Wakilii

Kakonge v Bitarabeiho (Civil Suit 755 of 1992)

High Court · [1994] UGHC 112 · 1994 Preliminary Objection Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil suit for declaration of ownership and damages for unlawful detention of vehicle; ruling on preliminary objection to admissibility of handwriting expert report
Decision
Handwriting expert report excluded from evidence; preliminary objection upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a handwriting expert report is inadmissible where it was not pleaded or annexed to the written statement of defence at the time of filing, as it amounts to raising a new ground of defence in violation of Order 6 Rules 5 and 6 of the Civil Procedure Rules and takes the opposite party by surprise. Further held that the expert report was hearsay where counsel did not disclose how specimen signatures were obtained and did not give evidence on the matter.

Outcome

Handwriting expert report excluded from evidence; preliminary objection upheld

Facts

The plaintiff sued the defendant seeking general and special damages for unlawful detention of his vehicle and a declaration that motor vehicle registration No. UPX 135 was his property. Both parties led evidence. The defendant called DW2, a government analyst working on questioned documents, who testified that counsel gave him documents for analysis, including a photocopy dated 2 April 1990 authorising Mr. Bitabereho Paulo to rent motor vehicle UPX 135 (Annexture C) and a handwritten agreement dated 5 March 1990 concerning transfer of interest in the vehicle (Annexture E). The analyst prepared a report on whether the signatures were genuine. When counsel for the defendant attempted to tender the expert report in evidence, plaintiff's counsel objected on the grounds that it was a new matter not pleaded, took him by surprise, and was hearsay.

Issues

  1. Whether a handwriting expert report could be tendered in evidence when it was not pleaded in the written statement of defence.
  2. Whether the handwriting expert report and specimen signatures constituted hearsay evidence.

Orders

  • Preliminary objection upheld.
  • Handwriting expert report inadmissible and shall not form part of the proceedings.
  • Costs awarded to the plaintiff.

Rules and key headnotes

Civil Procedure — Pleadings — Duty to Plead Material Facts — Expert Evidence
Where a party intends to rely on expert evidence, the intention to call such evidence and the nature of the expert opinion must be pleaded in the written statement of defence or other pleading, otherwise the evidence will be inadmissible as taking the opposite party by surprise and violating Order 6 Rules 5 and 6 of the Civil Procedure Rules.
Civil Procedure — Pleadings — New Grounds of Defence — Order 6 Rule 6
No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with previous pleadings of the party. Tendering an expert report at trial that was not pleaded or annexed to the written statement of defence at the time of filing constitutes a departure from the pleadings and is inadmissible.
Evidence — Hearsay — Expert Evidence — Foundation
Where counsel tenders an expert report based on specimen signatures but does not disclose how the specimens were obtained and does not give evidence on the matter, the report is inadmissible as hearsay evidence. Counsel must either disqualify himself and testify as a witness or lay the foundation for the evidence through another witness.

Legislation cited (2)

Full judgment

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Kakonge v Bitarabeiho (Civil Suit 755 of 1992) [1994] UGHC 112 (30 May 1994)
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.