[2025] UGHC 36

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

## **MISCELLANEOUS APPLICATION No. 03/2024**

# **(Arising from HIGH COURT CIVIL SUIT (GULU) No. 031/2013)**

**WILOBO PE YOT LTD APPLICANT**

**Versus**

## **PADER DISTRICT LOCAL GOVERNMENT RESPONDENT**

## **RULING.**

#### **BEFORE: HON. MR. JUSTICE PHILIP W. MWAKA.**

## **Introduction and Background.**

[1]. The Applicant in its prayers, firstly seeks leave of this Court to reopen its case by way of recalling its witness Mr. Geoffrey Oywek, Managing Director, for purposes of allegedly correcting discrepancies on the record of the Court said to have been occasioned on the 14th December, 2022 and the 19th September, 2023 in the main suit **High Court Civil Suit (Gulu) No. 031/2013** and secondly, an Order making provision for costs of the Application. The Application is instituted by way of Notice of Motion filed on the 3rd May, 2024 brought under **Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282) and Order 52 Rules 1 & 3 of the Civil Procedure Rules, SI 71 - 1.** These citations have been revised under the **Law Revision Act, Cap. 3** and **Statutory Instrument No. 049/2024: The Law Revision (Commencement of the 7th Revised Edition) (Principal Laws) Instrument, 2024**. Supporting the Application is an Affidavit attached deponed by the Applicant's Managing Director, Mr. Geoffrey Oywek, who was the Applicant's sole witness at the Trial.

#### **The Applicant's Case and Submissions.**

- [2]. The Applicant's grounds are stipulated in the Motion and expounded upon in its supporting Affidavit and are that the Applicant filed **High Court Civil Suit No. 031/2013** (then at the High Court, Gulu Circuit) as the Plaintiff against the Respondent as the Defendant which is presently under hearing before this Court and he contends that there are apparent discrepancies in the Court's Record of proceedings regarding the testimony of its Managing Director, Mr. Geoffrey Oywek, given before the Court on the 14th December, 2022 and the 19th September, 2023 at the Trial which require the Court's intervention to correct. In its supporting Affidavit, the Applicant's Managing Director, Mr. Geoffrey Oywek, avers that on the 14th September, 2022 following his testimony before the Court in which he was cross examined by Counsel for the Respondent (Defendant), Mr. Joseph Nyeko, then Principal State Attorney, he requested a typed copy of the entire Record of proceedings of the cross examination which on receipt he perused and discovered that the Court's typed Record of Proceedings did not reflect what had transpired in the Court at the proceedings of that day. He attaches a copy of the Proceedings of the 14th December, 2022. It is his case that the discrepancies in the Record of the Court's proceedings which must be corrected to reflect his testimony before the Court are as follows: - [3]. Firstly, regarding the Court's Record of the 14th December, 2022 and in respect of a question put to him in cross examination regarding the type of contract - he avers that he stated that it was an admeasurement contract and he was to be paid for variations and compensated for prolonged costs due to breach of contract by the Respondent; instead the Court's typed Record reflects that - **the type of contract was admeasurement. It means whatever the Plaintiff did was measured and paid for by the Defendant.**

- Secondly, in respect of a question put to him in cross examination regarding $[4]$ . payment certificates No. 2 and No. 3 - he avers that he stated that the Applicant Company had received Ushs. 88,084,099/- (Uganda Shillings Eighty-Eight Million Eighty-Four Thousand Ninety-Nine); instead the Court's typed Record reflects that - the 2^nd Certificate was also paid on the 22^nd May, 2022 a gross sum of Ushs. 88,084,099/- (Uganda Shillings Eighty-Eight Million Eighty-Four Thousand Ninety-Nine) we are not claiming for it. - Thirdly, in respect of a question put to him in cross examination regarding $[5]$ . payment of certificate No. 3 - he avers that he stated that the Applicant Company received money of Ushs. 90, 357,116/- (Uganda Shillings Ninety Million Three Hundred Fifty-Seven Thousand One Hundred Sixteen) on the 19^th March, 2013 and were not claiming it; instead the Court's typed Record reflects that – the $\mathcal{F}^d$ Certificate of the sum of Ushs. 90,357,116/- (Uganda Shillings Ninety Million Three Hundred Fifty-Seven Thousand One Hundred Sixteen) dated 26.12.2013 was paid and received and we're not claiming it. - $[6]$ . Fourthly, in respect of a question put to him in cross examination regarding interest charged on the Applicant's bank by DFCU Bank (Uganda) Limited - he avers that he stated that Ushs. 3,900,000,000/- (Uganda Shillings Three Billion Nine Hundred Million) is being claimed and the Applicant is claiming interest on its money retained by the Respondent at interest charged on the Applicant by its bankers DFCU Bank (Uganda) Limited at forty percent (40%) per annum the reason they are in Court; instead the Court's typed Record reflects - *In the Plaint* we are claiming we got a loan from DFCU Bank to fund the contract and as a result accumulated interest. The Applicant is claiming over Ushs. 1,000,000,000/- (Uganda Shillings One Billion). The claim is for interest but not on the loan. We claimed interest on the basis of money due from *the Respondent to the Applicant Company.*

- [7]. Fifthly, referencing the Record of the Court's proceedings of the 19th September, 2023 - he avers that he testified in response to a question put to him in cross examination regarding ownership of machinery used for excavation of the suit contract that the machinery is in the name of the Applicant's Managing Director, Mr. Geoffrey Oywek, a separate legal entity from its Managing Director however there was an arrangement between the Applicant and its Managing Director that the Applicant would receive money from the Respondent and pass it over to its Managing Director since the Respondent did not pay the Applicant and the Applicant did not pass any transport money to the Managing Director. The Applicant is entitled to claim the transport money on behalf of its Managing Director in accordance with Exhibits PEX2 and PEX41; instead Court's typed Record reflects – **the Company is different from its Directors. It is a separate legal entity. I wish to clarify that the contract the Applicant executed with the Respondent was an admeasurement contract. I wish to clarify that the equipment is owned by me for business purposes. When the Applicant executed the contract with the Defendant I hired the equipment to enable the Applicant execute the contract works. I have copies of the hiring agreements. (PEX2)**. The Applicant contends that the Court's version on its Record is wrong and must be corrected to reflect its Managing Director's testimony before the Court. - [8]. Sixthly, in respect of a question put to him in his cross examination regarding whether the contract was amended by the parties - he avers that he stated that by virtue of the road contract signed between the parties the Applicant is entitled to be paid for variation and compensation for prolongation costs in accordance with general conditions of contract clauses 44, 44.1, 44.2, 44.3 and special conditions of contract clauses GCC 2.3; instead Court's typed Record states - **"the contract amends itself and there was no need for amendment"**.

- [9]. The Applicant contends that it will suffer irreparable damage if the discrepancies in the Court's Record are not corrected. Attached to the Affidavit are the Court's Record of Proceedings of the 30th September, 2022, 14th December, 2022 and a letter dated 15th June, 2023 requesting a correction of the Record of the Court. - [10]. In Written Submissions filed on the 20th September, 2024 the Applicant reiterates the pleadings *in extenso* and includes matters which had not been incorporated in its Motion or Affidavit including claims regarding recoverable delay costs arising from disruptive events and other matters which would properly be presented in final submissions upon conclusion of the Trial which are outside the scope of this Application. In citing *inter alia* **Supreme Court Civil Application No. 10/2002: Godfrey Magezi & Another Vs. Sudhir Ruparelia** the Applicant makes the point that the errors, inadvertency, mistakes, misunderstandings, negligence and failure of Counsel - and Court Officials - should not necessarily debar a litigant from pursuit of their rights and should also not be visited on a litigant thereby denying the litigant Justice. The Applicant submitted on the one hand that the nature and purpose of cross examination as well as duty is to put one's case fully to the opposing party without any impediments; and on the other hand that the power of recalling a witness is not limited to the purpose of clearing up ambiguities in the evidence already given but the party calling the witness might put to the witness any completely new point which had inadvertently been omitted in evidence. In its prayer, the Applicant invites the Court to exercise its discretionary powers in accordance with **Section 98 of the Civil Procedure Act, Cap. 282** to recall its Managing Director's, Mr. Geoffrey Oywek. - [11]. The Applicant further citing **Order 18 Rule 13 of the Civil Procedure Rules, SI 71-1** and *inter alia* **High Court Civil Appeal (Gulu) No. 032/2016: Onek Manacy & Another Vs. Omona Michael** submits that the Court has wide discretion and may at any stage recall a witness who has been examined.

[12]. In concluding, the Applicant acknowledges that such powers to recall witnesses should however be exercised by the Court judiciously and reasonably and not in a manner likely to prejudice any party. In so doing, a witness should only be recalled in deserving circumstances. Moreover, once the Court decides that recalling a witness is essential for the just determination of the case then the witness may be recalled provided that the parties are allowed to cross examine the witness and given adequate opportunity to do so. However, in recalling a witness the case should not be opened afresh.

# **The Respondent's Case and Submissions.**

[13]. The Respondents opposed the Application and filed an Affidavit in Reply on the 18th June, 2024 deponed by Ms. Doris Twesigomwe, State Attorney in the Attorney General's Chambers and avers that the **Main Suit No. 031/2013** was called for hearing on the 14th December, 2022 and the Applicant was cross examined by Mr. Joseph Nyeko, then Principal State Attorney. The testimony of the Applicant was duly recorded by the then presiding Trial Judge, the Hon. Justice George Okello, which was later transcribed into certified proceedings. The Respondent contends that the certified Court proceedings are true, authentic and accurate transcriptions of the actual evidence given by the Applicant's witness at the Trial and the Applicant has not adduced sufficient evidence to discredit the contents of the certified proceedings. The Respondent did not file Written Submissions. A belated request earlier today was denied.

# **Representation.**

- [14]. Mr. Geoffrey Oywek, the Applicant's Managing Director appeared *Pro Se*. - [15]. Counsel, Mr. Mwanje Mathias Mickey, Senior State Attorney and Ms. Anek Joyce Ongee, Principal Assistant Secretary, appeared for the Respondent. ## **Issues for Consideration.**

[16]. The Issue for consideration to be addressed by the Court is – **Whether the Applicant has established sufficient cause for the Court to judiciously exercise its discretion and recall its witness to testify before the Court.**

## **Considerations and Determination of the Court.**

- [17]. This is an unusual Application in as far as it is not simply or only intended to invoke the discretion of the Court under **Section 98 of the Civil Procedure Act, Cap. 282** to recall a witness to clarify on matters already testified about at the Trial or for that matter to testify about any particular newly emerging issue, if it's even tenable given the stage of the Trial, but the core averment is that the transcript of the Trial Court itself purportedly has discrepancies and that the testimony of the Applicant's witness as captured by the Court is wrong, inaccurate and is not a correct reflection of what happened at the Trial. - [18]. The status to which the Trial has progressed is significant and instructive. A review of the Record of the Court indicates that the Applicant's witness, its Managing Director Mr. Geoffrey Oywek - as its sole witness – and also the deponent here, commenced with his testimony in chief before the Hon. Justice Stephen Mubiru on the 14th February, 2019, his testimony in chief resumed with the Hon. Justice Alex Mackay Ajiji on the 9th February, 2022 and continued through to the 24th and 25th May, 2022 at which he closed his testimony in chief. The Hon. Justice George Okello assumed conduct on the 30th September, 2022. Prior to the scheduled cross examination on the 14th December, 2022, the Applicant sought to tender additional documents which was allowed. Cross examination commenced and concluded and the Applicant had the opportunity to clarify any matter to the Court. The matter was fixed for Defence evidence.

- [19]. At the next stage of proceedings on 10th May, 2023 the Trial Court had the actual proceedings electronically transcribed. The Applicant again sought to recall its witness. In his Ruling the Hon. Justice George Okello allowed the Applicant to recall its witness and its witness the deponent here proceeded to testify at length. It was at this point the Applicant first complained that the transcribed record of the Court was inaccurate and sought to present his own version of proceedings. The matter was set for the 19th September, 2023. On the 19th September, 2023 cross examination commenced and concluded and the Applicant had an opportunity to further clarify. In a ruling the same day the Hon. Justice George Okello directed that the Applicant closes its case. The Respondent called its witness Eng. Benedict Lubung who commenced his testimony in chief which was however not concluded. The matter came under this Docket on the 27th March, 2024 at which proceedings the Applicant renewed its request to recall its witness. The Court declined to entertain an oral Application and required that any Application should be formally presented by Motion. - [20]. At the same proceedings on the 27th March, 2024 the Applicant made a new accusation against the Court's Officials to the effect that some of its exhibits on the Record of the Court were missing. The Court exhaustively scrutinized the Record and extracted the exhibits said to be missing and established that they were in fact all on its Record. This was acknowledged by the Applicant. The Court further required that its Record should continually be typed immediately after the proceedings and provided to the respective parties. - [21]. The purpose of outlining the chronology of this litigation is on the one hand to highlight its protracted nature and secondly to highlight that the Applicant has already been allowed to recall its witness twice before even after having indicated to the Court that it had closed its case. The Applicant now seeks to again recall its witness when the Defence witness has already commenced his testimony.

- [22]. This Court has had the opportunity to extensively review its Record and specifically the Record of the 14th December, 2022 and the 19th September, 2023 in view of the Applicant's complaint that it has discrepancies, is incorrect and inaccurate. The Record is a typed version of the written Record by the then presiding Judge in long hand. The typed Record precisely matches the long hand version of the same Record. Accordingly, this Court finds that there is no discrepancy or inaccuracy in the Record of the Court on that basis. - [23]. The Court observes that the Applicant's claims of discrepancies on the Record of the Court is only in respect of his cross examination. Curiously, the Applicant's witness in seeking to be recalled goes to great lengths to state what he feels the Record of the Court in his cross examination should reflect. Clearly, the Applicant having closed its case at the Trial and had the opportunity to hear the Defence evidence seeks to plug whatever holes it perceives as having emerged in its witness's cross examination. Therefore, the complaint is not so much that the Record of the Court has discrepancies and inaccuracies but the Applicant is seemingly dissatisfied with his earlier testimony in cross examination. The Applicant does not provide the Court with any material as a basis for its complaint. Clearly its complaint is not in good faith. - [24]. In regards to the fact that this litigation had proceeded to the stage that the Defendant had begun to present the testimony in chief of its said sole witness which the Applicant had had the opportunity and benefit to hear and consider prior to seeking to recall its witness, this Court finds that it would be prejudicial to the Respondent to allow the Applicant to recall its witness. It is also clear that the Applicant seeks to have its case reheard, which if permitted would be the third time now, that its witness is recalled to testify. This qualifies as an abuse of the process of the Court and is hereby disallowed.

- [25]. In regard to **Order 18 Rule 13 of the Civil Procedure Rules, SI 71 – 1** and **Section 164 of the Evidence Act, Cap. 8** cited by the Applicant in respect of recalling its witness, this is clearly the preserve of the Court as provided by the Statutes and is not available to be invoked by the Applicant. - [26]. Having carefully given due consideration to the Application, the supporting Affidavit, the responsive Affidavit, the Annextures, the Submissions filed, the entire Record of the Court specifically of the 14th December, 2022 and the 19th September, 2023, the Law applicable and the circumstances of the case, the Court finds that the Application is without merit and is hereby dismissed with costs.

## **Orders of the Court.**

- [27]. Accordingly, the Court makes the following Orders: - 1. **Miscellaneous Application No. 03/2024** is hereby dismissed. - 2. The Applicant shall bear the Costs of the Application.

It is so Ordered.

**Signed and Dated on the 28th day of January, 2025 at High Court Kitgum Circuit.**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Ruling has been delivered in Open Court by the Presiding Judge this **Tuesday, the 28th January, 2025 at 4:50pm** and the parties in attendance are recorded hereunder.

- 1. The Applicant Mr. Geoffrey Oywek, - Managing Director, *Pro Se*.

2. The Respondent - Ms. Anek Joyce Ongee.

- 3. Court Clerk and Interpreter Mr. Ongom Samuel Grey. - 4. Interested and Affected Persons and Entities.

**Philip W. Mwaka**

**Acting Judge of the High Court.**

**High Court Kitgum Circuit.**

**28th day of January, 2025.**