Wakilii

China Railway No. 3 Engineering Company Limited v Prof . Gakwandi (Miscellaneous Application 25 of 2023)

High Court · [2023] UGHCCD 217 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to recall respondent as witness for further cross-examination arising from Civil Suit No. 0027 of 2019
Decision
Application granted; respondent recalled for further cross-examination on specified documents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that minor defects in marking annexures to affidavits are curable under Article 126(2)(e) of the Constitution where the documents are identifiable and authenticated. A company resolution is not required for auxiliary proceedings where the main suit has already been instituted. The court may exercise discretion under Order 18 rule 13 of the Civil Procedure Rules to recall a witness for cross-examination where evidence is essential for just determination, provided no party is prejudiced. Application granted.

Outcome

Application granted; respondent recalled for further cross-examination on specified documents

Facts

The applicant, defendant in Civil Suit No. 0027 of 2019, instructed new advocates in 2023. Upon reviewing the file, the applicant conducted a land search which allegedly revealed that the respondent had sold the suit property in April 2019 for UGX 160,000,000 before instituting the suit, and that the title was subsequently transferred to a purchaser named Twebaze Esau. The applicant sought to recall the respondent for cross-examination on this issue. The respondent opposed, contending he remained the registered proprietor and had not sold the land, that the sale allegation was false, and that the application was a delaying tactic to fill gaps in the defence after both parties had closed their cases. Preliminary objections were raised regarding unmarked annexures and lack of company authorization for the application.

Issues

  1. Whether the applicant's affidavit in support of the application is defective.
  2. Whether the company authorized the filing of the application.
  3. Whether the respondent should be recalled as a witness for further cross-examination.

Orders

  • The respondent is recalled for further cross-examination only on the sales agreement dated 9th April 2019 and on the certificate of title for land comprised in LRV 3165/23, Volume KB03, Folio 10, Plot 54, Block 84, Busongora, Kasese measuring 7.8060 hectares.
  • The applicant shall obtain certified copies of such documents from the Commissioner of Land Registration and serve them on counsel for the respondent at least two weeks prior to the cross-examination.
  • The costs of this application shall abide the outcome of Civil Suit No. 0027 of 2019.

Rules and key headnotes

Affidavits — Annexures — Marking and Authentication — Curable Defects
Where annexures to an affidavit are stamped and sealed by the Commissioner for Oaths but not marked with serial letters of identification as required by Rule 8 of the Advocates (Commissioner for Oaths) Act, such omission is a curable technicality under Article 126(2)(e) of the Constitution where the documents are clearly described in the affidavit, assigned intended markings, and are easily identifiable.
Company Litigation — Authorization — Auxiliary Proceedings
Where a suit has been instituted by a company with proper authorization, subsequent auxiliary proceedings relating to the prosecution of that suit do not require fresh company resolutions, as such proceedings are ancillary to the main suit and may need to be taken out expeditiously without necessitating fresh resolutions each time.
Corporate Plaintiffs — Competence to Swear Affidavits — Principal Officers
Under Order 29 rule 1 of the Civil Procedure Rules, a principal officer of a company who is able to depose to the facts of the case is competent to swear an affidavit on behalf of the company, including officers whose positions relate directly to the subject matter of the dispute.
Witnesses — Recalling Witnesses — Discretion of Court
The power to recall a witness under Order 18 rule 13 of the Civil Procedure Rules and section 164 of the Evidence Act is discretionary and must be exercised judicially and reasonably. The court may recall a witness where the evidence sought is essential for just determination of the case and will not prejudice either party, even after both parties have closed their cases.
Witnesses — Recalling Witnesses — Proper Purpose
Recalling a witness is not to serve to re-open the case afresh or to fill gaps in a party's evidence. The power should be exercised only where clarification is necessary on relevant and admissible evidence that will aid the court to reach a fair, balanced and just decision.

Legislation cited (7)

Cases cited (8)

  • Yowabu Kamukuha v Bukuru Moses & Others (Miscellaneous Application No. 114 of 2009)
  • Baryaija Julius v Kikwesire Zaverio & Another (Civil Application No. 324 of 2016)
  • Rubaga Building Ltd v Gopal Devsi Vekaria & Another (Civil Suit No. 534 of 2014)
  • Masaka Tea Estate Ltd v Samaha Tea Estate & Others (Miscellaneous Application No. 505 of 2004)
  • Bugerere Coffee Growers Ltd v Sebadduka & Another [1970] 1 EA 147
  • Makerere Properties Ltd v Mansukhlal Ranji Karia (High Court Civil Suit No. 32 of 1994)
  • Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd (High Court Civil Case No. 391 of 2000)
  • Onek Manacy & Another v Omona Micheal (High Court Civil Appeal No. 32 of 2016)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

China Railway No. 3 Engineering Company Limited v Prof . Gakwandi (Miscellaneous Application 25 of 2023) [2023] UGHCCD 217 (8 June 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.