Wakilii

Kaweesi and Others v Bank of Uganda and 2 Others (Miscellaneous Application 258 of 2022)

High Court · [2023] UGCOMMC 38 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application arising from Civil Suit No. 108 of 2022 seeking attachment before judgment, temporary injunction, and discovery of documents
Decision
Application partly allowed — discovery granted for specific documents; attachment before judgment, temporary injunction, and inspection of bankers' books dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application for attachment before judgment and temporary injunction, finding no evidence of real risk of dissipation and that damages would be an adequate remedy. The application for inspection of bankers' books was dismissed as the Evidence (Banker's Books) Act does not apply to the Bank of Uganda's liquidation activities. Discovery was granted in part for documents showing expenditure of US$11,450,000 and liquidation costs of shs. 8,219,188,997, but denied for other categories as either already disclosed, too vague, or obtainable from public sources.

Outcome

Application partly allowed — discovery granted for specific documents; attachment before judgment, temporary injunction, and inspection of bankers' books dismissed

Facts

The applicants are shareholders of Greenland Bank Limited (2nd respondent), which was placed under liquidation by Bank of Uganda (1st respondent) on 1 April 1999. The liquidation has continued for over 21 years. The applicants filed Civil Suit No. 108 of 2022 challenging the liquidation process, alleging fraud, fictitious creditors, and improper disposal of assets. The 1st respondent holds shs. 14,091,238,475 for distribution to creditors. The applicants sought attachment before judgment, temporary injunction, and discovery of various documents relating to the liquidation, including creditor lists, utilisation of government liquidity support of shs. 91,200,000,000, expenditure of US$11,450,000 for UCB shares, liquidation costs of shs. 8,219,188,997, and documents relating to property sales. The respondents contended that the main suit is barred by limitation, res judicata, and discloses no cause of action.

Issues

  1. Whether the applicants are entitled to an order for attachment before judgment of shs. 14,091,238,475 held by the 1st respondent.
  2. Whether the applicants are entitled to a temporary injunction restraining the respondents from distributing shs. 14,091,238,475 to creditors pending determination of the main suit.
  3. Whether the applicants are entitled to an order for inspection of bankers' books under the Evidence (Banker's Books) Act.
  4. Whether the applicants are entitled to discovery of documents relating to the liquidation of the 2nd respondent.

Orders

  • Application for attachment before judgment dismissed.
  • Application for temporary injunction dismissed.
  • Application for inspection of bankers' books dismissed.
  • Application for discovery allowed in part.
  • 1st respondent to furnish applicants within 14 days documents showing source, disbursement and expenditure of US$11,450,000 and documents relating to liquidation costs of shs. 8,219,188,997.
  • Costs of the application to abide the outcome of the suit.

Rules and key headnotes

Attachment Before Judgment — Requirements for Grant
For an order of attachment before judgment to issue, the applicant must establish that the applicant's case for damages is strong and likely to succeed; there is evidence that the respondent is removing or there is a real risk of removal of assets from the jurisdiction to avoid judgment; or the respondent is dissipating assets in a manner clearly distinct from usual business or living so as to render future tracing remote; and the applicant is prepared to pay damages if the order should not have been issued.
Attachment Before Judgment — Duty of Candour
An applicant for an order of attachment before judgment must show the utmost duty of good faith and present the case fully and fairly, including identifying key points for and against the application, investigating likely defences, and disclosing all facts or matters which reasonably could be taken to be material by the judge, as the court is relying on the candour and integrity of the applicant when making an initial order without notice to the respondent.
Temporary Injunction — Irreparable Harm and Adequacy of Damages
A temporary injunction will not be granted where damages are an adequate remedy. Where the claim is essentially for monetary compensation for economic injury that can be quantified and calculated, the applicant has not discharged the burden of showing irreparable harm that cannot be compensated by an award of damages.
Banker's Books — Applicability to Central Bank Liquidation Activities
The Evidence (Banker's Books) Act applies to entries made in the usual course of banking business in books maintained for regulatory compliance. The Act does not apply to documents arising from the Bank of Uganda's roles of supervision, regulation, control and liquidation of financial institutions under the Bank of Uganda Act and Financial Institutions Act, as these activities do not constitute the usual course of banking business.
Discovery — Relevance and Materiality
For an order of discovery to be made, the document or information must be shown to be relevant and material. A document is relevant if it has any tendency to make the existence of any fact of consequence to the suit more or less probable. Discovery must not be allowed to be used as a fishing expedition. Vague, ambiguous and overbroad requests that do not identify any particular class or type of documents but rather constitute a request to peruse everything in the adversary's files will be denied.
Discovery — Attempts at Voluntary Cooperation
Parties seeking discovery should first attempt to obtain the adversary's voluntary cooperation by serving a notice to produce documents. Parties must confer in good faith to resolve discovery disputes before resorting to court intervention. Discovery may be sought by written motion to court only upon failure to obtain voluntary cooperation, and the motion must be accompanied by a copy of the original request, a statement showing relevance and materiality, and evidence of the respondent's objections or failure to respond.
Discovery — Public Records and Documents
Where information sought through discovery can be derived or ascertained from public records or records in the possession of a governmental agency or non-party, and the burden of deriving or ascertaining that information is substantially the same for the applicant as for the respondent, it is a sufficient answer to the application for the respondent to specify the records from which the information may be derived or ascertained.

Legislation cited (31)

Cases cited (28)

  • Lister v Stubbs [1890] All ER 797
  • Bahman (Prince Abdul) Bin Turki Al Sudairy v Abu Taha [1980] 3 All ER 409
  • Polly Peck International plc v Nadir (No 2) [1992] 4 All ER 769
  • Fourie v La Roux [2007] UKHL 1
  • The Niedersachsen [1983] 1 WLR 1412
  • Uganda Electricity Board (In Liquidation) v Royal Van Zanten (U) Ltd (Miscellaneous Application No. 251 of 2006)
  • Rex v Kensington Income Tax Commissioners, Ex parte de Polignac (Princess) [1917] 1 KB 486
  • Re Stanford International Bank Ltd [2011] Ch 33
  • Siporex Trade SA v Comdel Commodities [1986] 2 LR 428
  • Customs and Excise Commissioners v Anchor Foods Ltd [1999] 1 WLR 1139
  • Re Bloomsbury International Ltd [2010] EWHC 1150 (Ch)
  • EA Industries v Trufoods [1972] EA 420
  • Fellowes and Son v Fisher [1976] 1 QB 122
  • American Cyanamid Co v Ethicon Limited [1975] AC 396
  • Geilla v Cassman Brown Co Ltd [1973] EA 358
  • GAPCO Uganda Limited v Kaweesa and another (Miscellaneous Application No. 259 of 2013)
  • Godfrey Sekitoleko and four others v Seezi Peter Mutabazi and two others [2001-2005] HCB 80
  • Nsubuga and another v Mutawe [1974] EA 487
  • City Council of Kampala v Donozio Musisi Sekyaya (Civil Application No. 3 of 2000)
  • Dresdner Bank Ag v Sango Bay Estates Ltd (No 3) [1971] 1 EA 326
  • Dresdner Bank Ag v Sango Bay Estates Ltd (No 4) [1971] 1 EA 409
  • John Kato v Muhlbauer AG and another (Miscellaneous Application No. 175 of 2011)
  • Loftin v Martin 776 SW 2d 145 (1989)
  • Bank of Chettinad v Commissioner of Income Tax [1948] AC 378
  • Re Bottomgate Industrial Co-operative Society (1891) 65 LTR 712
  • R v Industrial Disputes Tribunal [1954] 2 All ER 730
  • Barker v Wilson [1980] 1 WLR 884
  • Williams v Williams [1988] QB 161

Full judgment

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

Kaweesi and Others v Bank of Uganda and 2 Others (Miscellaneous Application 258 of 2022) [2023] UGCommC 38 (10 March 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.