Bemanyisa v Mujuni & Another (Miscellaneous Application 3858 of 2023) [2023] UGHCLD 451 (2 May 2023)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLANEOUS APPLICATION NO. 3858 OF 2023 (ARISING FROM CIVIL SUIT NO 182 OF 2O22)**

### **BEMANYISA ADONIJA :::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

#### **1. MUJUNI RICHARD**

**2. KITAMUWESI BAKER :::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

#### *Introduction:*

- 1. This is an application by way of Notice of motion brought under Article 28 of the 1995 Constitution of Uganda, Sections 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Order 10 rules 12 and Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR) for orders that: - i) Discovery be granted against the 1st respondent to disclose; - a) Persons and their individual particulars who allegedly bought bibanja portions plots out of the respondents'

impugned kibanja bought from one Kamara Ronald as per purchase agreement dated 17th/5/2021.

- b) Copies of the purchase agreements of persons named in (a) above with the respondent. - ii) An order for disclosure of purchase agreement by the 2nd respondent and approved building plan in possession of 2nd respondent in respect of a double storied structure being put up over Plot 346 Busiro Block 403. - iii) Costs of the application be in the cause.

#### *Background;*

2. The applicant in the head suit contends that he is the registered proprietor of land comprised in Busiro Block 403 Plots 334- 359 over part of which the respondents claimed kibanja interest falls. Applicant contends that both respondents are squatters who should be evicted for illegal acquisition of bibanja portions when there was a court order disallowing sale or any transactions over the suit land where the respondents' claimed kibanja interest falls. The respondents in their written statement of defense state that at

the time the main suit was filed they had sold their bibanja Plots that lie over the suit land to different parties.

#### *Applicants' evidence;*

- 3. The application is supported by an affidavit deponed by the applicant which briefly states as follows; - i) That I am the owner of the suit land comprised over which the respondents hold a kibanja. - ii) That the alleged sale agreements by the 1st respondent to all his purchasers can only be legally obtained from him but he has refused to disclose the same despite the notice to produce the said agreements. - iii) That the said purchasers of the disputed bibanja are needed together with their purchase agreements for purposes of enabling the applicant to proceed with the suit. - iv) That this application has been brought timely and the same is not a fishing expedition.

#### *Respondents evidence;*

4. The application is responded to by affidavits in reply deponed by the respondents which briefly state that;

- i) That in the written statement of defence of the 1st respondent, I pleaded that I owned a kibanja on the suit land which I acquired for valuable consideration. - ii) That by the time Civil Suit No.182 of 2022 was filed, I had long since sold my kibanja to different persons. - iii) That according to the Joint Scheduling Memorandum, the documents to be relied on were all agreed upon by both parties. - iv) That both parties filed their respective trial bundles and witness statements and the suit is pending hearing. - v) That the documents sought by the applicant are not at all relevant and material to the issues involved in trial. - vi) That the information the applicant desires is within his knowledge and it's the basis of which he filed the two suits H. C. C. S No.182 of 2022 and H. C. C. S No.364 of 2023.

#### *Representation;*

5. The applicant was represented by Dr. Benson Tusasimwe and Mary Nakamanya of Lunar Advocates whereas the 1st respondent was represented by Felix Kintu Nteza of Kintu Nteza Co. Advocates

and the 2nd respondent was represented by Kanyago Annet of Nabakiibi,Kanyange & Co. Advocates. The applicant and the 1st respondent filed their submissions which I have considered in the determination of this application.

#### *Issues for determination;*

- **i) Whether the discovery and inspection orders being sought by the applicant can be granted by this court?** - **ii) What remedies are available to the parties?**

#### *Resolution and determination of the issues;*

6. Counsel for the applicant in his submissions relies on the provisions of section 22(a) of the Civil Procedure Act, Order 10 rule 12 of the civil procedure rules and the decision of **Simbamanyo Estates Ltd and Anor vs Equity Bank Ltd and Others Misc. App No. 583 of 2022** which speak to the fact that court may at any time 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.

- 7. Counsel for the applicant further submitted that he is seeking for the discovery of sales agreements of the bibanja interests executed between the 1st respondent and other parties which documents are material and relevant to prove his claim. This is because the 1st respondent states in his written statement of defence that he sold his kibanja interests to several 3rd parties. - 8. Counsel for the applicant states that the documents will put to end endless litigations since the 3rd parties the 1st respondent sold to are not party to the main suit and in that way a right to be heard would have been archived to the purported 3rd parties. - 9. In reply counsel for the 1st respondent submits that the documents and information sought by the applicant are not relevant and material for purposes of resolving the issues framed in Civil Suit No.182 of 2022. Counsel further refers to the decision in **John Kato Vs Mulhbauer & Another, Misc. App** No.175 of 2011, where court held that the conditions an applicant ought to prove in an application for discovery of documents are, there must be evidence that the documents is in possession or custody of the adverse party, document must be relevant to the issues to be tried,

discovery should not be used as a fishing expedition by the applicant to try and build up a case he is not sure of.

10. The applicant in rejoinder, submits that the orders he is seeking for from court will enable court to have the issues in the main suit put to rest and the documents are relevant and material to the case at hand, he cannot therefore be said that he is on a fishing expedition.

#### *Analysis of court;*

- 11. The genesis of an application for discovery and inspection stems from section 22(a) of the civil procedure act and order 10 of the civil procedure rules. The said provisions provide that court may make orders as to discovery of documents that seem to be relevant and material to the issues at hand. - 12. The civil procedure rules under 10 rule 12 (1) provide that:

*"(1) Any party may, without filing any affidavit apply to the Court for an order directing any other party to the Suit to make a 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."*

- 13. Further Order 10 rule 14 of the Civil Procedure Rules provides that; *"The court may, at any time during the pendency of a suit order the production by any party to the suit, upon oath, of such documents in his or her possession or power relating to any matter in question in the suit, as the court shall think right………"* - 14. Different decisions of court have provided the conditions a litigant undertakes to meet in an application for discovery, I will draw reference to the **Simbamanyo Estates Ltd and Anor vs Equity Bank Ltd and ors (Supra)** where my learned brother Justice Stephen Mubiru stated that, *A party may 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. 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 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 disposing fairly of the suit or for saving costs*.

- 15. An order for discovery is discretionary in nature and in exercising that discretion, the Court will have regard to its proportionality to the needs of the case, considering the importance of the issues at stake in the suit, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. - 16. Discovery relates to the relevance of the issues involved in the trial, including the existence, description, nature, custody, condition, and location of such documents, which appear reasonably calculated to yield admissible evidence. Discovery is

the process by which a party may obtain facts and information about its case from the adversary in order to assist its preparation in arguing the substance of the claims. It is designed to enable a party to obtain relevant information needed to prepare the party's case.

- 17. It is also trite law that court will deny discovery if the party is using it as a fishing expedition to ascertain information for the purpose of starting an action or developing a defence. A court is responsible for protecting parties against the unreasonable investigation into a party's affairs and must deny discovery if it is intended to annoy, embarrass, oppress or injure the parties or the witnesses who will be subjected to it. - 18. A court will stop this discovery when used in bad faith and if the information to be produced is not protected by privilege (*See; Patricia Mutesi vs Attorney General Misc. App No.912 of 2016) by Hon. Justice Stephen Musota)* - 19. The considerations for an application of discovery are as follows; 20. *Relevance and Materiality;* The action must be aimed to lead to admissible evidence, for an order of discovery to be made the

document or information must first be shown to be relevant since irrelevant evidence is inadmissible.

- 21. For a document to be considered relevant it should speak to the fact that there is an issue to the suit that's more or less probable than it would be without that particular evidence. A document is material if it is being offered to prove an element of a claim or defense 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. - 22. The documents counsel for the applicant desires to be discovered are the sales agreements between the 1st respondent and other 3rd parties the 1st respondent refers to in his written statement of Defence. The applicant submits that the said agreements are relevant to the issues in the main suit. - 23. The reading of the pleadings in the main suit take me to the understanding that the applicant/plaintiff's claim against the respondents is one of trespass. - 24. Further the applicant filed all his relevant documents in his trial bundle that are to enable him prove his case before this honorable court.

- 25. If the applicant alleges that the said sales agreements are relevant and material to his case then why would he wait for the 1st respondent to first refer to the same documents in his written statement of defense to refer to the said documents as relevant. - 26. In fact, it appears to me that the applicant's motive is that "show me the documents which are relevant so that I see if I have a case or not". - 27. I am of the view that the applicants' prayers in the instant application are merely speculative in nature. The applicant attaches relevance on documents that he hasn't proven. - 28. The applicant is merely driven by hope that something will emerge from the transactions between the respondents and other third parties that will enable him pursue and prepare his case before court. - 29. Parties should take kin note that where the application for discovery is driven by the hope that something will emerge which may form the basis of or support the applicant's claim, then it is a fishing expedition. - 30. On what amounts to a fishing expedition, I will refer to the case of **Gale Vs Denman Picture Houses Ltd [1930] KB 588**, 590 per

Lord, Scrutton L. J wherein he held inter alia thus: **"A plaintiff who issues a writ must be taken to know what his case is. If he merely issues a writ on the chance of making a case, he is issuing what used to be called a "Fishing Bill" to try to find out whether he has a case or not. That kind of proceeding is not to be encouraged. For a plaintiff after issuing his writ but before delivering his statement of claim to say, "show me the documents which may be relevant so that I may see whether I have a case or not" is most undesirable proceeding."**

- 31. Therefore, I find the applicant's application short of the relevance and materiality considerations. - 32. *Document in respondent's possession or custody or control;* Actual possession of the document is unnecessary if the party has control of it. All that is required is for the respondent to either have physical possession of the document, or have a right to possession of the document that is equal or superior to the person who has physical possession of the document. - 33. Mere access to documents does not constitute possession, custody, or control. Accordingly, when documents are owned by

another, it is error to require a party with mere access to them to produce them.

- 34. Counsel for the applicant submits that the 1st respondent being the one who purportedly sold the said kibanja to other third parties then he should be in possession of the sales agreements. - 35. Counsel for the 1st respondent states that the purported documents are not within his possession and it's the buyers with possession of the said sales agreements. - 36. The fact that counsel for the applicant borrows his basis from the respondent's written statement of defense, he further doesn't prove that the 1st respondent indeed is in possession of the said sales agreements. It appears that the applicant is seeking for discovery against unknown third parties. - 37. In the result, I find that the applicant hasn't made a proper case for the grant of an application for discovery, it's for that reason that the application stands dismissed with no orders as to costs.

**I SO ORDER.**

**…………………………..**

## **NALUZZE AISHA BATALA**

**JUDGE**

**2/05/2023**