THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO.268 of 2014
(ARISING FROM CIVIL SUIT NO. 300 OF 2013)
NATIONAL FORESTRY AUTHORITY ….……APPLICANT/DEFENDANT
HAJI SIRAJI KAMULEGEYA AND 11 OTHERS …………………………..… RESPONDENT/PLAINTIFF
BEFORE: HON. LADY JUSTICE FLAVIA SENOGA ANGLIN
The application was brought under S.98 C.P.A and 0.52 r 1 C.P.R seeking leave of court to admit and read the Applicants/Defendants witness statements filed on 28.02.14, or validating the filing thereof.
In the alternative, but without prejudice to the foregoing the Applicant sought to be granted leave to adduce new and additional evidence in respect of Civil Suit 200/2013.
Costs of the application were to be in the cause.
The application was heard on 10.12.14. Counsel for the Applicant submitted that a consent order was recorded in respect of the first prayer of the motion. He accordingly addressed court in respect of prayer Number. Two.
The prayer was restricted to seeking leave of court to be allowed to call one expert witness to respond to the expert called by the Respondent/Plaintiffs.
It was pointed out that while the prayer was worded generally, upon careful consideration, it was discovered that just one more witness – an expert was needed.
Counsel referred to paragraph 12 of the affidavit in support showing the nature of the evidence the expert would adduce- e.g. extent of cultivation by the Plaintiffs, nature of the crops planted, Plaintiffs who had not planted any trees; arguing that the evidence would assist court to assess the respectable claims of each of the Respondents/Plaintiffs.
Further that, the expert witness computed the Plaintiffs’ claim at a colossal sum of SHS. 24 Billion. And it was therefore in the interests of justice that the Applicant be permitted to call an expert to counter the computation.
It was emphasized that the Plaintiffs would not be prejudiced because their own expert had already testified. And hearing both experts before reaching a decision would be in the interests of justice; and Counsel for the Plaintiffs would have a chance to cross examine the Defendant’s expert witness.
Court was informed that a copy of the Defendant’s expert’s computation had been served on Counsel for the Respondents. And depending on the decision of court, the expert would either appear in person or file a witness statement and appear for cross examination.
The defence has just opened its case and first witness cross examination was not yet completed and Applicant ought to be given opportunity to add one more witness.
It was conceded that costs of the application be granted to the Plaintiffs/Respondents.
In reply, Counsel for the Respondents/Plaintiffs argued that the order sought was superfluous since it was sought in the alternative. That once the Respondent conceded to the first prayer in the application, the second prayer was rendered mugatory.
But that, there was also a joint scheduling memo signed by both Counsel on 31.10.13 and the Applicant/Defendant stated in paragraph 4 thereof that they had no expert witness to call. They could therefore not turn around and say they had an expert now contrary to the said memo.
The case of Mzee Wanje and Others [1976 – 85] EA 364 was relied upon for the principle that “the applicant must show that evidence could not be obtained with reasonable diligence at the trial”.
It was then argued that in the present case, the Applicants had not shown why they did not think of the expert witness at the time the other witness statements were filed; and it is an afterthought.
The evidence is not attached to the application and it would prejudice the Respondents as their expert witness did not look at it to comment on the figures of the Applicant’s witness.
Further that the application offends 0.12 r 3(1) C.P.R as it was not filed within the prescribed time. And Applicant should instead be seeking to extend time within which to file the application.
It was prayed that application be dismissed with costs.
In rejoinder, Counsel for the Applicant stated that it was agreed by Respondents’ Counsel that second prayer be set down for hearing and he did not object to it then. And the prayer is without prejudice to the first prayer.
The witness statements accepted under the first prayer do not include the expert’s computation.
Paragraph 6 and 7 of the affidavit in support give reasons why it took long to assemble evidence of computation.
Also that, the experts witness statement could not be filed without leave of court.
In addition to cross examination, Counsel for the Plaintiffs can recall his own expert.
S.98 C.P.A empowers court to grant the order sought in order to meet the ends of justice.
While 0.12 r 3 (1) C.P.R cannot deprive court or jurisdiction to make orders for the ends of justice, and court should exercise its discretion and allow application even if it was made outside the provisions of 0.12 r 13(1) C.P.R. The information required was obtained after the deadline given for filing witness statements.
Also that the Respondents did not file any affidavit in reply to rebut the averments of the Applicant and therefore they have not been controverted. Counsel then reiterated his earlier prayers.
The issue for court to determine is whether the Applicant/Defendant should be granted leave to call an expert witness.
Having carefully considered the submissions of both Counsel, I find that the essence of the application was to enable the Applicant adduce additional evidence that they claim was not available at the time the suit was filed and the scheduling memo agreed upon by Counsel.
Both agreed to the first prayer of the application that is, to admit on record the Applicants/Defendants witness statements filed on 28.02.14.
And since there was consent to that prayer, it was allowed as already indicated on the court record.
Having agreed to the calling of additional evidence, court is puzzled as to why Counsel for the Respondents objects to the calling of an expert witness.
A copy of the evidence intended to be adduced by the expert was availed to Counsel for the Respondent. The defence case has just opened and cross examination of the first defence witness is not yet completed.
Court is accordingly not convinced by the arguments of Counsel for the Respondent that by conceding to the first prayer of the motion, the second prayer was rendered nugatory. It is clearly indicated in the motion that in the “alternative but without prejudice to the foregoing”.
While the Applicants had indicated in the joint scheduling memorandum that they had no expert witness to call, it is apparent that those circumstances changed once new and important evidence was discovered.
While the court agrees with the principle stated in the case of Mzee Wanje and Others (Supra), it is quick to add that the case was in respect of an appeal, when the trial had long ended. And court pointed out the reason for refusal to call additional evidence on appeal is to prevent an unsuccessful litigant to patch up the weak points in his case and fill up omissions in the Court of Appeal.
As already stated earlier, the defence case is not yet completed and accordingly, I find that the case relied upon by Counsel for the Applicant is not applicable to the circumstances of the present case.
The application was not filed within the prescribed time under 0.12 r 3 (1) C.P.R but court can exercise its powers under S.33 C.P.A to extend that time. And by conceding to the first prayer, Counsel cannot turn around to say the application is improperly before court.
In any case, courts have repeatedly emphasized that “rules of procedure were meant to be hand maidens of justice and not to defeat it”.
Further the Supreme Court has established that “courts do not exist for the sake of disciplining but for deciding matters in controversy. And that hearing and determination of disputes should be fostered other than hindered” - See Article 126 of the Constitution.
Since Counsel for the Respondent will have a chance to cross examine the expert witness sought to be called in the present case, no injustice will be occasioned to the Plaintiffs.
S.14 (2) (c) (iii) Judicature Act, jurisdiction of the High Court can be exercised in conformity with the principles of justice, equality and good conscience.
And justice demands that the merit of complaints should be investigated.
Court also wishes to observe that; the Respondent in this case did not file an affidavit in reply, in essence telling court that the averments of the Applicant are not rebutted.
The Applicant has also conceded to the costs of the application, thereby agreeing to remedy any inconvenience suffered by the Respondents.
The application is therefore allowed for all those reasons. The witness statements agreed to by both Counsel are admitted on record and the expert statement witness to be filed within two weeks from the date of this ruling.
Costs of the application are granted to the Respondents.
FLAVIA SENOGA ANGLIN