[2024] UGHC 947

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA**

**HOLDEN AT JINJA**

**HCT-03-CV-CS-015-2017**

**TOTAL MARKETING UGANDA LTD :::::::::::::::::::::::::::::::::::::: PLAINTIFF**

**VERSUS**

1. **JINJA DISTRICT LAND BOARD** 2. **HAJJI BADRU WATONGOLA** 3. **THE REGISTRAR OF TITLES** 4. **WERE JAMES** 5. **KAKADIYA ANKITKUMAR ASHOKBHAI :::::::::::::::::::::::: DEFENDANTS**

*Preliminary Objection against allowing the 5th Defendant’s to introduce an additional Statement after the Plaintiffs closed their case without leave of Court.*

***Held:*** *Preliminary Objection Sustained.*

**BEFORE: HON. JUSTICE DR. WINIFRED N NABISINDE**

**RULING**

This is Ruling follows Preliminary Objections raised by counsel for the Plaintiff to the effect that he was served with an additional witness statement of Kakadiya Ankitkumar Ashokbhai, the 5th Defendant on the 25th June, 2024, a day before the defence case was to open; and after the Plaintiff’s case was closed on 12th March, 2024. They argued that this was a major ambush after the Plaintiff’s case had been closed.

**REPRESENTATION**

When this matter came up for hearing on the 25th June, 2024 in the presence of learned counsel Paul Ekadu for the Plaintiff but no representative of the Plaintiff, learned senior counsel Onesmus Tuyiringire for the 1st Defendant, learned counsel Stephen Muzuusa for the 2nd Defendant, learned counsel Allan Ogoyi for the 5th Defendant, the 2nd and 5th Defendants were also present

**SUBMISSIONS OF BOTH SIDES**

It was submitted by learned Counsel for the Plaintiffs orally that when they were last here on 12/03/ 2024 during the cross examination of the Plaintiffs' witness Shophia Wadde, counsel for the 5th Defendant sought to introduce a new witness. That we went into scheduling and the Plaintiff closed its' case; and Court ruled and ordered that evidence was not admissible at that stage.

Further, that the additional witness statement that they have seen it is to introduce the very same evidence that it has got ruled inadmissible in direct Contempt of a Court Order.

That the 5th Defendant introduces a Resolution, it is very same one of the Plaintiff which court has already ruled cannot be allowed. An Order of Court must be obeyed unless set aside. The Order of this this court has not been set aside. They cited **Order 6 rule 6 of the Civil Procedure Rules** to the effect that given the new fact it must be specially pleaded, the 5th Defendant has not amended its pleadings to plead to this new fact. That these pleading does not show anything to with a Resolution by the plaintiff line with this defence.

That this defence is simply that he purchased property and he is a bonafide purchaser, nothing, and nothing more. This one introduces a new line of Defence which too they have pleaded in their defence.

Still on the same point, the Plaintiffs we shall have no departure from previous pleadings. If may *"No pleading shall be brought in a petition in form of application except by way of amendment raised in new ground of claim or contained in allegation of fact inconsistent with the previous pleading*”.

That as they have stated the pleading of 5th Defendant does not be verified in this petition does not refer to the petition in line of defence and this is a new fact. That it is a new fact they are bring in this case which the law does not allow. For sake of clarity, they relied on the case of ***Interfreight Forwarders Uganda limited vs. East African Development Bank Supreme Civil Appeal No. 33/ 1992*** that *“The system of pleadings is necessary in litigation. It operates to define and deliver it with clarity and precision the real matters in controversy between the parties, which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the double purposes of informing each party what is the case of the opposite party which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial”.*

***See. Bullen & Leake and Jacob's precedents of pleading 12th edition, page 3.*** Thus issues are formed on the case of the parties so disclosed in the pleadings and evidence is directed at the trial to the proof of the case so set and covered by the issues framed therein. A party is expected and is bound alleged by him and as covered in the issues to prove the case as framed. He will not be allowed to succeed on a case not so set up by him and be allowed at the trial to change his case or set up a case in consistent with what he alleged in his pleadings except by way of amendment of the pleadings.

Counsel further submitted that this case here where the 5th Defendant trying to be part of the pleading without having made a statement. It is the contempt of the order of court should not be allowed to introduce new evidence at this stage and allow the matter to proceed as already set forth before the court. However, if court is so inclined it would mean that the plaintiff must re-open its case to explain and respond accordingly.

That is the reason why the law requirement an amendment so that you can define the case and able the other party to answer accordingly and prayed this additional statement is struck off the record. No evidence to be allowed can be allowed at this stage and we proceed by defence cases as you had set forth already.

**In reply,** Counsel for the 2nd Defendant submitted that the submissions of learned counsel for the Plaintiff is very misperceived as there is no departure in any sort of ways about the Defendant's Defence. That the 5th Defendant specifically pleaded under paragraph 3, 4 and 12 of the defence that the Plaintiff has no cause of action and is turning under cause of action is the rights to sue or breach of that right that the Defendant is consequently that defendant is liable for the breach. The evidence being adduced is evidence to show that the Plaintiff has no right specifically has no right to sue.

He submitted that the plaintiff is at liberty to cross-examine the 5th Defendant on admitted case. It just a matter of hearing his evidence than having it striking out. In brief that the document in issue that counsel is seeking to protect a resolution filed at the Company Registrar by the Plaintiff itself. It is the plaintiff document, which resolution reflect that the plaintiff does not actually own any piece of land and are seeking deliberately to hide that information from court by opposing this amendment.

Further, that they took leave to this court and advised this court take through seriously the behaviour of the Plaintiff because as an officer of court, even counsel should have got this document out from his own client than leave this court for entire process.

Therefore, all submission made by counsel should be disregarded and they pray that additional statement be allowed since during scheduling, they did go on record and said that any other documents with the leave of court and counsel just pre-empted them because they are hereby seek leave of court to add the said document and to remain justice to being suffered in case if it is granted; and in any case, always a witness before tendering in his witness statement filed on record. Any witness before tendering a statement filed on record is at liberty to add or remove any information in the witness statement in this case we have put additional in writing before his statement has been admitted.

In that regard, learned counsel for the 2nd Defendant reiterated their earlier prayers and the same be tendered in. and allowed the witness is in court. Further, counsel for the 2nd Defendant cited **Section 33 of Judicature Act**, which gives powers to this court to make any order or allow any evidence to be adduced so that all matters in dispute can be completely and finally determined and also avoid multiplicity of legal proceedings concerning those matters.

That this piece of evidence that the 5th Defendant is adducing in court, additionally. It is intended and unintended in the said section of the law. The 5th Defendant has discovered an illegality by the Plaintiff whereupon passing a resolution and registering it and forfeiting all their assets from Total Marketing to Total Uganda Limited has decided to keep quiet and silent about move and has come to court to claim properties.

The resolution was written on 1st Jan 2010 and the suit is filed several years later in 2014; and requested the court not to close his eyes on this document because it is very important in this matter. They relied on the case of ***Makula International vs. Cardinal Emmanuel Nsubuga*** regarding these illegalities once brought to the attention of court it overrides all other factors and therefore associated themselves with Counsel for 5th Defendant; and prayed that court allows the additional witness statement with annexures thereto including special resolution dated January 2010 to allow this court resolve this matters that are in question.

Further, that one substantial evidence on **rule 5 the amended of Order 18 under S. I 33 of 2019**, which gives rise to a witness statement and brief submission is that before witness judgment is allowed any evidence in chief. The witness is free to add on anything and it is the right of the other party to cross-examine. So, the filing of this additional statement is not strange to the rules of procedure.

**In further reply**, learned counsel for the 1st Defendant differed from other Defendants counsel when he submitted that the statement does not affect his client, but submitted to an officer of court that if this additional statement should be allowed at all, it can only can be allowed to an amendment of the pleadings. At this stage the Plaintiff has closed its case it will be improper. That he would have testified, an attempt to bring its by him left, if at all it is allowed, the Plaintiff's witness will come back and counsel for the Plaintiff will and comment on that once that is done the witness will be recalled back and they comment on that resolution

**In rejoinder**, learned counsel for the Plaintiff submitted that the argument a witness statement is allowed add anything before evidence in chief it is adduced in court. That is not true and the rule says this read it out **amended order 5 (a) rule 3** before a witness statement is admitted as evidence, chief of a witness a witness with leave of court may correct any typographical, arithmetic or other error which does not go in the substance of the testimony via the court and serve the opposite party. That this testimony they are bringing goes to the substance it is not typographical, arithmetic or such error included. It is not true when they are saying are free to do whatever they want. It is subject to rules and procedure.

That his learned friends have failed to address the very important part in issue. That this court had made an order earlier, which had not been set aside over ruling on such evidence. They are doing that because they know they have not done the right thing to have this evidence admitted.

On the issue of cause of action, they have raised is very vague. It only mentions on the issue that the matter is only being time barred. Indeed, if they were raising this issue would have been clearly stated they would have printed and brought this fact earlier to enable the plaintiff respond. That to say the Plaintiff is fearing the evidence.

That they all know as lawyers a resolution of a Company does not act as conveyance document. The issue is that mid white justice are so important and court cannot ignore them proceedings propriety is *saco sacint* to be able to mid white justice in a proper manner. That Court does not act within a vacuum it acts within the rules. Counsel for the Plaintiff reiterated their prayers that this addition statement does not stand.

In the light of the law and cannot be allowed to a victim in court knowing been cited seem to put a resolution which is not illegal unless conveyance documents; and that Costs should be in the cause.

**ISSUES**

The only issue to be decided in this matter is as follows:-

Whether the 5th Defendant could serve an additional witness statement just before opening of the defence case and after the close of the Plaintiff’s case without leave of court?

**RESOLUTION OF THE PRELIMINARY OBJECTION**

I have carefully considered the Preliminary Objection of the Plaintiff's Counsel and submissions of Plaintiff’s Counsel on the issue. Both learned Counsel supplied the authorities on the issue, which I have had the opportunity to analyze in relation to the current situation. The crux of the objection is that the 5th Defendant chose to file an additional witness statement on 21st June 2024 and serve it on the Plaintiff’s counsel on 24th June 2024, three (3) months after the Plaintiff’s had closed their case. An examination of the filed Witness Statement reveals that it introduces new evidence of a Resolution and this was done without leave of court after the matter had been scheduled years back.

Introducing new evidence after the Plaintiff has closed its case and the defence is about to start is generally not allowed without permission from the trial Court. However, this is not cast in stone; and may be permissible depending on the legal system, the specific circumstances of the case and the discretion of the Judge. The following must be considered:-

1. The discretion of the Court. 2. Relevance and Impact. 3. Prejudice to the Defence. 4. Applicable Rules and Procedure.

The discretion of the Court should be exercised judiciously and depends on whether the Judge believes it is in the interest of justice. The party intending to present the evidence must do so on application and provide valid reasons why the evidence was not introduced earlier.

In this case, it is clear that the Defendants sought no such leave before they filed their Witness Statement and no reasons were advanced as to why the 5th Defendant in this case failed to present the evidence at the time when he filed his original witness statement.

The objection of learned counsel for the Plaintiff is grounded on the fact that learned counsel for the 5th Defendant already had the opportunity to cross-examine the Plaintiff’s witnesses; and there is a high likelihood that due to the evidence already in court, Defence counsel advised his client to present an additional witness statement with new evidence that was hitherto not part of the pleadings.

As for relevance and impact of this evidence, I have considered the relevance of the new evidence and whether it would significantly impact the case. I have not found it to be critical to the extent that it could alter the outcome of the case. I have found it to be quite critical to the extent that it could alter the outcome of the case and it seems to be clear that it is intending to change the nature of the whole suit. While learned counsel for the 5th Defendant admitted that indeed this resolution he is trying to present as new evidence was filed with the Uganda Registration Services Bureau on 24th February 2010; and a certified copy of the same was availed to the 5th Defendant upon his request on the 29th of November, 2023; the 5th Defendant did not chose to include it in his evidence in view of the fact that he was added onto the suit in an Amended Plaint filed on 26th November, 2020.

The above confirms to me that the 5th Defendant was already aware of this resolution. I find it unethical for the Defendant’s Counsel to not only read the written testimonies of the Plaintiffs witness, but wait until they have all testified and rested their case and he had an opportunity to cross-examine them and then decide to bring additional evidence in Defence. To me, this is not a matter of ethics for learned counsel for the 5th Defendant, but raised questions of prejudice to the Plaintiff.

**Prejudice** - I also find that in this case, the Plaintiff already prepared and presented their case based on the pleadings which they filed in Court; and in the course of hearing this case, amendments were allowed to be introduced in the pleadings where both sides were allowed to participate and it’s on the basis of that that the Plaintiff finally led its evidence and by the time the 5th Defendant was already part of this suit.

**Rules of Procedure** - I have examined the specific procedural rules in Uganda, which dictate whether new evidence can be introduced. They outline when evidence must be disclosed and what steps need to be taken if new evidence arises after the case has been closed. In this case, the Joint Scheduling Memorandum was filed and scheduling of the case completed in open court after all the amendments were presented pursuant to **Order 12 rule 1 of the Civil Procedure Rules** before the Plaintiff’s case opened.

The purpose of such directions of the court was to avoid such prejudice by ensuring that the parties relied on the points of agreement and disagreement as presented in their respective cases. The purpose of conducting a Scheduling Conference is to obtain the points of agreement and disagreement by which process issues are narrowed down for trial. The points of disagreement become the controversies on which to lead the evidence of the witnesses. Where the procedural requirements are thwarted, the notion of a fair trial will be curtailed. See ***Okot and Ors vs Lamoo****,* ***Civil Appeal No.26 of 2018***.

I have also looked at the provisions of **O.5 r.5A (now O.18 r 5A) of the Civil Procedure (Amendment) Rules, 2019** was amended to provide for witness statements. A witness statement is a written testimony signed by a witness and filed in court and served on the opposite party for purposes of having it tendered in court as the evidence in chief of that particular witness. **See O.18 r 5A (10) of the CPR** **(as amended**).

**Order 18 rule 5 of the Civil Procedure Rules (CPR)**, is also to the effect that evidence of a witness in a trial should ordinarily be taken down in the form of a narrative. See **O.18 r 5A (1)** read together with Second Schedule, paragraph 5 of the **CPR** **(as amended).** See***Husain Hasanali Jivani v Merali Jivra Tajdin & Anor, Civil Suit No.471 of 2015.***

Witness statements should be exchanged after the Scheduling Conference where all points of agreement and disagreement had been disclosed and agreed upon. Witness statements are exchanged within the period given by the court to avoid the rebuttals and counter rebuttals. See ***Seruwagi Mohammed vs. Yuasa Investments Ltd, Civil Suit No.324 of 2013.***

**O.18 r 5A (6) of the CPR** (**as amended)** require witness statement to be filed on the date fixed by the trial Judge after the scheduling conference. It provides;-

**“*5A. Witness statement.***

*(l) The evidence of a witness shall consist of a witness statement, which shall be filed after the scheduling conference on the direction of the trial judge and served upon the opposite party.*

**O.18 r 5A (7) of the CPR (as amended)** further provides that a witness who does not file his/her witness statement cannot be heard except with leave of court.

**Order 18 rule 13 of the CPR** **(as amended)** allows the Court to recall witnesses or permit the introduction of new evidence at any stage of the trial if it considers it necessary for the just determination of the case; however, this must be done in a manner that does not prejudice the other party’s case. The court is enjoined to allow the other party to cross-examine any witnesses who are recalled or new ones that are introduced.

The party in default has to apply for leave of court to extend time within which file his/her statement. In considering whether to enlarge time or not, the court should consider the interest of justice. **See Order 51 rules 6 of the Civil Procedure Rules and S.96 and 98 of the Civil Procedure Act**.

The above means that the evidence of a witness can only be filed after the Scheduling Conference on the directions of the trial judge and served upon the opposite party.

Much as this Courts has decided that witness statements filed after the testimony of witnesses is to be given trifling weight rather than being excluded (though court has the power to exclude them); I have relied on the East African Court of Appeal in ***Andiazi vs. Republic, [1967] EA 813 (CA)***, ***Semande vs. Uganda, [1999] 1 E. A 321*** and ***Seruwagi Mohammed vs Yuasa Investments Ltd, Civil Suit No.324 of 2013***, where it was held that it is unethical to prepare witness statements having in mind the testimonies of the Plaintiff’s witnesses and that evidence is given trifling weight.

Again, **Section 184 of the Evidence Act** grants the Court discretionary powers to ask any question or introduce evidence to clarify matters before it. These powers are meant to be used judiciously and not to disadvantage any party involved. Since it is clear that such a decision to allow evidence after the closer of a party’s testimony is not automatic; the Court must be convinced that the introduction of new evidence is essential for the fair resolution of the case. If the court is convinced to grant the request, it usually ensures that the opposing party is given an opportunity to prepare adequately to address the new evidence, typically by adjourning the case for a reasonable time.

Agreed documents are normally admitted by consent while those documents, which are not agreed, would be subjected to the ordinary rules of evidence in their production. A competent witness who will testify or lay the foundation for their admission would produce them. Foundation is laid in the written testimony; and this is not the case in this matter.

In this case, I have not found any justifiable reasons to exercise my discretion at this stage to allow the 5th Defendant or any other witnesses for that matter to ambush the Plaintiff by introducing new evidence which as rightly submitted by learned counsel for the Plaintiff, would change the whole cause of action.

It is also my finding that this evidence seems to be intended by the Defendants to give undue advantage because the Plaintiff will have no right of rebuttal. The only recourse would be to reopen their whole case by way of amendment of their pleadings and this will typically change their whole case, which Court is already trying.

Secondly, the Plaintiffs will be very poorly prepared to deal with this change in pleadings and answer all or any controversy generated by the 5th Defendant at this point when they have already closed their evidence. In fact, what I foresee is that the Plaintiff would have to look for answers to any adverse testimony of the 5th Defendants from evidence which is already presented; and in my view, this is the mischief the filing of witness statements within the same period is supposed to cure.

I’m therefore more inclined not to allow such new evidence to be introduced because it does not only introduce new evidence which can be rebutted through cross examination, but this evidence seems to go to the root of the whole of the Plaintiff’s case; and instead points at the Defence trying to state the Plaintiff’s case and this would be contrary to what the Plaintiffs filed in the first place.

I have therefore not found any compelling reasons in view of the foregoing, it is my finding and decision that the 5th Defendant’s additional witness statement introducing a Resolution on matters which were never pleaded by the Plaintiff never pleaded in the first place should not be allowed. The 5th Defendant should only defend the case as presented by the Plaintiff and not try to twist up the Plaintiff into presenting pleadings which are not part of their case.

My decision is that the Witness Statement of the 5th Plaintiff filed at this late stage and more so without leave of Court should not be allowed. It is hereby expunged from the record. This preliminary objection is upheld. The suit shall continue to defence to its logical conclusion.

The 5th Defendant shall pay the costs to the Plaintiff.

I SO ORDER

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**JUSTICE DR. WINIFRED N NABISINDE**

**JUDGE**

**28/08/2024**