of
another client, the advocate must decline to act. Disclosure means full and fair
disclosure of all information relevant to a person’s decision in sufficient time for the
person to make a genuine and independent decision and the taking of reasonable
steps to ensure understanding of the matters disclosed. In making disclosure, the
advocate should therefore inform the client of the relevant circumstances and the
reasonably foreseeable ways that the conflict of interest could adversely affect the
client’s interests. This would include the advocate’s relations to the parties and any
interest in or connection with the matter. Furthermore, to ensure that the client’s
consent is informed, in some circumstances, such as when the client is vulnerable
or not sophisticated, the advocate should recommend that a client obtain
independent legal advice.

[38] An advocate should examine whether a conflict of interest exists not only from the
outset but throughout the duration of the retainer because new circumstances or
information may establish or reveal a conflict of interest. For example, the addition
of new parties in litigation or in a transaction can give rise to new conflicts of

18
 interest that must be addressed. Unforeseeable developments, such as changes
in corporate and other organisational affiliations or the addition or realignment of
parties in litigation, might create conflicts in the midst of a representation, as when
a company sued by the advocate on behalf of one client is bought by another client
represented by the advocate in an unrelated matter. Depending on the
circumstances, the advocate may have the option to withdraw from one of the
representations in order to avoid the conflict. The advocate must seek court
approval under Rule 3 of The Advocates (Professional Conduct) Regulations
where necessary and take steps to minimize harm to the clients. The advocate
must continue to protect the confidences of the client from whose representation
the advocate has withdrawn.

[39] A conflict of interest exists if there is a significant risk that an advocate’s ability to
consider, recommend or carry out an appropriate course of action for the client will
be materially limited as a result of the advocate’s other responsibilities or interests.
Generally, simultaneous representation in unrelated matters of clients whose
interests are only economically adverse, such as representation of competing
economic enterprises in unrelated litigation, does not ordinarily constitute a conflict
of interest and thus may not require consent of the respective clients. The critical
questions are the likelihood that a difference in interests will eventuate and, if it
does, whether it will materially interfere with the advocate’s independent
professional judgment in considering alternatives or foreclose courses of action
that reasonably should be pursued on behalf of the client.

[40] Confidentiality and loyalty are fundamental to the relationship between an

advocate and a client because legal advice cannot be given and justice cannot be
done unless clients have a large measure of freedom to discuss their affairs with
their advocates. However, in some very exceptional situations, disclosure without
the client’s permission might be warranted because the advocate is satisfied that
truly serious harm of the types identified is imminent and cannot otherwise be
prevented. These situations will be extremely rare. An advocate must not act or

19
 continue to act for a client where there is a conflict of interest, except as permitted
under The Advocates (Professional Conduct) Regulations. Advocates have an
ethical duty to avoid conflicts of interest. However, the rule only prohibits an
advocate or law firm from representing one client whose legal interests are directly
adverse to the immediate legal interests of another client. The rule is intended to
prevent the use of information obtained during the professional relationship,
concerning the business and affairs of the former clients, to their prejudice.

[41] The courts have a separate supervisory role over court proceedings. In that role,
the courts apply fiduciary principles they have developed to govern advocates’
relationships with their clients, to ensure the proper administration of justice. The
lawyer-client relationship is based on trust, faith, and confidence. A breach of the
rules on conflicts of interest may lead to sanction by The Uganda Law Council,
even where a court dealing with the case may decline to order disqualification as
a remedy. In general terms, unless the former client consents, an advocate must
not act against a former client in: (a) the same matter, (b) any related matter, or (c)
any other matter, if the advocate has relevant confidential information arising from
the representation of the former client that may reasonably affect the former client.

[42] The legal test for disqualifying an advocate in possession of confidential

Information requires the following; (a) there must first be established a former
solicitor-client or some fiduciary relationship between the lawyers sought to be
disqualified, and the applicant of the disqualification order; (b) the applicant must
prove that the lawyers sought to be disqualified are in possession of confidential
information which is relevant to the present matter. The applicant must place
before the court full particulars of the relevant confidential information that was
allegedly disclosed to the lawyers sought to be disqualified; and (c) a strong case
must be made out by the applicant to disqualify the lawyers from acting for the
opposing party (see Dato’ Azizan bin Abdul Rahman and others v. Pinerains Snd
Bhd [2022] 1 MLJ 56).

20
[43] Confidential information is non-public information disclosed or made available to
the advocate, directly or indirectly, through any means of communication or
observation. It consists of information gained during or relating to the
representation of a client, whatever its source, that is (a) protected by the
advocate-client privilege, (b) likely to be embarrassing or detrimental to the client
if disclosed, or (c) information that the client has requested be kept confidential.
Such information acquired by the advocate in the course of representing a client
may not subsequently be used or revealed by the advocate to the disadvantage of
the client. It is not only the possession of confidential information per se that
counts, but also the relevance particularly the prejudice or adverse effect of that
knowledge would have against the applicant. Confidential information of a limited
scope possessed which does not give substantive and/or tactical advantage to the
respondent which adversely affects the applicant, will be disregarded. It must be
shown that the information was confidential to the applicant when it was
communicated, involving the applicant in the necessity of showing facts and
circumstances which show that it should then have been kept confidential or
secret, and necessarily as part of that, what information was so communicated.

[44] Where the court’s intervention is sought by a former client, the court’s jurisdiction
cannot be based on any conflict of interest, real or perceived, for there is none.
The fiduciary relationship which subsists between advocate and client comes to
an end with the termination of the retainer. Thereafter the advocate has no
obligation to defend and advance the interests of his former client. The only duty
to the former client which survives the termination of the client relationship is a
continuing duty to preserve the confidentiality of information imparted during its
subsistence. Accordingly, it is incumbent on a plaintiff who seeks to restrain his
former advocate from acting in a matter for another client to establish; (i) that the
advocate is in possession of information which is confidential to him and to the
disclosure of which he has not consented; and (ii) that the information is or may be
relevant to the new matter in which the interest of the other client is or may be
adverse to his own.

21
[45] In the instant case, the applicant has not disclosed the type of confidential
information obtained by M/s MMAKS Advocates during their retainer by M/s
lnnscor (Uganda) Limited, the company in which the applicant is a director, that
would be relevant to the retainer by the respondent. The obligation of
confidentiality is created by entering into a special kind of confidential relationship
known as a “fiduciary relationship.” These duties are not imposed lightly. The duty
is thus owed to “clients,” who are those persons who have sought legal advice,
including free consultations, and those who have not reached the point of
engagement. The existence of a confidential relationship is a question of fact. To
qualify as a prospective client, the person consulting the advocate must have a
good faith intention to seek legal advice or representation, and a reasonable
expectation, based on the advocate’s conduct, that the advocate is willing to
discuss the possibility of forming an advocate-client relationship or providing legal
advice. The evidence before Court concerns consultations made by M/s lnnscor
(Uganda) Limited, and not the applicant.

[46] There is no evidence before Court to show that the applicant ever sought personal
legal advice from M/s MMAKS Advocates. Advice was sought by M/s lnnscor
(Uganda) Limited and not the applicant. There is no previous advocate-client
relationship between the law firm and the applicant which would give rise to
confidential information at the material time. Only clients and former clients have
standing to seek to restrain a lawyer from acting. Therefore, the applicant not
having been their client previously, M/s MMAKS Advocates do not owe the
applicant any duty of confidentiality.

[47] There is no evidence to show that the duty of confidentiality owed to M/s lnnscor
(Uganda) Limited may be inconsistent with the duty of candour owed to the
respondent. It has not been proved that in the course of their professional
relationship, M/s MMAKS Advocates obtained any information concerning the
affairs of the applicant that may be used to his prejudice during the process of
execution of the decree. It has not been proved that in seeking enforcement of the

22
 decree against the applicant, M/s MMAKS Advocates will or have advertently or
inadvertently disclosed confidential information concerning or received from the
applicant. There is absolutely no suggestion that the advocates may use or
disclose M/s lnnscor (Uganda) Limited’s confidential information to its
disadvantage as a former client, or for the benefit of the respondent or a third
person. It was suggested that personal bank details of the applicant were
disclosed, but this is not borne out by the evidence since the application for
garnishee and the impugned garnishee order nisi do not specify any bank account.
This therefore is one of those exceptional cases where it is unreasonable for the
director of a former client to expect that the advocate or law firm will not act against
him in related matters.

[48] In any event, with respect to the partners or associates of an advocate who has
relevant confidential information, the concept of imputed knowledge is unrealistic
in the era of the mega-firm. That notwithstanding, the inference to be drawn is that
advocates working together in the same firm will share confidences on the matters
on which they are working, such that actual knowledge may be presumed. That
presumption can be rebutted by clear and convincing evidence that shows that all
reasonable measures have been taken to ensure that no disclosure will occur by
the advocate to other members of the firm who previously were not engaged but
are now engaged against a former client.

[49] When an advocate has acted for a former client and obtained confidential
information relevant to a new matter, another advocate in the advocate’s firm may
act against the former client in the new matter, if the firm establishes that it is
reasonable that it can act in the new matter, having regard to all relevant
circumstances, including: (a) the adequacy and timing of the measures taken to
ensure that no disclosure of the former client’s confidential information to the
partner or associate having carriage of the new matter will occur; (b) the extent of
prejudice to any party; and (c) the good faith of the parties.

23
[50] If the advocate did not obtain information that is confidential, for example, because
the information was already generally known at the time it was communicated,
then the advocate is not disqualified from acting adversely to the former client in
the same or substantially related matters. Considering that what is at stake here is
the execution of a judgment, there is no substantial risk that the advocates’ loyalty
to or representation of the respondent would be materially and adversely affected
by the advocates’ own interest or the advocates’ duties to M/s lnnscor (Uganda)
Limited as former clients or the applicant as a third party. Similarly, there is no
likelihood that a difference in interests will eventuate and, if it does, that it will
materially interfere with the advocates’ independent professional judgment in
considering alternatives or foreclose courses of action that reasonably should be
pursued on behalf of the respondent or by M/s lnnscor (Uganda) Limited as former
clients. There is equally no significant risk that the advocates’ actions on behalf of
M/s lnnscor (Uganda) Limited as former clients in different cases, will materially
limit their effectiveness in representing the respondent as a current client in the
current case.

[51] It is well known that an advocate’s loyalty to a client must be undivided and it
cannot be properly discharged if interests to one are in opposition to interests of
another client. The traditional common law test as to whether an injunction should
issue to restrain an advocate in the circumstances is whether there is a probability
of real mischief arising through the advocate continuing to represent another party
whose interests conflict. The real test is whether the circumstances which have
arisen make it impossible for the advocates to act fairly and adequately for the
respondent as against the applicant. That may arise in many circumstances, which
include whether there is a reasonable probability of the misuse of confidential
information. The applicant has not proved that MMAKS Advocates received
confidential information from him that could be used in a way adverse to his
interests, and therefore there is no basis for granting relief as no risk of disclosure
or misuse of confidential information exists. For those reasons this aspect of the
objection is without merit and it is accordingly overruled.

24
 b) Disqualification on account of being a potential witness in the
same matter in which one is advocate.

[52] It is argued as well that M/s MMAKS Advocates should be disqualified on account
of being potential witnesses. Under Regulation 9 of The Advocates (Professional
Conduct) Regulations where it becomes apparent they will be witnesses, they have
to stand down. The general principle is that the right to legal representation by
counsel of one’s choice in civil matters is implicit in the constitutional provisions with
regard to access to justice. Each party to a litigation has the right to choose his or
her own advocate and unless it is shown to a court of law that the interests of justice
would not be served if a particular advocate were allowed to act in the matter, the
parties must be allowed to choose their own counsel. It is only in very exceptional
circumstances that this right should be taken away. One such exception is to be
found in Regulation 9 of The Advocates (Professional Conduct) Regulations, which
provides as follows;

9. Personal involvement in a client’s case.

No advocate may appear before any court or tribunal in any

matter in which he or she has reason to believe that he or she
will be required as a witness to give evidence, whether verbally
or by affidavit; and if, while appearing in any matter, it
becomes apparent that he or she will be required as a witness
to give evidence whether verbally or by affidavit, he or she
shall not continue to appear; except that this regulation shall
not prevent an advocate from giving evidence whether verbally
or by declaration or affidavit on a formal or non-contentious
matter or fact in any matter in which he or she acts or appears.

[53] The roles of advocate and witness are distinct, separated by a bright luminous line.
Combining the roles of advocate and witness can prejudice the opposing party and
can involve a conflict of interest between the lawyer and client. An advocate must
never assume the role of witness. The advocate-witness rule of professional
conduct prohibits counsel from serving as advocates in the same cases in which
they may be required to testify. Determining whether or not he or she will be

25
 required as a witness to give evidence is primarily the responsibility of the advocate
involved. The Court may on its motion or that of the opposing party disqualify the
advocate if satisfied that it may be confused or misled by counsel serving as both
an advocate and a witness. The opposing party has may object where the
combination of roles may prejudice that party’s rights in the litigation. Whether the
opposing party is likely to suffer prejudice depends on the nature of the case, the
importance and probable tenor of the advocate’s testimony, and the probability that
the advocate’s testimony will conflict with that of other witnesses.

[54] By virtue of this provision, a law firm can be disqualified by imputation under the
“canteen factor” doctrine since an advocate may not act as such before a Court in
a matter if another advocate in the firm is likely to be called as a witness on a
significant issue other than on behalf of the client, and it is apparent that the
testimony may be prejudicial to the client or the adversary. Partners in a law firm
are thought to be so intimately acquainted that they can be expected to share
confidences and secrets with each other in the ordinary course of legal business.
“Canteen factor” denotes the ideal social chat between colleagues or with a client
that gives away vital information (see Sudhir Ruparelia v. MMAKS Advocates and
three others, H. C. Misc. Application No. 1063 of 2017; National Mutual Holdings
Pty Ltd v. Sentry Corporation (1989) 22 FCR 209 at 227 and D & J Constructions
Pty Ltd v. Head (1987) 9 NSWLR 118 at 122–3). So if there is interaction with one
of the partners, it will be imputed to the others. The imputation of knowledge is said
to be justified by the danger of inadvertent disclosure of confidences inherent in
the everyday interchange of ideas and discussion of problems amongst law
partners and the concern to avoid even the appearance of impropriety.

[55] It would be absurd though to conclude that immediately upon joining a law firm the
lawyer becomes the recipient of knowledge as to the contents of all the firm’s files,
all confidential disclosures, or even all the client’s names. Obviously such legal
osmosis does not occur inevitably in all cases. The presumption of shared
information is therefore rebuttable and the burden of discharging it is not set too

26
 high. This can be done by taking into account factors such as the substantiality of
the relationship between the former and current matters, the time elapsing
between the matters, the size of the firm, the number of tainted advocates,
mechanisms in place for restricted access to files and such other arrangements
for restricting the sharing of confidential information, and the nature of the
disqualified advocate’s involvement in the former matter (see Fruehauf Finance
Corporation Pty Ltd v. Feez Ruthning (a firm) [1991] 1 Qd R 558 at 571; Re a Firm
of Solicitors [1992] 1 QB 959; [I9921 1 All ER 353; Rakusen v. Ellis, Munday &
Clarke [1912] 1 Ch 831; Winters v. Mishcon De Reya, [2008] EWHC 2419 (Ch);
Unioil International Pty Ltd v. Deloitte Touche Tohmatsu [No 2] (1997) 17 WAR 89;
Campbell v. McCreath [1975] SC 81; Northumberland Insurance Ltd (in liq) v.
Alexander (1984) 8 ACLR 882 at 905; Novo Terapeutisk Laboratorium A/S v.
Baxter Travenol Laboratories, 607 F 2d 186 (7th Cir 1979).

[56] Additional authority is to be found in decisions such as; - A/S Rendall v. Acros Ltd
[1937] 3 All ER 577 at 590; El Ajou v. Dollar Land Holdings Pic [1994] 2 All ER 685
at 703; Blackley v. National Mutual Life Association of Australiasia Ltd [1970] NZLR
919 at 929; Halifax Mortgage Services Ltd v. Stepsky [1996] Ch 1; [1996] Ch 207
and MacDonald Estate v. Martin [1990] 3 SCR 1235 at 1261). It is only if a
reasonable person with knowledge of the facts could reasonably anticipate there
was a danger that confidential information gained while acting for the former client
would be used against him or her, then there may be some degree of likelihood of
mischief, that the firm should not continue to act.

[57] Regulation 9 of The Advocates (Professional Conduct) Regulations, aims at

distinguishing between an advocate practicing before the court and a witness. In
such cases the advocate has to choose either to be a witness or Counsel in
contentious matters and not both. Thus, the rule governs; - (a) personal
disqualification of an advocate who will be a witness; (b) the partners and
associates of an advocate who will be a witness where another advocate in the
firm is likely to be called as a witness on a significant issue on behalf of the client

27
 or an adversary, and it is apparent that the testimony may be prejudicial to the
objector. The latter form of disqualification by imputation though should be ordered
sparingly, and only when the concerns motivating the rule are at their most acute.

[58] There are primarily four risks that Regulation 9 of The Advocates (Professional
Conduct) Regulations, is designed to alleviate: (i) the advocate might appear to
vouch for his own credibility; (ii) the advocate’s testimony might place opposing
counsel in a difficult position when she has to cross-examine his or her advocate-
adversary and attempt to impeach his or her credibility; (iii) some may fear that the
testifying advocate is distorting the truth as a result of bias in favour of his or her
client; and (iv) when an individual assumes the role of advocate and witness both,
the line between argument and evidence may be blurred, and the Court confused
(see Murray v. Metropolitan Life Ins. Co., 583 F.3d 173 (2d Cir. 2009). An advocate
testifying as a witness may explain evidence rather than offering it, unfairly
influencing the Court in the process. A witness is required to testify on the basis of
personal knowledge, while an advocate is expected to explain and comment on
evidence given by others. Ultimately it may not be clear whether a statement by
an advocate-witness should be taken as proof or as an analysis of the proof. These
concerns matter because, if they materialise, they could undermine the integrity of
the judicial process.

[59] The rule thus operates to disqualify an advocate only when the advocate involved
“will be required as a witness to give evidence whether verbally or by affidavit.” In
other words, an advocate may not give evidence as a witness verbally, by
declaration or affidavit, in a case in which he or she appears as an advocate,
except in formal or non-contentious matters (see Stones v. Byron, 4 Dowl. & L.
393, 75 Rev. Rep. 881 (Q.B. 1946); Uganda Development Bank v. Kasirye
Byaruhanga & Co. Advocates; S. C. Civil Appeal No. 35 of 1994; Yunusu Ismail v,
Alex Kamukama and others, S. C. Civil Appeal No. 7 of 1987; and Law
Development Centre v. Hon Mabikke H. C. Miscellaneous Application No. 203 of
2021). An advocate may have a difficult time representing his or her client

28
 zealously while simultaneously trying to protect his or her own reputation as a
truthful witness. A conflict of interest exists if there is a significant risk that an
advocate’s ability to consider, recommend or carry out an appropriate course of
action for the client in the litigation will be materially limited as a result of the
advocate’s personal knowledge of the facts in dispute. However, unlike other
conflict of interest rules, client consent cannot cure a disqualification that arises
when an advocate who will be a witness also wants to serve as an advocate before
the Court.

[60] Alternatively, the expression “will be required as a witness” should be interpreted

restrictively to mean that the advocate is a necessary witness. The advocate
should be the only person available to testify about a crucial fact; where the
advocate has personal knowledge or is in possession of crucial information that he
or she must divulge during the trial if the court is to reach a just result. A party
seeking to disqualify an advocate under Regulation 9 of The Advocates
(Professional Conduct) Regulations, bears the burden of proving that the
advocate’s proposed testimony is relevant, material, not merely cumulative, and
that it is unobtainable elsewhere.

[61] When considering whether testimony is necessary, the court examines factors
such as (i) the significance of the matters in respect of which the testimony is to be
proffered; (ii) the weight of the proffered testimony; and (iii) the availability of other
evidence. An advocate should not be called as a witness for his client or an
adversary when another source could provide the evidence to the Court. It is when
no substitute evidence exists, that the advocate must withdraw and testify. If the
advocate’s intended testimony is irrelevant, immaterial, cumulative, or can be
obtained from other sources, the advocate is not a necessary witness since in that
case he will not be “required as a witness,” so that the rule does not operate to
disqualify the advocate as trial counsel.

29
[62] A narrow interpretation of this rule is preferred otherwise the rule has the potential
to open the floodgates for abuse by opportunistic litigants who may wish to derail
the proceedings one way or the other, to defeat justice, to deliberately deprive the
opponent of the services of an advocate of their choice, or in other words as a
technical manoeuvre by the applicant to disqualify the opposing party’s advocate
from representing that party, to settle personal scores or with the aim of abusing
the Judicial system. Because of that potential abuse, a court must guard against
the advocate/witness rule’s tactical use to disqualify counsel, and must subject
disqualification motions to strict scrutiny. Such motions are subject to strict scrutiny
because of the likelihood for abuse and use as a tactical device. Advocates may
move to disqualify their adversaries based on a real or imagined advocate-witness
conflict.

[63] The applicant bears the burden of demonstrating specifically both; - (a) how and as
to what issues prejudice may occur, and (b) that the likelihood that “prejudice” will
occur is substantial. Therefore, a mere suspicion or apprehension of a possible
conflict of interest or fear of prejudice cannot be a basis to stop an advocate from
acting on behalf of a party (see British American Investment Company (K) Limited
v. Njomaitha Investment Limited and another [2019] eKLR). The Court must be
convinced that real mischief and real prejudice would result unless the advocate is
prevented from acting in the matter for the opponent. In Dorothy Seyanoi Moschioni
v. Andrew Stuart and another [2014] eKLR, it was stated that;

The real questions then become: Is the testimony of the

advocate relevant, material or necessary to the issues in
controversy? Or is there other evidence which will serve the
same purpose as the evidence by counsel? Eventually, each
case must be decided on its own merits, to see if real mischief
and real prejudice will result in the circumstances of the case.
And in applying the test, if the argument on disqualification
becomes feeble and inconsistent with causing real mischief
and prejudice, then a disqualification of counsel will not be
ordered.

30
[64] Clearly, disqualification cannot be ordered upon an opponent’s mere
representation that the advocate identified is a necessary witness or will be called
as a witness. It therefore goes without saying that the possibility of being required
a witness to give evidence must be a real one, and not merely fanciful or
theoretical. Therefore, where the advocate is required as witness, then Order 6
rule 2 of The Civil Procedure Rules should be followed by listing him as a witness
by the party who intends to call him as such (see Henry Kaziro Lwandasa v. Kyas
Global Trading Co. Ltd H.C. Misc. Application No. 865 of 2014; Hajji Sulaiman
Kizito v. Kampala Financial Services Ltd and three others H.C. Civil Suit No. 30 of
2016 and Hussein Mohammed v. Mayanja and five others, H. C. Civil Suit No.
0178 of 2009). In addition, the party objecting must clearly establish the adverse
testimony the advocate-witness will offer. Speculation that the advocate’s
testimony will adversely affect the party objecting will not support disqualification.

[65] It was not the intention of the framers of that regulation that the trial advocate-
witness rule should apply whenever a trial counsel might conceivably be a witness.
The likelihood of an advocate-witness’s testimony being deemed necessary
requires case-specific inquiry. The requirement for showing prejudice in addition
to listing is stringent to prevent adverse parties from attempting to call opposing
counsel as witnesses solely to disqualify them. It helps minimize the use of the trial
advocate-witness rule as a tactical weapon by an adversary who wants to harass
or delay the trial. Prejudice exists where the testimony would be sufficiently
adverse to the factual assertions or account of events offered on behalf of the
adversary, such that the adversary might have an interest in the advocate’s
independence in discrediting that testimony.

[66] It is not a correct legal proposition that where an advocate in a firm is a witnesses
or potential witnesses in a matter that the entire firm is thereby conflicted (see M/s
Quality Uganda Limited T/a Quality Supermarket v. Uganda Performing Rights
Society (UPRS), H.C. Civil Suit No. 444 of 2019). Any harm attributable to the
advocate-witness’s disqualification can be lessened by allowing another advocate

31
 within the same firm to take over the case. The opposing party cannot complain
because there is no danger in such a case that the advocate-witness will argue his
or her own credibility to the Court, or that he or she will enhance his or her
effectiveness as an advocate by taking the oath as a witness. The firm will not be
disqualified if the advocate’s testimony relates solely to an uncontested issue, or
a matter of formality and there is no reason to believe that substantial opposing
evidence will be offered. However, the partners and associates of an advocate who
will be a witness are disqualified by imputation only where another advocate in the
firm is likely to be called as a witness on a significant issue on behalf of the client
or an adversary, and it is apparent that the testimony may be prejudicial to the
objector.

[67] In the instant case, no advocate from M/s MMAKS Advocates would potentially be
required as a witness since the issues at stake relate only to the execution of a
decree by a firm of advocates which represented the successful party during the
litigation that led to the decree. If the advocate-witness who is the subject of the
motion to disqualify would be testifying on behalf of a party other than his or her
own client, the party seeking to disqualify the advocate must show that there is a
substantial likelihood that the testimony would be prejudicial to the adversary, and
must therefore demonstrate specifically how and as to what issues in the case the
prejudice may occur, and that the likelihood of prejudice occurring to the adversary
is substantial.

[68] The applicant has offered no evidence whatsoever to show that M/s MMAKS
Advocates would offer any testimony or have any information that would warrant
either personal disqualification of any member of the firm or the firm’s
disqualification in the process of finding answers to any issues arising during the
execution proceedings. There is no evidence even to suggest that any member of
the firm has unique, non-privileged and noncumulative testimony that would be
unfavourable to the applicant. The applicant has not pointed to any testimony that

32
 the advocates as a firm, or the specific advocate, might give that would be adverse
to his interests.

[69] I have therefore not found any basis to believe that testimony from M/s MMAKS
Advocates is both necessary and prejudicial to the applicant or is such as would
undermine his claim in this case. As matters stand, the applicant’s contentions
about any member of M/s MMAKS Advocates’ significance as a witness are either
baseless or little more than wishful thinking. Mere speculation is not a sufficient
basis to disqualify an advocate or a firm of advocates as a necessary witness. This
issue is therefore answered in the negative; M/s MMAKS Advocates are not
disqualified from representing the respondent in these proceedings. The objection
is accordingly overruled.

ii. Setting aside the decree extracted on 14th November 2023.

[70] In an application such as this the Court bound to consider whether the decree in
issue is null and void or whether as a result of any error arising from accidental slip
or omission it is necessary to correct it in order to give effect to the court’s intention.
This is because a decree may be set aside if given, entered or made irregularly,
illegally or against good faith. The power of Court to set aside its own decree is
limited to those decrees entered following an irregularity in the steps leading to a
default or consent judgment, or those given or made ex-parte, but does not extend
to those entered on basis of the merits of any decision, or on basis of an irregularity
of other step in the proceedings, after a hearing on the merits at which all parties
were represented and fully heard. As a general rule, aside from the power of review
and the ones obtained by playing fraud upon the Court, judgments which have
been formally recorded or entered on the merits where all parties were represented
and fully heard, can only be reopened, reconsidered, varied or set aside on appeal.
Order 21 rule 3 (3) of The Civil Procedure Rules provides that a judgment once
signed should not afterwards be altered or added to except as provided by section
99 of the Act or on review

33
[71] Perhaps what the applicant intended, on account of the arguments advanced, was
to cause the decree to be recalled and corrected. A decree of the court may at any
time be corrected by the court, either of its own motion or on the application of any
interested person, if it does not correspond with the order or judgment it purports
to embody (see Orient Bank v. Fredrick Zaabwe, S.C. Civil Application No. 17 of
2017; Fang Min v. Dr. Kaijuka Mutabaazi Emmanuel, S.C. Civil Application No. 06
of 2009; NPART v. General Parts (U) Ltd, S.C. Misc. App No. 8 of 2000; Uganda
Development Bank ltd v. Oil Sees (U) Ltd Miscellaneous Application No.15 of
1997; Obote William v. Uganda, S.C. Criminal Application No. 01 of 2017; John
Imaniraguha v. Uganda Revenue Authority. H.C. Misc. Application No. 2770 of
2023 and Swatt Security Limited v. Genagri Plantations and two others, H. C. Civil
Suit No. 256 of 2018). This power contained in section 99 of The Civil Procedure
Act, may be invoked where the decree does not correctly reflect the court’s
decision, as contained in its reasons stated in the judgment.

a) The decree not bearing the correct date.

[72] It was argued by counsel for the applicant that the decree does not reflect the
correct date of the judgment from which it was extracted. While the judgment is
dated 30th October, 2018 it was actually delivered on 3rd December, 2018 yet the
decree bears the date of 14th November, 2023; which is the date on which it was
signed and sealed.

[73] A judgment is the statement given by the judge of the grounds of a decree or order
(see section 2 (i) of The Civil Procedure Act). It is the final decision of the court
intimated to the parties and to the world at large by formal pronouncement or
delivery in open court. Order 21 rule 3 of The Civil Procedure Rules requires that
a judgment pronounced by the judge who wrote it, should be dated and signed by
him or her in open court at the time of pronouncing it. Invariably, a judgment takes
effect on the day that it is pronounced (see Orient Bank Limited v. Fredrick Zaabwe
and another, S. C. Civil Application No.17 of 2007). It follows therefore that it

34
 should be dated as of the day it is delivered and not necessarily the day it is signed,
though more often than not the two are done at the same time. More specifically,
while Order 21 rule 6 (1) of The Civil Procedure Rules requires the decree to agree
with the judgment, rule 6 (1) requires the decree to bear the date of the day on
which the judgment was delivered.

[74] After a case has been heard, the judgment may be pronounced either at once or
on some future date, of which the parties are notified. However much a judgment
may have been signed beforehand, it is nothing but a draft until it is formally
delivered as the judgment of the court. Only then does it crystallise into a full-
fledged judgment and become operative. Signing it beforehand is a mere indication
that the Judge intends it to be the final expository of his or her views, and it will be
assumed that those are still his or her views at the moment of delivery if he or she
is alive and in a position to change his or her mind but takes no steps to arrest
delivery. Therefore, inscribed on the judgment should be the date when it was
written, signed and pronounced.

[75] In the event of a judgment delivered on some future date, which is also the case
when a judge pronounces a judgment written, but not pronounced by his or her
predecessor, the date when a judgment was written and signed may differ from
the date when it was pronounced. In such situations the operative date of the
judgment is the one upon which it is eventually pronounced. Although in all cases
it will invariably take some time for the Court to draw up a decree in terms of the
judgment and to get it signed by the Judge, still the decree is required to bear the
date on which the judgment was pronounced, not the date of actual signing and
sealing of the decree, which will be different from the date of judgment.

[76] The decree comes into existence on the date the judgment is pronounced, which
is the date of the judgment, though it is signed later. It comes into existence as
soon as the judgment is pronounced and not the day it is extracted, signed and
sealed (see Mulla on the Code of Civil Procedure, 5th Edition, p. 920). Therefore,

35
 a decree which bears a date, other than that on which the judgment was
pronounced, is defective. A decree with a date at variance with that in the
judgement is defective, but such is considered to be an accidental slip or omission
curable by correction under the provisions of section 99 of The Civil Procedure Act
(see Remo Habib v. Juma Saidi, H.C. Civil Revision No. 06 of 2015). It can be
amended or replaced altogether in accordance with the law, so long as it is clear
what the correct date was and the error doesn’t make the decree ambiguous.

[77] In the instant case, although the judgment is dated 30th October, 2018 the record
of proceedings indicates that it was pronounced on 3rd December, 2018 pursuant
to a judgment notice issued to the parties on 28th November, 2018 and served
upon them on 29th November, 2018. I therefore find that the date of
pronouncement of the judgment was 3rd December, 2018. That should then be the
date of the decree. That the extracted decree bears the date when it was signed
and sealed, rather than that on which the judgment was pronounced, is an
accidental slip or omission curable by correction, rather than a justification for
setting aside of the decree. Since the incorrect date has not occasioned any
ambiguity in the operative part of the decree, the correct relief is to recall and
cancel the decree and have it replaced by one bearing the correct date, i.e. the
date when the judgment was pronounced; which is 3rd December, 2018.

b) The applicant’s approval of the draft decree not having been

sought;

[78] Section 2 (c) of The Civil Procedure Act defines a decree as the formal expression
of an adjudication which, so far as regards the court expressing it, conclusively
determines the rights of the parties with regard to any of the matters in controversy
in the suit and may be either preliminary or final. It is deemed to include the
rejection of a plaint or writ and the determination of any question within section 34
or 92 of the Act. According to Order 21 rule 6 of The Civil Procedure Rules, the
decree should contain the number of the suit, the names and descriptions of the

36
 parties and particulars of the claim, and should specify clearly the relief granted,
state by whom or out of what property or in what proportion the costs incurred in
the suit are to be paid, or other determination of the suit. Therefore, the main
content of the decree is the operative portion of the judgment. The decree thus is
nothing but the operative portion of the judgment with additional information such
as names of the parties, place of the Court, name of the judge, designation of
judge, suit number, particulars of the parties, date of judgment, value of the suit,
reliefs granted or rejected and costs if any imposed.

[79] The operative part of the decree may he complicated and it may be open to draw
it up in two or more different ways. It is for that reason that the procedure for settling
the terms of a decree is laid out under Order 21 rule 7 (2) of The Civil Procedure
Rules which imposes a duty upon the party who is successful in a suit in the High
Court to prepare, without delay, a draft decree and submit it for the approval of the
other parties to the suit, who are required to look it over to make sure it reflects the
decision properly, and then approve it with or without amendment, or reject it,
without undue delay. If the draft is approved by the parties, it should then be
submitted to the Registrar who, if he or she is satisfied that it is drawn up in
accordance with the judgment, should sign and seal it accordingly. Once the
winning party has served and settled the decree, it may or may not be amended
by the Registrar before he or she signs it. If all the parties and the Registrar do not
agree upon the terms of the decree within such time as the Registrar may have
fixed, it should then be settled by the Judge who pronounced the judgment, and
the parties are entitled to be heard on the terms of the decree if they so desire.

[80] The requirement of drafting the decree and submitting it for the approval of the other
parties to the suit, is therefore an exercise intended to ensure that the decree is a
true reflection of the operative portion of the judgment, alongside the other formal
content. It should finally record the result of the determination either granting relief
or refusing to grant such relief. It should indicate exactly what the Court requires the
parties to do and how the decision should be executed and which party has to carry

37
 it out, the deadline for execution thereof. If it is a money decree, the amount of
money to be paid, by which party to whom and if interest is also to be paid, the rate
and the period for which it has to be paid. The operative part of the judgment reads
as follows;

Therefore, having signed the agreements in albeit different

capacities, the parties breached the MFA by execution of the
share sale agreement. So the issue for this court is simple and
there is only one logical answer. The parties breached the
MFA when they entered into a share sale agreement. The
impact of this breach is another issue. I answer this issue in
the affirmative that the Share Sale Agreement (SSA) was in
breach of the Master Franchise Agreement (MFA)…………. In
conclusion, as regards this issue, I find that the Defendant
cannot be discharged from his obligations under the contract.
It is a binding contract that is still in existence. There usual
grounds that warrant declaring a contract void or Voidable
have not been proved on a balance of probability. The parties
were well aware of the MFA but went ahead to agree to
transfer shares………………. Therefore, the Plaintiff is entitled
to USD 230,000 as payment for this shares in the company.
He has already received USD 100,000 for his
shares…………… In the circumstances, it is my opinion he is
not entitled to any general damages and I declined to award
him any………. Since I have not awarded any damages, the
issue of interest does not arise. In exercise of Court’s
discretion, as the successful party, the Plaintiff should be
awarded costs of the suit.
Conclusion.
I find in favour of the Plaintiff as follows.
Issue one: there was breach of the MFA agreement. However,
it has no impact on the SSA signed between the parties.
Issue Two. The Defendant is not discharged from his
obligations under the SSA.
The Plaintiff is entitled to the payment of USD 230,000 for the
sale of his shares and costs of the suit.
So ordered.

[81] The decree in the instant case was settled by incorporating what appears to be the
conclusion of the judgment, in the following terms;

38
 THIS SUIT coming up for Judgment this 30th day of October,
2018 before HER LORDSHIP HON. LADY JUSTICE
ELIZABETH JANE ALIVIDZA in the presence of MR. ERNEST
SEMBATYA KAGGWA learned Counsel for the Plaintiff and
MR. NESTER BYAMUGISHA learned Counsel for the
Defendant.

IT IS HEREBY DECREED AND ORDERED THAT:

1. There was breach of Master Franchise Agreement (MFA).
However, it has no impact on the Share Sale Agreement
(SSA) signed between the Parties.
2. The Defendant is not discharged from his obligations under
the Share Sale Agreement (SSA).
3. The Plaintiff is entitled to the payment of USD 230,000 (United
States Dollars Two Hundred Thirty Thousand) for the sale of
his shares;
4. The Plaintiff is awarded costs of this Suit.

[82] The practice when providing proof of compliance with the requirement of drafting
the decree and submitting it for the approval of the other parties to the suit, is to
present a received forwarding letter, and a provision in the draft for the approval
signatures of the rest of the parties. The respondent not having furnished proof by
these means but rather by mere assertion, I find that the respondent never sought
the approval of the draft decree. However, that omission being only procedural and
not having affected the correctness of the decree, is an irregularity that does not
vitiate the decree.

[83] The general principle is that if there be substantial compliance with the
requirements of law, a mere procedural irregularity would not vitiate the outcome
of a trial unless such error, omission, irregularity has in fact occasioned a failure of
justice. In find in this case that the decree being a true reflection of the operative
part of the judgment, the respondent not having submitted it in draft for the approval
of the applicant is a mere procedural irregularity that does not vitiate the decree.

39
 c) The judgment and decree not being final.

[84] According to section 2 (c) (ii) of The Civil Procedure Act, a decree (and ipso facto a
judgment) is preliminary when further proceedings have to be taken before the suit
can be completely disposed of. It is final when the adjudication completely disposes
of the suit. It may be partly preliminary and partly final. In the “final judgment” dated
18th October, 2023 but pronounced on 3rd December, 218 the trial Judge observed
as follows;

On 13/1/2017, this Court made a partial judgment and asked

Counsel to avail this Court the following documents to enable
it make final judgment on the issues; All company documents
that prove the shareholding of Innscor Uganda Limited from
1999 until time the dispute arose including annual returns filed
with Registrar of Companies. Finally, Court was availed the
said documents that only included annual returns filed with the
Registrar of Companies. It was not indicated Whether both
Counsel had consented to the documents. Below is my final
decision which should be read together with the partial
judgment so as to be put into context.

[85] It turns out that the trial judge delivered a “partial judgment” on 13th January, 2017
where she determined that she needed additional evidence before she could
deliver the “final judgment.” She directed the parties to produce “all company
documents that prove the shareholding of Innscor Uganda Limited from 199 until
[the] time the dispute arose including annual returns filed with the Registrar of
Companies.” Subsequently she issued a “final judgment” dated 30th October, 2018
which was pronounced on 3rd December, 2018.

[86] In suits involving multiple parties or multiple claims, a partial judgment is one which
resolves some (but not all) claims in the suit, while leaving the remaining claims to
be settled in a final judgment at the end of the trial. The court rules on the merits
of some of the issues in the case and leaves the rest for later in the same trial. A
partial judgment manifests partial decisions supported by findings of fact and

40
 conclusions of law. It is a substantive judgment made on ascertained facts, and is
as binding with regard to the issues decided, as the final decision is of the whole
case. In contrast, a preliminary judgment arises when further proceedings have to
be taken before the suit can be completely disposed of. A preliminary judgment is
therefore only a stage in working out the rights of the parties, which are to be finally
adjudicated by a final judgment. It is final when the adjudication completely
disposes of the suit. In the instant case, although the Judge referred to her decision
of 13th January, 2017 as a “partial judgment,” that was a misnomer because it does
not contain any determination, on the merits, of any of the issues or claims in the
suit. It is more of an interlocutory order than a partial or preliminary judgment.

[87] On the other hand, a judgment is final when it completely disposes of the suit (see
section 2 (c) of The Civil Procedure Act), and not necessarily all the issues raised
in the suit. The Court in its judgment is required to state its finding or decision, with
the reasons for the finding or decision, upon each separate issue, unless the
finding upon any one or more of the issues is sufficient for the decision of the suit
(see Order 21 rule 5 of The Civil Procedure Rules). In this sense a final judgment
is one that terminates the litigation between the parties on the merits and leaves
nothing to be done but to enforce by execution what has been determined. It is
final where no issue is left for future consideration except the fact of compliance or
noncompliance with its terms; where nothing further in the nature of judicial action
on the part of the court is essential to a final determination of the rights of the
parties. The finality of the judgment is thus not determined based on the extent to
which it resolves all the issues in the trial, but rather from the perspective of
whether or not it puts an end to the judicial process.

[88] Parties commonly plead causes of actions or defences that may not realistically
be defensible. Thus, oftentimes the matters actually tried are leaner in scope than
those pleaded originally. If finality was determined by a literal comparison of the
live pleadings with the court’s orders and judgments, it would often appear that
matters remain to be litigated because some matters pleaded are often not

41
 addressed in the judgment. The test has little to do with the merit of the decision
since it is not the form of the decision that matters, but its impact on the nature of
the proceedings in which the adjudication is made.

[89] To be final, a judgment must dispose of all issues and parties, but such disposition
need not always be express (see Macarangal v. Andrews, 838 S.W.2d 632 at 634).
Consequently, issues not addressed in the trial court’s judgment are considered
as having been disposed of by implication. A judgment which grants part of the
relief but omits reference to other relief put in issue by the pleadings will ordinarily
be construed to settle all issues by implication (see Davies v. Thomson 92 Tex.
391 at 395; 49 S.W. 215 at 217 (1899); Kaine v. Coomey, 448 S.W.2d 223 at 226;
Doudell v. Shoo (1911) 159 Cal. 448 at 453 and Twin City Fire Ins. Co. v. Brown,
602 S.W.2d 118 at 119). According to section 7 of The Civil Procedure Act, any
relief claimed in a suit, which is not expressly granted by the decree, is deemed to
have been refused. Unless a separate trial is ordered to resolve a specific issue,
this presumption applies to all of the plaintiff’s claims, as well as the defendant’s
counterclaims against the plaintiff, and the defendant’s counterclaims against
other defendants.

[90] Therefore, when a judgment, not intrinsically interlocutory or preliminary in

character, is rendered and entered in a suit regularly set for a conventional trial on
the merits, no order for a separate trial of issues having been entered, it will be
presumed that the Court intended to, and did, dispose of all parties legally before
it and of all issues raised by the pleadings between such parties. This presumption
of finality holds true even if the judgment omits mention of some claims or parties;
they are disposed of by implication. However, the presumption does not apply to
dispose of a totally independent counterclaim where a judgment dismisses the
plaintiff’s claim on basis of a technicality, plea to the jurisdiction, plea in abatement,
or for want of prosecution.

42
[91] A decision in a suit does not become a final judgment merely because it is so
entitled; it is a final judgment only if it satisfies the criteria of a final judgment. In
the instant case, although she did not advert to the counterclaim in her judgment,
the trial Judge’s decision dated 30th October, 2018 but pronounced on 3rd
December, 2018 wholly determined the controversy between the parties and
disposed of the suit conclusively, since nothing remained to be heard and
determined by the Court. The trial Judge did not expressly reserve, for future
consideration, any of the issues or claims in the suit for future judgment. There can
be only one final judgment in a single suit which in the instant case was aptly titled
“final judgment.”

[92] By virtue of section 7 of The Civil Procedure Act, a judgment awarding relief on the
claim but is silent on the counterclaim, would be construed to deny relief on the
counterclaim. Any of its perceived shortcomings, such as the omission to address
the counterclaim, are matters for consideration on appeal. Upon a judgment
attaining finality, it matters little as to whether it was erroneous. A party aggrieved
by it has to work out his or her remedies within the legal framework. That omission
does not detract from its quality as a decision that finally disposed of the suit
conclusively, leaving nothing for the trial Judge’s further consideration.

iii. Setting aside the Garnishee Order Nisi issued in Misc. Application
No. 0490 of 2024;

[93] Garnishee proceedings are one of the means of realising a judgment debt. It is a
special procedure invoked to compel a third party (for instance a bank) who is in
possession of the asset of the judgment debtor to forfeit the said asset to the
judgment creditor to the tune of the debt in question It is the applicant’s case that
the garnishee was fixed for hearing without requisite notice or service upon the
applicant. The argument is premised on the fact that the respondent did not take
out a notice to show cause and served it on the applicant before initiating the
process.

43
[94] According to Order 22 rule 19 (1) (a) of The Civil Procedure Rules, where an
application for execution is made more than one year after the date of the decree,
the court executing the decree is required to issue a notice to the person against
whom execution is applied for, requiring him or her to show cause, on a date to be
fixed, why the decree should not be executed against him or her. This is not a
requirement though where if the application is made within one year from the date
of the last order against the party against whom the execution is applied for, made
on any previous application for execution.

[95] If the mode of execution is by way of attachment and sale of property belonging to
the judgment debtor, failure to give notice to legal representatives of the estate of
a deceased judgment debtor renders the ensuing sale void (see Francoise Mukyo
v. Rebecca Mawanda and another, C.A. Civil Appeal No. 15 of 2008). In such
cases failure to give notice is considered to be not a mere irregularity but a defect
in jurisdiction as it is opposed to all notions of justice to allow legal proceedings to
be taken against an estate without there being some person on the record to
represent the estate. On the other hand, failure to give notice to the debtor alive at
the time of attachment, is considered to be a mere irregularity and not a defect in
jurisdiction; it amounts merely to an |irregularity which does not occasion a failure
of justice and not an illegality (see Blanchenay v. Burt (1843) 4 Q.B. 707; (1843)
114 ER 106; Viswanathan Chetty v. Somasundaram Chetty (1922) I.L.R. 45 Mad.
875 and Doraswami v. Chidambaram Pillai (1924) I.L.R. 47 Mad. 63). The object
of procedure is to enable the Court to do justice, but, if in spite of even a total
disregard of the rules of procedure, justice has been done, there would exist no
necessity for setting aside the final order which is just and correct simply because
the procedure adopted was wrong.

[96] Order 22 rule 19 (1) (a) of The Civil Procedure Rules, is applied differently where
the mode of enforcement is by way of garnishee. The process is a self-contained
sui generis type and primarily governed by section 38 (c) of The Civil Procedure
Act and Order 23 rule 19 (1) (1) the latter of which prescribes its own procedures

44
 by providing that the garnishee order nisi may issue “upon the ex-parte application
of a decree holder……. either before or after an oral examination of the judgment
debtor.” There is no provision therein requiring a Notice to Show Cause to Issue
(see Nyandoro & Company Advocates v. National Water Conservation & Pipeline
Corporation; Kenya Commercial Bank Group Limited (Garnishee) [2021] eKLR).
The provision suggests that the court has the discretion to hear the Judgment
Debtor in an application for a garnishee order nisi either before or after granting
the garnishee order nisi. In other words, it is the court that determines whether a
judgment debtor should be heard or not.

[97] Garnishee proceedings are a process of enforcing a money judgment by the

seizure or attachment of the debts due or accruing to the judgment debtor. The
garnishee must be indebted to the judgment debtor or have custody of the
judgment debtor’s money. It is only a debt that is due or accruing to the judgment
debtor at the time of the garnishee proceeding that is attachable. This means that
where a debt is due and payable by instalments, garnishee proceedings can only
be issued against the instalment due. Upon the grant of the ex-parte order nisi
which directs the garnishee to appear in court on a specified date to show cause
why an order should not be made upon it for payment to the judgment creditor the
amount of the debt owed to the judgment debtor, is when the judgment creditor
must ensure that the ex-parte order is served on the judgment debtor and the
garnishee.

[98] Upon being served with the order nisi, the garnishee can comply with the order by
filing an affidavit to show cause stating the amount due to the judgment debtor.
The garnishee can also on the return date in Court contest the order nisi where the
garnishee has a lien on the judgment debtor’s money with it or where there are
conditions depriving the garnishee from paying the judgment debtor the money. At
this stage, the court will direct that any issue or question necessary for determining
the garnishee’s liability be tried. The Court after hearing the garnishee, the
judgment debtor or any other interested third party on the merit may either make

45
 the order nisi an order absolute or may not, depending on the facts of each case.
An order absolute may not be made where there is doubt that as to whether or not
the debt attached absolutely belongs to the judgment debtor. Where a garnishee
fails to appear in Court on the return date, the Court upon proof of service of the
order nisi on the garnishee may make the order absolute.

[99] In the instant case, although the judgment is dated 30th October, 2018 it was
pronounced on 3rd December, 2018, but the decree was extracted, signed and
sealed on 14th November, 2023. The bill of costs was taxed and allowed at shs.
25,000,000/= on 8th December, 2023. The first application for execution was filed by
way of Miscellaneous Application No. 490 of 2024 which is an application for a
garnishee order nisi, on 14th March, 2024. This was more than five years after the
date of the decree (3rd December, 2018). The order nisi was granted on 8th April,
2024 in the following terms;

IT IS hereby ORDERED by HER WORSHIP DOROTHY

KYAMPAIRE that all debts/monies owing or accruing to the
Respondent/Judgment Debtor on accounts held with
STANBIC BANK UGANDA LIMITED in the name of AMOS
NZEYI be attached to answer a Decree of this Honourable
Court dated 14th November. 2023 in HCCS No. 288 of 2011
against the Judgment-debtor by the above named Decree-
holder for payment of USD 230,000 (United States Dollars
Two Hundred Thirty Thousand only) and ng 25,000,000/=
(Uganda Shillings Twenty-Five Million) in taxed costs, which
currently wholly remains due and unpaid.

AND IT IS FURTHER ORDERED that the Garnishee attends

before this Honourable Court on the 11th day of April, 2024 at
10:30 am on an application by the Decree- holder that the
Garnishee pays to the Decree-holder the debt due from the
Garnishee to the Judgment-debtor or so much of it as may be
sufficient to satisfy the Decree, together with costs of the
garnishee proceedings.
To be served on the Garnishee STANBIC BANK UGANDA
LIMITED.

46
[100] It is important before issuing a garnishee order nisi, to establish that the judgment-
debtor has or claims to have an immediate legal right to money in the custody of
the garnishee. This requires the affidavit supporting the application for the
garnishee order nisi to state that; (a) the applicant obtained a judgment against the
judgment debtor on a given date for the payment of a certain amount, (b) the
judgment is still wholly unsatisfied or is satisfied as to a stated amount and (c) the
garnishee is indebted to the judgment debtor. This requires a reasonable
disclosure of the specifics relating to the debt, and (d) that the garnishee is within
the jurisdiction of the Court. The Court is not required on the hearing of the
application for the order nisi to inquire into the truth of the debt alleged to be due
and accruing from the garnishee to the judgment debtor; that is a matter to be
determined when the garnishee turns up to show cause against the order.
Nevertheless, sufficient facts must be disclosed establishing the probable
existence of the debt, beyond a mere speculative fishing expedition.

[101] In the instant case, the affidavit supporting the ex-parte application simply stated
that “the Garnishee holds funds to the credit of the Respondent/ Judgment Debtor
and the Garnishee is a financial institution within the jurisdiction of this Court,”
without specifying the account number and the circumstances in which garnishee
holds funds to the credit of the judgment debtor. Generally, garnishment is
applicable where a third party owes the debtor either money or property and that
debt is legally enforceable between the third party and the debtor. Garnishment
subrogates the debtor’s creditor to whatever rights the debtor may have against
the garnishee. Thus, a creditor’s rights against the garnishee depend upon the
existing rights between the garnishee and the debtor. There should be prima facie
proof that the judgment debtor is owed a sum of money by a third party, for
example, by specifying the bank accounts and offering an estimate on the amount
of money the judgment debtor has in their bank accounts to the best of the
applicant’s information or belief, stating the sources of that information or the
grounds for the belief. From the disclosed facts, the Court should be in position to
ascertain the scope of the existing judgment debtor’s rights enforceable against

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 the garnishee. From the facts pleaded by the judgment creditor, the Court must
be satisfied that the garnishee is either indebted to the judgment debtor or has
possession of the judgment debtor's property or credits.

[102] The respondent’s affidavit supporting the application for the garnishee order nisi
was deficient in material particulars. Nevertheless, this in inconsequential since
the order has since lapsed and has never been renewed. The essence of the order
nisi was to direct the garnishee to appear in court on 11th April, 2024 at 10:30 am
to show cause why an order should not be made upon it for the payment to the
judgment creditor of the amount of debt owed to the judgment debtor. That date is
long past and any findings of fact regarding irregularities in the process leading to
its issue are now moot. No relief can be granted under this limb of the application
as the garnishee order nisi has been overtaken by events.

iv. In the alternative, stay of execution of the decree in HCCS 288 of

2011 dated 14th November, 2023;

[103] As a general rule, an appeal on its own does not stop or preclude garnishee
proceedings. This is because a garnishee proceeding is a separate and distinct
proceeding even though it flows from the judgment that pronounced the debt owed.
Therefore, commencing garnishee proceedings while there is a pending appeal at
the Court of Appeal is not an abuse of court process and therefore, such garnishee
proceeding is valid and competent. According to Order 43 rule 4 (3) of The Civil
Procedure Rules, an application of this nature must be made after notice of appeal
has been filed and the applicant should be prepared to meet the conditions set out
in that Order including; - furnishing proof of the fact that substantial loss may result
to the applicant unless the stay of execution is granted; that the application has
been made without unreasonable delay; and that the applicant has given security
for due performance of the decree or order as may ultimately be binding upon him
(see Lawrence Musiitwa Kyazze v. Eunice Businge, S. C. Civil Application No 18
of 1990).

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[104] The Court of Appeal in Kyambogo University v. Prof. Isaiah Omolo Ndiege, C. A.
Misc. Civil Application No 341 of 2013 expanded the considerations to include: -
there is serious or imminent threat of execution of the decree or order and if the
application is not granted, the appeal would be rendered nugatory; that the appeal
is not frivolous and has a likelihood of success; that refusal to grant the stay would
inflict more hardship than it would avoid.

a. A notice of appeal has been filed.

[105] The applicant has satisfied this requirement. The applicant filed a notice of appeal
on 7th December, 2018 and applied for certified copy of the record of proceedings
on the same day.

b. The application has been made without unreasonable delay.

[106] Applications for a stay of execution ought to be made within a reasonable time.
Whether delay is unreasonable will depend on the peculiar facts of each case.
Delay must be assessed according to the circumstances of each case. The
reckoning of time to determine if a delay is unreasonable begins at the time the
decree or order is sealed and becomes enforceable.

[107] In the instant case, the judgment was rendered on 3rd December, 2018, but the
decree was extracted, signed and sealed on 14th November, 2023. The bill of costs
was taxed and allowed at shs. 25,000,000/= on 8th December, 2023. The first
application for execution was filed by way of Miscellaneous Application No. 490 of
2024, on 14th March, 2024. This application was filed on 29th April, 2024. I therefore
do not find any unreasonable delay in the filing this application.

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 c. The appeal is not frivolous and has a likelihood of success;

[108] An appeal by itself does not operate as a stay of proceedings under a decree or
order appealed from nor should execution of a decree be stayed by reason only of
an appeal having been preferred from the decree (see Order 43 rule 4 of The Civil
Procedure Rules and Rule 6 (2) of The Judicature (Court of Appeal Rules)
Directions). In other words, the ordinary rule is that an execution of the decree
need not be stayed pending an appeal unless the appellant shows good cause. A
presumption lies in favour of the integrity of the proceedings of any court of general
jurisdiction. The administration of justice rests largely upon the presumption of the
law that a court, acting within its jurisdiction, has acted impartially and honestly,
and with integrity such that a final judgment of a court of general and competent
jurisdiction is always presumed to be right.

[109] The court must be satisfied that the prospects of the appeal succeeding are not
remote but that there is a realistic chance of succeeding. More is required to be
established than that there is a mere possibility of success. That the case is
arguable on appeal or that the case cannot be categorised as hopeless. There
should be a sound, rational basis, founded on the facts and the law, and a measure
of certainty justifying the conclusion that the appellate court will differ from the court
whose judgment has been appealed against; that the appellate court could
reasonably arrive at a conclusion different from that of the trial court.

[110] The appeal will be considered frivolous if prima facie the grounds intended to be
raised are without any reasonable basis in law or equity and cannot be supported
by a good faith argument. If there is a strong showing that the appeal has no merit,
that is strong evidence that it was filed for delay or not in good faith. Additional
evidence indicating a frivolous appeal is the applicant’s conduct of prior litigation
which may show that the appeal is merely part of a series of suits, applications and
appeals over the same subject matter in which the applicant has engaged with no
success or no chance of success. The prior litigation or procedural history can be

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 used to establish the lack of merit in the present appeal or the bad faith of the
applicant in filing the present appeal.

[111] The applicant has provided court with the memorandum of appeal of the intended
appeal dated 17th April, 2024 but yet to be filed in the Court of Appeal. Although
the applicant has not adverted to the arguments he intends to raise in support of
those grounds, it is discernible that he has an arguable case on appeal. Having
perused the judgment, I have formed the opinion that there is a reasonable basis
in law and equity to support the grounds raised and that they can be supported by
good faith argument. It is therefore possible that the Court of Appeal could
reasonably arrive at a conclusion different from that of the trial court. The applicant
has satisfied this requirement.

d. The appeal would be rendered nugatory;

[112] Nugatory means “of no force or effect; useless; invalid.” In this context, the term
“nugatory” has to be given its full meaning. It does not only mean worthless, futile
or invalid, it also means trifling. Whether or not an Appeal will be rendered nugatory
if a stay is not granted depends on whether or not what is sought to be stayed if
allowed to happen will be reversible, or if it is not reversible, whether damages will
reasonably compensate the party aggrieved, or it is in the public interest to grant
a stay. This may include all cases where it is necessary to preserve the status quo
pending appeal, in aid of and to preserve the appellate power, so that the rights
involved in the appeal may not be lost or reduced by reason of an intervening
execution of the judgment.

[113] If the judgment is of a nature to be actively enforced by execution and its execution
does not delay or impair the character of the appeal, a stay will ordinarily not be
granted. Satisfaction of a money decree does not ordinarily pose the danger of
rendering a pending appeal nugatory, where the respondent is not impecunious,
as the remedy of restitution is available to the applicant in the event the appeal is

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 allowed. The presumption then is that payment made to the respondent in
execution of the decree will be reversible in the event of the applicant succeeding
on appeal. If it is not reversible, it has not been shown that damages will not
reasonably compensate the applicant, or that it is in the public interest to grant a
stay. The respondent has not been shown to be impecunious. The applicant has
failed to prove this requirement.

e. There is serious or imminent threat of execution of the decree or order and

if the application is not granted.

[114] Imminent threat means a condition that is reasonably certain to place the
applicant’s interests in direct peril and is immediate and impending and not merely
remote, uncertain, or contingent. An order of stay will issue only if there is actual
or presently threatened execution. There must be a direct and immediate danger
of execution of the decree. There should be unequivocal evidence showing that
unconditional steps as to convey a gravity of purpose and imminent prospect of
execution of the decree, have been taken by the respondent. Steps that
demonstrate a serious expression of an intent include; extracting the decree,
presenting and having a bill of costs taxed, applying for issuance of a warrant of
execution and issuing a notice to show cause why execution should not issue. The
applicant has not adduced evidence of this in the application. The applicant has
presented evidence of steps of that nature having been taken by the respondent.
The applicant has satisfied this requirement too.

f. Substantial loss may result to the applicant unless the stay of execution is
granted.

[115] Substantial loss does not represent any particular size or amount but refers to any
loss, great or small that is of real worth or value as distinguished from a loss that
is merely nominal (see Tropical Commodities Supplies Ltd and Others v.
International Credit Bank Ltd (in Liquidation) [2004] 2 EA 331). “Substantial”

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 though cannot mean the ordinary loss to which every judgment debtor is
necessarily subjected when he or she loses his or her case and is deprived of his
or her property in consequence. The applicant must establish other factors which
show that the execution will create a state of affairs that will irreparably affect or
negate the very essential core of the applicant as the successful party in the
appeal. The loss ought to be of a nature which cannot be undone once inflicted.

[116] The court has to balance the interest of the applicant who is seeking to preserve
the status quo pending the hearing of the appeal so that his or her appeal is not
rendered nugatory and the interest of the respondent who is seeking to enjoy the
fruits of his or her judgment (see Alice Wambui Nganga v. John Ngure Kahoro and
another, ELC Case No. 482 of 2017 (at Thika); [2021] eKLR). For that reason,
execution of a money decree is ordinarily not stayed since satisfaction of a money
decree does not amount to substantial loss or irreparable injury to the applicant,
where the respondent is not impecunious, as the remedy of restitution is available
to the applicant in the event the appeal is allowed. The respondent has not been
shown to be impecunious nor the fact that execution of the decree will have any
irreversible effect. The applicant has failed to prove this requirement.

g. The applicant has given security for due performance of the decree or order.

[117] In granting an order of stay of execution pending an appeal, the court has to
balance the need to uphold the respondent’s right to be protected from the risk that
the appellant may not be able to satisfy the decree, with the appellant’s right to
access the courts. It is the reason that courts have been reluctant to order security
for due performance of the decree. This requirement has been interpreted as not
operating as an absolute clog on the discretion of the Court to direct the deposit of
some amount as a condition for grant of stay of execution of the decree in
appropriate cases, more particularly when such direction is coupled with the liberty
to the decree holder to withdraw a portion thereof in part satisfaction of the decree
without prejudice and subject to the result of the appeal.

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[118] Courts have instead been keen to order security for Costs (see Tropical
Commodities Supplies Ltd and others v. International Credit Bank Ltd (in
liquidation) [2004] 2 EA 331 and DFCU Bank Ltd v. Dr. Ann Persis Nakate
Lussejere, C. A Civil Appeal No. 29 of 2003), because the requirement and
insistence on a practice that mandates security for the entire decretal amount is
likely to stifle appeals. The purpose of an order for security for costs on an appeal
is to ensure that a respondent is protected for costs incurred for responding to the
appeal and defending the proceeding, which therefore implies such an order does
not adequately meet entirely the purpose of security for due performance of the
decree. In the case of a money decree, furnishing security for due performance of
the decree denotes providing depositing the disputed amount.

[119] The applicant has not undertaken to furnish such security, yet the court has a duty
in exercise its discretion to grant stay of execution of a money decree, to balance
the equities between the parties and ensure that no undue hardship is caused to
a decree holder due to stay of execution of such decree. For that reason, the
applicant has failed to prove this requirement too.

h. Refusal to grant the stay would inflict more hardship than it would avoid.

[120] The Court has the duty to balance or weigh the scales of justice by ensuring that
an appeal is not rendered nugatory while at the same time ensuring that a
successful party is not impeded from the enjoyment of the fruits of his or her
judgement. No doubt it would be wrong to order a stay of proceedings pending
appeal where the appeal is frivolous or where such order would inflict greater
hardship than it would avoid (see Erinford Propertied Ltd. v. Cheshire County
Council [1974] 412 All ER 448). It is also a fundamental factor to bear in mind that,
a successful party is prima facie entitled to the fruits of his or her judgement.

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[121] Apart from the averments that the applicant stands to suffer irreparable loss if
execution ensues, the applicant has not offered evidence of objective facts from
which it can be deduced that in the circumstances of this case, execution will cause
significant difficulty, expense or disruption, beyond that to which every judgment
debtor is necessarily subjected when he or she loses his or her case and is
deprived of his or her property in consequence. I therefore have not found
evidence to show that that execution would cause significant difficulty, expense or
disruption, beyond that to which every judgment debtor is necessarily subjected
when he or she loses his or her case and is deprived of his or her property in
consequence. If granted, the order is therefore likely to inflict greater hardship than
it would avoid.

[123] In conclusion, the applicant has not satisfied the majority of the essential
requirements for the grant of an order of stay of execution pending appeal.
Consequently, save for the order hereby issued recalling for correction of the date
of the decree, the application fails and is hereby dismissed with costs to the
respondent.

Delivered electronically this 9th day of September, 2024 …Stephen Mubiru……..

Stephen Mubiru
Judge,
9 July, 2024
th

Appearances;
For the applicant :M/s Nambale, Nerima and Co Advocates.
For the respondent :M/s MMAKS Advocates.

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