THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO.886 OF 2015
(ARISING FROM CIVIL SUIT NO.125 OF 2009)
STANDARD CHARTERED BANK ………………………………………………………………….………………..APPLICANT
- JENNIFER UWIMANA
- BENJAMIN MUGUME
- DORCUS LULE MUJABI……………………………………………………………………………………RESPONDENTS
- JUDE KIMERA
- JAMES MUGISHA
BEFORE THE HON. MR. JUSTICE HENRY PETER ADONYO:
This is an application brought by way of Notice of motion under Section 98 and 82 of the Civil Procedure Act, Order 10 Rule 13 and Order 46 Rule 1, 2 and 8 of the Civil Procedure Rules seeking for orders that this Honourable Court be pleased to review, vary or set aside its order of the 12th October, 2016 which required the Applicant to avail to the Respondents various documents that were in its custody and for the costs of this application to be provided for.
- Grounds of the Application:
The grounds of the application are contained in the application but further expounded in an affidavit deposed by a one Cecilia Namuddu Muhwezi who is stated to be an advocate of this court and courts subordinate thereto practising with M/s Kampala Associated Advocates of P.O .Box 9566 Kampala dated the 27th day of October, 2015.
The grounds are majorly five but in summary are that on the 12th day of October 2015, the Learned Trial Judge in High Court Civil Suit No 125 of 2009 wherein the parties to this application are the Plaintiff and the Defendants respectively, ordered that the Applicant was to avail to the Respondents certain listed documents that had been requested during the joint scheduling of that head suit and are replicated in this application in ground 2 hereof on the basis that ever since the said order was made, the applicant has been unable to trace most of the documents for either some of those documents were not in its custody or that some of the same in original form had been tendered in evidence in a criminal case before this Honourable Court at the Anti Corruption Division with and efforts to trace some of them having been rendered fruitless on top of the fact that the Respondents continued to ask for documents which were too voluminous to copy such as the bank reconciliation statements which were done by the bank on a daily basis or that the applicant would have to print over several million pages for each respondent for the period requested which is not feasible but that the Applicant had retrieved some of the documents and the same have been presented to the Respondents and that it was in the interest of justice that this Honourable Court reviews, varies and or sets aside its ruling and orders issued on the 12th October 2015 demanding that the Applicant avails the Respondents the documents they had requested.
This matter came up for hearing on the 2nd day of November 2015. However, before it could be heard Dr. Akampumuza James who was appearing for the 5th Respondent raised a strong preliminary objection. Learned counsel argued that this application was bad in law on the basis that it was clouded with illegality for the Applicant had contemptuously disobeyed court orders issued on the 12th day of October 2015 as on that day the court had in its ruling found the Plaintiff to be in contempt of court orders but mercifully extended the time within which it had allowed the Applicant to provide them to the Respondents by a period of two more weeks adding that a party who is in contempt of court could not be seen to raise a new motion until it had purged the contempt making the instant application to be incompetent before this Honourable Court as it related to the very orders which have not been followed. O reinforce his argument Dr. Akampumuza cited the case of Housing Finance Bank Ltd and Another v Edward Musisi, Court of Appeal Miscellaneous Application No 158 of 2010 in which the Court of Appeal pointed out clearly that a party who finds difficulty in complying with court orders ought to bring that fact to the attention of the court which issued the order as soon as possible but should not wait to be held in contempt of the court for failing to implement the court order and thereafter purport to make other applications to have the contempted orders varied with the fact here being that during the joint scheduling of the head suit for trial the applicant did informed openly inform this Honourable Court that it had in its possession the documents which were requested by the Respondents/ Defendants and was therefore directed too provide the same accordingly within a given period but failed to do so and was subsequently found to be in contempt of court and thus could not now be seen to apply to have the said orders vacated.
Mr. Oine Ronald for the second and forth respondents associated his client with the submissions of Dr. Akampumuza. He ,however, added that the instant application should be considered by this Honourable Court as an abuse of the court process for indeed the applicant had written to the respondents copied to the court on 26th October 2015 informing them that it had complied with earlier court orders of the 12th day of October 2015 as can be discerned from paragraph two of the said letter which is on record and thus by making this instant application for the review of the very same court order which it had purportedly complied with , the applicant was indeed all out to disparage the court which act was an totally an abuse of court process for the applicant and thus under Section 114 of the Evidence Act the applicant would be estopped from denying what was contained in its letter for by its very action the applicant had made court to believe that indeed it had complied with the court orders which required it to provide the respondents with the various documents the court had ordered it to do so. Mr Oine added that this was inspite of the fact that the applicant pleaded with court for more time to produce the required documents and indeed was given a further two weeks by the court as per the court order of the 12th October 2015 wherein in it was warned of the consequences of not complying with the court orders.
Mr. Oine noted that this application was lodged on the 28th day of October, 2015 when the applicant was already in contempt of court orders and went on to emphasise the decision of the Court of Appeal decision of Housing Finance Bank Ltd (supra) where indeed he appeared as counsel and prayed for the dismissal of the application as it was an abuse of court process with the head suit suffering the same consequence under Order 10 Rule 21 of the Civil Procedure Rules.
Mr. Mudhola Denis for the first respondent associated himself with the submissions of Dr. Akampumuza and Mr. Oine. He, however, went on to add that the instant application should be considered has having been brought to defeat the very court orders in place for in those orders specific documents indicated to be availed making the application to be in bad faith and as such should be dismissed with costs with the same fate befalling the main suit.
Mr. Kagere Yusuf for the 4th respondent too associated himself with the submissions of his learned colleagues but added that the conduct of the applicant could have resulted of its counsel who should be seen as abetting his client to disobey court orders for the court’s orders were clear but it seems it is the advocate who is making the client to disobey the court’s orders and thus the advocate himself should be found to be liable for the contempt of court and that this was the position taken by the Court of Appeal in the case of Commercial Bank of Africa Ltd v Isaac K Ndirangu COA 157/1987  EA and in the case of Maritsa Nicholas v Electoral Commission and Others Miscellaneous Application No. 35 of 2012. In addition learned counsel pointed out that a party which comes to court with unclean hands can not be heard on any subsequent application thus he prayed for the dismissal of the application and the head suit accordingly.
In reply to the respondents’ submissions, Mr. Bruce Musinguzi for the applicant reiterated that the preliminary objection was unfounded in law being based on facts which cannot be determined at the hearing of the application. Mr. Musinguzi then went on to give the chronology of the instant application for he stated that on the 12th day of October 2015 the court made an order in which the applicant was directed to avail a number of documents to the respondents including Feasibility cash books, Treasury float books, Reports on spot cash, Spot Cash Cheques and particulars, Float registers, Audited books of accounts by external auditors, Copy of the speak up policy, Standard bank financial status, Insurance claims of loss, Bank accounts for all defendants, Cash reconciliation, Police statements from standard chartered bank and Standard Chartered Bank Report of 2003 and that in compliance with the orders of the court passed on 14th October 2015 at page 12 the Applicant on the 26th day of October 2015 availed to all the respondents MOST of the ordered documents which it could deliver which were in its including treasury cash book, treasury float book, reports on spot cash, audited books of accounts which were also annexed on the trial bundle of the second and fourth respondent, standard chartered bank financial statements which are the same as audited books of accounts, petty cash reconciliation statements and police statements which were already on the court record with the remaining documents not supplied not being in the custody of the applicant/plaintiff and that fact was brought to the attention of the respondents for the applicant believed those documents either do not exist, were not in its custody or documents which could have been named wrongly. The Applicant thus summated that arising from the latter situation it was therefore not true that it had deliberately refused to hand over to the respondents the ordered documents for even in the past it had allowed the respondents to inspect its available documents in order to make them aware of what it had but in total disregard of court process and with intention of derailing the hearing of the matter contrary to the provisions of Section 98 of the Civil Procedure Act and in abuse of court process the respondents kept on asking for such similar documents as were given to them on 26th October 2015 but yet again the respondents continued to dishonestly ask for those which were none existing in the applicant’s custody.
Secondly on the respondents’ challenging of the timing of the application and on the other hand falsely claim this application was filed after the applicant had been served with a letter dated 29th October 2015, the applicant states that this was a false statement for this application was filed on the 28th October 2015 with the letter of 29th October 2015 never having been brought to the attention of the applicant and therefore it was false for the respondents to state that the instant application is a response to a letter written and a day after the application for review was filed.
The Applicant also pointed out that the respondents dwelt much on the issue of contempt of court and were using it as a basis in order that this application and the head suit be dismissed yet there is no finding or order of the court that the applicant had been in contempt of court and neither was there an application to that effect for orders of contempt of court to be made against the applicant and until such an order had been applied for and granted, a finding in that regard could not be made .
In support this contention, Mr. Musinguzi cited the case of Stanbic Bank v Jacobs where Justice Mulyagonja noted that in regards contempt of court such scenario must arise from wilful disobedience of court orders with the end sanction being the paying of a decreed amount and dismissal of the suit.
In regards to this instant application, Mr. Musinguzi noted that it was brought under Order 46 of the Civil Procedure Rules which does not specify a time line within which such application can be filed. He relied on the case of Re-Nakivubo where he alluded that the court clearly stated that an application for review could be made at any time after the order had been made and noted that the order of this honourable court was made on the 12th day of October 2015 for the applicant to avail the documents by 26th October 2015which the applicant partly complied with and for those which it did not do so it was because of reasons beyond its control and thus was seeking a review through the instant application filed barely two days after partly those documents had been delivered with this application seeking to correct the situation where the applicant did not have in its possession all the documents ordered with the justice of the case demanding that the applicant be not closed out from the matter as a result with the issue of estoppel being raised not apply as it was on matters of fact which would entail the reading of the letter of 26th October to find its validity or not.
In regards to the issue of an advocate encouraging the applicant to be in contempt of the court order, Mr. Musinguzi submitted that this was not a point of law and should be dismissed as well for this is an application which was for the review of the court orders for the documents sought by the respondents were not in the custody of the applicant and thus in the circumstances the preliminary objection should be dismissed with costs.
In rejoinder, Mr Oine for the second respondent submitted that the question which the court should ask itself is whether there was total compliance of its’ orders for in the ruling of 14th October 2015 at page 11 the documents to be provided were listed and were to be provided within a given time frame and since there has not been compliance that amounted to contempt of court which cannot be purged by submissions from the bar for the court order was that the documents were to be delivered within two weeks from the date of delivery of the ruling of the court yet the same applicant states on oath that MOST of the documents had not been traced which is a fraudulent representation prohibited under Section 114 of the Evidence Act and was in total abuse of the court process since the compliance with the court orders as the was to be wholly and in total and for applicant to file this application on 28th of October 2015 showing that it did not have all the documents it had been ordered to provide amounted to contempt of court order of 14th October 2015 which would warrant the dismissal of the instant application and the main suit.
Mr. Mudhola Denis for the 1st respondent, Mr. Kagere Yusuf for the 3rd respondent and Dr. Akampumuza James for the 5th respondent associated themselves with the submissions of Mr.Oine and in the same spirit prayed for the dismissal of the application and the main suit.
Order 46 Rule 1 (1) of the Civil Procedure Rules provides that any person considering himself or herself aggrieved-
- By a decree or order from which an appeal is allowed but from which no appeal has been preferred, or
- By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of the judgment to the court which passed the decree or made the order.
In Iyamulemye David v Attorney General Supreme Court Civil Appeal No.4 of 2013, the Supreme Court reinstated the ground for review in the following words:
‘’ The conditions for granting an applicant a review are set out in Order XLV1 Rule (1) of the Civil Procedure Rules as the discovery of new important matter or evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. ”
The Supreme Court further in the case of Edison Kanyabwera v Pastori Tumwebaze Supreme Court Civil appeal No.6 of 2004 citing A.I.R. Commentaries: The Code of Civil Procedure by Manohar and Chitaley, Volume 5, 1908 stated that in order that an error may be a ground for review, it must be one apparent on the face of the record, i.e. an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no court would permit such an error to remain on the record. The "error" may be one of fact, but it is not limited to matters of fact, and includes also an error of law.
In the instant application, the applicant contends that the court reviews, varies or sets aside its order that the applicant avails to the respondents various documents that were supposedly in its custody. The applicant avers in its application that since the order was made, it has been searching for the documents above but has been unable to trace most of the documents for the reason being that most of the documents were either being in use as evidence in a criminal case against the defendants/respondents while the remaining other documents remained either untraceable or were not in the custody of the Applicant with all concerted efforts to obtain them being fruitless and while yet the majority of them documents did not exist in the applicant’s data base given that the applicant had retrieved all that were in its custody and had handed the same the respondents and for those documents which were not in its custody, a review of court directing it to avail the same to the respondents be therefore made.
This new step of the Applicant was considered by the respondents as amounting to contempt of court and disobedience of court orders for the applicant was given ample time of two weeks within which to avail the said documents to the respondents and that this was up to the 26th of October, 2015 and since on the said date the applicant reportedly intimated by letter that it had provided all the required documents as per the court order therefore for the applicant to now come to court and state that it sought the review of the court order which directed it to supply the documents in its custody of which it had presumably complied with was indeed an abuse of the court process and therefore the justice of the case would require that the applicant cannot be seen through this application to seek a review of the very same court order.
I have carefully considered this application and below is the resolution of this matter.
First and foremost, the respondents points out to the court that by making this application the applicant had committed contempt of the court order. The Court of Appeal defined in the case of Housing Finance Bank Ltd & Anor v Edward Musisi Misc Application No. 158 of 2010 the contempt of the court as follows:-
“A party who knows of an order, regardless of whether, in the view of that party, the order is null or valid, regular or irregular, cannot be permitted to disobey it by reason of what that party regards the order to be. It is not for that party to choose whether or not to comply with such an order. The order must be complied with in totality, in all circumstances by the party concerned subject to that party’s right to challenge the order in issue. This may be by way of Revision, Review or by Appeal). We hasten to add that it is the responsibility of and duty of the party concerned, in case that party for some genuine reason, finds compliance with the court order not possible, to appropriately move court issuing the order and bring to the attention of the court the reasons for not compliance.
This is to ensure that the court issuing the order not only must not be held in contempt, but must not, whatever the circumstances, appear to be held in contempt by any litigant. Otherwise to disobey an order of court, at any party’s or whims, on the basis that such an order is null or irregular, or is not acceptable or is not pleasant to the party concerned is to commit contempt of Court. A court of law never acts in vain and, as such, issues touching on contempt of court take precedence over any other case of invocation of the jurisdiction of the court.”
From the above definition and arising from the submissions of counsels herein, it is apparent that indeed and in fact the applicant has disobeyed clear court orders which were issued on the 12th day of October 2015 which was even graciously reemphasized by another order on the 14th day of October 2015 as the said orders clearly directed the applicant to provide the respondents with the documents requested by each of the respondents to enable the hearing of the main suit could begin and at the time when those very orders were issued the applicant did not indicate to the court its inability to comply with those very orders and yet the applicant did not do so but instead on the 26th October 2015 wrote to the respondents stating that it had complied with the court order for it did indicate that it had supplied the respondents with all the documents required by the respondents. It is therefore surprising that the applicant on the 28th day of October opted to file the instant application seeking for a review the court orders on the basis that that it did not have in its custody all the documents it had been ordered to supply to the respondents . This conduct is indeed unbecoming and is clearly contemptuous of the court for the applicant did not earlier indicate to the court during the time when the order was made or even soon thereafter that it was unable to comply with the court orders especially at the time when the respondents listed the documents they required with the applicant actually agreeing to provide the same only , turn around that it cannot do so for had it informed the court of its inability there and then the court would have considered its position and then proceed to give appropriate orders but for the applicant to pretend and clearly present a false impression to the court that it was in position to supply the documents ordered , purport to do so only then to suddenly turn around and allege that it did not have the documents and thus sought by this application to have the court review to review an order it itself stated it had complied with is indeed contemptuous , an abuse of the court process with conduct which not to be condoned by a court for a court order is not issued in vain and where it is issued it has to be complied with wholly and a party so ordered cannot choose which part of the order to comply with and which one to ignore as no partial compliance of a court order is allowed with this position having been pronounced upon by the Court of Appeal in the case of Amrit Goyal versus Harichand Goyal and three others Civil Application No. 109 of 2004  UGCA 6 where it was held that a court order must be obeyed as ordered unless set aside or varied and that it is not a mere technicality that can be ignored with those who ignore a court order choose to do so at their own peril.
Thus in the instant matter were the applicant considerate and thought that the order passed by court could not be complied with as it were then it would have taken the necessary steps by seeking its review within a reasonable the time which in my view would have been within the time the order and not after its lapse and then seek a review for doing so was indeed contempt of the court and such conduct is unacceptable and cannot be condoned for it not only weakens the authority of the court but render it irrelevant in its duty of orderly conduct of disputes and thus would render it at the mercy of the parties which I do strongly believe that the court were never constituted to conduct its business that manner. Consequently the applicant must suffer from its deliberate gross misconduct and thus this court act strongly to exert its authority by upholding the preliminary objection raised by the respondents for indeed the applicant has xcommitted acts of contempt of the court and thereforefore having not purged the said contempt would have this application dismissed with the contempt it deserves with costs for on the 14th October, 2015 this court gave a very clear order which should have been complied with and since it has not been done so by the applicant/ Plaintiff meaning that the applicant is not willing to heed to the directives of this court thus cannot be seen to go forward yet in the first place it is the one which brought a suit against the respondents . That being the case I would find that the applicant/ plaintiff is not ready or willing to follow simple and straight forward orders of this court thus the head suit would consequently as with this instant application suffer automatic dismissal as at the time when the default of the court order arose with costs to the respondents/defendants in either matters of this application and the head suit of High Court Civil Suit No 125 of 2009.
- This application is dismissed at its preliminary stage with costs to the respondents.
- High Court Civil Suit No 125 of 2009 is consequently dismissed for want of prosecution with also costs to the respondents/ defendants.
I do so order accordingly.
HENRY PETER ADONYO
6TH NOVEMBER, 2015