[2025] UGCommC 167

| 5 | THE REPUBLIC OF UGANDA<br>IN THE HIGH COURT OF UGANDA AT KAMPALA<br>[COMMERCIAL DIVISION]<br>MISCELLANEOUS APPLICATION NO. 29 OF 2023 | | | |-------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------|---|------------| | | | | | | | | | | | | | | | | [ARISING FROM CIVIL SUIT NO. 489 OF 2020] | | | | | 10 | PEGASUS TECHNOLOGIES LIMITED | ] | APPLICANT | | | VERSUS | | | | 15 | 1.<br>UGANDA REVENUE AUTHORITY | ] | RESPONDENT | | | 2.<br>ATTORNEY GENERAL | ] | | | | | | |

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

#### 20 **RULING**

#### **Introduction**

This application is brought under Section 98 of the Civil Procedure Act ["CPA"] and Orders 16 Rule 1 and 52 Rule 1 of the Civil Procedure Rules ["CPR"]. The Application seeks the 25 following orders:

a. An order to the Commissioner – Domestic Taxes at the 1st Respondent to produce the tax returns of the Defendants in Civil Suit No. 489 of 2020, namely: — Women Initiative for Rural Development Organization, Ridge Infrastructure Limited, Namulundu Medical Centre, Katatumba Safaris (U) Limited, Great Wolf Hotel Limited, 30 Doshi Hardware (U) Limited, Dalalaat Safaris (U) Limited, Angel Plus Cleaning Services Limited, Kadodo 256 Ndamiya Safaris, Bamwenda Benard, Akumu Justine, Nakalema Sarah, Uwera Agnes, Makela Aigbe Asagumaja, Othengho Makanga Patrick, Esther Chosen Makanga, Rugirwa Katatumba, Kakuta Geofrey, Nadia Shakira, Simon Peter Mutabule, Gerald Mutabule, Mukasa Wasswa 35 Rodgers, Katamba Geofrey, and Namara Sheena Ndamiya showing the incomes


- 5 received and declared to the 1st Respondent for the period between January 2018 and December 2019. - b. An order to the Commissioner Directorate of Citizenship and Immigration Control, Ministry of Internal Affairs to produce the travel history/immigration details of the following persons: David G Macneil, Mark Carruthers, Neeta Chandiramani Surlak, 10 Marcelo De La Rosa, Vicki Coffman, Peter, Ed Philip, Anthony, Karen Wilson-Polak, Olivia Stevens, Davies Morgan, Gulf Harbour, Shae Lange, Dominic Cato, Keith Greenaway, Jennil Wallace, Ns, Yudan Jia, Katrin Holzer, Christina Thuresson, Jacqueline J Leeder, Cecilia Toftero, Cheryl Ann Jarrett, Travis Egenolf, Pamela Brown, Sulfania J Facchini, Silvia Saiki, Eduardo L Antonioli, Connie Bridges, Kimberly 15 Williams, Samanta B Garcia, Edivaldo Rocha Barbosa,Vitor P Da Silva, Katiuscia R Araujo, Anderson R Carvalho, Maria S N Guimaraes, Samira S Marques, Kyle Clary, Bonnie Myers, Vanderkuyl Vincent, Victor Siu, Wick Curtis, Chaoying Luo, Christopher Ryan, Virginia Guilfoile, Sang-Sik Lee, Angellee Halloran, Junghee Jin, Charles Dubin, Fernando Gracian, Gary Spears, L Katz, Tracey Bird, Travis Rittenhouse, Sin Duk Baik, 20 Collin Knauss, Cho Eun Young, In-Sun Yoo, Clara Choy, Lauren Wessinger, Larry Alderink, Troy Spitzer, Denise Digirolomo, Kary Mccoy, Joo Kyung Sook, Lee Sook Mee, Chan Mee Lee, Robert N Schuster, Bonnie Myers, Myers Kristopher, Jones Bonnie Myers, Scott Seldin, Craig Scheffert, Ron Hammett, Frank Anselmo, Charles Evans, Vincent Vanderkuy, Kyung-Un Weeks, S. Chan Mee Lee, Lee Sook Mee, Ju Yong Jin, 25 Keunhyeog Kwon, Joo Inyeong, Kim Hwaja, Aigbe Asagumaja, Peter Lee, Massimo Guida, Robert Fus John Battle, Nicolas Della Maddalena, A. Mahesh Mapa, Jim Knecht, Nancy Spencer, Pascale Lavoie, Luc Lvesque, Bryan Smith, Hubbard Supply, Marlene Faber, Will Hostetler, Sandra Nilles, Clair Ressa, Felix Audy, Karime F G Manoel, Michael A C Baldez, Maria S N Guimaraes, Samira S Marques, Kirk Edwards, Cheryl 30 Rule, Lynette Mustakos, Debbie I. Whitcomb, Kelly Tisher, Carol C Miller, Jan L Londowski, Debborah D Meschke, Linda M Oneil, Carol L Pealer, Cloretta P Pettway, Kathleen Francis, Gustavo J Rodriguez, Kathleen Francis, Nancy Lillegara, Raymundo Gutierrez, Donna J Wendell, Sherrie Schroen, Claire Houser, Lauren Hartmann, Graham Watson, Laurie A Karnopp, Pamela A Boccia, Debra A Berger, Angela Hoover, 35 Julie Taylor, Sharon Wilkens, Doug Basham, Robert Janisch, Susan Tracy, Doug

- 5 Basham, Gary Smith, Shantelle Owens, Theresa Gwillim Shantelle Owens, Rebecca Zimbelman, Minerva Ruiz, Lynette Mustakos, Debra A Berger Catherine Pelletier, Susan J. Burkenstock, Nebie Coku, Nicholas Prass, Mary E Bishop, James Hathaway, Fonda Gaylord, Pasquale Renzi, Debra Lavoie, Daisy L Ayre, Janet Fournier Shauna L Healy, Karen A Gregory, Edmund T Fung, Samantha Brown, William Becker, Henrique 10 Lourencon Jr, Pablo Roig, Jose Rodrigo, Aaron Remedios, Abbie Heidenreich Cassidy Whitaker, Eileen Ofman, Catherine Mcgauchie, Hoppus Copus, Matt Anderson Masako Funahashi, Gunter Luckner, Michel Labrie, Cintia O Siqueira, Vitor Santos, Gabriel Ana Paula M Soares, Gilberto P Borges, Maria A P Carlin, Helena Wang, Sally Foster, Pablo Roig, Jose Rodrigo, Aaron Remedios, Nina C. Allen, Janet Cloninger, Jessica Fix, Judy 15 Ashley, Paulo Marcelo Enghi, Sally Foster, Steven Liberty, Mary Pavone, Ann Giles,Julie Ann Laue Ramonz Height, Karen A Gregory, Victory Opuwari, Luanne Mullen, Neeta Chandiramani Surlak, Francois Pedrio, Mark Carruthers, Neeta Chandiramani Surlak, Marcelo De La Rosa, Joao Masela, David G Macneil, Airgenuity Inc, Mark Carruthers, Neeta Chandiramani Surlak, Marcelo De La Rosa, Vicki Coffman, 20 Peter Peter, Ed Philip, Anthony, Karen Wilson-Polak Olivia Stevens, Davies Morgan, Shae Lange, Dominic Cato, Keith Greenaway, Jennil Wallace, Ns, Yudan Jia, Katrin Holzer, Christina Thuresson, Luanne Mullen, Francois Pedrio, Joao Masel for the period of January 2018 and December 2019. - c. Costs of the Application. - 25

# *The Applicant's case:*

The Applicant asserts that it is a company incorporated in Uganda and engaged in the business of software development, offering financial and billing solutions. The Applicant is also the plaintiff in HCCS 489 of 2020 [Pegasus Technologies Limited v Women Initiative For

30 Rural Development Organisation & Ors] from which this application arises. The Applicant contends that it was contracted by Stanbic Bank Uganda Limited to provide e-commerce aggregation services so as to allow for sub-merchants like the 1st-9th Defendants in the main suit to sign up on the Flexi Pay platform and receive online payment options for the sale of their goods and services.

- 5 Between February 2016 and February 2018, the Applicant was approached severally by representatives from Women Initiative for Rural Development Organization, Ridge Infrastructure Limited, Namulundu Medical Centre, Katatumba Safaris (U) Limited, Great Wolf Hotel Limited, Doshi Hardware (U) Limited, Dalalaat Safaris (U) Limited, Angel Plus Cleaning Services Limited, and Kadodo 256 Ndamiya Safaris (the 1st – 9th Defendants in the - 10 Main Suit) seeking to use the Applicant's software to aggregate the online payments for their goods and services using the Applicant's Flexi Pay platform. Consequently, the Applicant contracted the defendants in Civil Suit No.489 of 2020 and signed them up to FlexiPay platform as sub-merchants. - 15 Sometime in 2018, the Bank identified suspicious online transactions on the accounts of the 1st – 9th Defendants in the main suit and hence conducted an investigation which disclosed a number of fraudulent transactions on several dates done by Bamwenda Benard, Akumu Justine, Nakalema Sarah, Uwera Agnes, Makela Aigbe Asagumaja, Othengho Makanga Patrick, Esther Chosen Makanga, Rugirwa Katatumba, Kakuta Geofrey, Nadia Shakira, Simon Peter - 20 Mutabule, Gerald Mutabule, Mukasa Wasswa Rodgers, Katamba Geofrey, and Namara Sheena Ndamiya (the 10th – 24th Defendants in the main suit) using the various merchant codes given to the 1st – 9th Defendant companies in which they are Directors.

As a result of an investigation commissioned by the Applicant into the said suspicious 25 transactions, a report was issued by ABS Consulting Group (the Forensic Investigation Report) detailing findings that the Defendants in Civil Suit No. 489 of 2020 had jointly and severally perpetrated fraud by illegally accessing the card details of several visa cardholders and used the same to trigger a number of transactions in their favor amounting to UGX. 2,303,169,441 (Two Billion, Three Hundred and Three Million, One Hundred and Sixty-Nine 30 Thousand, Four Hundred and Forty-One Shillings).

The above-mentioned amount accrued as a result of chargebacks by the card issuer (Visa) following reports from the cardholders that suspicious online card transactions had been executed by the Defendants in Civil Suit No. 489 of 2020 through the Flexi-pay platform. The 5 Applicant was obliged to indemnify Stanbic Bank for the aforementioned sum which had been charged back by Visa and commenced Civil Suit No. 489 of 2020 – Pegasus Technologies

Limited versus Women Initiative for Rural Development Organization, Ridge Infrastructure Limited and 23 Others to recover the same from the said merchants.

As part of their defense, the aforementioned Defendants in Civil Suit No. 489 of 2020 alleged that any money withdrawn from the accounts of the cardholders referred to in the Forensic Investigation Report accrued from genuine payments made by the Respondent's customers/clients, and not through fraudulent transactions on the Flexi-Pay platform.

When and if there are documents relevant to a matter in issue in the proceedings before the Court, the Court may issue summons to any person, even though such a person is not a party to the suit and any such person summoned shall be obliged to appear before the court or cause the appearance of the documents required before the court.

Based on the defense advanced by the Defendants in the main suit that their services were consumed in Uganda by their alleged customers – the cardholders referred to in the Forensic Investigation Report – the 1st Respondent is in possession of information detailing the income received by the said Defendants and declared to the 1st Respondent pursuant to their

25 legal obligations to file tax returns.

Where, as alleged by the Defendants in the main suit, services are provided to foreign nationals in Uganda, the entry and exit of such foreign nationals to and from Uganda must be documented with the Ministry of Internal Affairs. As such, the Commissioner – Directorate

30 of Citizenship and Immigration Control in the Ministry of Internal Affairs is in possession of the travel history and/or immigration details of the persons alleged to have traveled to Uganda, consumed goods and/or services from the Defendants in the main suit, and paid for them through the Flexi Pay platform.

The tax returns and immigration documents in the possession and power of the 1st and 2nd 5 Respondents respectively relate to and are relevant to the resolution of matters in issue in the main suit namely, whether the cardholders referred to in the Forensic Investigation

Report indeed traveled to Uganda and consumed the services of the Defendants in the main 10 suit in Uganda as alleged by the said Defendants in their Written Statement of Defense.

Accordingly, the Applicant sought the above stated orders from this court.

## *1st Respondent's Reply*

- 15 The 1st Respondent opposed this application and contended as follows. The 1st Respondent is not a party to HCCS 489/2020 and that the present application was wrongly brought by Notice of Motion instead of Chamber Summons. The Applicant asserted that the information included in a tax return is mandated to be kept secret and confidential and can only be disclosed for purposes of a tax law. Additionally, the documents requested for are not - 20 relevant to the determination of HCCS 489/2020 and do not relate to the matter at hand. Additionally, the Applicant does not state the specific returns they seek to obtain and accordingly, the present application seeks to conduct an unreasonable investigation into the affairs of the 1st Respondents by delving into tax returns filed by taxpayers. Additionally, the application is malafide, brought in bad faith, constitutes an abuse of court process as there is - 25 no justifiable reason to warrant the discovery and production of the said documents. Accordingly, this application should be dismissed with costs.

# *2nd Respondent's Reply*

The 2nd Respondent opposed this application and contended as follows; The 2nd Respondent 30 contends that it is not a party in the main suit and accordingly the present application is improperly brought against it. Order 16 Rule 1 of the Civil Procedure Rules ["CPR"] on which the application is premised is not relevant since the Director of Citizenship and Immigration control to appear as a witness and accordingly the proper procedure is Order 10 Rule 12 of the CPR. Additionally, that the present application ought to have been commenced by

35 Chamber Summons and Notice of Motion.

- 5 The 2nd Respondent additionally contends that there is no entitlement to discovery as the applicant has not proven that the information exists and is within the custody of the other party and additionally, that the Applicant has not demonstrated that the said persons entered or exited the country during the period claimed. Additionally, that the said persons that are subject of this application are neither parties nor witnesses to the main suit. The 2nd - 10 Respondent further contends that there is no evidence that a request was made to the Directorate of Citizenship and Immigration prior to the institution of this application and there aren't sufficient details in the application of the nationalities, dates of birth, specific travel dates or other information which can enable the 2nd Respondent adequately prepare the information requested and therefore there is a high likelihood of error in any such - 15 attempt. Accordingly, the application is in bad faith, brought using the wrong procedure, is malafide, constitutes an abuse of court process and accordingly, ought to be dismissed with costs.

## **Representation**

20 The Applicant was represented by M/s Signum Advocates. The 1st Respondent was represented by Counsel from its Legal Services and Board Affairs Department while the 2nd Respondent was represented by Counsel from the Attorney General's Chambers.

# **Evidence and Submissions**

25 The Applicant led evidence by way of an affidavit in support of the application deponed by Ronald Azairwe, the Applicant's Managing Director. The 1st Respondent led evidence by way of an affidavit in reply deponed by Orishaba Simon Peter, a legal officer in the 1st Respondent's Legal Services and Board Affairs Department. The 2nd Respondent led evidence by way of an affidavit in reply deponed by Musota Brian, a state attorney in the 2nd 30 Respondent's chambers.

All parties filed submissions in support of their respective cases which I have had the opportunity to consider. For brevity, I have not felt the need to reiterate them below, except to note that the court read and considered them before arriving at its decision below.

## 5 **Decision**

Before delving into the merits of the present application. The Respondents challenged the competence of this application on two premises:

- (a) The 1st and 2nd Respondents are not parties to the main suit and, accordingly, have been improperly joined to the present application. - 10 (b) The present application has been improperly commenced by notice of motion.

## Non-Parties to Main Suit

The Respondents contended that the application was improper as against them since they are non-parties to the suit and the same was a Miscellaneous Application. This objection does

- 15 not hold any merit. The starting point is that there is no rule requiring a party to confine interlocutory applications to parties to the main suit. An application is a suit on its own under the provisions of Section 2(x) of the Civil Procedure Act. - Such an application would only be improper if it seeks preservatory/temporary reliefs 20 against a party in respect of whom no suit has been brought for substantive reliefs. Such an application would prejudice a party since they would only be confined to a hearing on the interlocutory reliefs, without being afforded an opportunity for a hearing on the substantive reliefs sought. In any case, such prejudice can be remedied by an oral application for leave to amend and join them in the main suit (or by an amendment without leave if permissible) or - 25 by the court joining them to the main suit suo moto and ordering the plaintiff to amend its pleadings to clearly particularize any claim it may have against a party.

In the present case, the Respondents are not necessary for the determination of the main suit as the same is not a dispute on immigration or tax, but one of fraud for which the evidence

30 may include aspects of tax declarations or immigration declarations. Accordingly, a party may join the custodians of such records/documents sought to be discovered notwithstanding that the same are non-parties to the main suit. See **Simbamanyo Estates Limited & Anor v Equity Bank Uganda Limited & Ors HCMA 583/2023**

#### 5 Improper Procedure

I note that the application is commenced by Notice of Motion under Order 16 Rule 1, which deals with the issuance of witness summons for the attendance of witnesses. The Applicant in its submissions did not make reference to Order 16 Rule 1 of the CPR. Additionally, the Applicant did not make any prayers for the summoning of any persons. The thrust of the applicant's

10 application, as I understand, is not one for summoning of any person to attend court as a witness or to produce documents (since there is no issue regarding the custody of any documents) but one for the production of certain documents/records identified in the Applicant's application.

As correctly observed by Counsel for the Respondents, the proper rule on which this 15 application ought to have been premised is **Order 10 Rule 12**. The said rule provides thus: "(1) 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.

- 20 (2) On the hearing of the application the court may either refuse or adjourn the hearing, if satisfied that the discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit; except that discovery shall not be ordered when and so far as the court shall be of opinion that it is not necessary either for disposing - 25 fairly of the suit or for saving costs."

**Order 10 Rule 24** of the CPR provides that all applications under the said order, including applications for discovery under Order 10 Rule 12 are by chamber summons and not notice of motion. What impact does this have on the present application?

This court notes that a party proceeding under the wrong law is not fatal as long as jurisdiction exists to determine the application and the suit can be determined using the procedure utilised.

See **Gids Consults Limited & Anor v Naren Mehta HCMA 864/2022, Saggu v Roadmaster** 35 **Cycles Ltd 2002 1 EA 258, Cwezi Properties v UDB HCMA 1315 of 2022**

- 5 In my considered view, there is no practical difference between a Notice of Motion and Chamber Summons since the evidence in each procedure is by affidavit. Additionally, the application has been presented before the same court which would have had jurisdiction to hear and determine it had it been brought by the proper procedure. It follows that there is no prejudice that the Respondents would suffer, and accordingly, the procedure non- - 10 compliance impugned is not fatal.

#### **DECISION ON MERITS OF THE APPLICATION**

**Section 22(a)** of the Civil Procedure Act provides thus:

"Subject to such conditions and limitations as may be prescribed, the court may, at any time, 15 either of its own motion or on the application of any party—

- (a) 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, impounding and return of documents or other material objects producible as evidence;" - 20

# **Order 10 Rule 12** *(Supra)*

By virtue of Order 10 rule 12 of *The Civil Procedure Rules*, any party may, without filing any affidavit, apply to the court for an order directing any other party to the suit to make 25 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 court therefore may, at any time during the pendency of any suit, order the production by any party to the suit, upon oath, of such of the documents in his or her possession or power, relating to any matter in question in the suit, as the court may think right; and the court may deal with the documents, when

- 30 produced, in such manner as may appear just. Upon hearing such application, the court may either refuse or adjourn the hearing, if satisfied that the discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit; except that discovery will not be ordered when and so far as the court is of opinion that it is not necessary either for - 35 disposing fairly of the suit or for saving costs.

# 5 See **Dresdner Bank Ag. v. Sango Bay Estates Ltd (No. 3) [1971] 1 EA 326 and Dresdner Bank Ag. v. Sango Bay Estates Ltd (No. 4) [1971] 1 EA 409), Simbamanyo Estates & Anor v Equity Bank Uganda Limited & Ors HCMA 853/2024**

Discovery is intended to accomplish the following results: (1) to give greater assistance to 10 the parties in ascertaining the truth and in checking and preventing perjury; (2) to provide an effective means of detecting and exposing false, fraudulent and sham claims and defences; (3) to make available, in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with great difficulty; (4) to educate the parties in advance of trial as to the real value of their claims and defences, thereby encouraging settlements; (5) to 15 expedite litigation; (6) to safeguard against surprise; (7) to prevent delay; (8) to simplify and narrow the issues; and, (9) to expedite and facilitate both preparation and trial. Discovery tends to make a trial less a game of tactics and surprise and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. It is a tool so useful in guarding against the chance that a trial will be a lottery or mere game of wits and the result at the

20 mercy of the mischiefs of surprise. See **Simbamanyo Estates & Anor v Equity Bank Uganda Limited & Ors HCMA 853/2024**

In the exercise of its discretion, the Court shall take into account the proportionality of the discovery to the needs of the case, considering the significance of the issues in controversy, 25 the quantum of the claim, the respective ability of the parties to access relevant information, the resources available to the parties, the materiality of the discovery in resolving the issues in dispute, and whether the burden or cost of the proposed discovery outweighs its potential benefit.

30 Discovery extends to any non-privileged document that is relevant to the matters in issue in the proceedings, including the existence, description, nature, custody, condition, and location of such documents, provided that they appear reasonably calculated to lead to the discovery of admissible evidence. The process of discovery enables a party to obtain facts and information from the opposing party for the purpose of facilitating the preparation and 35 presentation of its case. It is intended to ensure that a party has access to relevant 5 information necessary for the effective prosecution or defense of its claims. See **Dresdner Bank Ag. v. Sango Bay Estates Ltd (No. 3) [1971] 1 EA 326 and Dresdner Bank Ag. v. Sango Bay Estates Ltd (No. 4) [1971] 1 EA 409), Simbamanyo Estates & Anor v Equity Bank Uganda Limited & Ors HCMA 853/2024**

10 Relevance

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 existence of any

15 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 20 rules are given broad and liberal treatment such that even 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

# 25 to judge the sufficiency or weight of the relevant evidence. See **Loftin v. Martin 776 S. W.2d 145 (1989)**, **Simbamanyo Estates & Anor v Equity Bank Uganda Limited & Ors HCMA 853/2024**

In the long-standing dicta in **Compagnie Financiere du Pacifique v Peruvian Guano**

30 **(1882) Co 11 QBD 55** court defined what it is for a document to be relevant for purposes of discovery thus;

""It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly 35 enable the party requiring the affidavit either to advance his own case or to damage the

5 case of his adversary. I have put in the words 'either directly or indirectly,' because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead to a train of inquiry"

See also **Medtronic Inc v Guidant Corp Civil File Nos. 00-1473 (MJD/JGL), 00-2503** 10 **(MJD/JGL) (D. Minn. May. 25, 2004)**

The Applicant contends that the documents sought to be discovered are relevant in so far as they clarify/confirm the accurateness of the defendants' defence in the main suit. It follows that, in so far as the Applicant seeks the adducing of the documents, they seek to use them to

- 15 impeach/discredit the defence adduced by the defendants therein. The Applicant contended that the relevance of the documents sought would help show whether indeed the persons in respect of whom the said debits were undertaken were in Uganda at the time of the said debits, or if not, that the same are either fictitious persons or that the said persons did not undertake the said debits. - 20

Whereas the Respondents contended that the said documents are not relevant, the Respondents did not show why they asserted so. In the circumstances, court is of the considered view that this requirement is made out.

## 25 Existence

In **Simbamanyo Estates & Anor v Equity Bank Uganda Limited & Ors HCMA 853/2024** Court laid out the standard for proof of the existence of a document subject to discovery. The court held thus:

"The applicant only needs to show that there is a sufficient *prima facie* basis for believing 30 the evidence sought exists, it is material and relevant to the issues at the trial. The basis can be advanced by argument based on the facts contained in the pleadings filed in the suit, or by evidence supporting the application. The Court will grant the application even without affidavit evidence, where it considers that it is based on a plausible view of the pleadings as filed by both parties. This is because ironically discovery permits a more 5 complete later testing of hearsay during the trial, such that the lack of adversarial testing becomes less of a concern at this stage."

In handling of such applications, court must ordinarily look at the contents of the pleadings and assume them to be correct. In the present case, the pleadings on their face show that the

10 said persons in respect of whom the impugned documents are sought were, prima facie, in Uganda. It follows that the said records of them more likely than not exist. Accordingly, I find that the applicant has sufficiently demonstrated existence of the said documents.

# Confidentiality

- 15 Any party who seeks to exclude documents from discovery on basis of exemption or immunity must specifically plead the particular privilege or immunity claimed and provide evidence supporting such claim. The court must then determine whether an in-camera inspection is necessary, and, if so, the party seeking protection must segregate and produce the documents to the court. According to Order 10 rule 19 (2) of The Civil Procedure Rules, - 20 where, upon an application for an order for inspection, privilege is claimed for any document, the court may inspect the document for the purpose of deciding as to the validity of the claim of privilege. See **Mutesi v Attorney General HCMA 19/2016**

Counsel for the 1st Respondent contended that, in accordance with **Sections 55 and 55(3)** 25 **(a)** of the Tax Procedure Code Act, the said documents are confidential. No party pleaded an immunity covering and/or affecting the above documents.

In **Science Research Council v Nassé (1979) IRLR 485** the House of Lords, considering whether confidential documents could be the subject of discovery held thus:

30 "There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, in the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence. In the employment field, the tribunal may have regard to the sensitivity of 35 particular types of confidential information, to the extent to which the interests of third

 - 5 parties (including their employees on whom confidential reports have been made, as well as persons reporting) may be affected by disclosure, to the interest which both employees and employers may have in preserving the confidentiality of personal reports, and to any wider interest which may be seen to exist in preserving the confidentiality of systems of personal assessments." - 10 See also **O'Callaghan v Mahon [2007] IESC 17, R v. Chief Constable of West Midlands. Ex p. Wiley [1995] 1 A. C. 274**

## In **Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1972] 2 QB 102** court held that

15 "'Confidentiality' is not a separate head of privilege, but it may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest."

# In **Independent Newspapers (Ireland) Ltd v Murphy (2006) IEHC 276** the court 20 considered the balancing approach between observing the confidentiality of documents while permitting disclosure when necessary. The Court held thus:

""[I]t seems to me that the balancing of the rights involved also requires the application of the doctrine of proportionality. To that extent, it seems to me to be appropriate to interfere with the right of confidence to the minimum extent necessary consistent with 25 securing that there be no risk of impairment of a fair hearing."

It must be noted that the confidential character of a document is not, by itself, a bar to its production by way of discovery. This is because, in any case, the court can take measures to guard the confidentiality of documents while also ensuring that the said document is

30 produced. Accordingly, it follows that the confidentiality of the documents alone per se is not sufficient to prevent the present application.

#### 5 Prior Request

The Respondents contended that the Applicant ought to have first requested for discovery before filing the present application, default in which renders this application fatally defective.

- 10 It is trite law that prior to an application for discovery, the applicant ought to request discovery of the said documents and once refused, they may proceed to file an application such as the present one and ought to attach the discovery request which was unheeded to. See **Simbamanyo Estates v Equity Bank Uganda Limited & Ors HCMA 853/2024, AKT Project Management & Ors v DFCU Bank HCMA 2046/2023** - 15

However, in spite of that being so, I have not found any basis for the proposition that the said noncompliance with the requirement to make a prior discovery request automatically makes an application for discovery fatally defective. This is more so in circumstances such as the instant case where, from the responses of the Respondents, the said discovery request would 20 not have been allowed anyway. Within the framework of Article 126 of the Constitution, the

role of the court is to resolve matters substantively, rather than unduly insist on compliance with procedures and processes. In the circumstances, I find that such non-compliance is not fatal to the Applicant's application.

### 25 Fishing Expedition/Imprecision of Documents Sought to Be Discovered

The Respondents contended that the documents sought to be requested were not precisely indicated. For instance, it was contended that the nationalities of the named persons were not indicated, the relevant periods of time were not indicated and so on. Accordingly, the Respondents contended that the present application was a fishing expedition.

The position of the law is that the court will decline an application for discovery that is a fishing expedition, especially where the documents requested are vague and ambiguous. See **John Kato v Muhibauer AG & Anor HCMA 175/2011, Anguba Peter v Housing Finance Bank HCMA 434/2022**

- 5 In my view, there are largely two instances of discovery in litigation. There are applications for discovery of documents which an applicant is able to ascertain with mathematical exactness. This will occur usually when the party has previously seen or perceived those documents but does not have custody of them, or the ability to authenticate them. In this type of the application, the applicant is able to point out the said documents with much more - 10 exactness. However, there are also applications where the applicant can demonstrate, on the balance of probabilities that documents exist, but is not in position to identify with the same exactness, the said documents. This for example will include applications where a party prays for discovery of all documents relating to a specific transaction, meeting, decision etc. The obligation is not always that the Applicant should identify the documents sought with - 15 mathematical exactness, but they must identify the documents sought with sufficient particularity to prevent the same from being a fishing expedition. In assessing this, the court will consider the scope of the Applicant's knowledge and visibility of the transaction/matter in respect of which the applicant seeks discovery. If the Applicant was in position to know which specific documents are relevant, but has nonetheless identified them very generally, - 20 this may suggest that the application is a fishing expedition.

It must also be noted that for regulatory discoveries such as the present case, it suffices for the regulator, in compliance with the order of discovery, to merely indicate that, for instance in the present case, the persons mentioned did not enter Uganda, and accordingly, there is 25 no record of their entry. In my considered view, the purpose of an application for discovery in circumstances such as the present one is for the regulator to search the record in the impugned period, provide records that correspond to the discovery order and indicate where there are no records in respect of the same required information, if at all.

30 Courts have permitted applications which do not identify documents with mathematical exactness, for as long as the documents sought have been fairly identified, notwithstanding that all the characteristics of the documents that distinguish them may not have been provided. See for example **Lustman & Company (1990) Limited v Corporate Business Centre Limited & 4 others (Civil Suit 311 of 2018) [2022] KEHC 42 (KLR)**

5 Accordingly, I find that the applicant's application has reasonably identified the documents sought to permit discovery, contrary to the contentions of the Respondents.

The upshot of the above is that the Applicant's application succeeds.

10 **Costs**

As a rule of law, costs ordinarily follow the event and a successful litigant receives his or her costs in the absence of special circumstances justifying some other order. Where the successful party has been guilty of some misconduct, an order of costs may not be granted. See **Section 27(2) Civil Procedure Act, Harry Ssempa v Kambagambire David HCCS**

15 **408/2014, Iyamuleme David vs. AG SCCA NO.4 of 2013, Kinyera George v Victoria Seeds Limited HCCS 604/2015, Candiru Alice v Amandua Festo & Anor HCCS 19/2014, Anglo-Cyprian Trade Agencies Ltd v. Paphos Wine Industries Ltd, [1951] 1 All ER 873.**

However, where the application for discovery would have been necessary had the applicant 20 made a prior request for discovery, the applicant would not be entitled to costs notwithstanding that they prevailed in the application. See **UDB v Muganga Construction (1985) HCB 35**, **AKT Project Management & Ors v DFCU Bank HCMA 2046/2023**

In the instant case, this application is against the backdrop of the main suit which is still live 25 in this court, and whose determination will show whether these proceedings would have been necessary in the first place since, should the Applicant not prevail, this application though successful, would not have needed to be filed. Accordingly, in light of the fact that the application was brought by wrong procedure and no prior request was made costs to the Respondent shall abide the outcome of the main suit, however if the Applicant is successful

30 it shall still meet its own costs.

#### **Conclusion**

In the premises this application succeeds with the following orders:

a.) An order doth issues that the Commissioner– Domestic Taxes at the 1st Respondent 35 produces the defendants in HCCS 489 of 2020 to wit tax returns of Women Initiative for Rural Development Organization, Ridge Infrastructure Limited, Namulundu

- 5 Medical Centre, Katatumba Safaris (U) Limited, Great Wolf Hotel Limited, Doshi Hardware (U) Limited, Dalalaat Safaris (U) Limited, Angel Plus Cleaning Services Limited, Kadodo 256 Ndamiya Safaris, Bamwenda Benard, Akumu Justine, Nakalema Sarah, Uwera Agnes, Makela Aigbe Asagumaja, Othengho Makanga Patrick, Esther Chosen Makanga, Rugirwa Katatumba, 10 Kakuta Geofrey, Nadia Shakira, Simon Peter Mutabule, Gerald Mutabule, Mukasa Wasswa Rodgers, Katamba Geofrey, and Namara Sheena Ndamiya showing the incomes received and declared to the 1st Respondent for the period between January 2018 and December 2019. - b.) **An order doth issues that the Commissioner – Directorate of Citizenship and** 15 **Immigration Control, Ministry of Internal Affairs** produces the travel history/immigration details of the following persons: David G Macneil, Mark Carruthers, Neeta Chandiramani Surlak, Marcelo De La Rosa, Vicki Coffman, Peter, Ed Philip, Anthony, Karen Wilson-Polak, Olivia Stevens, Davies Morgan, Gulf Harbour, Shae Lange, Dominic Cato, Keith Greenaway, Jennil Wallace, Ns, Yudan Jia, Katrin 20 Holzer, Christina Thuresson, Jacqueline J Leeder, Cecilia Toftero, Cheryl Ann Jarrett, Travis Egenolf, Pamela Brown, Sulfania J Facchini, Silvia Saiki, Eduardo L Antonioli, Connie Bridges, Kimberly Williams, Samanta B Garcia, Edivaldo Rocha Barbosa,Vitor P Da Silva, Katiuscia R Araujo, Anderson R Carvalho, Maria S N Guimaraes, Samira S Marques, Kyle Clary, Bonnie Myers, Vanderkuyl Vincent, Victor Siu, Wick Curtis, 25 Chaoying Luo, Christopher Ryan, Virginia Guilfoile, Sang-Sik Lee, Angellee Halloran, Junghee Jin, Charles Dubin, Fernando Gracian, Gary Spears, L Katz, Tracey Bird, Travis Rittenhouse, Sin Duk Baik, Collin Knauss, Cho Eun Young, In-Sun Yoo, Clara Choy, Lauren Wessinger, Larry Alderink, Troy Spitzer, Denise Digirolomo, Kary Mccoy, Joo Kyung Sook, Lee Sook Mee, Chan Mee Lee, Robert N Schuster, Bonnie Myers, Myers 30 Kristopher, Jones Bonnie Myers, Scott Seldin, Craig Scheffert, Ron Hammett, Frank Anselmo, Charles Evans, Vincent Vanderkuy, Kyung-Un Weeks, S. Chan Mee Lee, Lee Sook Mee, Ju Yong Jin, Keunhyeog Kwon, Joo Inyeong, Kim Hwaja, Aigbe Asagumaja, Peter Lee, Massimo Guida, Robert Fus John Battle, Nicolas Della Maddalena, A. Mahesh Mapa, Jim Knecht, Nancy Spencer, Pascale Lavoie, Luc Lvesque, Bryan Smith, Hubbard 35 Supply, Marlene Faber, Will Hostetler, Sandra Nilles, Clair Ressa, Felix Audy, Karime

- 5 F G Manoel, Michael A C Baldez, Maria S N Guimaraes, Samira S Marques, Kirk Edwards, Cheryl Rule, Lynette Mustakos, Debbie I. Whitcomb, Kelly Tisher, Carol C Miller, Jan L Londowski, Debborah D Meschke, Linda M Oneil, Carol L Pealer, Cloretta P Pettway, Kathleen Francis, Gustavo J Rodriguez, Kathleen Francis, Nancy Lillegara, Raymundo Gutierrez, Donna J Wendell, Sherrie Schroen, Claire Houser, Lauren 10 Hartmann, Graham Watson, Laurie A Karnopp, Pamela A Boccia, Debra A Berger, Angela Hoover, Julie Taylor, Sharon Wilkens, Doug Basham, Robert Janisch, Susan Tracy, Doug Basham, Gary Smith, Shantelle Owens, Theresa Gwillim Shantelle Owens, Rebecca Zimbelman, Minerva Ruiz, Lynette Mustakos, Debra A Berger Catherine Pelletier, Susan J. Burkenstock, Nebie Coku, Nicholas Prass, Mary E Bishop, James 15 Hathaway, Fonda Gaylord, Pasquale Renzi, Debra Lavoie, Daisy L Ayre, Janet Fournier Shauna L Healy, Karen A Gregory, Edmund T Fung, Samantha Brown, William Becker, Henrique Lourencon Jr, Pablo Roig, Jose Rodrigo, Aaron Remedios, Abbie Heidenreich Cassidy Whitaker, Eileen Ofman, Catherine Mcgauchie, Hoppus Copus, Matt Anderson Masako Funahashi, Gunter Luckner, Michel Labrie, Cintia O Siqueira, Vitor Santos, 20 Gabriel Ana Paula M Soares, Gilberto P Borges, Maria A P Carlin, Helena Wang, Sally Foster, Pablo Roig, Jose Rodrigo, Aaron Remedios, Nina C. Allen, Janet Cloninger, Jessica Fix, Judy Ashley, Paulo Marcelo Enghi, Sally Foster, Steven Liberty, Mary Pavone, Ann Giles,Julie Ann Laue Ramonz Height, Karen A Gregory, Victory Opuwari, Luanne Mullen, Neeta Chandiramani Surlak, Francois Pedrio, Mark Carruthers, Neeta 25 Chandiramani Surlak, Marcelo De La Rosa, Joao Masela, David G Macneil, Airgenuity Inc, Mark Carruthers, Neeta Chandiramani Surlak, Marcelo De La Rosa, Vicki Coffman, Peter Peter, Ed Philip, Anthony, Karen Wilson-Polak Olivia Stevens, Davies Morgan, Shae Lange, Dominic Cato, Keith Greenaway, Jennil Wallace, Ns, Yudan Jia, Katrin Holzer, Christina Thuresson, Luanne Mullen, Francois Pedrio, Joao Masel for the 30 period of January 2018 and December 2019. - c.) Where any information being the subject of the above discovery order is not in existence, the Respondents shall certify that no such information exists to this Honourable Court. - d.) An order doth issue directing the Respondents to comply with the above discovery 35 orders within a period of ninety (90) days from the date of this ruling.

- 5 e.) An order doth issue directing the Learned Deputy Registrar to make arrangements to ensure that the confidentiality of the above records/documents sought to be discovered is maintained and referring the parties to the registrar of this court for directions on arrangements to undertake discovery of the above-stated documents/records while maintaining the confidentiality of the same. - 10 f.) An order doth issue sealing all the documents which would have been presented by the Respondents as part of the discovery ordered herein and expunging them from the public record of the proceedings in the main suit. - g.) An order doth issue directing the Learned Deputy Registrar of this court to make arrangements for the special and confidential recording and safekeeping of the 15 documents which would have been presented by the Respondents as part of the discovery ordered herein. - h.) An order doth issue directing the Applicant to bear all the costs for the discovery, including all the costs for production, copying, certifying and compiling the documents to be discovered being costs that are typically payable by parties who 20 would have sought and been granted access to the same documents. - i.) The Respondent will be entitled to the Costs of the Application in the event the Applicant/Plaintiff is not successful in the main suit but in any case the Applicant will meet its own costs. - 25 **Dated** this\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_2025, delivered electronically and uploaded on **ECCMIS** 3rd April

**Ocaya Thomas O. R**

30 **Judge,**

**3rd April, 2025**