Wakilii

Simbamanyo Estates Limited and Another v Equity Bank Uganda Limited and 4 Others (Miscellaneous Application 583 of 2022)

High Court · [2022] UGCOMMC 165 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for discovery of documents arising from Civil Suit No. 464 of 2021
Decision
Discovery ordered against the 1st respondent; application granted

Observed later treatment

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Holding

The court held that the applicants established a proper case for discovery against the 1st respondent. The documents sought — bank account statements and email correspondences relating to the sale of mortgaged properties — were relevant and material to the applicants' claim that the sale was conducted under collusion. The documents were not protected by advocate-client privilege as they were shared with third parties. The application was not a fishing expedition as it was consistent with the pleadings and sufficiently specific. Discovery was ordered against the 1st respondent only.

Outcome

Discovery ordered against the 1st respondent; application granted

Facts

The applicants sued the respondents seeking declarations that the sale by mortgagee of their properties (Simbamanyo House and Afrique Suites Hotel) was unlawful and fraudulent. The applicants filed an interlocutory application seeking discovery of bank account statements for accounts operated by the 5th and 3rd respondents with the 1st respondent bank, email correspondences addressed to the 1st respondent's Managing Director regarding a 'Performance Based Guarantee', and a copy of the executed guarantee. The applicants contended that these documents would demonstrate collusion between the bank, its lawyers, and the purchaser to defeat their interests. The respondents opposed the application on grounds that it was a fishing expedition, that the documents were privileged, and that the applicants had not proven the existence or possession of the documents.

Issues

  1. Whether the applicants are entitled to an order for discovery of bank account statements and email correspondences relating to the sale of their mortgaged properties.
  2. Whether the documents sought are relevant and material to the underlying suit.
  3. Whether the documents sought are privileged under advocate-client privilege.
  4. Whether the application constitutes a fishing expedition.
  5. Whether the documents sought are in the possession, custody, or control of the respondents.

Orders

  • Application allowed.
  • The 1st respondent to furnish the applicants under oath of an appropriate officer, within fourteen (14) days of this order, for inspection and taking certified copies of the 5th respondent's dollar account statement for account number 1036200727349, for the period 1st August, 2020 to 30th August, 2020.
  • The 1st respondent to furnish for inspection and taking certified copies of the dollar account statement for account number 1002201586895 operated by the 3rd respondent for the period from 25th September, 2020 to 10th October, 2020.
  • The 1st respondent to furnish certified copies of email exchanges addressed to the 1st respondent's Managing Director's email address [email protected] on the subject entitled 'Performance Based Guarantee' which related to the sale of the applicant's properties.
  • The 1st respondent to furnish the executed copy of the 'Performance Based Guarantee' referred to in those email correspondences between the 1st respondent, the 2nd respondent and the 5th respondent.
  • Costs of the application to abide the outcome of the suit.

Rules and key headnotes

Discovery — Standard of Proof — Prima Facie Basis
In applications for discovery, the applicant need only show a sufficient prima facie basis for believing the evidence sought exists, is material and relevant to the issues at trial. The standard is lower than the civil standard of proof on a balance of probabilities required at trial. The court will grant discovery even without affidavit evidence where it considers the application is based on a plausible view of the pleadings filed by both parties.
Discovery — Relevance and Materiality — Liberal Construction
Discovery rules are given broad and liberal treatment such that even very weak material evidence will be deemed relevant if it has any tendency to prove or disprove a fact in issue. When disputed facts provide a basis for the exercise of discretion, those facts should be liberally construed in favour of discovery. The sufficient prima facie basis which must be shown should be such as will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary.
Discovery — Fishing Expedition — Distinction
An application for discovery constitutes a fishing expedition where it is driven by the hope that something will emerge which may form the basis of or support the applicant's claim, or where it goes beyond the allegations in the pleadings and attempts to randomly find additional evidence to support the claim. Discovery is not a fishing expedition where the information sought is stated with reasonable particularity and is consistent with the applicant's case as pleaded in the suit.
Advocate-Client Privilege — Confidentiality — Communications to Third Parties
The advocate-client privilege does not protect all manner of information communicated between an advocate and client; it only protects communications made in order to obtain legal advice, and of a confidential nature. Communications made to and by an advocate in the presence of or copied to a third party may not be entitled to this privilege on grounds that they are not confidential.
Discovery — Affidavit Evidence — Not Always Required
Order 10 rule 12 of the Civil Procedure Rules expressly permits any party, without filing any affidavit, to apply to the court for an order directing any other party to make discovery on oath of documents relating to any matter in question in the suit. Where the applicant is not relying on facts but solely on point of law or on materials already in the domain of the court such as pleadings, the applicant need not accompany the motion with an affidavit.
Discovery — Voluntary Cooperation — Attempts Required
Parties are expected to start and complete pre-trial matters of procedural or evidential nature with a minimum of court intervention. Whenever possible, a party seeking production of documents should attempt first to obtain the adversary's voluntary cooperation by serving a notice to produce documents. Discovery by court order should be sought only if the parties cannot agree on a just outcome. However, where the respondent's conduct suggests voluntary cooperation would be unlikely, making a discovery request may be an exercise in futility.

Legislation cited (19)

Cases cited (9)

  • Wadri Mathias and four others v Dranilla Angella (Civil Revision No. 7 of 2019)
  • John Kato v Muhlbauer AG and another (Miscellaneous Application No. 175 of 2011)
  • 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
  • Loftin v. Martin 776 S.W.2d 145 (1989)
  • Re H (minors) [1996] AC 56
  • R. v. O'Connor [1995] 4 SCR 411
  • Pat O'Mahony, Leonard Hyde & Labardie Fisher Ltd v. Guardian News & Media Ltd [2020] IEHC 234
  • Edward Keating v. Radio Telefís Éireann and Others [2013] IESC 22

Full judgment

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

Simbamanyo Estates Limited and Another v Equity Bank Uganda Limited and 4 Others (Miscellaneous Application 583 of 2022) [2022] UGCommC 165 (9 August 2022)
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.