LDC HC/LDC/45079/LA

LEGAL ALERTS

An Advocate acts as an agent to his client in a land

sale and purchase transaction and is not privy to the
agreement between the parties.

An Advocate cannot be held liable for the misgivings

of his client.

A party cannot submit on a cause of action that

he/she did not plead in his/her pleadings.

1. An Advocate acts as an agent to his client in a land sale

and purchase transaction and is not privy to the
agreement between the parties

“…On the other hand, the 2nd defendant was acting as an

agent for the 1st defendant in this transaction. His duty was
to witness the sale agreement and receive monies on
behalf of the 1st defendant who was his client. He was not
privy to the agreement between the plaintiff and the 1st
defendant. Under section 118 of the Contracts Act 2010, an
agent means a person employed by a principal to do any
act for the principal or to represent the principal in dealing
with a third person. The agency is terminated when the
business of the agency is completed or the purpose of the
agency is frustrated.

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The 1st defendant hired the 2nd defendant as his advocate
in the impugned transaction. He had two duties as noted
above; witness the agreement and receive the purchase
price on behalf of the 1st defendant. Upon the discovery
that the 1st defendant was not the registered proprietor of
the land in issue and yet the money had already been
passed on to the 1st defendant, the relationship between
the 1st and 2nd defendants was terminated.

2. An Advocate cannot be held liable for the misgivings

of his client
Furthermore, as an agent of the 1st defendant, the 2nd
defendant did not act for and on behalf of the plaintiff. He
could/cannot be held liable for the misgivings of his client.
He did not have a duty to carry out due diligence on behalf
of the plaintiff as a purchaser who also had the 3rd
defendant as his advocate in the transaction. His duty
went as far as he was instructed by the 1st defendant. The
allegation that the 2nd defendant persuaded the plaintiff
into the transaction also does not make sense or hold any
water. The plaintiff stated that he owned the land next to
the land in issue and therefore neighbors with the 1st
defendant. The plaintiff and the land brokers also met
before coming to the 2nd defendant’s office and further,
the plaintiff and 1st defendant had already agreed on the
terms of their agreement before engaging the 2nd
defendant. The 3rd defendant is also the son-in-law of the
plaintiff. From this, it is apparent that everyone involved in
the transaction was familiar with each other except for the
2nd defendant which leaves a bad taste in my mouth”.
3. A party cannot submit on a cause of action that he/she
did not plead in his/her pleadings
Lastly, the plaintiff and 3rd defendant’s submissions on the
duty of care in tort owed by the 2nd defendant to the
plaintiff are struck off. The plaintiff attempted to introduce
a new cause of action against the 2nd defendant in their

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submissions that was not pleaded i.e. that the 2nd
defendant owed a professional duty to the plaintiff. In
Interfreight Forwarders (U) Ltd v. East African Development
Bank, SCCA No. 33 of 1992, it was stated that; “A party is
expected and is bound to prove the case as alleged by
him. He will not be allowed to succeed on a case not so set
up by him and be allowed at the trial to change his case or
set up a case at the trial to change his case or set up a
case inconsistent with what he alleged in his pleadings
except by way of amendment of the pleadings.” The
plaintiff cannot therefore submit on a cause of action that
they did not plead in their plaint. It is true that the role of
counsel in representing his client is mainly to ensure that
his client gets the best of legal representation within the
scope of his instructions, there is a corresponding duty on
counsel to ensure that his conduct is within the framework
etiquette and conduct for lawyers as stipulated in the
regulations. See: Martin Amidu v The Attorney-General,
Waterville Holdings (BVI Ltd (Alfred Agbesi Woyome) [2013]
62 GMJ SC 91. The plaintiff’s claim as presented was strictly
out of breach of contract and not tortious liability for a duty
owed to the clients or other parties. Each party had their
advocates who represented them in the transaction, a
failure or lapse of one counsel should not be visited on the
other advocate. The plaintiff from their pleadings and
submissions makes no claim against the 3rd defendant
and as such he cannot be found liable to refund the
monies to the plaintiff. On that note, the 1st defendant is
liable to refund the monies received from the plaintiff for
the botched land transaction. The 2nd and 3rd defendants
are not liable for the same …”

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JAKIRA GERALD VERSUS KIGOZI SOLOMON ALIAS
EDWARD MUGABI & 2 ORS

HCCS NO. 66 OF 2021

JUDGMENT BY SSEKAANA MUSA, J ON JUNE 16, 2023

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