[2024] UGCommC 62

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 2042 OF 2023 (ARISING FROM CIVIL SUIT NO. 219 OF 2017)**

**MUNYANGABE EMMANUEL (Suing through his lawful attorney MUGISHA CLEMENT PACIFIQUE) ] APPLICANT**

15 **VERSUS**

### **1. EQUITY BANK (U) LIMITED**

**2. COMMISSIONER LAND REGISTRATION ] RESPONDENTS**

#### 20 **Before: Hon. Justice Ocaya Thomas O. R**

#### **RULING**

#### **Introduction:**

This application was brought by way of Notice of Motion under Section 98 of the Civil Procedure Act, Cap 71, Orders 41 Rule 1 and 52 Rules 1 and 2 of the Civil Procedure 25 Rules, SI 71-1 seeking the following orders:

The Commissioner Land Registration doth issue certified copies of the following documents to the 1st Counter defendant –

- i. A copy of the transfer from between Jean Paul Niyonzima and Marie Grace - 30 Mfanshatuyishime as vendor and Emmanue Munyagabe and Mukamana Joseph as purchasers in respect of the land comprised in Busiro Block 349 Plot 308 at Nalumunye. - ii. A copy of the certificate of title for the land comprised in Busiro Block 349 Plot 308 Nalumunye. - 35 iii. A copy of the transfer form between Jomayi Property Consultants Ltd as Vendor on one hand and Jean Paul Niyonzima and Marie Grace Mfanshattuyishime as

- 5 Purchaser on the other in respect of the land comprised in Busiro Block 349 Plot 306 at Nalumunye. - iv. A copy of the certificate of title for the land comprised in Busiro Block 349 Plot 306 at Nalumunye. - 10 Further orders against the 1st Respondent, Equity Bank (U) Ltd doth issue certified copies of – - i. Letter of reference BG/GEN/028/2016 dated 28th July 2016 from M/s Byamugisha Gabriel & Co. Advocates addressed to the Credit Manager, Equity Bank, Nakulabye Branch in respect of a Mortgage to Munyangabe Emmanuel on 15 land comprised in Busiro Block 349 Plot 306 at Nalumunyi. - ii. Letter of reference BG/GEN/029/2016 dated 21st September, 2016 from M/s Byamugisha Gabriel & Co. Advocates addressed to the Credit Manager, Equity Bank, Nakulabye Branch in respect of a mortgage to Munyangabe Emmanuel on land comprised in Busiro Block 349 Plot 306 at Nalumunyi. - 20 iii. All documents supporting the payment of UGX 31,365,200/= to Premier Credit as the outstanding loan account of Marie Grace Mfashatuyishime and Jean Paul Niyonzima. - iv. All documents of release of the title of Busiro Block 349 Plot 306 at Nalumunyi by Premier Credit to Equity Bank (U) Ltd. - 25

This application is supported by the affidavit of Mr. Mugisha Pacifique, the lawful Attorney of the Applicant and the arguments briefly are that –

Around 15th March 2014 Jean Paul Niyonzima and Marie Grace Mfanshatuyishime sold 30 to the Applicant land comprised in Busiro Block 349 Plot 306 measuring 0.109 which is neighboring the suit land in HCCS No. 219 of 2017 and having completed the aforesaid transaction, Jean Paul Niyonzima and Marie Grace Mfanshatuyishime mortgaged to Premier Credit their land comprised in Busiro Block 349 Plot 306 land at Nalumunyi but the same was about to be a subject of foreclosure to which the Applicant was approached

35 to rescue the vendors and purchased the suit land, paid off the mortgage/loan facility owed to Premier Credit and gave the Vendors the balance of the purchase price. That for that purpose, the Applicant obtained a loan facility from Equity Bank (U) Ltd to facilitate the purchase of the suit land.


- 5 That the registered proprietors, Marie Grace Mfashatuyishime and Jean Paul Niyonzima transferred the suit land and the same was registered in the names of, Munyangabe Emmanuel the Applicant which was subsequently mortgaged to and handed over to Equity Bank (U) Ltd. - 10 That the Applicant was later shocked when Marie Grace Mfashatuyishime filed a counterclaim seeking cancelation of the Applicant's title of the suit land on grounds that she never agreed to the sale of the suit land and that her consent was not given in accordance with the law as the documents of sale and transfer were written in English yet she is illiterate in the English language. - 15

That it is in the interest of Justice that orders be granted and the aforementioned documents be obtained to enable Court to arrive at a just conclusion in HCCS. 219 of 2017.

20 The 1st Respondent filed an affidavit in reply deponed by Mr. Isiko Charles, a legal officer in the 1st Respondent Bank and briefly he stated that –

That the Applicant seeks certified copies of letters authored by M/s Byamugisha Gabriel & Co. Advocates dated 28th July 2016 and 21st September 2016 addressed to the Credit

25 Manager, Equity Bank Nankulabye branch and the 1st Respondent cannot give certified copies of documents which were not authored by them and, the 1st Respondent is not possession of the said letters being sought by the Applicant.

That the Applicant is also seeking all documents supporting the payment of UGX 30 31,365,200/= to Premier Credit as the outstanding loan account of Marie Grace Mfashatuyishime and Jean Paul Niyonzima which are not of the 1st Respondent as the money was deposited on the Applicant's account on the 29th of June 2016 and the 1st Respondent was not party to the transaction between the Premier Credit and Marie Grace Mfashatuyishime and Jean Paul Niyonzima. The deponent attached a copy of the

35 Applicant's loan statement marked annexure A.

That the Applicant also requested for all documents of release of the title of Busiro Block 349 Plot 306 at Nalumunyi by Premier Credit to the 1st Respondent. That it is common 5 practice in banking that the release of mortgage documents is handed over to the borrower who was Marie Grace Mfashatuyishime and Jean Paul Niyonzima.

That the 1st Respondent cannot offer certified copies of documents which were not authored by it as the same documents being requested for were authored by Premier

10 Credit.

Further that the Applicant brought the application under the wrong law and they intend to raise an objection to the same.

The Applicant filed an affidavit in rejoinder deponed by Mr. Mugisha Pacifique and he 15 responded that –

In rejoinder that he knows by letter dated 14th day of June 2016 from the 1st Respondent to Premier Credit Ltd, the 1st Respondent requested for information and all documents relating to the loan and mortgage held by Jean Paul Niyonzima and Marie Grace Mfashatuyishime in respect of the suit land and it is desired that the Applicant have a

20 copy of the said letter.

That he also knows that by the letter dated 15th June 2016 from Premier Credit Ltd to the 1st Respondent's letter of 14th June 2016 disclosing and clarifying the full details of the loan and mortgage of the said Jean Paul Niyonzima and Marie Grace Mfashatuyishime

25 held with them in respect of the suit land and it is desired that we have a copy of the said letter. The deponent attached copies of letters marked "U" and "V" respectively.

That the 1st Respondent confirmed that she deposited money on the Applicant's Account on the 29th day of June 2016 and she attached bank statement.

That the bank statement from the 1st Respondent further indicates that on the 30th June 2023, a transfer of UGX 25,546,200/= from the said Applicant's account to Premier Credit Ltd was made.

35 That the revelation further stamps the fact that the 1st Respondent participated in the transactions that led to pay off the loan held by Maria Grace and Jean Niyonzima and it is the documents regarding their involvement in the process to wit the certified copy of the bank statement and documents relating to transfer of funds from the Applicant's 5 Account which is domiciled in their bank and correspondence in regards to the subject that we desire to access.

Further that in paragraph 11 of the 1st Respondent's Written Statement of Defense, the 1st Respondent admitted to having received the certificate of title for the suit land 10 described as land comprised in Busiro Block 749 Plot 306 at Nalumunye upon payment of UGX 31,365,200/= by the Applicant to Premier Credit Ltd on the 29th June 2016. The deponent attached a copy of the 1st Respondent's Written Statement of Defense as annexure "S".

- 15 It is pertinent to note at this stage that the 2nd Respondent, Commissioner Land Registration was not a party in the main suit and has not filed a response or entered an appearance in this application despite being served with the notice on the 11th December 2023 and the same was acknowledged with the official stamp appended on the hearing notice and, an affidavit of service to that effect was sworn by a process server Mrs. - 20 Zawedde Pauline. The affidavit of service was filed in Court on the 14th of December 2023.

The brief background of this matter is that the Applicant is the Plaintiff in Civil Suit No. 219 of 2017 instituted against the 1st Respondent as 1st Defendant, Marie Grace 25 Mfashatuyishime, as 2nd Defendant and Jean Paul Niyonzima, as the 3rd Defendant respectively seeking damages for breach of contract and fiduciary duty of care among others. The 2nd Defendant/ counterclaimant filed a counterclaim arguing lack of consent in the transaction of the suit land hence this application by the Applicant seeking to obtain documents relating to the transaction of suit land.

#### **Representation:**

The Applicant was represented by the law firm of M/s Datum Advocates (formerly Kibuuka Rashid & Co. Advocates) while the 1st Respondent was represented by M/s OSH Advocates and the 2nd Respondent did not enter appearance and was unrepresented.

#### **Evidence and Submissions:**

The Applicant led evidence by way of an affidavit deponed by Mr. Mugisha Pacifique, the lawful Attorney of the Applicant in support of the application and the 1st Respondent 5 equally led evidence by way of an Affidavit in reply deponed by Mr. Isiko Charles, a legal officer in the 1st Respondent Bank. The 2nd Respondent did not lead evidence.

Both the Applicant and 1st Respondent filed submissions in support of their respective cases. I have considered all the submissions of the parties before coming to the ruling 10 below, suffice to say that I have not seen the need to reiterate the same below but will

refer to them where appropriate in the decision.

## **Decision:**

## 15 **PART ONE: DECISION ON PRELIMINARY POINT OF LAW**

The 1st Respondent raised a Preliminary point of law on the propriety of this application, that the Applicant brought this application under the wrong law.

The 1st Respondent contended that the action sought is a discovery under Order 10 Rule 20 12 and 24 of the Civil Procedure Rules.

A preliminary objection raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It is thus based on a commonly accepted set of facts as pleaded by both parties. It cannot be raised if any fact has to be ascertained

- 25 or if what is sought is the exercise of judicial discretion. Preliminary objections relate to points of law, raised at the outset of a case by the defence without going into the merits of the case. In any preliminary objection therefore, there is no room for ascertainment of facts through affidavit oral evidence. See **Yaya Farajallah v Obur Ronald & Ors HCCA 81/2016** - 30

Matters that require evidence cannot be entertained as preliminary objections but must instead be resolved in the main suit. See **Lweza Clays & Another vs Tropical Bank & Another, SCCA 31 of 2018, Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696.**

In determining a preliminary point of law, the court must consider the pleadings and assume the contents therein to be correct. See **Mukisa Biscuit Manufacturing Co v West End Distributors [1969] EA 696, N. A. S. Airport Services v Attorney General [1959] EA 53.**

- 5 Counsel for the 1st Respondent contended that what the present application is really an application for discovery which ought to have been premised on Order 10 Rules 12 and 24 and ought to have been brought by chamber summons and not the notice of motion employed by the Applicant. The 1st Respondent also contended that the Applicant could not have premised its application under Section 98 of the Civil Procedure Act as the same - 10 only applies where there isn't a specific provision conferring a remedy, in which circumstances this court's inherent powers, preserved by the above provision may be invoked.

This Application was brought by way of a Notice of Motion under Section 98 of the Civil 15 Procedure Act, Cap 71, which gives Court discretionary powers and Order 52 Rules 1 and 2 provides for the mode of proceeding by way of Notice of Motion where the rules does not provide for a particular mode of proceeding.

Order 10 rule 12(1) of the Civil Procedure Rules provides that:

20 *"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. "*

Order 10 rule 24 provides that

25 *"Applications under this Order shall be by summons in chambers."*

I agree with the submissions of Counsel for the 1st Respondent that this is essentially an application for discovery. What is more, the Applicant premised their application on Order 41 of the CPR which is inapplicable in the present circumstances.

The question then becomes, what is the effect of proceeding by the wrong law and the wrong procedure? it is now settled law that reliance on the wrong law, or the presentation of an application under the wrong law is not fatal, as long as the court has jurisdiction to entertain the application and the procedure utilised can accommodate the application.

35 See **Article 126(2)(e), Saggu v Roadmaster Cycles Ltd 2002 1 EA 258. Gids Consults Limited & Anor v Naren Mehta HCMA 864/2022, Joselyne Kalembe v Buildnet Construction Materials and Hardware H CIP 7/2022.** - 5 In the instant case, the application was brought before a court with the jurisdiction to entertain it, but by notice of motion instead of chamber summons. The distinction between the two modes of commencement is very small and both modes rely on a motion supported by affidavit evidence. In my view, whereas the wrong commencement mode was employed, it is nonetheless one that can support the application. The situation would - 10 have been different, for example, if this application had been filed in a Magistrate's court (which wouldn't have jurisdiction) or by a non-compatible mode.

I therefore take the view that such an error is not fatal and would not warrant the dismissal of this application. Accordingly, I overrule this objection.

## **PART II: DECISION ON MERITS OF THE APPLICATION**

## **Order 10 Rule 12 (1)** of the CPR provides thus

"Any party may, without filing any affidavit, apply to the court for an order directing any 20 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." The key considerations for the grant of an application for discovery or production are;

- (a) The discovery or production should be necessary for the determination of the dispute between the parties. - 25 (b) The documents sought are in the possession/power of the party against whom discovery or production is sought. - (c) The discovery or production is not a "fishing expedition" by the seeking party.

30 Necessity of Discovery

In **Simbamanyo Estates Limited & Anor v Equity Bank Uganda Limited & Ors, HCMA 583/2022**, the court explained the requirement for relevance in applications of this manner in this way

35 "The application must reasonably be calculated to lead to the discovery of admissible evidence. For an order of discovery to be made, the document or information must first be shown to be relevant since evidence is inadmissible if it is not relevant. To be considered relevant, the document or information must have any tendency to make the

- 5 existence of any fact of consequence to the suit more or less probable than it would be without the evidence. A document is "material" if it is being offered to prove an element of a claim or defence that needs to be established for one side or the other to prevail. The Applicant must show a reasonable expectation that the material sought will aid in resolution of the suit. Discovery rules are given broad and liberal treatment such that even - 10 very weak material evidence will be deemed relevant if it has any tendency to prove or disprove a fact in issue. This helps explains why so often an order of discovery will be made in respect of even the very weakest of evidence, so long as it does not reach the speculative level. Such evidence is often ruled admissible at this stage "for whatever it is worth," since after all, it is for the Court ultimately to judge the sufficiency or weight of - 15 the relevant evidence.

In **Kabaka of Buganda v Male Mabirizi CACA 187/2017**, the court held that the documents sought must advance the applicant's case or destroy the Respondent's case.

- 20 The Applicant contended that the purpose of the application for discovery was to demonstrate the complicitly of the 2nd Counterclaimant in the impugned transaction, which would run contrary to her averments in the pleadings that the same transaction was entered without her consent, and the documents were executed in a language she is not familiar with. - 25

In my view, the Applicant has demonstrated in respect of all but one of the documents sufficiently the necessity and evidential value of the impugned documents, and I return the finding that this requirement is made out.

30 The Applicant sought a copy of the transfer form and certificate of title in respect of land described as Busiro Block 349 Plot 308 at Nalumunye. My reading of the pleadings and evidence shows that the suit property is Busiro Block 349 Plot 306 and the Applicant did not demonstrate the need for the above stated documents in respect of Plot 308. I therefore find that the relevance of these documents has not been made out.

5 The documents sought are in the possession/power of the party against whom discovery or production is sought.

I will find determine the questions as to custodianship of all the documents in respect of which discovery against the 1st Respondent is sought with the exception to the certificate of the title and transfer forms in respect of Busiro Block 349 Plot 308.

In the **Sibamanyo Case** *(supra),* the court explained the requirement for possession or control in the following manner:

"To be subject to production or inspection, the documents sought must be within the respondent's possession, custody, or control. The expressions are in the disjunctive and

15 therefore only one of the requirements must be met. Actual possession of the document is unnecessary if the party has control of it. All that is required is for the Respondent to either have physical possession of the document, or have a right to possession of the document that is equal or superior to the person who has physical possession of the document."

Counsel for the 1st Respondent contended that the documents referred to are not in its control because

- (a) It does not have possession of the said letters - (b) The documents supporting the payment of UGX 31,365,200 are not in - 25 the possession of the 1st Respondent as the transfer was made on 29 June 2016 and the 1st Respondent was not a party to the transactions with Premier Credit Limited ["PCL"] - (c) The documents of release of the title to land described as Busiro Block 349 Plot 306 are not in the 1st Respondent's possession as they were 30 handed over to the borrower.

In respect of the documents referred to in (b) above, it was the Applicant's evidence that the 1st Respondent wrote to PCL seeking information and all documents relating to the loan between PCL and John Paul Niyonzima ["JPN"] and Marie Grace Mfashatuyishime

35 ["MGM"] vide a letter dated 14 June 2016, that the said details were provided in a letter by PCL to the 1st Respondent dated 15 June 2016.

5 What is clear is that the 1st Respondent facilitated the release of the mortgage by PCL by advancing to the borrower the sums owing on the loan. It is unlikely that the 1st Respondent would advance money for the satisfaction of the debt of JPN and MGM without corresponding contractual arrangements with them. I found the contentions made by the 1st Respondent on this head rather unconvincing since the evidence shows a

10 record of its participation.

Regarding documents mentioned in (a) and (c) above, and also applicable to documents in (b), the starting point is Section 46(6) and (7) of the Financial Institutions Act which provides for the preservation of transactional documents and information for a minimum 15 ten-year period. Accordingly, it is my firm view that the said documents are within the control of the 1st Respondent.

I however reject the submission of Counsel for the Applicant that the Evidence (Banker's Books) Act is applicable in the instant case. The definition of "Banker's Books" in Section 20 2(b) of the said act does not cover correspondence, contracts or security documents in my view. The act is confined to financial and other entries dealt with in accounting books (including financial records and books of first entry).

As regards the question of certification, the 1st Respondent contended that the documents 25 sought are authored by others and cannot be certified by it. First, one of the documents sought is the letter dated 14th June 2016 said to be authored by the 1st Respondent and therefore, this can be certified by it. As regards the other letters and documents, the purpose certification is not always to demonstrate the source of the document from the first author.

A recipient of a document may, in appropriate circumstances, certify that the copy provided is an accurate copy of the document they received. This, in my view, is what is sought. I therefore found the contentions of counsel for the 1st Respondent to this end unhelpful.

As regards the transfer forms and copies of the certificate of title in respect of Busiro Block 349 Plot 308, I take the view that the relevance of the certificate of title and transfer forms in respect of Busiro Block 349 Plot 308 has not been demonstrated to me. I have reviewed

- 5 the plaint, defence and the pleadings in this application and all of them are confined to Busiro Block 349 Plot 306 not Plot 308. In the plaint, the reliefs sought by the Applicant deal with Plot 306 and not 308. There isn't any reference of Plot 308 and I have not been provided with an explanation as to the relevance or effect of the documents sought in respect of Plot 308 to the Applicant's claim herein. Therefore, I do not find the need to - 10 comment about whether the prayer for discovery of these documents meets the rest of the discovery criteria.

## The discovery or production is not a "fishing expedition" by the seeking party

As a principle of law, applications of this nature will be rejected if they are being used by

15 a party to found a claim [what is famously called "a fishing expedition"]. See **Real Engineering Contractors v Rubanda District Local Government HCMA 53/2021**.

As noted above, the Applicant contended that the purpose of the application for discovery was to demonstrate the complicitly of the 2nd Counterclaimant in the impugned 20 transaction, which would run contrary to her averments in the pleadings that the same transaction was entered without her consent, and the documents were executed in a language she is not familiar with. In my view, the Applicant has demonstrated sufficiently the necessity and evidential value of the impugned documents, and I am convinced that this application is not a fishing expedition.

## **Conclusion**:

In the premises, I make the following orders;

- (a) This Applicant's application for discovery of the certificate of title in - 30 respect of Busiro Block 349 Plot 308 is declined. - (b) The Applicant's application for discovery of the transfer form between Jean Paul Niyonzima and Marie Grace Mfanshatuyishime as vendors and Emmanuel Munyangabe and Mukama Joseph as purchasers in respect of Busiro Block 349 Plot 308 is declined. - 35 (c) Discovery of all other documents indicated in the Applicant's notice of motion is allowed.


- 5 (d) The Respondents are hereby ordered to provide the Applicant with the documents in (C) above within thirty (30) days from the date of this ruling. - (e) Costs of this application shall be in cause. - 10 I so order.

Delivered electronically this\_\_\_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_2024 and uploaded on ECCMIS. 27th March

**Ocaya Thomas O. R Judge, 27th March, 2024**