Wakilii

Spear Motors Ltd v Attorney General & 2 Ors (HCT-00-CC-CS 692 of 2007)

High Court · [2012] UGCOMMC 18 · 2012 Objections Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary ruling on evidentiary objections raised by the first defendant before commencement of trial
Decision
Evidentiary objections dismissed; matter to proceed to trial on the merits

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Holding

The High Court overruled all evidentiary objections raised by the first defendant. The CHOGM Public Accounts Committee Report, once tabled and debated in Parliament, became a record of Parliament and a public document accessible without special parliamentary leave. Minutes of the CHOGM Cabinet Sub-Committee lost cabinet privilege when incorporated into the PAC Report, which is a public document. Witness statements not yet verified on oath are not evidence and cannot be expunged. Secondary evidence of government correspondence may be admitted where the party holding originals refuses to produce them after notice. Newspaper articles proving the fact of publication, rather than the truth of their contents, are admissible as res gestae. Costs of the objection were awarded in the cause.

Outcome

Evidentiary objections dismissed; matter to proceed to trial on the merits

Facts

Spear Motors Ltd brought suit against the Attorney General, Motorcare (U) Ltd, and Intercar (U) Ltd for breach of a tender process and contract to supply motor vehicles for the 2007 Commonwealth Heads of Government Meeting (CHOGM). The plaintiff sought special damages of €1,311,902 and general damages. At preliminary hearings, the parties were ordered to file and exchange witness statements and document bundles. The plaintiff requested disclosure of various documents from the Attorney General, who selectively complied and refused to produce minutes of the CHOGM Cabinet Sub-Committee on grounds of cabinet privilege. The plaintiff obtained these documents as annexures to the Public Accounts Committee Report on CHOGM, which had been tabled in Parliament. Before trial commenced, counsel for the first defendant raised multiple objections to the admission of documents referenced in the plaintiff's witness statements, including the PAC Report, government correspondence, cabinet minutes, newspaper articles, and computations of loss. The defendant argued these documents required special parliamentary leave, were hearsay, were privileged, or required original production by authors or custodians.

Issues

  1. Whether witness statements filed by the plaintiff constituted part of the court record before verification on oath such that they could be expunged.
  2. Whether the CHOGM PAC Report was adopted by Parliament within the meaning of rule 177 of the Rules of Procedure of Parliament.
  3. Whether the CHOGM PAC Report forms part of the records of the Parliament of Uganda.
  4. Whether the CHOGM PAC Report is a public document within the meaning of s.78 of the Evidence Act.
  5. Whether the CHOGM PAC Report and its annexures constituted information protected by the Parliament (Powers and Privileges) Act and Article 97 of the Constitution.
  6. Whether the plaintiff could produce and rely on correspondence from government departments annexed to the CHOGM PAC Report without calling the authors or recipients as witnesses.
  7. Whether the plaintiff could rely on minutes of the Cabinet Sub-Committee Meeting on CHOGM contained in the PAC Report without calling an authorised officer to produce them.
  8. Whether the plaintiff could produce in evidence information about losses sustained contained in Volume III of her document bundles.
  9. Whether newspaper articles in Volume II of the plaintiff's document bundle constituted hearsay evidence and were therefore inadmissible unless the authors testified.

Orders

  • The first defendant's objections are overruled.
  • The documents contested shall form part of the evidence adduced by the plaintiff in this case.
  • The costs of the objection shall be in the cause.

Rules and key headnotes

Evidence — Public Documents — Parliamentary Reports — CHOGM PAC Report as Record of Parliament
A report of a Parliamentary committee that has been signed by at least one-third of committee members, laid on the table of Parliament, and debated becomes a record of Parliament under rule 177(3) of the Rules of Procedure of Parliament, regardless of whether Parliament adopts the report's recommendations. The fact that a motion was carried to shelve the report does not prevent it from being a parliamentary record. Once a committee report becomes a parliamentary record, it is a public document within the meaning of s.73 of the Evidence Act, which defines public documents to include records of the acts of the legislative arm of government.
Constitutional Law — Parliamentary Privilege — Article 97 of the Constitution — Scope of Protection
Article 97(2) of the Constitution and s.14 of the Parliament (Powers and Privileges) Act protect members of Parliament, officers of Parliament, and persons employed to take minutes from being compelled to give evidence elsewhere about the contents of minutes taken before Parliament or its committees. This protection does not extend to reports of parliamentary committees that have become public records. The privilege exists to protect witnesses before Parliament from civil actions, criminal prosecution, or disciplinary proceedings arising from their testimony, not to prevent third parties from adducing parliamentary reports as evidence in court proceedings. Where a committee report has entered the public domain, the protection under Article 97(2) does not apply to prevent its use in litigation.
Evidence — Cabinet Privilege — Minutes of Cabinet Sub-Committees — Loss of Privilege When Part of Parliamentary Report
Where minutes of a Cabinet Sub-Committee are annexed to a parliamentary committee report that has become a public document, those minutes cease to be protected by cabinet privilege under s.25 of the Access to Information Act and s.122 of the Evidence Act. Documents that were evidence before a parliamentary committee lose their character as privileged cabinet documents and become part of the parliamentary report. The State claiming privilege under s.122 of the Evidence Act must establish that the privilege applies and cannot merely cite the provision without showing why disclosure would be contrary to the public interest or affairs of state. Where Cabinet Sub-Committee minutes relate to public procurement processes governed by the Public Procurement and Disposal of Assets Act, which mandates transparency and record-keeping, cabinet privilege cannot be invoked to shield those procurement records from judicial scrutiny.
Evidence — Secondary Evidence — Admission Under Section 64 of the Evidence Act
Secondary evidence of the existence, condition, or contents of a document may be admitted under s.64(1) of the Evidence Act where the original is in the possession or power of the person against whom the document is sought to be proved, and that person fails to produce the original after receiving notice under s.65. Where a party requests disclosure of documents during preliminary proceedings and the opposite party selectively discloses some documents while refusing to produce others, a notice of disclosure constitutes sufficient compliance with s.65. If the requesting party subsequently obtains copies of the withheld documents through lawful means (such as from parliamentary records), those copies are admissible as secondary evidence. The court may order production of documents under Order 10 rule 14 of the Civil Procedure Rules, but where photocopies are already before the court and the party holding originals declines to produce them, requiring production of originals would amount to an unnecessary technicality contrary to Article 126(2)(e) of the Constitution.
Evidence — Witness Statements — Status Before Verification on Oath
Witness statements filed in court pursuant to practice directions or preliminary hearing orders do not constitute evidence until the witness takes oath and verifies the statement in court. Before verification, witness statements remain mere statements on the record and cannot be expunged from the record as evidence. Objections to the admissibility of documents referenced in unverified witness statements are premature, as the documents only become evidence when the witness produces them during testimony or adopts them as part of verified evidence. The proper time to object to documentary evidence is after the witness has been sworn and has adopted the statement and its referenced documents, not before the trial commences.
Evidence — Hearsay — Newspaper Articles — Res Gestae Exception
Newspaper articles may be admitted in evidence not to prove the truth of their contents (which would constitute hearsay), but to prove the fact that publication occurred. Where a party seeks to demonstrate media publicity surrounding an event that forms part of the factual matrix of the dispute, newspaper articles are admissible under the res gestae principle as facts so connected with a fact in issue as to form part of the same transaction. The publication of articles is a fact that can only be proved by producing the articles themselves; there is no requirement to call editors or authors to prove that publication occurred. Whether the court attaches weight to the contents of the articles in assessing damages is a separate question from admissibility. Under ss.4 and 5 of the Evidence Act, facts not in issue but so connected with a fact in issue as to form part of the same transaction are relevant and admissible.
Constitutional Law — Right to a Fair Hearing — Access to Information — Article 41 and Article 28
The right to a fair hearing under Article 28 of the Constitution, which is non-derogable under Article 44(c), requires that a party be given the necessary opportunity to canvass all facts necessary to establish their case. Article 41 guarantees citizens and legal entities the right to access information in the possession of the State or any organ or agency of the State, except where release would prejudice security, sovereignty, or privacy. Where documents have entered the public domain through parliamentary reports or other lawful means, restricting their use in litigation on grounds of privilege or confidentiality would violate the right to a fair hearing. The burden lies on the State to prove that use of information would be prejudicial within the meaning of Article 41(1); mere invocation of statutory provisions protecting documents is insufficient. Courts must guard against the use of technical evidential rules to stifle the production of relevant evidence that is necessary for a fair determination of the issues.

Legislation cited (38)

Cases cited (4)

  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • [1993] 1 KLR 102
  • Greenwatch (U) Ltd v Attorney General (HCCS No. 139 of 2001)
  • HCT-00-ACD-00-CSC-94-2011, wherein Professor Gilbert Bukenya was charged for abuse of office

Full judgment

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

Spear Motors Ltd v Attorney General & 2 Ors (HCT-00-CC-CS 692 of 2007) [2012] UGCommC 18 (18 March 2012)
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.