Kakonge v Bitarabeiho (Civil Suit 755 of 1992) [1994] UGHC 112 (30 May 1994)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL SUIT NO. 755/92

*I*

EDWARD KAKONGE::: *:* : PLAINTIFF

# versus

MR.'". CHRISTINE BITARABEIHO: ::DEFENDANT BEFORE: THE HONOURABLE MR. JUSTICE I, MUKA1TZA.

## R U L I N G:-

In. this He testified that for ana-lysis. That document was given The second document was one hand transfer That document was given to him as Annexture "E". He concluded those were the requirements from the firms of lawyers. wrote the questioned documents mentioned above (Exhibit Annexture C and E.) He went ahead and made his analysis. . **DW2** explained his findings and conclusions. and prepared a report to that effect. part of the learned counsel Mr. **Winyi** to tender in evidence This He also prayed for a declaration that motor vehicle registration No. UPX 135 Mitsubishi Toyota was the property of the plaintiff. The position was that when DW2 fas called to give his **evidence** explained that he works as The defendant also did testify as **DW1** and called **DW2** in support of her version. He went ahead An attempt was made on the report of DW£ as expert on the questioned documents, to waa objectedzby Mr. Muhwezi the counsel appearing for the His role was to find whether or not the writters whose specimen had been given case the plaintiff sued the defendant seeking for the award of general and special damages for the unlawful detention of his vehicle. written agreement dated 5th March 1990 concerning the of interest of motor vehicle UPX 135. a government analyst working on questioned document? He gave particulars of his qualifications. the counsel appearing for the defendant gave him some documents The first one was one photocopy of a typed written document dated 2nd April 1990 authorising Mr. Bitabereho Paulo to rent motor vehicle UPX 135. The plaintiff gave evidence as PW1 and called witnesses in support of his case and closed the **plaintiff's** case. to him -as Annexture "C" •

plaintiff and hence this ruling to resolve the issue.

for the first pleadings. the transaction was voidable or void on point of law or such grounds of defence as if not raised will be likely to take the would raise issues of fact not n "And further rule 6 of the same same." a counsel by surprise. Under rule 6 would as arising out of pleadings for instance fraud, showing illegality either by statute or common law pleadings of the defendant at all not raised in the proceeding pleadings or proceedings of the court and they had taken the They involve allegations of fraud which is prohibited under rule 5 as being a new ground. Mr, Ruhwenza submitted that he was taken by surprise to opposite part by surprise or objecting to CTD4- to be see the report not be admissible in evidence since it violates of procedure aforementioned. time it was mentioned that there was Either he would have expected the mention of this in the He contended that "order 6 r 5 the ^PR states defendant shall raise by his put on record because he was of handwritting expert for the first time and even such afeport in existence. among other things" that the pleadings which show the action not to be maintainable or that order states that no pleadings shall not being petition or application except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same." He argued that the attempted tendering of the forensic expert report is totally new ground of defence which had not been raised in the

Secondly the report is hearsay in that the witness states case and is not coming to give evidence so that he cr>uld be examined how he got this to give to the analyst fo examination. In the premises it is hearsay evidence as regard the claim of handling exhibits is concerned. He objected to the report plus that the questioned documents were given to him by counsel appearing for the defendant whi is not witness in this its specimen which he had not looked at to be tendered in

in as defence exhibit.

*o*

counsel appearing for the raised by counsel for the Those defendant is court• "The defendant shall put to plaintiff strict to be taking counsel by surprise\* in paragraph 4 of the WSD which he was prepared to read to On the other hand Mr. Winyi the of allegations made in paragraph 3 and 4 of the plaint and extra". defendant submitted that the argument baseless misplaced and holds no water. arguments do not fall under the armpit of order 6 rule 5 in that there is no new matter/fact that has been produced or said It was specifically pleaded

They had to call a handwritting expert\* It was not the first time they were arguing to show that; *EXP* 3 was a forgery• They mentioned that in evidence to show that signature in EXP 3 do not belong to Paulo Butabereho. The preliminary objection should therefore be rejected\* How do they prove this\* Annexture C is exhibit D1 they were saying was *a forgery.* They do not see how that was a new matter taking counsel by surprise. They said in the 4th paragraph of their WSD that they would adduce evidence to show that EXT 3 was a forgery\*

In reference to rule 6 of order 5 they still argued that rule 6 of order 6 is irrelevant in the circumstances of this matter and no new ground has been raided\* fraud and they were trying to prove that by calling DW3 as an expert. There was nothing new counsel was forewarned. He His arguments were misplaced and should be dismissed. That the case hinges\* on proof of either documents which documents were exhibited as EXD1 and EXP3\* Those documents are the one to determine what transpired between the late Bitabareho Paulo and Edward Kakonge and that it was important that both of them or one of them is proved authevehicle which is the main issue in this case. was warned in advance\* nticity so that the court decides on the ownership of the The prosecution They said there was

having been what was rejected by the the genuine documents the two signatories was the genuine one# brought exhibit PJ as defendant which brought in EXD1 as supporting her case. It was the duty of the defence case to prove the decument that it was the genuine document, It was brought in and exhibited in its originalty. The plaintiff has brought in EXP PJ is a photocopy defence has called an expert io determine which of the documents is authentic or which of

4 :

talks of forgery which would be proved but does not state the fact of handwritting expert report and this was never annexed to WSD as the other annextures were annexed and the handwriting expert therefore is a ground of fact which is new in the proceeding nnd pleadings therefore rule 5 and 6 were violated. In reply Mr. Muhwezi submitted that paragraph 4 of WSD

expert and therefore there was movement of the documents and the counsel did not state where he got the documents from and since the counsel did not give evidence and to avoid what the witness had said about the report and the report itself in order not to make it hearsay the best thing the counsel should have done would have been to disqaulify himself from his client that that omission renders the hadnwriting expert report inadmissible on the basis of hearsay. He prayed that, the evidence of the handwr'itting expert be rejected^ That it was the counsel who took the document to the the present caseand become the witness which he did not nor did he advise

I have very carefully considered the submissions of the learned counsels appearing for the partis and had the through the pleading once more. privilege togo

rule 5 and 6 of the civil procedure rules as already commented upon by Mr« Muhwezi rule 5 provides The law pertaining to this kind of situation is order 6

action transaction is either void or voidable in point of The defendant or plaintifff as the case may be shall raise by his pleading all matters which show th§ or counterclaim x\_jt to be maintainable, or that the

..</S

as release payment performance, illegality either by statute the case may be, as if to take the opposit party by surprise, would raise issues of fact not arising out of the proceeding for instance fraud, limitation act, or facts showing or common law. pleading, as law and all such grounds of defence or reply not raised would be likely

whereas rule 6 states:-

"No pleading shall, not being a petition or application except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistnet with previous pleadings of the party pleading the same."

z. a forgery. that is in cases of forgeries evidence of expert on handwriting is required for comparison with the specimen signature/ handwriting with the questioned document in this respect the forgeries. It is also true the defence wants to prove that one of the documents EXD1 or EXPJ was genuine one and the other was not\* Indeed if the learned counsel was able to uatfhch the necessary annextures C. D. E and extra at the time of the filing of the instant case, I fail to understand why he could not have attached the annexture of the report of the expert on I am of the view that the tendering in of the In paragraph 4 of the WSD and in this way I am agreeble with the submission of the learned counsel for the defendant that handwriting. expert report at this stage took the opposite by surprise it is a new fact which ought to have been pleaded at the time of the filing °< this suit. In essence this was a departure from the pleadings and violated order 6 rule 5 and of the civil proo' ".ure rules as outlined above. the WSD written statement of defence made it very clear that the defendant shall put the plaintiff to strict proof in which he stated in paragraph &gt; of the plaint and prove that the purported signature of Paulo Bitaberaho Annexture "C" was I agree with the learned counsel' for the defendant

Be that as it may 'W2 in his testimony informed this

: 5 :

was stated, to be At least it is The counsel should, have laid the Reference court that he was given specimen signature by the learned counsel appearing for the plaintiff for comparison with the questioned documents. That is E/ZDi referred to by the defendant as the genuine document in which Mr# Kakonge transferred all the interest of his vehicle to the late Bitabereho whereas EXjP3 foundantion how he got the specimen signatures of the two personalties since the learned counsel is not going to disqualify himself to come and testify how he secured the said specimen-si-nature. Reference to the said specimen signature in my simple opinion appear to be hearsay evidence. a forgery by the defence in which vehicle UFX 135 was alleged to be rented to said Bitabereho on monthly basis. The court was not informed how Mr. Vvinyi secured the specimen signatures he handed over to the expert on handwriting for comparison with the questioned documents. common knowledge that Bitabereho is no longer living and Kakonge is still alive.

expert not form part of the proceedings. From what I have tried to explain above the report of the on handwriting of the said ds inadmissible and could The preliminary objection by Mr. Muhwezi is upheld with costs to the plaintiff.

> I. MUKAim zx'"i J EDGE 30.5.1994

: 6 :