Lt. Col. (Rtd.) Vincent W. Khaukha T/A Inbred Associates v Attorney General and A nother (Miscellaneous Application 456 of 2023) [2024] UGHCCD 188 (8 November 2024)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **(CIVIL DIVISION)**

#### **MISCELLANEOUS APPLICATION NO.456 OF 2023**

# **(ARISING FROM CIVIL SUIT NO. 298 OF 2020)**

**LT. COL. (RTD.) VINCENT W. KHAUKHA:::::::::::::::::::::::::::::::::::: APPLICANT** *T/A INBRED ASSOCIATES*

#### **VERSUS**

## **1. ATTORNEY GENERAL**

**2. BRIG. GEN. DAVID KASURA KYOMUKAMA ::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE: HON: JUSTICE SSEKAANA MUSA**

#### **RULING**

The applicant filed this application under Section 33 of the Judicature Act, Cap. 13, Sections 32 and 33 of the Evidence Act, Section 98 Civil Procedure Act , Cap 71 and Order 10 rules 12,14 and 24 of the Civil Procedure Rules S. I 71-1 seeking for Orders that :

- *a) An Order for Discovery on Oath of adopted, signed, and certified copies of minutes of meetings held by the Plaintiff and agents of the 1st Defendant and the 2nd Defendant on 28th August 2019; 15th January 2020; 17th March 2020, 10th September 2020, and 17th October 2020.* - *b) An Order directing the Secretary, Office of the President, and/or any other agent acting under him, as agents of the respondents to furnish the Court and the Applicants with the aforementioned adopted, signed, and certified*

*copies of minutes of meetings held by the plaintiff and agents of the 1st Defendant and the 2nd Defendant on 28 th August 2019; 15th January 2020; 10th September 2020, and 17th October 2020 for inspection.*

*c) Costs of this Application be in the Cause.*

The application is supported by the affidavit of LT. (RTD.) Vincent W. Khaukha, in which the grounds thereof are stated but briefly are that;

- 1. The applicant/plaintiff filed Civil Suit No. 298 of 2020 against the respondents/defendants for various orders which is pending hearing before this Honourable Court. - 2. On 15th October 2020 and 30th November 2020, the respondents filed their respective Written Statements of Defence to the plaintiff's suit. - 3. The Plaintiff's suit relates to a breach of a contract entered in to between the plaintiff and the defendants. - 4. The Secretary, Office of the President, an agent of the 1st respondent, and the 2nd respondent have information and minutes of meetings held between agents of the 1st respondent, the 2nd respondent, and the plaintiff and other information on activities engaged in by the parties in the part execution of the building contract. - 5. The Secretary, Office of the President, an agent of the 1st respondent, and 2 nd Respondent have refused/neglected to avail the applicant with adopted, signed, and certified copies of the minutes of meetings held between the applicant and respondents despite numerous requests. - 6. The information provided is necessary for determining the main suit, and failure to grant this application would result in irreparable damage to the applicant. It is therefore in the interest of justice that this Honourable Court grants the application.

The 1 st respondent filed an affidavit in reply through Mugisha Fredrick-Principal Assistant Secretary Office of the President, Uganda stated briefly as follows;

- 1. THAT I know that the 1st respondent makes no admission to any of the paragraphs contained in the affidavit of LT. CO. COL. (RTD) Vincent W. Kahukha. - 2. That I have been advice by attorneys in the Attorney General's chambers whose advice I verily believe to be true that the application is devoid of merit and the orders sought there in are frivolous, vexatious, barred in law and a glaring abuse of court process. - 3. THAT in specific response to paragraphs 1, 2, 3, and 4, including all their subparagraphs in the applicant's affidavit supporting the application, I have been advised by lawyers from the Attorney General's chambers, whose advice I believe to be true, that a Written Statement of Defence on the court record asserts that no existing and legally binding contract exists between the applicant and the 1 st respondent, as alleged. - 4. THAT in specific response to paragraphs 5, 6, 7, 8 and all sub paragraphs there under of the applicant's affidavit in support of the application, I state that on 28th March 2023, Office of the President responded to plaintiff's letter mentioning that the records were carefully reviewed but the office did not have any record of the meetings outlined in the request. - 5. THAT in response to paragraphs 9 through 15 of the Applicant's affidavit, I am aware that the 1st respondent does not have adopted, signed, or certified meeting minutes, nor is the 1st respondent in possession, custody, control, or power of the documents as alleged. Additionally, I have been advised by Attorneys in the Attorney General's chambers, whose advice I believe to be true, that a dispute in the main suit before this honorable court can be determined on its merits and should be addressed before any orders sought by the applicant are granted.

- 6. Furthermore, I am advised by attorneys in the Attorney General's chambers that this application is a fishing expedition to enforce a conceived right, with an intent to scandalize the 1st respondent. There is neither necessity nor justification for the documents the applicant has requested. - 7. THAT it is in the interest of justice that this application for orders for discovery is not granted as it will greatly prejudice the interests of the 1st Respondent in the main suit.

## **Issues for determination**

*1. Whether an order for discovery prayed for by the Applicant Should be granted by this Honorable Court?*

# *2. What are the remedies available?*

The applicant was represented by *Sekidde Hamza* holding brief for *Dr. Walyemera* while the respondent was represented by *Muganzi Raymond* holding brief for *Nabisawa Christine*

The parties filed final written submissions which have been considered by this court.

# **Determination**

# *Whether an order for discovery prayed for by the applicant should be granted by this court?*

The applicant argued that the requested documents, including meeting minutes, are crucial to determining the main breach of contract case. They referenced **Halsbury's Laws of England (4th Edition) Vol 17 Butterworth's** for the legal definition of discovery, explaining that discovery is a process to obtain information on relevant documents in legal disputes.

Additionally, the Applicant cited Order 10 rule 12 of the Civil Procedure Rules and Section 22 of the Civil Procedure Act, which empower the court to order discovery. They contended that the documents were relevant to the main suit and would not burden the respondents to provide them.

The applicant emphasized that these minutes are public information, not subject to confidentiality or privilege, and referenced *Tallikwa v. Commissioner Land Registration (Registrar of Titles Wakiso) Misc., Application no 1274 0f 2013* to support their request for court-ordered discovery.

The applicant also highlighted an earlier request for the minutes, which the respondents ignored, underscoring the need for court intervention. They *cited Gale v. Denman Picture Houses Ltd [1930] KB 588, 590***,** asserting that the requested documents are essential to clearly understanding their case for a fair resolution in the main suit.

The 1 st respondent argued that discovery is a procedural tool intended to help narrow the issues in a case by requiring the opposing party to disclose critical information only they possess, as defined in *Karuhanga & Anor v Attorney General & 2 Ors Miscellaneous Cause No. 60 of 2015*. They highlighted that Order 10 Rule 12 of the Civil Procedure Rules allows for discovery applications but prevents it when unnecessary for fair case disposal or cost savings.

The 1st respondent opposed the applicant's request, asserting that the applicant had no cause of action, as no contract existed between the applicant and the Defendant. They referenced *Gordon Sentiba & 2 others v The Inspectorate of Government SSCA No. 6 of 2008* to argue that the court should deny discovery when it resembles a "fishing expedition" meant to gather information rather than support a pre-existing case.

Furthermore, the 1st respondent denied possessing any meeting minutes and argued that the applicant failed to provide evidence of attending such meetings**.** *Citing Gale v Denman Picture House Ltd [1930] KB 588, 590*, they contended that a plaintiff must have a well-founded case before filing a lawsuit and that discovery should not aid in creating a case out of mere speculation.

Lastly, the 1 st respondent argued that it was essential first to determine if a contract existed in the main suit before addressing the applicant's discovery request. They claimed that pursuing discovery prematurely amounted to an abuse of court process, citing *R-Benkay Nigeria Ltd v Cadbury Nigerian PLC SC 29 of 2006*, and requested that the court dismiss the application with costs, asserting it was in bad faith and aimed at scandalizing the 1st respondent.

## **Analysis.**

Under Order 10 rule 12 of the Civil Procedure Rules, any party may, without filing any affidavit, apply to court for an order directing any other party 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.

Under **Section 22 of the Civil Procedure Act**. This section grants courts the power to ensure that evidence is fairly handled by requiring parties to produce documents and respond to questions related to the case.

In the case of **Dresdner Bank Ag vs Sango Bay Estates Ltd (No. 3) [1971] 1 EA 326** and **Dresdner Bank Ag vs Sango Bay Estates Ltd (No. 4) [1971] 1 EA 409**, the court noted that an order for discovery is discretionary hence court should use its powers judicially.

The purpose of discovery is to narrow down the issues in a case, identify evidence that may be presented at trial, and verify the existence of relevant information. This process provides an opportunity to clarify the key points in dispute, thereby facilitating a more efficient trial. According to *Order 10 Rule 12(1)* **and** *Rule 14* **of the Civil Procedure Rules**, a party can request discovery without filing an affidavit, allowing them to seek documents on oath from the opposing party. The court can also compel a party to produce specific documents during the case, provided these documents are related to matters in dispute.

In *Olouch vs Charagu [2003] 2 EA at Page 651*, Court held that an order for discovery of documents can only be made where the following prerequisites are made: -

- *a) There is sufficient evidence that the documents exist which the other party has not disclosed.* - *b) The documents relate to the matter in issue in the action* - *c) There is sufficient evidence that the documents are in possession, custody or power of the other party.*

In *Mutesi v Attorney General (Miscellaneous Application No 912 of 2016,* the applicant requested a court order for the discovery (disclosure) and production of specific documents held by the Public Service Commission. *Hon. Justice Stephen Musota* explained that discovery is crucial in legal proceedings, as it enables both parties to have access to essential information, which ensures a fair trial. Discovery allows a party to obtain evidence that is vital to their case, particularly when such information is only available to the opposing party.

The court also emphasized that while discovery is a powerful tool, it is not to be misused. Courts have the discretion to deny discovery requests that appear to be *"fishing expeditions"*—attempts to gather information without a clear basis. Discovery should be requested only if a party has a reasonable belief that their case or defense has merit. The court also protects individuals from unreasonable invasions into their private matters, and it will deny discovery if it appears to be intended to annoy, embarrass, or pressure the other party or witnesses.

A distinction has to be made between discovery which is tantamount *'to the aimless trawling of an unlimited sea'* as compared to the situation in which a party *'knows a specific and identifiable spot into which he wishes to drop a line (or two)*. Therefore, whether a document is within the scope of a particular discovery is a question of fact. *Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd [2003] 1 SLR (R) 75*

In *Karuhanga & Anor vs Attorney General & 2 Ors Misc. Cause No. 060 of 2015***,** the court reaffirmed the requirement that discovery documents must be relevant to the current dispute. *In Gale v Denman Picture Houses Ltd [1930] KB 588,590,* it was highlighted that discovery should not be used by a plaintiff merely to determine if they have a case. Instead, a plaintiff must already understand their claim before seeking supporting documents from the opposing side.

Where an application is driven by hope that something will emerge which may form the basis of or support the applicant's claim, then it is a fishing expedition. It's also a fishing expedition when it goes beyond the allegations in the pleadings and attempts to find random additional evidence to support the claim. The information sought must be stated with reasonable particularity and should be consistent with the applicant's case as pleaded in the suit.

In the present case, the applicant argues that the requested minutes are central to proving breach of contract. However, the respondent raises concerns regarding the existence of a contract and denies having the requested documents. The court must first establish the existence of a binding contract in the main suit, as it would form the basis for determining the relevance and necessity of the requested documents. Granting discovery prematurely, without such evidence, may indeed align with the respondent's concern about an exploratory search for documents to create or bolster a cause of action.

Furthermore, since the respondent has stated that they do not have custody or control over the requested minutes, it may not be feasible for the court to order discovery of non-existent documents. The applicant has not clarified to this court whether this was an official meeting where he was invited to discuss business/or the alleged contract. If this was a casual or 'tea' meeting with a friend without any official invitation, then you would not expect official minutes for such a meeting.

In light of the above, the application for discovery is premature and unsupported by sufficient grounds and basis.

This application is dismissed for the reasons set forth above with no order as to costs.

I so Order.

*Ssekaana Musa Judge 8 thNovember 2024*