Mulindwa & Another v Kyaggwe Coffee Curing (Estates) Limited & 2 Others (Civil Suit 3 of 2019) [2024] UGHC 790 (30 August 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO CIVIL SUIT NO. 0003 OF 2019

## 1. MULINDWA JOSEPH

2. MULUYA MOSES (Administrators of the estate of the late of the Mulindwa Yusufu) ...................................

## **VERSUS**

- 1. KYAGGWE COFFEE CURING (ESTATES) LIMITED - 2. NAMAYIBA TEA ESTATES LIMITED

3. COMMISSIONER LAND REGISTRATION ............. DEFENDANTS

# BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

#### **RULING**

This ruling arises from an objection to late filing of a witness 1. statement and supplementary witness statement by the Plaintiffs without leave of court. When the suit came up for hearing on 4<sup>th</sup> October, 2022, Counsel Benard Mutyaba from M/s KMTR Advocates and Counsel Balidawa from M/s Balidawa & Co. Advocates appeared for the Plaintiffs. Counsel Sarah Banenya from M/s Banenya - Mugalu & Co. Advocates and Counsel Albert Byamugisha from M/s GB Byamugisha Co. Advocates represented the 1<sup>st</sup> Defendant.

Counsel Albert Byamugisha for the 1<sup>st</sup> Defendant raised the point $\mathcal{L}$ of law objecting to the late filing of the witness statement of Muluya

Moses filed on 2<sup>nd</sup> December, 2020 and the supplementary witness statement of Busuulwa Francis filed on 9<sup>th</sup> March, 2020. Counsel argued that both witness statements were filed without leave of court. Counsel prayed that the said witness statements be struck off the record.

The plaintiffs' counsel submitted that the witness statements $3.$ were filed late because the 2<sup>nd</sup> plaintiff was called by some people to settle the matter out of court but he did not know their names. Counsel Innocent Taremwa for the 2<sup>nd</sup> Defendant submitted that they were not aware of any pending discussion over settlement. He added that they have never been served with the said witness statements hence could not comment on them. Counsel Ssekito Moses for the Commissioner Land Registration submitted that they were also not aware of the discussions, though he encouraged the parties to settle the matter amicably. As regards the additional witness statements, he said he could not comment as he had not been served with them.

## Issue

*Whether the lately filed witness statement of Muluya Moses and the* supplementary witness statement of Busuulwa Francis should be expunged off court record.

## **Court's consideration**

Order 18 rule 5A states the general law on witness statements. $\overline{4}$ Order 18 rule 5A sub-rules (1), (2), (6) and (7) of the Civil Procedure (Amendment) Rules, 2019 provide as follows:

$\overline{2}$

"5A (1) The evidence of a witness shall consist of a witness statement which shall be filed after scheduling conference on direction of the trial judge and served upon the opposite party.

(2) The witness statement shall be formally tendered as evidence in chief of the witness after the witness has appeared in court and taken oath.

| (3) | | | | | | | | | | | | | | | |---------------------------------------------------------------|--|--|--|--|--|--|--|--|--|--|--|--|--|--| | (4) | | | | | | | | | | | | | | | | $(5) \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots$ | | | | | | | | | | | | | | |

(6) The witness statement shall be filed on the date fixed by the trial judge.

(7) A witness who has not filed a witness statement shall not be heard except with leave of court."

In the present case, after the scheduling conference on $23<sup>rd</sup>$ $\overline{5}$ February, 2017, court directed all the advocates for the parties herein to file the parties' witness statements by 21<sup>st</sup> March, 2017. However, the witness statement of Muluya Moses was filed on 2<sup>nd</sup> December, 2020 and the supplementary witness statement of Busuulwa Francis was filed on and 9<sup>th</sup> March, 2020, without leave of court. These witness statements are the subject of this preliminary objection.

It is important to note that the Rules on witness statements which 6. I have cited above empower the trial judge to direct parties on when witness statements should be filed. The emphasis in those Rules is that witness statements shall be filed after scheduling conference has been conducted. This court has discretionary power to validate a lately filed witness statement where the justice of the matter permits.

$7.$ I have carefully perused the two queried witness statements in the instant case. In my judgment, although the Plaintiff's counsel did not comply with the timelines and directions issued by this court, I find that no prejudice will be occasioned to the Defendants since the hearing of the case has not yet commenced. Furthermore, the Defendants shall be afforded the opportunity to cross examine the witnesses on the said witness statements to discredit the witnesses. I have also noted that both witnesses whose witness statements are the subject of this objection are named as witnesses in the Plaintiffs' List of Witnesses which include:

## **"1. The Plaintiffs"**

- 2. Mr. Francis Busuulwa - 3. The Valuer and Surveyor - Others with leave of court."

Mr. Muluya Moses is one of the plaintiffs and Francis Busuulwa is the second witness named above in the Plaintiffs' List of Witnesses. Therefore, the defendants are not being surprised by the belated witness statements.

In the case of Bakaluba Peter Mukasa v. Nambooze Betty 8. Bakireke, SC Election Petition Appeal No. 04/2009, the Supreme

$\overline{4}$

Court observed that rules of procedure are merely hand maidens of justice and not justice themselves and that they only form the procedural frame work within which a fair hearing is conducted. The Supreme Court found that non-compliance with the Rule 4 (8) of the Parliamentary Elections Petition Rules S. I 141-2 by Ms. Nambooze, did not affect Mr. Bakaluba's right to a fair hearing, and that neither did it prejudice him at all. The same principle was reiterated in the case of Seruwagi Mohammed v. Yuasa Investments Ltd, Civil Suit No. 324 of 2013.

$9.$ Pursuant to the foregoing analysis, this court hereby overrules the preliminary objection and exercises its discretion to validate the lately filed witness statement and the supplementary witness statement of Mr. Muluva and Mr. Busulwa Francis, respectively. I further order that:

- (a) the plaintiffs' counsel should serve the defendants with the validated witness statements within seven $(7)$ days of this ruling; (b)each party shall bear their own costs associated with this preliminary objection: - (c) the parties appear in court on 28<sup>th</sup> October, 2024 at 9.30 a.m. for the hearing of the main suit.

I so rule and order accordingly. I so rule and order accordingly.<br>This ruling is delivered this ....................................


In the presence of: Ms. Pauline Nakavuma, the Court Clerk.