[2025] UGHC 492

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT LUWERO

#### HCT-17-LD-MA-0018-2025

## (Arising out of Civil Suit No. HCT-17-LD-CS-0099-2024) **KAKEETO HILLARY DDUNGU :::::::::::::::::::::::::::::::::::**

**VS**

- 1. ZALWANGO MIRIAM (suing through her lawful attorney Richard Wamala Kajjabwangu) - 2. KAYANGO GEORGE (Administrator for the estate of the late Tefiro Sempa) - 3. LUBOWA CHRISTOPHER (Administrator for the estate of the late George William Najja) ::::::::::::::::::::::::::::::::::

## **BEFORE: HON. JUSTICE GODFREY HIMBAZA RULING**

#### **Introduction**

- 1. This application was brought by Chamber Summons filed in this court on 21^st January, 2025 under Section 98 of the Civil Procedure Act Cap 282 and Order 28 Rules 1, 2, 3, 4 & 20 of the Civil Procedure Rules for the following reliefs: - a) An order doth issue for commissions for the examination of a key witness, Kakeeto Hillary Ddungu in Civil Suit no. 099 of 2024. - b) Costs of this application be provided for. - 2. The grounds of this application are contained in the affidavit in support and affidavit in rejoinder of Kakeeto Hillary Ddungu, the applicant. - 3. The first respondent filed an affidavit in reply deposed by her lawful attorney -Richard Wamala Kajjabwangu, the second and third respondents deposed

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and filed their respective affidavits in reply on 19s and 20th May 2025 respectively.

4 When the matter came up for hearing on 19th May,2025, I directed both parties to file their written submissions. The applicant filed his written submissions, the l st - 3.d respondents filed their respective submissions as well and the applicant filed submissions in rejoinder. I have considered all the above submissions while determining this application.

#### Legal Reoresentation

The applicant was represented by Mr. Mamanzi Eric of CR. Amanya Advocates & Solicitors, whereas the respondents were represented by Mr. Andrew Aler and Asaba Rukyalekere of Rwabwogo & Co Advocates. 5

## Background to the application

- The lirst, second and third respondents sued the applicant/hrst defendant Kakeeto Hillary Ddungu and several other defendants vide Civil Suit no. HCT- 17-LD-CS-O99-2O24 for malicious damage, trespass and fraud on the suit land comprised in Bulemezi Block 813 Plot 7 land at Kakinzi village measuring 141.3 hectares. The applicant together with the other codefendants filed written statements of defence. The parties dully filed a joint Scheduling Memorandum on 271t1 November 2024 as well as their respective trial bundles. 6 - The applicant/ defendant -Kakeeto upon filing a written statement of defence, filed the instant application for the aforementioned reliefs. 7

### Issues for determination.

- i) Whether this court should issue commissions for the examination of the applicant - iil What remedies are available.

## Applicant's case and submissions

8. The applicant deposed that he is of advanced age - 87 years, with a frail health and a series of chronic illnesses yet, a key witness in the main suit of which his testimony goes to the root of the main suit and is basis of his defence in the suit and as such, it would assist the court in the final disposal

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of the said suit. He further deposed that considering the aforementioned conditions, he may not be in good health to testify in the future and at an unknown time when the main suit is fixed for hearing.

- 9. It was further the applicant's deposition that without his testimony, the documentary evidence in support of his case and the interest he hoids in the suit land would be jeopardized since he is the only surviving witness of the impugned transactions. - 10. In rejoinder, the applicant deposed that he has since filed a substantive defence with preliminary objections and this demonstrates his interest in the main suit and further that Misc Application no. 0356 of 2024 is an application for security for costs being distinct from the instant application. - ¹1. Furthermore, the applicant deposed that in proving frail health and a series of chronic illnesses, he has since undergone prostate surgery and is still undergoing medical treatment in Nairobi as seen in medical and travel documents marked annexures A and B and he further reiterated his earlier averments. - ¹2. Counsel for the applicant submitted that considering the applicant's deteriorating health condition, there exists a real and imminent risk that his oral testimony may be permanently lost iI not recorded in advance of the hearing and such preservation is vital for the just and fair determination of the main suit. It was further the submission of counsel that the court should exercise its inherent powers to issue commissions since allowing such crucial testimony to be lost owing to the applicant's inability to physically attend court would not serve the interests ofjustice. - 13. Counsel further relied on the Indian case of Ram Krina Vs F Hardcastle AIR 1963 Mad lO3 and Filmistant PVt. Ltd Vs Bhagwandas AIR 1971 SC 61 and averred that it was necessary to issue commissions to have the applicant examined on oath, considering the present circumstances of the CASC. - ¹4. In rejoinder, counsel for the applicant submitted that the application for commissions is not barred by the Civil Procedure Rules from being heard 3lPa8e

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prior to scheduling and that alternatively, the joint scheduling memorandum is already on record and further that since the applicant is the sole witness, the failure to preserve his testimony would be of great harm his defence and estate's interests considering his frail medical condition.

#### Respondent'e case and submlssions

- 15. The first, second and third respondents deposed similar averments/ facts in their respective affidavits in reply that the instant application is vexatious, frivolous and abuse of court process since the applicant has never been interested in the hearing of the main suit on its merits and the applicant has failed to prosecute Misc Application no. 356 of 2024. Furthermore, the respondents deposed that the applicant has not adduced any medical evidence to prove that he is of frail health and he suffers from a series of chronic illnesses and further that the instant application is premature to the current situation. - 16. Counsel for the respondents submitted that the instant application was brought prematurely prior to the holding of a scheduling conference as required by law and as such, the same should be dismissed so that the main suit proceeds for trial. Furthermore, counsel submitted that issuing commissions without undertaking the mandatory requirement of holding a scheduling conference is in contravention ofthe Civil Procedure Rules.

## Preliminary Obiection

17. Before proceeding with this application, it is necessary to determine the preliminary objection raised by the 1st respondent before considering the merits of the application. Order 15 rule 2 of t}re Civil Procedure Rules provides as follows;

# "Issaes of Lao and Issues ol Fdct"

Where issues of both law and of fact aise in the same suit, and the court is of ttte opinion that the case or anV part of it mag be disposed of on the issues of law onlg , it shall try those issues 7t rst ond for that purpose maA ,if it thinks fit postpone the settlement of the issues of fact until afier the issues of law haue been determined.

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- 18. The lst respondent raised a preliminary objection that this application is premature as it has been brought before completion of the Scheduling Conference. Counsel for the 1st respondent relied on Order 12 rule 1 Civil Procedure Rules and Order X1A of the Civil Procedure (Amendment) Rules 2009 which provide for the scheduling conference. Counsel further relied on the case of Wanyama Manasi & 4 ors Vs. Bwire John Guloba CA No, 017 of 2O22. According to counsel for the lst respondent, this procedure ought to hrst be concluded before this application is entertained. - 19. ln reply to this, counsel for the applicant filed written submissions in rejoinder and averred that it is not true that there was no scheduling conference as both parties signed a Joint Scheduling Memorandum on 24e November 2024 and the same was filed on 27th November 2024 and that in this memorandum, agreed facts, disputed facts and issues for determination were clearly outlined and mutually consented to.

## Determination of the Prellminary oblection.

2O. The purpose of a Scheduling Conference is to narrow down on issues for determination by the court. In the Scheduling Conference, issues are agreed upon by the parties, agreed facts are also identified in order to help court not to delve into facts that are not in dispute. This is meant to expedite the hearing of the case. This is an innovation that was introduced by the Civil Procedure (Amendment) Rules. It was a departure from the early days when scheduling conference used to be conducted orally. Once the parties have filed a signed Joint Scheduling Memorandum, it is evidence that what is contained therein is what the court will admit. Parties only appear before court to highlight the agreed facts and issues before court. In the instant case, the Joint Scheduling Memorandum was already filed on court record on 27b November 2024. Th,e respondents' argument that the application for Commission was premature before the scheduling does not hold water. The purpose for the requirement that a Commission should be issued after the scheduling Conference, is aimed at ensuring that the Commission restricts itself on the issues that were framed for court's determination. I am therefore

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not convinced that the application for commission by the applicant is premature and I therefore hereby overrule the preliminary objection raised by the respondents.

# Determination of the Merits of the Application. Submissions of the applicant on issue no I

- 21. Counsel for the applicant cited three grounds upon which the application is premised. The first ground was ill health and inabilify to attend court. Counsel submitted that the applicant had documented medical history of a prior prostate surgery which resulted into multiple and ongoing health complications. The complications pose a serious and continuous threat to his life and vitality and materially impair his ability to physically appear in court for the hearing of Civil Suit no. O99 of 2024. This is under paragraph 4 of his affidavit in support of the application where he also attached a copy of his National Identity Card as proof of his age. The applicant also attached copies of medical records to his affidavit in rejoinder including evidence of a prostate surgery which he averred that it did not heal well and has resulted into persistent health complications, ieading to frequent hospital visits within Uganda and necessitating travel abroad for more adequate medical treatment. - 22. Counsel further advanced the 2"d ground being the risk of losing crucial testimony. He avers that the respondents instituted a suit against him claiming an interest in his land comprised in Bulemezi Block 813 plot 7land at Kikinzi Village measuring 141.3 hectares wherein he is the registered proprietor having obtained the same in 1973 and that him being a key witness in his defence and being the sole surviving person amongst the people who participated in the 1973 transaction in which he acquired the land, there was risk of loosing his crucial oral testimony. - 23. The 3rd ground advanced by counsel for the applicant was the interest of justice and prevention of prejudice. Relying on section 98 of the Civil Procedure Act, counsel argued that commissions are not issued to determine the substantive matter of the suit or proceeding, but an interim order

lhil,\* incidental to proceedings to protect the rights of the parties during the pendency of the suit. Counsel relied on the case of Nsubuga Edward Senveno & 9 Ors Vs. Ngambwa Ruta (Miscellaneous Application no 7O2 of 2022.

24. Counsel relied on the case of RamKrina Vs. F. Hardcastle AIR (1963) Mad 1O3 and Filmistant Pvt. Ltd Vs, Bhagwandas AIR (19711SC 61 where it was held that in such circumstances, the court could relax the general rule of attendance in court and make a departure from the rule of taking evidence of a witness in open court if the witness resides beyond the local limits of the jurisdiction of the said court or any other ground that the court deems fit.

# 25. Submissions ofthe respondents onisclr€ ne I.

- 26. The respondents Iiled separate submissions each but with similar arguments. The first, second and third respondents deposed similar averments/ facts in their respective affidavits in reply that the instant application is vexatious, frivolous and abuse of court process since the applicant has never been interested in the hearing of the main suit on its merits and the applicant has failed to prosecute Misc Application no. 356 of 2024. Furthermore, the respondents deposed that the applicant has not adduced any medical evidence to prove that he is of frail health and he suffers from a series of chronic illnesses and further that the instant application is premature to the current situation. - 27. Counsel for the respondents submitted that the instant application was brought prematurely prior to the holding of a scheduling conference as required by law and as such, the same should be dismissed so that the main suit proceeds for trial. Furthermore, counsel submitted that issuing commissions without undertaking the mandatory requirement of holding a scheduling conference is in contravention of the Civil Procedure Rules. - 28. Counsel further argued that the respondents intend to cross examine the applicant in the main suit after giving evidence on oath and that they will be prejudiced because the applicant's evidence shall not be properly tested

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through cross-examination. Counsel argued that the main suit is founded on fraud, trespass and malicious damage against the applicant who is the 1st defendant in the main suit which court must fully investigate before reaching a decision. Further, that the applicants evidence that he is about to leave the jurisdiction is speculative because he has not indicated when he intends to leave and even then, the main suit is not yet even fixed for him to be certain that on that day he will be out of the jurisdiction.

## Decision

- 29. A Commission to examine a witness, also termed as a commission to take a deposition is a judicial commission directing that a witness beyond the court's territorial jurisdiction or who is unable to attend court due to illness or otherwise to be deposed. The commission usually identifies the person to be deposed, when and where the deposition will be taken, and any other information that will help the commissioner to perform. see Black,c Law Dlctlonary Volune 9 et page 3O8. - 30. The main purpose of evidence by Commission is to facilitate the gathering of evidence in a fair and efficient manner, especially when direct court attendance is impracticable. It ensures that all relevant evidence can be considered by the court even if it is gathered outside the courtroom. - 31. Section 53 ofthe Civil Procedure Act Cap 282 states that the court may issue a commission to examine any person subject to such conditions and limitations as maybe prescribed. - 32. Order 28 rule I and 8 of the Civil Procedure Rules states; - 1. Ccrses dn uhlch court mag lssue commisslon to examlne anitnesses.

AnA court may in ang suit issue a commission for the examination on intenogatories or otherwise of ang person resident utithin the limits of its juisdiction utho is exempted under the Act from attendino the court or who is from sickness or infinnitu unable to attend it.

## 8. When deposltlon rnag be read ln evldence.

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Euidence taken under a commission shall not be read as euidence in the suit without the consent of the partg against uhom the euidence is offered, unless-

- (u) the person uho gaue the euidence is beyond the iurisdiction o-f the court. or dead. or unable from sickness or infirmitA to attend to be personallA examined, or exempted from personal appearance in court, or is a ciuil or military off.cer of the Gouemment rrho cannot, in the opinion of the court, attend tuithout detiment to the public seruice: or ... - 33. The foregoing provisions envisage that the court may issue commissions for the examination of any person on account of sickness or infirmity and that such evidence as has been recorded, shall not be read as evidence in a suit without consent of the opposite party unless that person(witness) is outside the court's jurisdiction or is unable to attend court on account of sickness or infi rmities. (emphasis) - 34. I have carefully considered the submissions of both counsel and i have noted that the applicant Kakeeto William Ddungu, in his affidavit in rejoinder reaffirmed that he is of frail health and that he suffers from a series of chronic illnesses as evidenced in annexures A and B be ing medical records from Nairobi Hospital and an air ticket to and from Nairobi. A careful scrutiny of the said annexures indicates that the applicant was diagnosed with benign prostatic hyperplasia (non-cancerous enlargement of prostate glands) and a copy of his national ID indicates that he is aged 87 years. - 35. Section 53 of the Civil Procedure Act and the enabling rules thereof posit that the court has the discretion to issue commissions for the examination of a witness who is unable to attend court on account of sickness. infirmity or where such a witness is outside iurisdiction or where their attendance of court would jeopardise public interest -security. Without a doubt, this court is vested with inherent powers to grant any remedy as the ends of justice

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may demand. See section 37 of the Judicature Act and Section 98 of the Civil Procedure Rules.

36. The applicant deposed under paragraph 7 of his affidavit in rejoinder as follows;

> "7. That...l state that I had prostate surgery two years ago and ever since then, I have been in and out of hospital and was recently referred to Nairobi for further treatment and management where I have just returned back from in May 2025"

- 37. The above evidence does not show that the applicant is unable to attend court to testify in the case. In fact it reveals that the applicant just returned from Nairobi, Kenya. It does not show whether the applicant is unable to move or find his way to court to give his testimony. It is my considered view, that the applicant seeks to preserve his testimony in anticipation of infirmity and incapacitation. However, Order 28 of the Civil Procedure Rules and the enabling legislation -Section 53 of the Civil Procedure Act, did not envision this scenario but rather envisioned circumstances where the trial of a suit is ongoing and a witness is unable to attend court and testify on account of sickness, infirmity and other prescribed reasons. The evidence adduced does not reveal that the applicant is either bed ridden or incapacitated to the extent of failure to move. To the contrary the evidence shows that the applicant has been mobile moving from Kampala to Nairobi and Back. This however does not take away the fact that he is undergoing medical treatment. The question to determine is khether the applicant is by reason of inlirmity or incapacitation is unable to attend court for hearing'. The medical evidence adduced does not indicate so. - 38. Whereas counsel for the applicant attempted to introduce a new innovation in law on preserving a witness' testimony in anticipation of imminent incapacitation likely to be caused by a prolonged illness or infirmity or even death, it must be regulated albeit jurisprudentially progressive. For instance, under Order 28 rules 7, 9, lO, 11 and 15 et al, of the Civii Procedure Rules, with regard to the issue of commissions, the court must

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appoint a commissioner and a referee to facilitate and conduct the said exercise specifying when and where it shall be conducted; and requiring that the evidence recorded be returned to court, examined and admitted on record. However, in the instant case, although the applicant is of frail health and advanced age, he is not bedridden or incapacitated and neither is he unable to attend court in the event the main suit is set down for hearing. At least no evidence is produced to that effect.

39. It is further not proved to the satisfaction of court that the applicant is outside the jurisdiction. What the applicant has informed court is that he is always within and without the jurisdiction for medical reasons. In fact paragraph 7 of his affidavit indicates that he has just returned from Nairobi;

> "7. That...l state that I had prostate surgery two years ago and ever since then, I have been in and out of hospital and was recently referred to Nairobi for further treatment and management where I have just returned back from in May 2025"

It is therefore evident that the applicant is currentiy within the jurisdiction

- 40. In view of the foregoing analysis, i am inclined to deny the applicant's prayers to issue Commissions for his examination owing to the fact that no evidence has been adduced to prove his incapacitation or inability to attend court at an appointed time or that the applicant is outside the jurisdiction of court. Despite his ill health, the purported incapacitation/ inability is speculative and anticipatory in nature and such does not fall under the parameters of Section 53 of the Civil Procedure Act and Order 28 of the Civil Procedure Rules. - 41. Moreso, the Indian authorities / case law cited herein above and relied upon by counsel for the applicant in his written submissions also do not envision speculative or anticipatory circumstances as alluded to by the applicant in his pleadings but rather, the said authorities envision instances where the trial is ongoing and the witness is unable to attend court by reason of sickness, infirmity or being outside the court's territorial jurisdiction.

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42. This court however, takes notice of the applicant's age (87 years), and his ill health which should not be taken lightly. In order to expedite the hearing and to ensure that the applicant appears and testifies in this case, i hereby direct that it be given priority by this court. I accordingly direct that the case be given three consecutive hearing dates in the month of August in order to allow the applicant to testify and thereafter have his freedom to seek medical attention.

## What remedies available

43. In the final result, this application is hereby dismissed. Each party shall bear its own costs.

## It is so ordered

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