Court name
Commercial Court of Uganda
Judgment date
20 June 2014

Akampumuza v Stanbic Bank Ltd (Miscellaneous Application-2013/616) [2014] UGCommC 82 (20 June 2014);

Cite this case
[2014] UGCommC 82

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 616 OF 2013

ARISING FROM HCCS NO 181 OF 2012

DR JAMES AKAMPUMUZA}...............................................PLAINTIFF/APPLICANT

VS

STANBIC BANK UGANDA LTD}....................................DEFENDANT/RESPONDENT

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicants application was commenced under the provisions of section 33 of the Judicature Act, sections 22 and 98 of the Civil Procedure Act and Order 10 rules 12 and 24 of the Civil Procedure Rules for orders that the Respondent/Defendants makes discovery on oath of certain documents in its sole possession and control namely:

  1. The Respondent/Defendants account opening file for the Applicant/Plaintiffs savings account number 0121061058501 with the Defendant including its account opening form.
  2. The Respondent/Defendant's statement of the Applicant/Plaintiffs account for the period of January 2008 to June 2012.
  3. The Respondent/Defendants instructions from the Applicant/Plaintiff to open fixed deposit accounts.
  4. The Respondent/Defendant statement of the Applicant/Plaintiffs fixed deposit accounts with the Defendant.
  5. The Respondent/Defendants agreement with the Plaintiff in which the Applicant/Plaintiff appointed the Respondent/Defendant as its agent to trade in Treasury bills.
  6. The Respondent/Defendant Treasury bills purchase receipt in relation to the Treasury bills transactions of the Respondent/Defendant on behalf of the Applicant/Plaintiff.
  7. The contract for Treasury bills trade executed by the Respondent/Defendant with the Bank of Uganda on the Applicant/Plaintiffs behalf.
  8. All the Respondent/Defendant's vouchers signed by the Applicant/Plaintiff authorising the Respondent/Defendant to make drawdown of the Applicant/Plaintiffs account in respect of all fixed deposit and Treasury bills trade and purchasers.

The grounds of the application are that the Respondent is a private limited liability company duly licensed by the Bank of Uganda to carry on the business of offering financial services to the public for profit. Secondly over a period of time the Respondent entered into and has continued to run a banking contract with the Applicant/Plaintiff in which it ran a savings account for the Applicant/Plaintiff. Thirdly as a matter of course, the Applicant utilised other services offered by the Respondent as part of the contract such as opening an operating fixed deposit accounts and trading in Treasury bills. Fourthly the Respondent/Defendant has taken to convert operation of the Applicant/Plaintiffs account without providing the Applicant/Plaintiff with any statements of its accounts or documentation relating to any of the transactions the Respondent/Defendant carries out on the Applicant/Plaintiffs behalf and the Respondent/Defendant has closed the Applicants account at will. Fifthly the Applicant has sued the Respondent for breach of the banking contract and fiduciary relationship and for declarations that the actions of the Defendant were unilateral and not backed by law. Sixthly the Respondent/Defendant has filed a defence admitting the banking contract and attached selective hand-picked extracts of the Applicant’s account that favour its defence and chosen not to disclose facts and documents fundamental to the resolution of the suit and the suit transactions including but not limited to the statements of account and transaction documentation. Seventhly the documentation and records exist and are in the possession, custody and power of the Respondent/Defendant and has not been disclosed. Eighthly the Respondent is under a legal duty to avail the requested documents falling under the banking contractual relationship with the Applicant. Lastly that it is in the interest of justice and the resolution of all matters in dispute between the parties with finality and to avoid a multiplicity of suits that the order sought ought to be granted.

The application is supported by the affidavit of Dr James Akampumuza, the Plaintiff/Applicant. He deposes that he is conversant with all matters pertaining to the head suit. He restates the facts averred in the chamber summons and attached a copy of the plaint in the main suit; a copy of the written statement of defence of the Defendant. He added that during the execution of the documents sought to be produced/discovered the Respondent ensured that the process was convert and printed single copies for signature only and refused to provide copies of the same to the Applicant or to have statements of account of the Applicants account furnished to the Applicant. All the documents relate to the matter in controversy in the main suit. He further asserts that he knows that the documentation or records exist and are in the possession and sole custody and power of the Respondent. Through his lawyers Messieurs Simon Tendo Kabenge Advocates, he wrote requesting for copies for purposes of conferencing but the Respondent refused to oblige by availing them. During the scheduling conference his lawyers raised the same issues but the Respondent refused to oblige and prayed that the Applicant files a formal application. Finally the Respondent is under a legal duty to avail the requested documents falling under the banking contractual relationship with the Applicant and it is in the interest of justice and determination of all matters in controversy with finality that the orders sought ought to be granted. The application was filed on court record on 19 July 2013.

By an affidavit filed on court record on 28 August 2013 Mr Owino Matthew, a court process server, working with Messieurs Simon Tendo Kabenge Advocates deposes that on 22 August 2013 he received copies of the chamber summons issued by the court for service upon the Respondent who is represented by MMAKS Advocates. He proceeded to the said Chambers and served Counsel Timothy Masembe according to the acknowledgement stamp attached to the affidavit of service. On 30 August 2013 Messieurs MMAKS Advocates in a letter dated 13th of August 2013 and filed on court record the same day wrote to Messieurs Simon Tendo Kabenge Advocates forwarding documents in possession of the Defendant/Respondent Bank namely:

  1. The Applicants account opening file for savings account number 0121061058501;
  2. The Applicants bank statement for the period June 2008 to April 2013;
  3. Certificates of Deposit dated the 5th of May 2011 and 21 July 2011 both for the sum of Uganda shillings 100,000,000/= (Uganda shillings one hundred million);
  4. The Applicants application to open a CDS instrument account appointing the Respondent as Settlement Bank dated 8 December 2011;
  5. The Respondent’s e-mail to the Applicant seeking confirmation of the Applicant's bid for Treasury bills, and
  6. Bank of Uganda Treasury Bill summary dated 16th of May 2012 in respect of Treasury Bills held by the Applicant.

MMAKS advocates further wrote as follows:

"We trust this resolves the application as these were the only documents in our client's possession and/or control."

Subsequently on 4 September 2013 the legal manager of the Respondent/Defendant Mr Jamir Mpiima Ssenoga affirmed an affidavit in reply indicating that the chamber summons of the Applicant was filed and deposed to in abuse of court process and was a fishing expedition as some of the document sought to be discovered are already part of the court record in terms of being annexure to pleadings and more particularly annexure "A" to the written statement of defence and secondly annexure "B". Secondly the Respondent through the letter of its lawyers dated 30th of August 2013 provided to the Applicant/Plaintiff documents in its possession as listed above. That the Plaintiff/Applicant does not hold any fixed deposit account with the Defendant/Respondent and accordingly none can be produced. Secondly the Respondent is not aware of any purported contract for Treasury bills trade and accordingly none can be produced.

The matter was mentioned on 4th of September 2013 wherein the Applicants Counsel undertook to point out documents which are still missing on another day as his client was unwell. It was fixed for 24 October 2013. On 24 October 2013 when the Applicant’s Counsel submitted that the Respondent had only provided for part of the documents requested for and had not provided the rest. Prayer number 1 (a) of the chamber summons which is the Respondent/Defendant's account opening file for the Applicant/Plaintiff’s account number 0121061058501 including its account opening form. Secondly prayer number 1 (b) was provided which is the Defendant statement of the Applicants account for the period January 2008 to June 2012 but the period January 2008 to May 2008 was not provided. Thirdly the Respondent did not produce documents requested for in prayer 1 (c) and (d) and part of (e). Document (c) is the instructions for the Applicant/Plaintiff to open fixed deposit accounts. Document number (d) concerns the Defendants statement of the Applicants/Plaintiffs fixed deposit accounts with the Defendant while document (e) is said to be an agreement with the Plaintiff in which the Applicant/Plaintiff appointed the Respondent/Defendant has its agent to trade in Treasury bills. Finally the Applicants Counsel informed the court that the Respondents failed to provide documents 1 (f) (g) and (h). These are Treasury bills purchase receipt in relation to Treasury bills transactions; contract for Treasury bills trade executed by the Respondent/Defendant with the Bank of Uganda on the Applicants behalf and finally the Respondents vouchers signed by the Applicant/Plaintiff authorising the Respondent to make drawdown of the Applicant/Plaintiffs account in respect of all fixed deposit and Treasury bills trade and purchases respectively.

The discussion between Counsel Masembe Kanyerezi, Counsel for the Respondent bank and Counsel Simon Tendo Kabenge, Counsel for the Applicant did not yield any compromise and Counsel agreed to address the court in written submissions on the merits of the application.

After the filing of written submissions by the Applicant on 21 November 2013 the file was mysteriously kept in the registry until when it was forwarded to me sometime in May 2014. Notwithstanding the delays the suit was mentioned on the 27th of May 2014 whereupon the Applicant was allowed to file a rejoinder to the submissions of the Respondent which had been filed on 3 February 2014 and the rejoinder completed submissions on 5 June 2014.

I have duly set out the facts of this application and will not repeat the same as contained in the written submissions of Counsel.

Applicant's submissions in support of the application

The Applicant’s case is that partial incomplete information had been provided by the Respondent. Consequently the Applicants Counsel's argues that the application in respect of the rest of the partial missing documentation should be provided by the Respondent.

The issues framed by the Applicant are:

  1. Whether there is sufficient evidence that the documents exist which the other party has not disclosed;
  2. Whether there is sufficient evidence that the documents are in the possession, custody or power of the Respondent?
  3. Whether the documents relate to the matters in issue in the action?

The Applicants Counsel handled his framed issues number 1 and 2 together. He submitted that the grant of orders for discovery on oath are now axiomatic and were recently relayed in the case of John Katto versus Muhlbauer HCMA 175/2011 arising from HCCS 186/2010 that there are three requisite that must be made in an application for discovery namely: that there is sufficient evidence that the document exists which the other party has not disclosed; that the document relates to the matter in issue in the action; and that there is sufficient evidence that the documents are in possession, custody or power of the other party.

The Applicant relies on paragraphs 8, 10, 11, 12, 14 and 15 of the affidavit in support of the application for the assertion that the documents exist and are in the possession, custody and power of the Respondent and that the Respondent has chosen not to disclose the documents. Secondly the nature of the relationship between the parties is one of a banker/customer which is a fiduciary relationship. Furthermore it is standard banking practice that before a bank opens a fixed deposit account, and which the Defendant/Respondent admits was opened, the customer must have a personally handwritten or typed initiating instruction. The instructions constitute the terms of the contract between the Respondent and the Applicant as far as the operation of the account is concerned. The court ought to be given a chance to look at the application which is in the exclusive custody of the Respondent.

The Treasury Bill Central Depository System Dealing Agreement between the bank of Uganda and the Applicant was variously pleaded and admitted in the written statement of defence and were entered into through the Defendant as the agent. It is therefore the one with finally executed documents bearing the bank of Uganda signatures and these as well as those of the Respondent having only left the Applicant with a duplicate copy of the version he signed to authorise the withdrawals and trading. There is a disparity between the money pleaded by the Applicant in paragraph 4 (f) of the plaint and that pleaded by the Defendant in paragraph 4 (iv) of the WSD and it is important for the court to look at a copy of the same document that the Defendant bank finally used to effect the Applicants instructions to ascertain which of the two versions represent the correct position.

The documents the Applicants is seeking are all documentation received and in the exclusive custody or issued by the Defendant bank to either govern, operation or advise the customer of the status of his transactions with the bank. The documents are therefore within its control, possession and custody of the Respondent. By virtue of the Applicant evidence and the Respondents own admission in both the affidavits in reply and the defence, there is sufficient evidence that the documents exist and are in the possession, custody or power of the Respondent and issues number 1 and 2 ought to be answered in the affirmative.

Issue number 3: Whether the documents relate to the matter in issue in the action?

On this issue the Applicants Counsel contends that the documents relate to the matter in issue by virtue of the fact that the documents are used to record, classify and accumulate the Applicant’s business transaction with the Respondent. In particular the Respondent claims that it blocked the Applicant’s account under the "Know Your Customer principle" that only authorises blocking of accounts for money-laundering matters. It would be necessary for the court to look at the account opening forms and some other documentation relating to various transactions to establish whether it is tenable for the Respondent to assert that it does not know the Applicant, its customer. Secondly the court can establish by looking at the Applicants account statements and the Respondent’s contract with the bank of Uganda as an agent for Treasury bills trade or the Applicants vouchers and accounts directives whether it can be said that the Applicant is guilty of some money-laundering activities.

The claim of the Respondent that the documents are not relevant to the main suit and that the Applicant is on a fishing expedition is not tenable because the Respondent selectively availed some of the documents applied for. The question is why the Respondent should withhold some of the disclosed documents whose evidence it did not deny in the written statement of defence. The Applicant’s evidence demonstrates that the disclosure of these documents would enable the Respondent to demonstrate its answer to the Applicants claim and the documents are relevant to both the Applicants and the Defendant's case.

The Applicants case is that his account was closed without legal justification and the documents would enable the court determine the matter without the Respondent holding some of the documents. It would be expedient for the court to try the case with all the facts and evidence before it and it is enjoined to make the necessary orders for the ends of justice under section 33 of the Judicature Act.

Issue number 4: Whether the Applicant/Plaintiff is using discovery as a fishing expedition to try and build up a case which he is not sure of?

The Applicant’s case is that there was no justification for blocking its accounts an act which is admitted by the Respondent. The court can determine whether or not the action contravenes the law by simply looking at the law governing financial institutions, the pleadings and the Applicant’s oral testimony. The question is whether the Applicant is unsure of what he is suing for? An examination of the plaint is that the Respondent illegally blocked the account of the Applicant and sought to provide unsolicited financial advice and traded with the monies of the Applicant without pay. The court has already issued an interim order and temporary injunction in respect of these acts. The issues further arise by a perusal of the plaint which prima facie discloses a cause of action without the documents sought.

The Respondent has admitted that it blocked the Applicants account but alleges that it was authorised by the law. So what is left is for the court to determine whether the actions contravened the law and whether they are in breach of the banking contract. The Applicant can establish its cause of action without relying on the documents. Counsel relied on the case of Kampala Rugby Football Club Limited versus Capital Ventures HCM a 523/11 for the assertion that issues are formed when one party asserts a fact and the same is denied by the other and also the decision of Auto Garage and Another vs. Motokov (No. 3) [1971] EA 514 at page 519 for the definition of a cause of action.

Respondent's submissions in reply

The Respondents Counsel submitted that the Applicant’s application for discovery is totally devoid of any merit and is an abuse of the court process and should be dismissed with costs. He relied on the case of John Kato vs. Muhlbauer AG and another HCMA number 175 of 2011 which sets out the law on discovery by Lady Justice Helen Obura.

In that case the honourable lady justice held that the grant of an order for discovery of documents is discretionary and the principles are derived from order 10 rule 12 (2) of the Civil Procedure Rules. He agreed that the Applicant must prove that there is sufficient evidence that the documents exist which the other party has not disclosed; secondly that the document relates to a matter in issue in the action; and thirdly there is sufficient evidence that the documents are in the possession, custody or power of the other party.

On ingredients number 1 and 3 namely whether there is sufficient evidence that the documents exist which the other party has not disclosed, and whether there be sufficient evidence that the documents are in the possession or power of the other party.

The Applicant relies on paragraphs 8, 10, 11, 12, 14 and 15 of the affidavits in support to assert that the documents requested for exist and are in disposition, custody and power of the Respondent which has chosen not to disclose the same and that it is in the interest of justice that the resolution of all matters in dispute between the parties with finality and to avoid a multiplicity of suits that the order sought for are granted. The Applicant’s contention seems to be that the mere assertion by one party that a document exists proves that the document exists.

The Respondents Counsel disagrees and contends that the Respondent through its written statement of defence and subsequently by its letter of 30th of August 2013 produced all the documents it had in its power and possession more specifically the Applicants account opening file, the Applicants bank statement for the period June 2008 to April 2013, the Applicants certificates of deposit, the Applicants CDS instrument account statement dated 8th of September 2011, the Respondent e-mail seeking confirmation of the Applicants bid for Treasury Bills and the Bank of Uganda Treasury Bill summary dated 16th of May 2012 in respect of the Treasury Bills held by the Applicant.

The Respondent averred that the Applicant did not hold any fixed deposit account with it and accordingly none could be produced. The Respondent further denied any purported contract for Treasury bills trade and none could therefore be produced. None of these averments were ever denied by the Applicant and they should therefore be taken to be true.

Contrary to what the Applicant asserts, the bank statement supply is indeed complete and if the Applicant had endeavoured to study it, he would find that it covers the entire period requested. All the information of the Applicants account opening file was also forwarded to the Applicant.

The existence of funds placed on fixed deposit and the rate thereof are admitted by the Applicant in paragraphs 4 (b), 4 (c) and 4 (j) of the plaint albeit erroneously referred to as fixed deposit accounts which averments must be based on information in the Applicant custody. The Respondent clearly avers in its written statement of defence paragraph 4 (iii) and in the affidavit in reply at paragraph 5 that no such account exists, but that the monies were simply placed by the Applicant on fixed deposit. Evidence of this can be found in the Applicant’s bank statement annexure "A" to the written statement of defence and the certificate of deposit dated 5th of May 2011 and 21st of July 2011.

The Applicant submits that the Treasury bill – Central Deposit System (CDS) Dealing Agreement between the Bank of Uganda and the Applicant was admitted by the Respondent in the written statement of defence. This is clearly not a reference by the Respondent to the written statement of defence or affidavit in reply as no such agreement is in fact mentioned therein. The Respondent only makes mention of a CDS instrument account appointing it and summary of the account both of which were forwarded to the Applicant. Any other issues arising in respect of the documents provided a question of evidence which will be adduced and/or rebutted at the trial.

In the premises the Respondents Counsel submits that it is clear that any other documents referred to by the Applicant are not in the custody of the Respondent nor is the Respondent aware of their existence. The Applicant has never brought any sufficient evidence to show that the other documents referred to by him exists nor that they are in the possession or power of the Respondent and issues number 1 and 3 therefore ought to fail. Furthermore on the basis of resolution of issues number 1 and 3 the Applicants application should fail as the Respondent is not in opposition to produce none existent documentation.

Issue number 2: Whether the documents relate to the matter in issue in the action?

The Respondents Counsel contends that the Applicant has failed to demonstrate through any sufficient evidence that the documents referred to exist or that they are within the disposition or power of the Respondent and this ground also ought to fail. In determining whether a document is relevant or not regard must be had to the document in issue and as the Applicant has failed to demonstrate that such documents exist, no such determination can be made and therefore the application ought to be dismissed with costs.

Applicant's submissions in rejoinder

The Applicants Counsel submitted that the Respondent’s Counsel giving evidence from the bar seeks to challenge the existence of certain documents which were clearly stated to exist by the Applicant in his affidavit evidence. That submission is a radical departure from both the law of evidence and proceedings. The Respondent had a legal duty to deny the existence of the documents positively averred to exist by affidavit evidence. Failure to do so meant that the averments are true according the case of Massa vs. Achen [1978] HCB 279 that upon failure to rebut averments in an affidavit the averments in the affidavit are deemed admitted.

Secondly the denials of the Respondents are riddled with inconsistencies and contradictions. The Respondent submits that it produced the Applicant’s certificates of deposit and statements and sent an e-mail seeking confirmation of the Applicants bid for Treasury bills and the bank of Uganda Treasury Bill summary dated 16th of May 2012. The Respondent then denies that it held any fixed deposit account or contract for Treasury Bids. The court is therefore left with the task to evaluate the inconsistencies to determine what the CDS instrument account statement dated 8th of September 2011 and certificates of deposits related to if the Respondent did not hold the Applicant’s fixed deposit account as falsely claimed.

Furthermore the court has to determine how the Respondent got to have the Applicants bid for Treasury bills and the Bank of Uganda Treasury Bill summary dated 16th of May 2012 in respect of the Treasury bills held in the Applicant when the Respondent had no contract for Treasury bills. How else would all this information involving a third-party Bank of Uganda come into the hands of the Respondent, if it had no contract for Treasury bills? On the incomplete bank statement, it is apparent that the Respondent never produced the information demanded by the Applicant, except the scanty limited information it selectively availed. All these documents exist and are within the Respondent’s possession, custody and power but the Respondent has chosen not to disclose them. Copies of what the Applicant got before they were finally executed were attached to the submissions as exhibits J1 – J7 for the court to confirm their existence. It is in the interest of justice for the bank to produce information that is exclusively within its position to its customer.

The law and practice of banking is clear that one cannot simply placed monies on fixed deposit, without the bank being instructed to opening a fixed deposit account which is the one that forms the basis of the periodic issuance of the certificate of deposits. On the basis of the above factors the Applicants Counsel asserts that the fixed deposit account exists and all documentation in respect thereof are within the power, possession and custody of the Respondent. It is to be wondered how the Respondent without formal instructions and application from the Applicant took the grave decision to place monies on fixed deposit? How did it come to the decision of how and when to make the certificates of deposit? It is a major principle of the banker customer relationship that the bank only acts on the written instructions of the customer which it has to honour. The Applicant as the customer is simply asking the Respondent to produce those written instructions, failure of which, the Respondent is liable for the Applicant's assertions in the main suit. The same is true for the Treasury bills dealing contract. The Respondent is simply being cagey and dodgy about submitting the documents.

The Respondent admits to have acted without instructions when dealing with the Applicants account if the Respondent is to be believed and that would itself be an admission of breach of contract that entitles the Applicant to judgement on admission under Order 13 of the Civil Procedure Rules. The remedy for refusal to produce documents is Order 10 rules 17 and 21 of the Civil Procedure Rules for the court to strike out the written statement of defence with costs. Counsel accordingly invited the court to strike out the written statement of defence with costs.

In the alternative the court should overrule the Respondent and allow the Applicants application with costs and further invoke order 10 rules 17 and 21 of the CPR so as to strike out the Respondent’s written statement of defence with costs.

Ruling

I have duly considered the Applicants application, the evidence adduced for and against the application together with the submissions of Counsel and the pleadings referred to. The Applicant’s application was partially conceded to by the Respondent when through its lawyers it provided some documents sought to be discovered by letter dated 30th of August 2013. The remainder of the issues deal with whether documents which were listed by the Applicant and not provided by the Respondent should also be provided by order of the court. I have duly considered the submissions on the question of doctrine. In my opinion the application would be resolved simply by considering the facts and whether certain documents are available with the Respondent according to the evidence provided if they have not already been availed. Secondly I shall consider whether it is necessary to avail all the documents by considering each item requested for specifically.

The list of documents requested for by the Applicant are:

  1. The Respondent/Defendants account opening file for the Applicant/Plaintiffs savings account number 0121061058501 with the Defendant including its account opening form.
  2. The Respondent/Defendant's statement of the Applicant/Plaintiffs account for the period of January 2008 to June 2012.
  3. The Respondent/Defendants instructions from the Applicant/Plaintiff to open fixed deposit accounts.
  4. The Respondent/Defendant statement of the Applicant/Plaintiffs fixed deposit accounts with the Defendant.
  5. The Respondent/Defendants agreement with the Plaintiff in which the Applicant/Plaintiff appointed the Respondent/Defendant as its agent to trade in Treasury bills.
  6. The Respondent/Defendant Treasury bills purchase receipt in relation to the Treasury bills transactions of the Respondent/Defendant on behalf of the Applicant/Plaintiff.
  7. The contract for Treasury bills trade executed by the Respondent/Defendant with the Bank of Uganda on the Applicant/Plaintiffs behalf.
  8. All the Respondent/Defendant's vouchers signed by the Applicant/Plaintiff authorising the Respondent/Defendant to make drawdown of the Applicant/Plaintiffs account in respect of all fixed deposit and Treasury bills trade and practices.

By letter dated 30th of August 2013 the Respondent provided the following documents and left out some others and I will go through them specifically. As a matter of fact the following documents were provided namely:

  1. The Applicants account opening file for savings account number 0121061058501;
  2. The Applicants bank statement for the period June 2008 to April 2013;
  3. Certificates of Deposit dated the 5th of May 2011 and 21 July 2011 both for the sum of Uganda shillings 100,000,000/= (Uganda shillings one hundred million);
  4. The Applicants application to open a CDS instrument account appointing the Respondent as Settlement Bank dated 8 December 2011;
  5. The Respondent’s e-mail to the Applicant seeking confirmation of the Applicant's bid for Treasury bills, and
  6. Bank of Uganda Treasury Bill summary dated 16th of May 2012 in respect of Treasury Bills held by the Applicant.

The Respondent subsequently filed an affidavit in reply in which it legal manager Mr Jamil Mpiima Ssenoga deposed to an affidavit in which he deposed that the Applicants application is a fishing expedition sought to discover what is already part of the court record in terms of it being part of the WSD. First of all annexure "A" to the written statement of defence is referred to. I have considered annexure "A" to the written statement of defence. Annexure "A" is a bank statement running from 28 February 2011 up to 30th of April 2012. It was issued on the 15th of May 2012 according to the stamp.

Whereas it is true that the account statement was provided according to request number two in the chamber summons, the statement provided in the WSD ran from 28th of February 2011 up 30th of April 2012. However the request of the Applicant was for a bank statement for the period January 2008 to June 2012. The period from January 2008 up to January 2011 was not included in the WSD. Secondly the period from May 2012 up to August 2012 was also not included in the statement annexure "A". Considering the letter of the Respondent dated 30th of August 2013 and filed on court record the same day the letter indicates under item 2 thereof that the account bank statement of the Applicant for the period June 2008 to April 2013 was provided. Attached to the letter is a bank statement for the Applicant commencing on the 31st of May 2008 up to 30th of October 2012. The period that is not covered is only from January 2008 up to 30th of May 2008.

In the premises, the Respondent will provide additionally a bank statement covering the period January 2008 up to 30th of May 2008. This is a matter of detail and I see no prejudice if the order is made from the facts and circumstances. The Respondent does not object to providing the Applicant bank statement. It is only a question of fact that the statement that was provided commenced on the 31st of May 2008 instead of January 2008.

I have secondly considered annexure B to the written statement of defence. Annexure "B" is a document issued by the bank of Uganda entitled "Central Depository System Dealing Office" and it is also entitled "Treasury bills held by participant between first of January 2011 and 31st of December 2012. It gives the auction date, the maturity date, the face value, the costs and the interest. The Applicant’s application on the other hand is for Treasury bills purchase receipt in relation to Treasury bill transactions of the Respondent/Defendant on behalf of the Applicant/Plaintiff. In the letter of the Respondent through its Counsel MMAKS advocates the Applicant was stated to have been availed with bank of Uganda Treasury Bill summary dated 16th of May 2012 in respect of Treasury bills held by the Applicant. I have duly considered the evidence with regard to the Treasury bill issue. It contains the same annexure "B" to the written statement of defence. There is additionally an e-mail from one Sophie to the Applicant concerning a bid by the Applicant for Treasury bills. Secondly there is an application form 1 to open a CDS instrument account dated 8th of December 2011. Paragraph 5 of the document gives the mandate for operating the instrument account and indicates that the Applicant agrees to operate a CDs instrument account in accordance with the rules prescribed in the Central Depository System Dealing Agreement and the Central Depository Dealing Manual; and request to honour any instructions bearing signatures provided above and specimen signature card.

It is apparent that the form availed to the Applicant makes reference to scheduled documents which are not necessarily endorsed as an agreement but are incorporated in the application to open a CDS instrument account. This document is supposed to be available with the bank. I see no prejudice if the documents incorporated in paragraph 5 of the application are availed for consideration in this case. What is however puzzling is that the Applicant has gone ahead to avail the documents himself in the written submissions in rejoinder. The first document availed by the Applicant is the bank of Uganda document entitled "Central Depository System Operational Forms." It was attached to the submissions as annexure "J1". The document includes the form availed to the Applicant referred to above for making the application to open a CDs instrument account. The forms are however not endorsed by the Respondent bank. There is no evidence to suggest that they were ever endorsed. In the circumstances the Central depository system operational form in relation to the Applicant’s application which was duly endorsed (if at all) would be availed to the Applicant. If it is not duly endorsed, the Respondent bank would explain the same by way of affidavit. Secondly the document entitled "Central depository system dealing agreement" was also availed by the Applicant. The Respondent will avail this document for purposes of this suit. In the premises item number 1 (e) complained about is catered for. Secondly all the documents with regard to the Treasury bills requested for items number 1 (f), (g) and (h) have been provided for.

As far as the question of fixed deposit are concerned the legal manager of the Respondent deposed that there was no fixed deposit account obtained by the Applicant with the Respondent bank. However this averment is contradicted by the letter of the Respondent through its Counsel Messieurs MMAKS Advocates in the letter dated 30th of August 2013. The Applicant was availed certificate of deposit Serial number SB 000 0010 dated 5th of May 2011. Secondly the Applicant was availed certificate of deposit serial number SB 000 0032 dated 21st of July 2011. The Applicant was also availed an investment account application receipt dated 5th of May 2011. Additionally the Applicant in the submissions in rejoinder availed certain documents namely a certificate of deposit serial number 000 0001 dated 1st of June 2010. An application for opening a fixed deposit account dated 29th of September 2010 and certificate number 0000005 and dated 29th of September 2010. Another certificate number 000 0010 dated 5th of May 2011. From the evidence above this last certificate had been availed. Furthermore the Applicant's application to avail a statement of account of the fixed deposit accounts is unnecessary since the fixed deposit certificates are available. Consequently item number 1 (d) of the chamber summons cannot be granted. Because the Applicant already has the documents comprising the certificates of deposit, the application for production of additional documents is declined as far as fixed deposit accounts are concerned.

Item number 1 (c) concerns instructions for the Applicant to open a fixed deposit account. The Applicant has availed photocopy of an application letter to open the fixed deposit account and it is received by the Respondent bank. Specifically the certificate of deposit contains the terms of the fixed deposit account. Item number 1 (c) is therefore unnecessary. In the premises the prayer cannot be granted as documentation regarding the fixed deposit account has been availed and are available to the Applicant.

In the premises the Applicant's application succeeds partially in the manner provided above. Secondly because the Applicant’s application was partially allowed by consent by the Respondent availing some of the documents, there is no reason why the Respondent’s written statement of defence should be dismissed for non-compliance. The costs of this application shall abide the outcome of the main suit.

Ruling delivered in open court 20 June 2014

 

Christopher Madrama Izama

Judge

Judgment delivered in the presence of:

Priscilla Mugisha holding brief for Tendo Kabenge Counsel for the Applicant

Bwogi Kalibala Holding brief for Masembe Kanyerezi for the Respondent

Charles Okuni: Court Clerk

 

Christopher Madrama Izama

Judge

20/June 2014