Wakilii

Sarope Petroleum Ltd v Orient Bank Ltd (High Court Civil Suit No. 198 of 2009)

High Court · [2016] UGCOMMC 42 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory ruling on admissibility of 'without prejudice' correspondence during cross-examination in civil suit
Decision
Procedural objection sustained; 'without prejudice' correspondence excluded from use in cross-examination

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that while 'without prejudice' correspondence admitted into evidence remains on record, it cannot be put to the witness in cross-examination where the primary purpose is to introduce evidence to the prejudice of the party. The objection to cross-examining the plaintiff's witness on settlement letters marked 'without prejudice' was sustained, though the documents remain admitted in evidence for consideration of their weight at judgment.

Outcome

Procedural objection sustained; 'without prejudice' correspondence excluded from use in cross-examination

Facts

During cross-examination of PW1 (the plaintiff's Managing Director) by counsel for the third defendant, counsel sought to present exhibits DT7, DT8, and DT9 — letters written by the plaintiff's lawyers containing settlement proposals marked 'without prejudice'. Plaintiff's counsel objected on the ground that these documents, though admitted into evidence by consent at a scheduling conference on 5 December 2014, should not be used in cross-examination because they were settlement negotiations protected by the 'without prejudice' privilege. The defendant's counsel argued that the documents had already been admitted and could be used to test the witness's credibility and to prove or disprove facts in issue, including the plaintiff's financial position and whether any agreement was reached during settlement negotiations. The court was required to determine whether admitted 'without prejudice' correspondence could be used for cross-examination purposes.

Issues

  1. Whether documents marked 'without prejudice' that have been admitted into evidence by consent can be used in cross-examination of the author or a person on whose behalf they were written.
  2. Whether a witness can be presented with his or her own 'without prejudice' correspondence in cross-examination.

Orders

  • Objection by plaintiff's counsel sustained.
  • Exhibits DT7, DT8, and DT9 cannot be put to the witness PW1 in cross-examination.
  • The documents remain admitted in evidence for parties to consider their weight during evaluation of evidence.

Rules and key headnotes

Evidence — 'Without Prejudice' Correspondence — Admissibility — Use in Cross-Examination
When a letter is admitted into evidence together with the words 'without prejudice', it is admitted with the reservation that the author retains all other courses of action or defences available, and the contents must be regarded without prejudice such that the court would not necessarily take them as the truth.
Evidence — Judicial Discretion — Exclusion of Admitted Evidence
A trial judge has discretionary power to exclude evidence that has been admitted where the prejudicial effect on the party outweighs its probative value, even where the evidence was admitted by consent. This discretion extends to preventing the use of such evidence in cross-examination where its use would be prejudicial to the author.
Evidence — 'Without Prejudice' Correspondence — Exceptions to Inadmissibility
'Without prejudice' correspondence may be admitted in evidence to show whether or not there is a binding agreement between the parties. Where the terms proposed in such correspondence are accepted, a contract is established and the letter operates to alter the previous state of affairs, making it admissible for the purpose of proving that contract.
Civil Procedure — Cross-Examination — Purpose and Scope
The primary purpose of cross-examination is to elicit facts that may be to the prejudice of the witness or the party for whom the witness appears. It is designed either to elicit information favourable to the cross-examining party and cast doubt on adverse evidence, or to impeach the credibility of the witness.
Evidence — Admitted Facts — Judicial Discretion to Require Further Proof
Under section 57 of the Evidence Act, facts admitted by consent need not be proved, but the court may, in its discretion, require such facts to be proved otherwise than by such admissions. Admission in evidence should not be confused with the weight to be given to evidence.

Legislation cited (2)

Cases cited (8)

  • Mohanlal Kakubhai Radia v WARID TELECOM Uganda Ltd (High Court Civil Suit No. 224 of 2011)
  • Katumba Ronald v Kenya Airways (Supreme Court Civil Appeal No. 9 of 2008)
  • East African Underwriters v Civil Aviation Authority (Court of Appeal Civil Appeal No. 8 of 2002)
  • Walker versus Walker (1889) 23 QBD 335 at 337, C.A.
  • Uganda Breweries Ltd v Uganda Railways Ltd (Supreme Court Civil Appeal No. 6 of 2001)
  • Administrator General v Bwanika (Supreme Court Civil Appeal No. 7 of 2003)
  • Noor Mohamed v The King [1949] AC 182
  • R v Sang [1980] AC 402

Full judgment

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

Sarope Petroleum Ltd v Orient Bank Ltd (High Court Civil Suit No. 198 of 2009) [2016] UGCommC 42 (2 May 2016)
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.