Arinaitwe and Anor v Lugarama and 4 Others (Miscellaneous Application 592 of 2023) [2024] UGHC 268 (6 May 2024)


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA MISCELLANEOUS APPLICATION NO 592 OF 2023** 5 **[ARISING FROM HIGH COURT CIVIL SUIT NO 24 OF 2022]**

- **1. ARINAITWE SAMSON ----------------------------- APPLICANTS** - **2. TWINOMUJUNI ROBERT**

## 10 **VERSUS**

- **1. BETTY LUGARAMA** - **2. LUGARAMA BEATRICE JOYCE KISEMBO** - **3. NAMARA PRUDENCE -------------------------------- RESPONDENTS** - 15 **4. MUSIMENTA WINFRED** - **5. RUTARO RICHARD APOLLO**

**BEFORE:** Hon. Justice Nshimye Allan Paul. M.

### **RULING**

#### **REPRESENTATION**

25 Adv. Maxim Mutabingwa for the Applicants Adv. Evans Tusiime for the respondents.

## **BACKGROUND**

On 04 March 2021, eleven plaintiffs that included the respondents herein filed HCCS 24 of 2021 against the applicant herein. On 31 30 st March 2021 the defendants in HCCS filed their written statement of defence. On the same date of 31st March 2021 the 2nd applicant herein (**TWINOMUJUNI ROBERT)** filed a counter claim against the plaintiffs in HCCS24 of 2021 and the 1st applicant herein (**ARINAITWE SAMSON).** The parties to

the suit and counter claim in HCCS 24 of 2021 first filed a joint scheduling

- memorandum on court record on 11 35 th May 2022, but later with courts permission filed an updated joint scheduling memorandum on court record on 14th March 2024. The court set scheduling has been halted pending the determination of HCMA 592 of 2022 that the applicants fled in court on 14 December 2023.

This application has been brought by way of a Notice of Motion basing on the law quoted in the Motion as Section 66 & 71 (2) of the Evidence Act and Order 52 Rules 1,2, & 3 of the Civil Procedure Rules (CPR), seeking orders that;

- 5 1. That the respondents be directed to write words and signatures for submission to the handwriting expert to enable the handwriting expert/court to compare them with the words and signatures in the acknowledgement and agreements they deny having written and signed which they intend to rely upon as evidence in the suit aforesaid. - 10 2. The costs of the application be provided for.

### **GROUNDS**

The applicants raised 9 grounds in the application, which are that;

- 1. Arinaitwe samson in his capacity as the administrator of the estate of the late 15 Semu Lugarama Itazya sold land comprised in LRV 3027 Folio 8 Rwampara Block 42 plot 38 land at Katokye to the 2nd applicant. - 2. The applicants were not present at the time of the execution of the sale agreement due to the lock down during COVID 19 pandemic but after the execution of the agreement, the 1st applicant took the respondents their share 20 of the proceeds of the sale of the land and upon payment to them of the money they acknowledged receipt of the money by writing and signing on the photocopies of their national identity cards and others signed as witnesses on the sale agreement. - 3. Some beneficiaries do not deny having received the money but the respondents 25 deny having received the money and having written or signed the acknowledgements and reported a case of forgery to police against the applicants. - 4. The applicants were then compelled to surrender all the original copies of the agreements and acknowledgements the respondents had written and signed to 30 the police, which they did. - 5. The applicants became aware that the documents were submitted to the handwriting expert only when the respondents attached the documents as annextures to their plaint in the instant suit and in their trail bundle and intend to rely on the documents and handwriting analyst report as evidence. - 35 6. The applicants are aggrieved and believe the police handwriting analyst was compromised to make a false report and asked court to order that the original be availed to them so that they can subject them to anther handwriting expert for a second independent opinion and court ordered that the documents be availed to the applicants. - 40 7. That the documents have now been vailed to the applicants after a long struggle and the documents were taken to the handwriting expert for a 2nd opinion but

the handwriting expert from the respondents to compare them with the acknowledgements which the respondents deny having written and signed.

- 8. If the respondents are not directed to write the samples in the same words as the acknowledgementsthey deny having written and signed, the court order will 5 be rendered futile and nugatory, and court will not have anything to compare the acknowledgements with and this will occasion a miscarriage of justice. - 9. It is just and equitable that the respondent be directed and compelled to provide samples to enable the handwriting analyst and court to compare them with the ones they deny having written and signed. - 10

I have looked at the grounds listed in the application, and I find that they basically mainly constitute a narration of facts that would otherwise be used as evidence to support grounds of an application.

- 15 My understanding of the law governing applications is that a ground is the reason the application is brought and the affidavit evidence in support is what is relied upon to put forward the facts that prove or support the ground, so that if court is convinced it, can grant the orders sought. I therefore believe that the "grounds" as listed in the application could have been redrafted into two or three legal grounds that court can 20 base on in determining the application. - I can deduce from the "grounds" listed in the application as drafted only two legal grounds that require proof by way of affidavit evidence for courts consideration, they are that;

- 1. The respondents ought to avail their handwritten samples to be compared by the handwriting expert with the acknowledgements made on the agreements for land comprised in LRV 3027 Folio 8 Rwampara Block 42 plot 38 land at Katokye in Ntungamo District. - 30 **2.** That it is just and equitable that the application is granted.

I also would like to make an observation in respect to the law relied upon in the application. Whereas the applicants state on the Notice of Motion that they have brought the application under Section 66 & 71 (2) of the Evidence Act, Section 71 (2) 35 of the Evidence Act quoted is erroneous since it does not exist. My opinion is that the applicants possibly meant section 72 (2) of the Evidence Act, which exists in the law and relates to comparison of signature, writing or seal with others admitted or proved.

#### **SUBMISSIONS**

40 I have considered the parties' submissions filed on court record

#### **DETERMINATION**

In principle a contested signature on a document ought to be proved as is provided in section 66 of the Evidence Act. One of the ways in which a signature or writing on a document may be proved is by use of handwriting experts whose opinions as experts 5 are relevant as is stated in section 43 of the Evidence Act.

It is trite that a party that wants to subject a signature or handwriting to analysis by a handwriting expert has the onus to apply to court for samples for comparison where need arises as was held in **AZIZ KALUNGI KASUJJA V NAUNE TEBEKANYA NAKAKANDE**

10 **SCCA 63 OF 1995**, where Hon Justice A. N. Karokora JSC stated that *"The onus was on the appellant to request for handwriting samples of respondent to be compared with the signature on Exh. D15"*

The law in section 72 of the Evidence Act is instructive as to the form of samples to be 15 sought for comparison with a contested signature or writing.

Section 72 of the Evidence Act states that;

*"72. Comparison of signature, writing or seal with others admitted or proved*

- 20 *(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not* 25 *been produced or proved for any other purpose.* - **(2)** *The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by that person."* **(Emphasis mine)** - 30

I have perused Section 72 of the Evidence Act and I am of the opinion that the operative provision that allows for comparing a contested signature or writing with an admitted or proved signature is in section 72 (1) of the Evidence Act.

- 35 The evidence on court record in paragraph 12 of the affidavit in support and annexture H of the affidavit in support shows that this court issued an order on 22nd March 2023 ordering that original documents be availed to the applicants herein. The desired documents were given to the respondents as admitted in paragraph 15 of the affidavit in support. - 40

It is the applicant's averment in paragraph 21 of the affidavit in support that the respondent be directed to avail writing samples to an unnamed handwriting expert for

an opinion that is independent from that by police. The respondentsin response to the applicants request state that they object to the application, stating in paragraph 10 of the affidavit in reply that the applicants have not disclosed in their evidence the said expert or authority that needs to carry out the handwriting analysis. The respondents 5 also aver in paragraph 12 of the affidavit in reply, that the independent analyst should analyze the same samples used by the forensic examiner of Uganda police (see paragraph 16 of the affidavit in reply)

In my analysis of the evidence on court record, I find that I agree with counsel for 10 respondents'submission that if the applicants are to carry out an independent forensic study to counter the report by police, the expert they want to use ought to study the same samples that police studied. Police Form 17A with the respondent's signatures have already been availed to the applicants as averred in paragraph 5 of the affidavit in reply and annexture B to the affidavit in reply. This evidence of the respondent's is 15 also confirmed in paragraph 15 of the affidavit in support, where the applicants reveled that they have received the documents.

I note that even though the applicants admit having the documents from police that have the signatures of the respondents they lodged this application requesting to get 20 handwriting samples for an unnamed handwriting expert. I have already stated above that the operative provision for comparative analysis is Section 72(1) of Evidence Act which states that;

*"72. Comparison of signature, writing or seal with others admitted or proved* 25 (1) *In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or* 30 *proved for any other purpose*" (Emphasis mine)

I note that the HCCS 24 of 2021 revolves around a land agreement and signatories to the said land agreement and documents. This implies that the key consideration is the signatures of the parties to the agreement because it is the signature that confirms 35 whether the respondents signed the agreements or not. So, since the crux of the case in HCCS 24 of 2021 is in respect endorsement of an agreement, as a way of confirming the acceptance of the terms therein, the court will focus on the signatures of the parties.

40 I find that in this application there are contested signatures on agreements and documents annexed as annexture A to F on the affidavit in support which the

applicants want to be compared with known signatures of the respondents for comparison.

This comparison of annextures A to F to the affidavit in support can be done with the signatures of the respondents in Police Form 17 A already in the applicant's possession $\mathsf{S}$ or may be compared against the respondent's signatures on documents on court record, which documents are also in the possession of the applicants. The documents with the confirmed signatures of the respondents include;

- 1. For the $1^{st}$ respondent, the witness statement in HCCS 24 of 2021 10 - 2. For the $2<sup>nd</sup>$ respondent, the witness statement in HCCS 24 of 2021 - 3. For the $3<sup>rd</sup>$ respondent, the witness statement in HCCS 24 of 2021 - 4. For the 4<sup>th</sup> respondent, the witness statement in HCCS 24 of 2021 - 5. For the $5<sup>th</sup>$ respondent, the witness statement in HCCS 24 of 2021 - 6. For the $6^{th}$ respondent, the witness statement in HCCS 24 of 2021 15

Considering that the documents for comparison were already in the applicant's possession and this application was filed over two years after the main suit was filed, also considering that the main suit HCCS 24 of 2021 is now entering into the pile of backlog cases, and also considering that it is not mandatory for the applicants to bring the unnamed handwriting expert as their witnesses. I will grant this application with specific orders that also promote the speedy trial of HCCS 24 of 2021, since it is now among the backlog cases.

- I order that; 25 - 1. The applicants will use an expert to compare the respondent's signatures on the agreement and documents annexed as annexture A, B, C, D, E and F to the affidavit in support with the proved signatures of the respondents on their witness statements in HCCS 24 of 2021, which are also in the applicant's possession. - 2. The applicants will file the handwriting experts report on court record by $28^{th}$ May 2024 and serve the same on respondents by 31<sup>st</sup> May 2024. - 3. That scheduling and hearing of the case in HCCS 24 of 2021 will proceed since a handwriting expert can always be accommodated by court during course of trial, if any party desires to rely on them. - 4. Each party will cater for their own costs.

WEARTS **NSHIMYE ALLAN PAUL M.** JUDGE

06-05-2024

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