Nakisirinya Betty v Bruno Sentaktuuka Serunkuuma and Others (Miscellaneous Application No. 2186 of 2024)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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.

Holding

The court held that an applicant seeking discovery must demonstrate a prima facie basis for believing the evidence sought exists, is material, and is relevant to the issues at trial. Where documents are in the possession of respondents and are reasonably believed to be relevant to a suit concerning alleged fraudulent mortgage transactions, discovery will be ordered for the fair hearing and disposal of the main suit, notwithstanding that some documents may be publicly available through other means.

Outcome

Discovery ordered for survey and valuation report, bank account statements, transfer and consent forms, and mortgage agreement

Facts

The applicant, jointly with six others, instituted a civil suit claiming to be bonafide and lawful occupants of land comprised in Busiro Block 429 Plot 439 situate at Bugiri. The suit property had been mortgaged by the 2nd respondent in favour of the 3rd respondent bank. The applicant sought discovery of the bank's survey and valuation report conducted prior to disbursing the mortgage facility, account statements for specified accounts operated by the 2nd respondent for February 2015, and transfer and consent forms used to transfer the land from the 1st to the 2nd respondent, as well as the mortgage agreement. The 3rd respondent opposed the application, arguing that the documents were irrelevant to the issues of lawful occupancy and bonafide mortgagee status, and that the application amounted to a fishing expedition. The applicant contended that the documents were necessary because defendants who would have tendered them did not file a defence, and the 3rd respondent omitted mentioning or attaching the documents in its defence.

Issues

1. Whether the applicant has proved the grounds to warrant a grant of an order for discovery of the documents sought.

Orders

• Application allowed.
• The Managing Director of the 3rd respondent to make discovery on oath of copies of the Survey and Valuation report for land comprised in Busiro Block 429 Plot 439 situate at Bugiri carried out prior to disbursing the mortgage facility to the 1st respondent.
• The Managing Director of the 3rd respondent to make discovery on oath of certified copies of the Dollar Account Statement for Account Number 0121036104824301 and the Uganda Shillings Account Statement for Account Number 0120266204824301 both operated by the 2nd respondent with the 3rd respondent for the period from 1st February 2015 to 28th February 2015.
• The 4th respondent and/or the Registrar of Lands at Wakiso Registry Busiro to provide certified copies of the transfer and consent forms used to transfer land comprised in Busiro Block 429 Plot 439 situate at Bugiri from the 1st respondent to the 2nd respondent.
• The 4th respondent and/or the Registrar of Lands at Wakiso Land Registry Busiro to provide certified copies of the mortgage agreement between the 2nd respondent and the 3rd respondent used to register the mortgage on land comprised in Busiro Block 429 Plot 439 situate at Bugiri.
• Costs of the application to abide the results of the suit.

Rules and key headnotes

Legislation cited (10)

• Civil Procedure Act s.98
• Judicature Act s.33
• Evidence Act s.32
• Evidence (Bankers' Books) Act s.5
• Evidence (Bankers' Books) Act s.6
• Civil Procedure Rules SI 71-1 Order 10 Rule 12
• Civil Procedure Rules SI 71-1 Order 10 Rule 14
• Civil Procedure Rules SI 71-1 Order 10 Rule 24
• Registration of Titles Act
• Limitation Act

Cases cited (7)

• Dresdner Bank Aktiengesllshaft v Sango Bay Estate and Others [1971] HCB 80
• Kenyi Juma v Grindlays Bank (U) Ltd [1982] HCB 116
• B v B (Matrimonial Proceedings: Discovery) [1978] Fam 181
• Taj Deen v Dobrosklonsky [1957] EA 379
• 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
• Simbamanyo Estates Limited and Peter Kamya v Equity Bank Uganda Limited and 4 Others (Miscellaneous Application No. 0583 of 2022)

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