[2023] UGHCCD 399

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [CIVIL DIVISION]

### **MISCELLANEOUS APPLICATION NO. 33 OF 2023**

### [ARISING FROM MISCELLANEOUS CAUSE NO. 246 OF 2022]

PETERO BASHAIJA ============================== APPLICANT

### VERSUS

M/S ALLIANCE ADVOCATES ==================== RESPONDENT

## **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

### **RULING**

- 1. This application is by chamber summons under section 98 of the CPA, Order 10 rules 12, 14, 15 & 24 of the CPR seeking for orders that; - **i. An order directing the Respondent to make discoveries on oath and produce on oath a document in its possession and or power comprised in the agreement executed by the parties entitling the Respondent to payment of UGX 350,000,000/= (Three Hundred and Fifty million Shilling only)** - **ii. Costs of this application be provided for.** - 2. The application is supported by the affidavit of **Petero Bashaija** the applicant whose details are on the court record but briefly states that; - i. The Respondent filed Miscellaneous Cause No. 246 of 2022 against me seeking costs from me arising from an agreement where he purports that I gave instructions and promised to pay him 350,000,000/=.

- ii. The said instructions were for helping me process letters of administration and pursue compensation from government for land comprised in Block 299 Plot 3 land at Kabamba Buwekula which was forcefully taken by government in 1971- 1972. - iii. I am not aware of that agreement which the Respondent alleges in Miscellaneous Cause No. 246 of 2022 and since the Respondent claims to have the same, it is just and fair that the Respondent be compelled to furnish the same with court. - 3. In reply, the Respondent opposed the application and in an affidavit sworn by **Brian Othieno** whose details are on the court record briefly stated that;- - i. I did not state anywhere in the affidavit in support of Misc. Cause No. 246 of 2022 that there is a share agreement. - ii. I cannot rely on the remuneration agreement since instructions were given to other lawyers at the tail end of the matter, which lawyers filed the suit against the Attorney General relying on the correspondences and documents which had been largely generated by myself and thereafter entered into a consent with the Attorney General. - iii. The 350,000,000/= remuneration agreement was incidental and conditioned upon me fully executing instructions but since other lawyers filed the suit after I had negotiated with the Ministry of Defence and even advised the Respondent to accept the compensation as proposed by the Ministry of defence and drafted the acceptance letter, I cannot claim the whole amount as agreed. - iv. To my knowledge and belief the document the applicant seeks to discover is irrelevant before court and especially so since I cannot find the signed copy.

#### **4. Representation.**

Counsel Peterson Mwesiga represented the Applicant while Counsel Natumanya Willing represented the Respondent.

- 5. At the hearing, parties agreed to file written submissions whose details are on the court record. - 6. Counsel for the applicant raised two issues in his written submissions as stated below; - *i. Whether the document sought is within the possession and power of the Respondent* - *ii. Whether the document is relevant and essential for the determination of miscellaneous cause No. 246 of 2022.* - **7. Submissions by counsel for the Applicant.**

#### **Issue No.1:**

*Whether the document sought is within the possession and power of the Respondent*

8. Counsel for the Applicant referred to **Order 10 of the CPR** and to **Halsbury's laws of England 4th Edition Volume 17 Butterworth's London 1976** and defined discovery to mean;- "a process by which the parties to litigation obtain information of the existence and the contents of all relevant documents relating to the matters in question between them". He also referred to **Kisuule Vs Greenland Bank Ltd [2009] HCB 33** and **Turyatemba &** **Others Vs Attorney General & Another [2010]2 EA 443** which all stressed the relevancy of a discovery order.

9. Counsel further submitted that the Respondent has special knowledge of and is in possession of the said document or has the power to obtain it from where it is because it is the applicant's position that he trusted one of the Respondent's lawyer, Counsel Brian Othieno to keep all the documents relating to their dealings. And that when the applicant recently asked for all his documents, counsel Othieno declined to give them to him hence they remain in his possession.

#### 10.**Issue No.2:**

*Whether the document is relevant and essential for the determination of miscellaneous cause No. 246 of 2022.*

- 11. Counsel while resolving this issue referred to **section 22(a) of the CPA** which states that;- *"Subject to such conditions and limitation as may be prescribed, the court may, at any time, either of its own motion or on the application of any party, make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts and the discovery, inspection, production and return of documents or other material objects producible as evidence".* - **12.**He also referred to the case of **Compagnie Financiere Vs Peruvian Guano Company [1882]11 QBD 55 at page 63 and** submitted that the document in question here is the remuneration agreement that is alleged to exist by the Respondent and yet it now seeks to depart from it and instead have a bill of

costs taxed. The Respondent alleges that the Applicant agreed with counsel Brian Othieno in writing to give a share of 350,000,000/= (three hundred and fifty million shillings) of the compensation for the evaluation, and yet it forms the basis of his argument and the entire application does not in any way aid this court in the dispensation of justice.

- **13.**Counsel further submitted that the Respondent in his affidavit in rejoinder attached a copy of the alleged draft agreement which was not signed and does not conform to provisions of sections 48, 50 and 51 of the Advocates Act which requires registration of such agreement with the Uganda Law Society. - **14.**Counsel concluded that it is essential and relevant that this application be granted since court needs to examine the terms of the said agreement to reach a proper decision in MC No. 246 of 2022.

#### **15. Submissions by Counsel for the Respondent.**

#### **Issue No. 1:**

*Whether the document sought is within the possession and power of the Respondent.*

- 16. Counsel for the Respondent submitted that for an application for discovery to succeed, there must be evidence that the document is in possession or custody of the Respondent. He referred to the case of **John Kato Vs Muhibaner AG & Anor HCMA 175 OF 2011**. - 17. Counsel submitted that Counsel Othieno Brian did not state anywhere that there is a share agreement and hence the share purchase agreement the

applicant states under paragraph 6 of his affidavit in support is not in possession of the Respondent and the same got misplaced. He referred to the case of **Simbamanyo Estates Limited & ANOR Vs Equity Bank Uganda Limited and 4 ors MA No. 583** to argue that it is not possible for the Respondent to obtain the information the applicant is seeking to discover, and ordering the production of the same will be onerous order and wasting court's time as all is calculated to delay the hearing and disposal of Miscellaneous Cause No. 246 of 2022.

#### 18.**Issue No.2:**

# *Whether the document is relevant and essential for the determination of miscellaneous cause No. 246 of 2022.*

- 19. Counsel submitted that a discovery is not ordered if it is not necessary for either disposing of the suit or saving costs. He referred to order 10 rules 12 & 14 of the CPR quoted with approval in **John Kato Vs Muhibaner AG & Anor HCMA 175/2011**. - 20. Counsel submitted that the law also requires that the document must be relevant to the issue to be tried before discovery can be ordered. The law also abhorrent of a fishing expedition. That discovery should not be used as a fishing expedition by the applicant to try to build up a case which is not sure of/defence. - 21. Counsel further submitted that the Respondent stated in his affidavit in reply that the document is irrelevant before court, has no relationship with any matters in question in MC 246 of 2022 and especially so since he can't find a signed copy and the applicant has already admitted giving instructions to the

respondent. The quantum of costs is to be determined by the taxing master and not in this application.

#### 22.**Analysis of court**

23. Considering the two issues argued by both parties, this court has found it necessary to resolve together to wit;

#### **Issue No.1:**

*Whether the document sought is within the possession and power of the Respondent*

#### **Issue No.2:**

*Whether the document is relevant and essential for the determination of miscellaneous cause No. 246 of 2022.*

- 24.**Order 10 rule 12 of The Civil procedure Rules** provides that; *"any party may, without filing any affidavit, apply to the court for an order directing any other party to the suit to make discovery on oath of the documents, which are or have been in his or her possession or power, relating to any matter in question in the suit".* - *25.***Order 10 rule 14 of the Civil Procedure Rules** provides that:-"*The court may, at any time during the pendency of a suit, order the production by any party to the suit, upon oath, of such documents in his or her possession or power relating to any matter in question in the suit, as the court shall think right……"*

- 26. In **Simbamanyo Estates Ltd & Anor Vs. Equity Bank Uganda Limited and ors Miscellaneous Application No. 0583 of 2022**, the court defined the term Discovery to mean the process by which a party may obtain facts and information about its case from the adversary in order to assist its preparation in arguing the substance of the claims. It is designed to enable a party to obtain relevant information needed to prepare the party's case. - 27. The court further laid down the conditions that must be satisfied before grant of an order for discovery and these are;- - i. Relevancy and materiality - ii. Not otherwise privileged or protected by law - iii. The document is in the respondent's possession, custody, control or power - iv. Attempts to obtain the same voluntarily were futile - 28. The above conditions are going to guide this court in the resolution of this Application.

#### 29. Relevancy and materiality

30. In **Real Contractors Ltd Vs. Rubanda District Local Government Civil Suit No. 53 of 2021** the court while citing *Gerald Kafureka Karuhanga & Another V Attorney General & others Miscellaneous Cause No.060 of 2015 and Patricia Mutesi V Attorney General MA No.912 of 2016*, stated that; The general principles regarding the production of documents are that the party seeking the production of the documents must have a suit in the same court and there must be issues pending determination by the court. The documents sought to be produced must also be relevant to the determination of the pending suit before the court.

- 31. In the instant Applicant the Applicant averred in his affidavit in support that the Respondent filed Miscellaneous Cause No. 246 of 2022 against him seeking costs from him arising from an agreement where he purports that the Applicant gave instructions and promised to pay him 350,000,000/=. The Respondent on the other hand in the affidavit in reply said that the remuneration agreement was incidental and conditioned upon the Respondent fully executing instructions but since other lawyers filed the suit after he had negotiated with the Ministry of Defence and even advised the Respondent to accept the compensation as proposed by the Ministry of defence and drafted the acceptance letter, he cannot claim the whole amount as agreed. - 32. What I understand from the Respondents averment is that the amount of 350,000,000/= stated in the remuneration agreement is not the amount he is claiming for from the Applicant. He stated that the 350,000,000/= was to be paid after full execution of the instructions but since he did not fully execute the instructions, he cannot claim the amount in the Remuneration agreement. - 33. In essence the above simply means that the remuneration agreement is irrelevant since the amount stated therein is not what the Respondent is claiming for from the Applicant, and for that reason, it will not assist court in the resolution of the matter at hand.

### **34.**The document is in the respondent's possession, custody, control or power.

**35.**The Respondent in paragraph 3 of his affidavit in reply stated that he did not state anywhere in Misc. Cause No. 246 of 2022 that there is a share agreement. Secondly, that he is not in possession of the alleged agreement having been misplaced. That being said, it is clear that the Respondent is not in possession of the alleged agreement.

- **36.**It is trite that court orders cannot be made in vein. See a case of *Housing Finance Ltd & another vs. Edward Musisi Misc. Application No. 158 of 2010*. - **37.**In the circumstance, the Applicant failed to prove that the documents he wants this court to order for discovery exists and the same is relevant to the case before court.

### **38. Conclusion.**

This application therefore fails with the following orders;

- i. The application is hereby dismissed. - ii. Considering the nature and circumstances of this Application, no order as to costs.

Dated signed, sealed and delivered by email this **18th** day of September 2023.

Emmanuel Baguma

Judge