Wakilii

Simbamanyo Estates Limited v Equity Bank Uganda Limited and 2 Others (Miscellaneous Application 730 of 2022)

High Court · [2022] UGCOMMC 163 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for discovery of documents arising from civil suit concerning validity of loan agreements and mortgages
Decision
Application for discovery dismissed with costs to the respondents

Observed later treatment

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Holding

The court dismissed the application for discovery, holding that the applicant failed to make a good faith effort to obtain documents voluntarily before filing the application, having served notices to produce documents after the application was filed. The application was partly overbroad, vague, and unduly burdensome, and some documents could be obtained from public sources. The request for all correspondence between the respondents was a fishing expedition lacking sufficient specificity.

Outcome

Application for discovery dismissed with costs to the respondents

Facts

The applicant sued the respondents seeking declarations that loan agreements and mortgages were illegal and unenforceable, alleging that the 2nd and 3rd respondents were unlicensed foreign financial institutions conducting business in Uganda through the 1st respondent. The applicant filed an interlocutory application seeking discovery on oath of mortgage deeds, loan documents, and correspondence relating to credit facilities. The applicant claimed the documents were necessary for proper determination of the suit and were in the respondents' possession. The respondents contended that the applicant's Managing Director had signed all documents and retained copies, and that some documents were irrelevant. The applicant served notices to produce documents on 30th June and 1st July 2022, after filing the application on 23rd June 2022.

Issues

  1. Whether the applicant is entitled to an order for discovery on oath of mortgage deeds, loan documents, and correspondence relating to credit facilities extended by the respondents.
  2. Whether the documents sought are relevant and material to the determination of the underlying suit.
  3. Whether the application for discovery constitutes a fishing expedition.
  4. Whether the applicant made a good faith effort to obtain the documents through voluntary cooperation before seeking a court order.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Discovery — Relevance and Materiality — Test for Ordering Discovery
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. A document is material if it is being offered to prove an element of a claim or defence that needs to be established for one side to prevail. 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, so long as it does not reach the speculative level.
Civil Procedure — Discovery — Fishing Expedition — Specificity Required in Discovery Applications
Discovery must not be allowed to be used as a fishing expedition for the applicant to build up an unsure case. An application for discovery must specify the documents to be produced or inspected individually or by category and describe each item or category with reasonable particularity. Vague and ambiguous requests will be deemed a fishing expedition. An application calling for every correspondence in the possession of adversaries relating to transactions over a considerable period of time is too general and intended simply to explore the possibility of finding relevant evidence.
Civil Procedure — Discovery — Voluntary Cooperation — Duty to Attempt Amicable Resolution Before Court Application
In a judicial system clogged by applications, the interests of justice require that resort to the court be made only where other discovery methods available to obtain the same information have failed. Parties are expected to start and complete pre-trial matters of procedural or evidential nature with a minimum of court intervention. A party seeking production of documents should attempt first to obtain the adversary's voluntary cooperation by serving a notice to produce documents. At the hearing of an application for discovery, the applicant must show that he or she made a good faith effort to amicably obtain the documents required by contacting the respondent. The court should be invited to make the order only where the respondent has refused or failed to respond in full to the applicant's discovery requests.
Civil Procedure — Discovery — Public Records — Alternative Sources for Obtaining Documents
When the information sought through discovery can be derived or ascertained from public records, from 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. The application will be denied where the discovery sought can be obtained from some other source that is more convenient, less burdensome, or less expensive.
Civil Procedure — Discovery — Timing — Notice to Produce Documents Must Be Given Reasonable Time to Respond
Under Order 10 rule 17(1) of The Civil Procedure Rules, a respondent has ten days within which to comply with a notice to produce documents. Where an applicant files an application for discovery before serving a notice to produce documents, or before the time for responding to such notice has elapsed, the applicant has not made a good faith effort to amicably obtain the documents required. It has not been shown that the respondents were uncooperative where they were unable to respond to a notice to produce documents because the discovery application was fixed for hearing before the time for compliance had elapsed.

Legislation cited (16)

Cases cited (5)

  • 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
  • Gerald Kauhanga v. Attorney General
  • John Kato v Muhlbauer AG and Another (Miscellaneous Application No. 175 of 2011)
  • Loftin v. Martin 776 S.W.2d 145 (1989)

Full judgment

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

Simbamanyo Estates Limited v Equity Bank Uganda Limited and 2 Others (Miscellaneous Application 730 of 2022) 2022 UGCommC 163 (19 July 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.