Kare Distribution Limited v African Rivers Fund (Miscellaneous Application 2714 of 2023) [2024] UGCommC 270 (25 March 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (coMMERCIAL DIVISION)

# MISCELTANEOUS APPLICATION. 27I4 OI 2023

5 KARE DISTRIBUTION LIMITED APPLICANT

#### VERSUS

AFRICAN RIVERS FUND RESPONDENT

## BEFORE: HON. LADY JUSTICE ANNA. B. MUGENYI

#### Rulino

<sup>I</sup>hove reod the pleodings ond submissions of the porlies in this motter.

The oppliconts seek orders thol:

- l. An order recolling the plointiff's witnesses in Oivil Suit No.700 of 2019 for cross-exo minotion. - 15

2. The counter defendonts be ollowed to file pretriol documents to wit, scheduling memorondum, hiol bundles ond wilness stolemenls.

Wilh regord to the firsl proyer/ground, Order l8 rule 13 of ihe CPR provides thot the court moy ot ony stoge of the suit recoll ony wllnJss who hos been exomined, ond moy, subjeci to lhe low of evidence for the time being in force, put such queslions 1o him or her os the Court thinks fil.

ln lhe cose of Chino Roilwoy No. 3, Engineering Co. Limited v Prof. Arthur Gokwondi M. A 0025/2023; Hon Justice Vinceni Wogono held thot:

"The obove rule gives Court the discretion subject to the low of evidence to recoll ony wilness ond put queslions which court deems necessory. lt is my view thot recolling o wilness is noi o motter of right or course. Courl con only do so in deserving circumsfonces where recolling such o wilness is meonl to cloity on the evidence on record or other evidence which Court in liis wisdom is necessory io orrive ot o jusi decision. "

ln the present opplicotion, the oppliconts seek on order to recoll o witness in the moin suit for cross-exominotion by ihe 2no opplicont himself, o stote of offoirs ihot is not provided for by ony low. The 2nd opplicont wos in Court on the doy ihe witness testified in Court but he chose io confemptuously storm out of Court thereby forfeiting his rights to cross-exomine the witness. The soid plointiff 's witness wos heord ond the court did indeed pul questions to lhe witness for clorificoiion ond the ploinliff's cose wos closed ond they were directed 1o file written submission pending finol determinolion of lhe cose.

Suffice it to note thot the power to recoll o witness con only be exercised by the Court ond this must be done judiciously, reosonobly ond not to the prejudice of ony porly to the suit. (Order l8 rule l3 CPR; Simbomonyo Esloles Ltd v Equity Bonk ond olhers M. A No. 6601 ot 2022). 15

ln this motter lhis Court olreody enterloined the plointiff's witness ond heord whol he hod to soy; ond lhere is no bosis for recolling the soid witness by lhe Courl.

The choice by the 2no opplicont to storm out of Court, os eorlier sloted, wos voluntory ond signified his dis-interest in cross-exomining the plointiff's witness when given on opporlunity io do so. He connol therefore seek the order sought becouse lhere is no bosis in low for gront of such on order, ond he forfeited his

right to cross-exomine by his contemptuous octions thot this Court will not condone. 25

Wilh regord to the second proyer/ ground; from lhe court record it is evident thot the oppliconts filed on 24/1/2020 o plointiff 's triol bundle thot included o copy of the proposed Joint Scheduling memorondum; o wilness stotement of Koregyeyo Geoffrey ond severol oiher documents.

5 In porogroph 4 of the offidovii in support of ihis opplicotion; the 2nd opplicont depones thot pre-triol documenls were filed by the respondents 'steolthily' on 27th October 2023 ond served on the 2na oppliconl vio emoil on 28th Ociober 2023 tor o motler thoi wos coming up on 30th October 2023.

This itself is confirmotion thot pre-triol documents were prepored ond received by the oppliconts in preporotion for the scheduling conference to loke ploce on 30th October 2023. n is of o scheduling conference thot lhe pre-lriol documenls ore presented ond discussed by the porties with o view to coming to one common position in respecl of focts; issues, witness; documents etc. before the motter is heord on its merits. 10

- On 30tn October 2023, os eorlier stoted, the 2no opplicont rudely ond contempluously stormed oul of Court before the scheduling conference could be held; ond the sqme wos evenluolly held ond heoring of the cose commenced with ihe presentotion of the plointiff's witness on ihot doy ond closure of the ploinliff 's cose. 15 - The 2nd opplicont closed itself from the proceedings ond opted not to poriicipote in the some; ond connoi now be seen to turn oround ond pretend to show inierest in the soid proceedings which they obondoned volunlorily yet they hod been given on opporlunity io be heord. Agoin, lhere is no bosis for gront of lhe order sought by the oppliconts ond the some is dismissed/ disollowed. 20 - Before I toke leove of lhis motter, the oppliconts through ihe 2nd opplicont olluded to being denied their constitutionol right to o foir heoring which included o right 25

io legol representotion ond o right to be heord by ollowing ihem io file lheir pretriol documenis qnd to cross-exomine the respondent's witness.

lt is notoble thol on l8th September 2023 the 2no oppliconi wrote to the respondent's lowyers ond informed them, inter olio, thol he hos withdrown instruction from his former lowyers ond lhot he wos represeniing himself. On 30rh Ociober 2023 when the motter wos colled for heoring; the oppliconls sought on odjournment to Februory 2024 when they would hove instructed o lowyer; olmost 5 months from the set dote of heoring.

Further, the oppliconts themselves filed severol opplicolions in this Courl ond the Court of Appeol; oll seeking to stop/ stoy the heoring of ihe moin suit in one woy or the other. ln foct, in CA No. 804 of 2022; the Courl of Appeol held thot the opplicont's primo focie cose seems 1o be on obuse of ihe court syslem ond connot be ollowed to continue ofter which the opplicotion wos dismissed' 10

To dote the oppliconts hove never inslructed o new lowyer ond in foci during the heoring of 20/10/2024; the 2nd opplicont confirmed thot he wos representing himself. This confirms thoi ihe oppliconts indeed never intended to inslrucl ony lowyers to represent them ond lhis is yet onolher deloying ioctic to prolong the heoring ond delerminotion of C. S 700 of 2019. 15

To ihis Court; the oppliconts were ollowed to exercise lheir constilutionol right to o foir heoring in os for os ihey were given on opportunity to otlend o scheduling conference; heoring of the plointiff 's witness ond cross-exominotion of the some ond preseniotion of their witness; but insteod they opied to contemptuously storm out of ihe Court os eorlier stoted, thereby voluntOrily closing lhemselves out of their own cose for which they hod been given on opportuniiy to be heord ond def end themselves. 20 25

For emphosis; the oppliconts did noi intend io hove o legol representotion ot ony one point os cloimed, ond even when lhey were ollowed to represenl themselves and were afforded an opportunity to be heard and present their defence, they sat on their rights and opted not to participate in the court proceedings out of their own volition. They, therefore, cannot now turn around and seek to benefit from their rude; contemptuous and time wasting conduct.

In conclusion and from all the fore-going; this application is a clear abuse of Court $\mathsf{S}$ process and is dismissed accordingly.

$5$

Costs of the application shall be borne by the applicants.

Ombitatie Anna . B. Mugenyi

Judge 10 25<sup>th</sup>.03.2024