Wakilii

Dr. Kakonge v Christine Bitabeiho (Civil Suit No. 755 of 1992)

High Court · [1993] UGHC 8 · 1993 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory ruling on admissibility of secondary evidence in civil suit for unlawful detention of vehicle
Decision
Interlocutory ruling made; matter to proceed to trial on the merits

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that a photostat copy of a document alleged to be fraudulent is admissible as secondary evidence under s.63(a) of the Evidence Act where the original is in the possession of the adverse party. Previous notice to produce may be dispensed with under s.64(b) where from the nature of the case the adverse party must know the document will be required. A document annexed to pleadings may still be tendered in evidence to prove the case pleaded. Preliminary objection to admissibility overruled.

Outcome

Interlocutory ruling made; matter to proceed to trial on the merits

Facts

The plaintiff brought suit against the defendant seeking general and special damages for unlawful detention of his vehicle, a Mitsubishi Toyota registration number UPX 135, and a declaration that the vehicle was his property. During trial, the plaintiff sought to tender a photostat copy of a document (Annexture E) which purported to show sale of the vehicle to the defendant's late husband. The plaintiff alleged this document was forged. The defendant objected to the admission of the photostat copy as secondary evidence. The plaintiff had received the photostat copy from the defendant's counsel in September 1992. The original document appeared to be in the possession of the defendant or her counsel. The defendant admitted in the written statement of defence that the vehicle had been sold and property interest passed vide Annexture E, but the plaintiff maintained it was fraudulent. A separate agreement (Annexture C) showed a hire or rental arrangement between the plaintiff and the defendant's husband, whereas Annexture E purported to show a complete transfer of ownership.

Issues

  1. Whether a photostat copy of a document alleged to be fraudulent may be admitted as secondary evidence under s.63 of the Evidence Act where the original is in the possession of the adverse party.
  2. Whether previous notice to produce the original document is required before secondary evidence can be tendered where the adverse party must know from the nature of the case that the document will be required.

Orders

  • Preliminary objection overruled.
  • Photostat copy Annexture E admitted in evidence as secondary evidence.
  • Costs of the preliminary objection awarded to the plaintiff.

Rules and key headnotes

Evidence — Secondary Evidence — Admissibility — Original in Possession of Adverse Party
Where the original document is in the possession or power of the adverse party, secondary evidence of its contents is admissible under s.63(a) of the Evidence Act without previous notice to produce if from the nature of the case the adverse party must know the document will be required to be produced.
Evidence — Secondary Evidence — Notice to Produce — Dispensation
The requirement under s.64 of the Evidence Act to give prior notice to produce the original document before tendering secondary evidence may be dispensed with where from the nature of the proceedings the adverse party necessarily has notice that possession of the document will be in issue or where the document is alleged to have been obtained by fraud.
Civil Procedure — Pleadings and Proof — Documents Annexed to Pleadings
The fact that a document has been annexed to the plaint does not preclude its admission in evidence at trial. Evidence must be consistent with pleadings and a party is entitled to tender documents annexed to pleadings in order to prove the case pleaded.

Legislation cited (4)

  • Evidence Act Cap.43 s.62
  • Evidence Act Cap.43 s.63
  • Evidence Act Cap.43 s.63(a)
  • Evidence Act Cap.43 s.64

Cases cited (6)

  • Captain Harry Grandy v Gaspair Air Charles Ltd (1955-1956) XII EACA 139
  • Rainy Vs. Bravo LR UPC 287
  • R vs. Elworthy LR ICC 103, 37LJMCB
  • Dwiyar Vs. Collins 21LJ EX 225 7 EX 639
  • HOW vs. HALL 14 EAST 274
  • Scott vs Jones 4 Taunt S65

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

↓ Download PDF

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

Dr. Kakonge v Christine Bitabeiho (Civil Suit No. 755 of 1992) [1993] UGHC 8 (17 March 1993)
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.