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Hariprasad R. Patel v Badubhai K. Patel (CIVIL SUIT NO. 931 OF 1991)

High Court · [1993] UGHC 123 · 1993 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by defendant for commission to examine witness residing outside Uganda
Decision
Application for commission to examine witness dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the defendant's application for a commission to examine a witness residing outside Uganda. The applicant failed to demonstrate strong reasons justifying departure from the practice that evidence be taken viva voce before the trial court. Although the evidence sought was material to the case, the reasons given for the witness's inability to attend court were insufficient and unsupported by adequate proof. The court held that issuing the commission would deprive the plaintiff of the opportunity to cross-examine the witness and the court of observing the witness's demeanour, and that fairness to both parties required the application be refused.

Outcome

Application for commission to examine witness dismissed

Facts

The plaintiff filed Civil Suit No. 931 of 1991 against the defendant claiming an interest in property located at Plot No. 19 Buganda Road, Kampala, which was registered in both parties' names. The plaintiff sought an account of income collected from the property. The property had been conveyed from the names of Kashibai Dahyabhai Patel into the names of both parties. The defendant filed an application by Notice of Motion seeking a commission for the examination of a witness, J.K. Patel, who was an advocate residing outside Uganda in India or the United Kingdom. The defendant claimed J.K. Patel had handled the conveyance and received the purchase price, and his evidence was vital to establishing the defendant's case, particularly regarding whether both parties contributed equally to the purchase price. J.K. Patel had written a letter dated 2 January 1993 stating he was unable to travel to Uganda due to health reasons and other engagements, but was willing to give evidence on commission. The plaintiff closed his case on 10 November 1992. The defendant's application was filed in April 1993 and heard on 20 October 1993.

Issues

  1. Whether the court should issue a commission for the examination of a witness (J.K. Patel) residing outside Uganda under Order 25 rule 4(1) of the Civil Procedure Rules.
  2. Whether the applicant demonstrated that the evidence of J.K. Patel is necessary for the fair determination of the suit.
  3. Whether the applicant established exceptional circumstances justifying the departure from the established practice that evidence should be taken viva voce before the trial court.

Orders

  • Application dismissed.
  • Costs awarded to the respondent/plaintiff.

Rules and key headnotes

Civil Procedure — Commissions — Power to Issue Commission for Examination of Witness Residing Outside Jurisdiction
Under Order 25 rule 4(1) of the Civil Procedure Rules, a court has discretion to issue a commission for the examination of any person resident beyond the local limits of its jurisdiction, provided the evidence of such person is necessary for the fair determination of the suit.
Civil Procedure — Commissions — Conditions for Issuing Commission
Before issuing a commission to examine a witness residing outside the jurisdiction, an applicant must satisfy the court that the witness resides beyond the limits of the court's jurisdiction and that the evidence of such person is necessary. The court's discretion must be exercised judicially and not arbitrarily.
Civil Procedure — Commissions — Standard of Proof Required
A commission to examine a witness outside the jurisdiction does not issue as of right. The applicant must justify the application by showing good reasons for excusing the calling of the witness contrary to the established practice that all evidence should be taken viva voce before the trial court.
Evidence — Witnesses — Examination Outside Jurisdiction — Right to Cross-Examine and Observe Demeanour
Where the evidence to be produced is material and controversial, a commission should not be issued unless strong reasons are shown. Issuing a commission would deprive the opposing party of the opportunity to cross-examine the witness and deprive the court of the opportunity to observe the demeanour of the witness, which are important aspects of the administration of justice.
Civil Procedure — Commissions — Inadequate Reasons
Reasons of health and other engagements advanced by a prospective witness for inability to attend court, unsupported by medical evidence or affidavit from the witness, do not constitute strong reasons justifying the issue of a commission. General assertions about expense without evidence of the amounts involved or inconveniences to the witness are insufficient to support a commission.
Civil Procedure — Commissions — Balancing Interests of Both Parties
In determining whether to issue a commission, the court must consider not only what the applicant's case requires but also the opposing party's case. The decision should appear to be fair to both parties.

Legislation cited (5)

  • Civil Procedure Act s.54
  • Civil Procedure Rules O.25 r.4(1)
  • Civil Procedure Rules O.25 r.5
  • Civil Procedure Rules O.25 r.20
  • Civil Procedure Rules O.48 r.1

Cases cited (6)

  • Batten and Others v Kampala African Bus Company [1959] EA 128
  • Karim Hirji Vs. Pan African Insurance Company HCCS No.
  • Caspair Ltd v Gandy [1969] EA 411
  • Bitaitana & 4 Others v Emmanuel Kananura [1977] HCB 3
  • Premehard Raichand Ltd and 2 Others v Quarry Services of East Africa Ltd and Others [1969] EA 517
  • Caspair Ltd v Harry Gandy [1969] EA 411

Full judgment

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

Hariprasad R. Patel v Badubhai K. Patel (CIVIL SUIT NO. 931 OF 1991) [1993] UGHC 123 (2 November 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.