IN THE HIGH CO UR T OF TA NZAN IA

(C O M M E R C IA L DIVISION)
AT P A R ES SALAAM

COMMERCIAL CASE NO. 44 OF 2001

NATIONAL BANK OF COMMERCE LTD........... APPLICANT/PLAINTIFF

VERSUS
NABRO LIM ITE D ................................................. 1st RESPONDENT/DEFENDANT
MEEDA REUBEN N A B U R I................................2 nd RESPONDNET/DEFENDANT

RULING

KALEGEYA, J:

Mr. Kabakama, Advocate, for the Plaintiff, prays for orders, among
others,

“That Mr. Leopold Kalunga the advocate fo r the Defendant be

ordered to withdraw from representing the Respondents/Defendants
in this case, and the Respondents take liberty to employ another
advocate. ”

Mr. Kalunga, Advocate, for the Defendants resists the application.

Briefly, the background to this mid-proceedings controversy, is that,

until 11/4/2002 when issues were framed and the case fixed for hearing,
the Defendants were being represented by the late Mr. Kapinga.
Unfortunately, he passed away before hearing could commence.
Thereafter, the Defendants retained another advocate, and this is Mr.
Kalunga, against whom the injunctive objection is being raised for his
appearance.

Mr. Kabakama, seeking support from the affidavit of Godson

Killiza, the Plaintiffs Company Secretary; Halsbury’s Laws of England,
 2

3rd Edition, Para.80, and Jaferrari & another vs Borrisow & another [1971]
EA 165, submitted that Mr. Kalunga cannot act for Defendants because he
had earlier on been retained by the Plaintiff in relation to the same subject
matter. He insisted that there is a conflict o f interest because during the
time, he got access to information which he will use against Plaintiffs
interests, and in fact, cites the prayer for the amendment of the written
statement of defence as an exposition of the same. And, indeed,
immediately after taking over, Mr. Kalunga applied, unsuccessfully, to
amend the written statement of Defence.

On the other hand, Mr. Kalunga challenges the application with the
support of his own counter- affidavit and that of the 2nd Defendant, Meeda
Reuben Naburi. The gist of the challenge can best be captured by looking
at the relevant paragraphs. In paragraphs 3 - 6 , Mr. Kalunga depones,

“ 3. I state that I hold no interest o f the Bank to defend or to bring

into conflict with any other interests o f other persons or at all
as I am not their advocate or even retained by them in any
way. My relationship with the Bank ceased long time ago
before the Defendants retained me fo r their defence against
the Bank.

4. That ju st as I am not entitled in law to choose fo r the Bank

whom they should hire to protect their interests, the Bank
equally has no right in law to determine or vet who should
defend those they prosecute.
 3

5. That the alleged conflict o f interest arising out o f the so called

privity to the applicant’s information does not exists at all as
Exh.Pl contains no secret o f any kind at all and has nothing
to do with their exorbitant claim o f the Bank o f
Tshs.l 00,253,662/= against my clients at all.

6. That I am free to be angaged by those who are against them

as I am I completely free o f any obligation to the Bank. ”

while, Mr. Naburi reiterates the same in Para 5 to 7 as follows:

“5............................................................ 1 state that I am entitled under

the law to a choice o f my own advocate as much as the Bank
is entitled to a choice o f its own advocate. I further state that
Mr. Kalunga is not now an advocate or debt collector o f the
Bank. He has no interest in the Bank at all to protect or to be
in conflict with in handling this case fo r me. There is no
conflict o f interest with the Bank at all in this case. This
information has been supplied to me by Mr. Kalunga him self
and I believe the same to be true.

6. Further Mr. Kalunga has confirmed to me that he is not an

advocate o f the bank and that he has nothing to do with the
Bank. That there is no interest o f the bank fo r him to protect
at all as he does not protect in interest o f the Bank in any
other matter at all. There is no conflict o f interest emerging
at all in me engaging Mr. Kalunga to defend me in this case.
 4

7. With reference to para 9, I repeat what I have stated above,

that the Bank has no right absolutely to pray that I choose
another advocate to defend me ju st as I do not have any right
to choose an advocate fo r them to prosecute their case. I am
retaining Mr. Kalunga as a matter o f my constitutional right
and common sense accordingly. ”

Mr. Kalunga further submitted that the applicant’s allegation that the
application to amend the written statement of defence was made in order to
utilize the information received during the retainership period by the
former client is a far fetched imagination; that todate he has never been
paid retainership fee by the Applicant; that the subject matter is different as
the sum he had earlier on been retained to collect was Shs.60 million and
not hundred million now claimed; that in any case, he was retained to
collect the debt and not to represent Applicant in Court; that what is stated
in Halsbury’s Laws of England and referred to by Mr. Kabakama is not
relevant to the issue at hand; that, constitutionally, the Defendants have a
right o f choosing who should defend them, and, that the application is
made in bad faith.

On the question of the variation of figures from Shs.60 million to

100 million, Mr. Kabakama explained that the difference is as a result of
accrual of interest.

From the above, it is clear that the only issue before us is whether an
advocate who has been retained by a party for debt collection from another
party, can subsequently be retained by that other party (the debtor) when
 5

the controversy relating to the same debt, between same parties, finally
lands the two parties in Court.

It is beyond controversy that at one point in time Mr. Kalunga was

retained by the Applicants/Plaintiffs to collect the debt, from the
Respondents. Among others, the demand note (marked as Exh.Pl to
Killiza’s affidavit) issued by him is a clear telling factor on this. The same
runs as follows:-

“N A B R O LIM ITED

P.O. Box 5 1 4 9

DAR E S SALAAM

S ir

Re: REPA YMENT OF TSH. 6 8 , 3 1 2 ,1 8 8 / =

T O N .B .C . [1 9 9 7 ] LIMITED

I. This is to rem in d y o u that yo u are now in debted to the bank in the sum o f

T sh s.68,31 2 ,1 8 8 /- sp lit into a s fo llo w s :-

F A C ILITY A PPR O V ED L IM IT PRINCIPAL IN TE R E ST TOTAL

& EXPEND ITURE PAYABLE PAYABLE PAYABLE

T/L 65,000,000 22,412,093 45,794,295/40 68,206,388/=

30/12/99 105,000 800/= 105,800

68,312,188/=

2. Take N O TIC E that unless the sum cla im ed above is fu lly p a id within
exactly SEVEN da ys fro m the date hereof, m y instructions are to s e ll the
co lla tera l h eld by the

Bank C T No. 16673... L.O. P lot No. 5

 6

M SA SA N IB E A C H ino M EED R. N A B U R I

Yours sin cerely

Sgd:
KALUNGA & C O M P A N Y
A D V O C A TE S

c.c. N.B.C. [1 9 9 7 ] LTD

D A R E S SALAAM

c.c. N B C [1 9 9 7 ] LTD
................................................................. - Confirm pa ym en t please. ”

At this point, I should hurriedly add that, while I was in the process
of composing this ruling, Mr. Kalunga, very commendably, brought to my
attention a copy of judgement in RAKUSEN vs ELLIS, MUNDAY &
CLARKE [1912] CA, 831. I should add that I have purposely made this
observation using the words, “very commendably ”. This is so because, a
Counsel as an officer of the Court, should always, as and when he gets
(it/them), make available to the Court all relevant legal literature for
purposes of assisting the Court to reach a sound, and just decision. I am
grateful for this sound approach.

The above said, let us deep our minds into the centre of contention.

Mr. Kabakama’s stand is based on what is stated in Halbury’s Laws

of England, in the following wording:-

“A barrister ought not to accept a brief against a form er client, even

i f the client refuses to retain him, i f the barrister by reason o f his
 7

form er engagement knows o f anything which may be prejudicial to

the client in the later litigation(s) ”,

Now, I must confess that I have not been able to get a local decision
on the matter. However, the Rakusen case availed to me by Mr. Kalunga,
discusses in details, the contending submissions, and I am persuaded to
consider the same in my decision.

In the said English case (Rakusen), the objecting contention which

was upheld by the High Court was as launched by Mr. Kabakama. On
further appeal however, the Court of Appeal overturned the decision, it
being held (as per summary in the headnote to the report),

“that there was no general rule that a solicitor who had acted fo r
some person either before or after the litigation began could in no
case act fo r the opposite side; the Court must be satisfied in each
case that m ischief would result from his so acting”,
meaning that, the Court should only consider the existence or otherwise of
dangers of any breach of confidence.

In the Court o f Appeal judgment, their Lordships (Cozens - Hardy

M.R, Fletcher Moultone L.J and Buckley L.J), insisted that each case has
to be decided regard being had to the particular circumstances thereof and,
that consideration would be whether there is a danger of the solicitor
spilling over the old client’s prejudicial information to the new client. For
clarity, let us have a clear focus of the reasoning adopted by reproducing
relevant extracts. Cozens - Hardy M.R, had the following to say:-
 8

“ A solicitor can be restrained as a matter o f absolute obligation

and as a general principle from disclosing any secrets which are
confidentially reposed in him. In that respect it does not very much
differ from the position o f any confidential agent who is employed by
a principal. But in the present case we have to consider something
further. It is said that in addition to the absolute obligation not to
disclose secrets there is a general principle that a solicitor who has
acted in a particular matter, whether before or after litigation has
commenced, cannot act fo r the opposite party under any
circumstances; and it is said that that is so much a general ride and
the danger is such that the Court ought not to have regard to the
special circumstances o f the case.

I do not doubt fo r a moment that the circumstances may be

such that a solicitor ought not to be allowed to put him self in such a
position that, human nature being what it is, he cannot clear his
mind from the information which he has confidentially obtained
from his form er client; but in my view we must treat each o f these
cases, not as a matter o f form, not as a matter to be decided on the
mere p ro o f o f a form er acting fo r a client, bat as a matter o f
substance, before we allow the special jurisdiction over solicitors to
be invoked, we must be satisfied that real m ischief and real
prejudice will in all human probability result i f the solicitor is
allowed to act. ”

Further in his judgment, the M.R went on,

 9

“In my opinion,......the injunction granted must be discharged.......it

has been admitted on both sides here, that we are dealing with
solicitors o f the highest position and whose honour and integrity are
beyond any imputation. No possibility o f the disclosure o f secrets
has ever been suggested, but Warrington J. merely bases his
judgm ent on this, that it has been frequently said in this Court that a
solicitor is an officer o f the Court and cannot be allowed to put
him self into a position in which his duty to his present client may
conflict with his duty to his past client. With great respect to
Warrington J. I think that goes a great deal too far. Many busy
solicitors in this country would fin d it impossible to carry on their
business at all i f that was the true rule. I think solicitors o f the
highest honour and integrity may frequently be perfectly able to act
in the same matter fo r a new client, and at the same time may be
perfectly able to avoid disclosing secrets without putting any stain
upon their memory, conscience, or integrity. ”

As to Fletcher Moulton L J, he had the following to say:-

“As a general ride the Court will not interfere unless there be a case
where m ischief is rightly anticipated. I do not say that it is
necessary to prove that there will be mischief, because that is a thing
which you cannot prove, but where there is such a probability o f
m ischief that the Court feels that, in its duty as holding the balance
between the high standard o f behaviour which it requires o f its
officers and the practical necessities o f life, it ought to interfere and
 10

say that a solicitor shall not act. Now in the present case there is an
absolute absence o f any reasonable probability o f any m ischief
whatever. It is an attempt to induce the Court to move, on the most
purely technical grounds, in a matter in which it ought to deal with
realities. ”

while Buckley L, J stated,

“ There is a general principle, applicable not to solicitors only but to

confidential agents o f all kinds, that confidential information shall
not be used against the principal from whom, or fo r whom, and in
whose employment, it has been obtained. There is no general rule
that a solicitor who has acted in a particular matter fo r one party
shall not under any circumstances subsequently act in that matter
fo r his opponent. Whether he will be restrained from so acting or
not depends on the particular circumstances.........................................

The question then involves the consideration o f the circumstances

under which a client is to be prevented from obtaining the services
o f a particular solicitor. The circumstances I think are these: the
jurisdiction is a jurisdiction to restrain the solicitor from giving the
new client any assistance against the old client by reason o f
knowledge acquired as solicitor fo r the old client. I f to ensure that
result it is shown to be reasonable necessary to restrain the
employment o f the solicitor by the new client the injunction will be
 granted, but on no other ground could such an injunction be granted
as against the client”;

and concluded,

“ The whole basis o f the jurisdiction to grant the injunction is that

there exists, or, I will add, many exist, or may be reasonably
anticipated to exist, a danger o f a breach o f that which is a duty, an
enforceable duty, namely, the duty not to communicate confidential
information; but directly the existence o f possible existence o f any
such danger is negatived, the whole basis and substructure o f the
possibility o f injunction is gone. ”

In reaching the decision which was overturned, Warrington J had

reasoned, among others, as follows:-

“It has been frequently said in this Court that a solicitor as an

officer o f the Court cannot be allowed to put him self into a position
in which his duty to his present client may conflict with his duty to
his past client; and I think the principle which has been laid down by
the Courts is that in such a case as that the Court does not inquire
what information the solicitor may have or what information he may
communicate. He is presumed to have been in confidential
relationship with his client and he will not be allowed to put him self
into confidential relationship with another client opposed to his first
client. ”
 12

I have produced extracts from the judgment in extenso purposely.

They clearly paint the grounds upon which the contending views in the
present matter, at least in substance, are also founded. Having carefully
compared and considered the facts, the respective views and the
environment obtaining in Britain as compared to the local conditions, with
greatest respect, I am not persuaded by the general principle propounded
by the Court of Appeal in Rakusen case.

Once we are agreed that an Advocate/Client relationship is founded

on an impregnable principle of confidentiality, if we are to allow an
Advocate to act for one client today and for another tomorrow, on the same
subject matter, what shall we put in place, to guarantee that what he
accessed confidentially, during his former retainership, will not spill over
to the latter and to the former’s prejudice. In the judgment, I have quoted
at length above, their Lordships talk of “Courts having power” to control
these Court officers, directing them not to divulge prejudicial information;
of solicitors being of highest honour and integrity, but, what machinery do
Courts have to put all these “guarantees” into place? Here, I should hastily
add, lest I be misunderstood. I am not insinuating that Mr. Kalunga cannot
strike the standard or the like. In fact, unless the contrary is proved, a
Senior Counsel as he is, Mr. Kalunga is presumed to be dot-free in this
aspect, but here, we are not dealing with principles which cover only Mr.
Kalunga, nor of advocates of an unquestionable honour and intergrity of
Mr. Kalunga’s type, but with all those forming part of this legal profession
- naturally including those with questionable intergrity. The principles
should be broad enough to cover any eventuality. And this becomes more
supported by the prevailing atmosphere, in our jurisdiction, where time and
 13

again, the general populacy expresses reservations and doubts (however

wild and possibly unsupported they may be) that some professionals
double their roles between the competing parties. The profession should
be saved from this mudslinging.

The above apart, in my view, the general principle pronounced in

Rakusen case is wanting from two other aspects - one, by the time
Court’s assistance to bar a threatening advocate is sought, there is all
likelihood that the relevant information will have been leaked to the
undeserving party; and, two, even if it is not, in order to determine whether
it is confidential or not, it will have to be disclosed to the Court and
naturally, to the other party, thus putting asunder the very cherished
principle (confidentiality).

Again, some fears being raised (as did, Cozen - Hardy, MR in

Rakusen case, wherein he stated - “many busy solicitors in this country
would find it impossible to carry on their businesses at all if that was
the true rule”) that advocates would have their businesses suffer because
they would be barred from advocating for potential customers, in my view,
would not tilt the balance. My answer to that is this, generally in this
country, the situation in which Mr. Kalunga finds himself is more of an
exception rather than the rule, and more importantly, but for frailty of man,
for which, no one can front any scintilla of justification, justice has never
been pegged on material or financial gains. And, in any case, the general
principle which I accept to be ruling covers a limited ambit: new
retainership in relation to old retainership, on the same subject matter. In
our case for example, Mr. Kalunga would be free to represent any party
 14

(including Defendants) against Plaintiff where he has never been retained

in the same subject matter.

It is for the above reasons that I am on all fours with Warrington J ’s

views quoted above (although overturned by a higher Court). Only then
would the face of the profession be saved.

Deciding otherwise would punch an unbridgeable hole in the well

known and guarded impregnable Advocate/client relationship which is
imbued in the general principle of confidentiality save where public
interests or criminality are involved. Clients’ interests would be thrown
into the winds as they would be left at the mercy of Advocates. On the
other hand, the confidence base upon which the relationship is centered
would be eroded because clients would not be sure which information to
off - load to the advocate or retain. It would be disastrous to the whole
machinery o f justice because it would make clients have reservations
leveled against the very advocates they retain.

In the case at hand, it matters not that Mr. Kalunga was retained only
for debt collection from Defendants. As would generally be expected (and,
no evidence let alone an allegation, has been launched to the contrary),
most likely, in retaining him, the Plaintiff made available to him all the
information upon which the claim is based. What we are assured o f is that
all his attempts (including the demand note) did not bend Defendants into
paying what was demanded. What we are not aware of is the cause behind
their (Mr. Kalunga and Plaintiff) falling apart let alone the extent of the
information that was supplied. But for sure, the relationship got sour
 15

otherwise Plaintiff would not have retained another advocate, and Mr.
Kalunga was open enough to inform us that he has not even been paid the
retainership fee, todate. In a situation as this one, it would not be proper
for Mr. Kalunga to take up a brief for the very client he was once acting
against because he would be armed with a lot of information which indeed
can be utilized prejudicially against the former client. I should go further
and say: even if Mr. Kalunga acts with due honest and intergrity, in the
eyes of the former client and indeed, to the general public, it will be very
difficult for him to convince them that he has so acted. Using a
hypothetical case, for example, supposing the Plaintiffs were to withdraw
the present case with liberty to re - institute, would it be proper for them to
instruct Mr. Kalunga if they wanted to re - institute? Assuming they so
did, and assuming Mr. Kalunga takes up the brief, and due to professional
honour and intergrity he does not disclose even a spec of confidential
information he has so far gathered from the present Defendants, would the
latter believe that he didn’t? How will they and the general public rate the
intergrity o f the profession generally? The undesirability of this kind of
situation needs no orchestration.

And, I should reiterate that, in my view, in deciding the matter, it is

not necessary to seek evidence regarding the nature of information
supplied by the former client to the Advocate whose appearance is being
challenged: what is relevant is simply to establish that there existed that
client/Advocate relationship and in respect of the same subject matter.

In the case at hand, I have already concluded that the relationship

existed. Again, on facts at hand, Mr. Kalunga was retained on same
 16

subject matter. The difference in figures is irrelevant: and in any case, the
applicant has explained that it was caused by accrual of interest taking into
consideration the time which has elapsed between when Mr. Kalunga was
first instructed and when the case was filed. And, it matters not that todate
he has not been paid his retainership fee by the former client.

Yes, a party is entitled to be defended by an Advocate of his choice

as much as an Advocate is entitled to choose a client but these same
principles should have limitations which take into considerations other
party’s interests as well, and one of those, is the current situation.

Lastly, with all the above in mind, I should observe that it is high
time our Tanganyika Law Society considered adopting, in “The Rules o f
Professional Conduct and Etiquette o f the Tanganyika Law Society”, what
was recommended in Canada as recent as 1998, by a Task Force
established to Review the Canada Law Society’s Rules of Professional
Conduct and which, again for clarity, I reproduce here below:-

“2.04 (4) A la w yer w ho has a c te d f o r a clien t in a m atter sh a ll not

th ereafter a ct again st the clien t o r again st p e rso n s w ho w ere

in volved in o r a a sso c ia te d with the clien t in the m atter:

(a) in the sam e m atter

(h) in an y re la te d m atter, or

(c) sa ve as p r o v id e d b y subrule (5), in an y new m atter, i f the la w yer has

o b ta in e d from the oth er reta in er relevan t con fiden tial inform ation

unless the clien t a n d those in vo lved in o r a sso c ia te d w ith the clien t consent.
 17

C o m m e n ta ry

It is n ot im proper f o r the la w yer to act again st a clien t in a fr e s h a n d

independent m atter w h olly u n related to any w ork the la w yer has p re v io u sly

done f o r that p erso n a n d w here p re v io u sly o b ta in e d con fiden tial inform ation is

irrelevan t to that m atter.

2.04(5) Where a la w yer has a c te d f o r a fo rm e r clien t a n d o b ta in e d

con fiden tial inform ation relevan t to a new m atter, the la w y e r ’s

p a rtn e r o r asso cia te m ay act in the new m atter again st the

fo r m e r client if:

(a) the fo r m e r clien t consents to the la w y e r ’s p a rtn e r o r a sso cia te acting, o r

(b) the law firm esta b lish es that it is in the interests o f ju stice th at it a ct in the

new m atter, h aving re g a rd to a ll relevan t circum stances, including

(i) the a d equ acy a n d tim ing o f the m easu res taken to ensure that no

disclosu re o f the fo rm e r clien t's con fiden tial inform ation to the

p a rtn e r o r a sso cia te h aving ca rriage o f the new m atter w ill

occur

(ii) the extent o f p reju d ice to an y party,

(Hi) the g o o d fa ith o f the p arties,

(iv) the a va ila b ility o f su itable altern ative counsel, a n d

(v) issues affecting the p u b lic interest

C o m m e n ta ry

The term “c lie n t ” is defin ed in rule 1.02 to include a clien t o f the law firm o f

w hich the la w yer is a p a rtn e r o r associate, w hether o r not the la w yer h andles

the clien t's work. Therefore, i f a m em ber o f a law firm has o b ta in e d fr o m a

fo rm er clien t con fiden tial inform ation that is releva n t to a new m atter, no
 18

m em ber o f the law firm m ay a ct again st the fo r m e r client in the new m atter

unless the requ irem en ts o f subrule (5) have been satisfied. In its effect, subrule

(5) exten ds w ith n ecessa ry m odification s the ru les a n d g u id elin es abou t

con flicts a risin g fr o m a la w yer transfer betw een law fir m s (rule 2.05) to the

situ ation of'a law firm actin g again st a fo r m e r client. ”

I am satisfied that the application is meritorious. Mr. Kalunga

should withdraw from the conduct of the matter. The Defendants are at
liberty to seek services of another Advocate. Application allowed.
However, I make no order as to costs because the issue seems to be very
novel in our jurisdiction, and in my view, for the development of the law,
each o f the Counsel was justified in having it tested.

L.B. KALEGEYA
JUDGE

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