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Kare Distribution Limited v African Rivers Fund (Miscellaneous Application 2714 of 2023) [2024] UGCommC 270 (25 March 2024)
- Citation
- [2024] UGCommC 270
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- Commercial Court of Uganda
- Panel
- Anna B. Mugenyi, J
- Case number
- Miscellaneous Application 2714 of 2023
- Language
- English
More details
- Court
- Commercial Court of Uganda
- Panel
- Anna B. Mugenyi, J
- Case number
- Miscellaneous Application 2714 of 2023
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicants had been given full opportunity to participate in the proceedings, including attending the scheduling conference, hearing of the plaintiff's witness, and cross-examination. The second applicant voluntarily absented himself from court, thereby forfeiting the right to cross-examine the witness and to participate in the scheduling conference. The court emphasized that the power to recall a witness is discretionary and must be exercised judiciously, not as a matter of right. There was no legal basis for recalling the witness or for allowing the late filing of pretrial documents, as the applicants had already been served and had the opportunity to participate. The court further held that the applicants' conduct amounted to an abuse of court process, as they repeatedly sought to delay the main suit through various applications and failed to instruct counsel despite claiming otherwise. The application was therefore dismissed as an abuse of process, and costs were awarded to the respondent.
Court disposition
application dismissed
Orders
- The application is dismissed as an abuse of court process.
- Costs of the application shall be borne by the applicants.
02
Material facts
Parties
Kare Distribution Limited
ApplicantAfrican Rivers Fund
Respondent03
Procedural history
Posture
Miscellaneous Application / Ruling on Interlocutory Application
04
Questions and positions
Legal issues
- 01
Whether the applicant is entitled to an order recalling the plaintiff's witness for cross-examination.
- 02
Whether the applicants should be allowed to file pretrial documents after the closure of the plaintiff's case.
- 03
Whether the applicants were denied their constitutional right to a fair hearing.
Party arguments
- Applicant
- The applicants argued for the recall of the plaintiff's witness in Civil Suit No. 700 of 2019 for cross-examination, asserting that they were denied a fair hearing and the opportunity to file pretrial documents, including a scheduling memorandum, trial bundles, and witness statements. They claimed that pretrial documents were served stealthily and that their right to legal representation and to be heard was infringed.
- Respondent
- The respondent opposed the application, contending that the applicants voluntarily absented themselves from court proceedings, forfeiting their right to cross-examine the witness and to participate in the scheduling conference. The respondent argued that the applicants had been given ample opportunity to be heard and that their actions constituted an abuse of court process intended to delay the main suit.
05
Court’s reasoning
Legal principles
- 01
Order 18 rule 13 of the Civil Procedure Rules; China Railway No. 3 Engineering Co. Limited v Prof. Arthur Gakwandi M.A 0025/2023
The court may at any stage of the suit recall any witness who has been examined, subject to the law of evidence, but this is a discretionary power to be exercised judiciously and not as a matter of right.
- 02
Simbamanyo Estates Ltd v Equity Bank and others M.A No. 6601 of 2022
A party who voluntarily absents themselves from proceedings and forfeits the right to cross-examine cannot later seek to benefit from their own contemptuous conduct.
- 03
Constitution of Uganda, Article 28
The right to a fair hearing is satisfied where a party is given an opportunity to be heard and to participate in proceedings, regardless of whether they choose to exercise that right.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicants had been given full opportunity to participate in the proceedings, including attending the scheduling conference, hearing of the plaintiff's witness, and cross-examination. The second applicant voluntarily absented himself from court, thereby forfeiting the right to cross-examine the witness and to participate in the scheduling conference. The court emphasized that the power to recall a witness is discretionary and must be exercised judiciously, not as a matter of right. There was no legal basis for recalling the witness or for allowing the late filing of pretrial documents, as the applicants had already been served and had the opportunity to participate. The court further held that the applicants' conduct amounted to an abuse of court process, as they repeatedly sought to delay the main suit through various applications and failed to instruct counsel despite claiming otherwise. The application was therefore dismissed as an abuse of process, and costs were awarded to the respondent.
Obiter and limits
- A party cannot benefit from their own contemptuous and time-wasting conduct in court proceedings.
- The right to legal representation is not absolute where a party chooses to represent themselves and is given the opportunity to be heard.
- Repeated applications intended to delay proceedings may amount to an abuse of the court process.
Court disposition
application dismissed
- The application is dismissed as an abuse of court process.
- Costs of the application shall be borne by the applicants.
Source and reliance status
Commercial Court of Uganda
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Commercial Court of Uganda
Judgment
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA (coMMERCIAL DIVISION)
MISCELTANEOUS APPLICATION. 27I4 OI 2023
5 KARE DISTRIBUTION LIMITED APPLICANT
VERSUS
AFRICAN RIVERS FUND RESPONDENT
BEFORE: HON. LADY JUSTICE ANNA. B. MUGENYI
Rulino
<sup>I</sup>hove reod the pleodings ond submissions of the porlies in this motter.
The oppliconts seek orders thol:
- l. An order recolling the plointiff's witnesses in Oivil Suit No.700 of 2019 for cross-exo minotion. - 15
2. The counter defendonts be ollowed to file pretriol documents to wit, scheduling memorondum, hiol bundles ond wilness stolemenls.
Wilh regord to the firsl proyer/ground, Order l8 rule 13 of ihe CPR provides thot the court moy ot ony stoge of the suit recoll ony wllnJss who hos been exomined, ond moy, subjeci to lhe low of evidence for the time being in force, put such queslions 1o him or her os the Court thinks fil.
ln lhe cose of Chino Roilwoy No. 3, Engineering Co. Limited v Prof. Arthur Gokwondi M. A 0025/2023; Hon Justice Vinceni Wogono held thot:
"The obove rule gives Court the discretion subject to the low of evidence to recoll ony wilness ond put queslions which court deems necessory. lt is my view thot recolling o wilness is noi o motter of right or course. Courl con only do so in deserving circumsfonces where recolling such o wilness is meonl to cloity on the evidence on record or other evidence which Court in liis wisdom is necessory io orrive ot o jusi decision. "
ln the present opplicotion, the oppliconts seek on order to recoll o witness in the moin suit for cross-exominotion by ihe 2no opplicont himself, o stote of offoirs ihot is not provided for by ony low. The 2nd opplicont wos in Court on the doy ihe witness testified in Court but he chose io confemptuously storm out of Court thereby forfeiting his rights to cross-exomine the witness. The soid plointiff 's witness wos heord ond the court did indeed pul questions to lhe witness for clorificoiion ond the ploinliff's cose wos closed ond they were directed 1o file written submission pending finol determinolion of lhe cose.
Suffice it to note thot the power to recoll o witness con only be exercised by the Court ond this must be done judiciously, reosonobly ond not to the prejudice of ony porly to the suit. (Order l8 rule l3 CPR; Simbomonyo Esloles Ltd v Equity Bonk ond olhers M. A No. 6601 ot 2022). 15
ln this motter lhis Court olreody enterloined the plointiff's witness ond heord whol he hod to soy; ond lhere is no bosis for recolling the soid witness by lhe Courl.
The choice by the 2no opplicont to storm out of Court, os eorlier sloted, wos voluntory ond signified his dis-interest in cross-exomining the plointiff's witness when given on opporlunity io do so. He connol therefore seek the order sought becouse lhere is no bosis in low for gront of such on order, ond he forfeited his
right to cross-exomine by his contemptuous octions thot this Court will not condone. 25
Wilh regord to the second proyer/ ground; from lhe court record it is evident thot the oppliconts filed on 24/1/2020 o plointiff 's triol bundle thot included o copy of the proposed Joint Scheduling memorondum; o wilness stotement of Koregyeyo Geoffrey ond severol oiher documents.
5 In porogroph 4 of the offidovii in support of ihis opplicotion; the 2nd opplicont depones thot pre-triol documenls were filed by the respondents 'steolthily' on 27th October 2023 ond served on the 2na oppliconl vio emoil on 28th Ociober 2023 tor o motler thoi wos coming up on 30th October 2023.
This itself is confirmotion thot pre-triol documents were prepored ond received by the oppliconts in preporotion for the scheduling conference to loke ploce on 30th October 2023. n is of o scheduling conference thot lhe pre-lriol documenls ore presented ond discussed by the porties with o view to coming to one common position in respecl of focts; issues, witness; documents etc. before the motter is heord on its merits. 10
- On 30tn October 2023, os eorlier stoted, the 2no opplicont rudely ond contempluously stormed oul of Court before the scheduling conference could be held; ond the sqme wos evenluolly held ond heoring of the cose commenced with ihe presentotion of the plointiff's witness on ihot doy ond closure of the ploinliff 's cose. 15 - The 2nd opplicont closed itself from the proceedings ond opted not to poriicipote in the some; ond connoi now be seen to turn oround ond pretend to show inierest in the soid proceedings which they obondoned volunlorily yet they hod been given on opporlunity io be heord. Agoin, lhere is no bosis for gront of lhe order sought by the oppliconts ond the some is dismissed/ disollowed. 20 - Before I toke leove of lhis motter, the oppliconts through ihe 2nd opplicont olluded to being denied their constitutionol right to o foir heoring which included o right 25
io legol representotion ond o right to be heord by ollowing ihem io file lheir pretriol documenis qnd to cross-exomine the respondent's witness.
lt is notoble thol on l8th September 2023 the 2no oppliconi wrote to the respondent's lowyers ond informed them, inter olio, thol he hos withdrown instruction from his former lowyers ond lhot he wos represeniing himself. On 30rh Ociober 2023 when the motter wos colled for heoring; the oppliconls sought on odjournment to Februory 2024 when they would hove instructed o lowyer; olmost 5 months from the set dote of heoring.
Further, the oppliconts themselves filed severol opplicolions in this Courl ond the Court of Appeol; oll seeking to stop/ stoy the heoring of ihe moin suit in one woy or the other. ln foct, in CA No. 804 of 2022; the Courl of Appeol held thot the opplicont's primo focie cose seems 1o be on obuse of ihe court syslem ond connot be ollowed to continue ofter which the opplicotion wos dismissed' 10
To dote the oppliconts hove never inslructed o new lowyer ond in foci during the heoring of 20/10/2024; the 2nd opplicont confirmed thot he wos representing himself. This confirms thoi ihe oppliconts indeed never intended to inslrucl ony lowyers to represent them ond lhis is yet onolher deloying ioctic to prolong the heoring ond delerminotion of C. S 700 of 2019. 15
To ihis Court; the oppliconts were ollowed to exercise lheir constilutionol right to o foir heoring in os for os ihey were given on opportunity to otlend o scheduling conference; heoring of the plointiff 's witness ond cross-exominotion of the some ond preseniotion of their witness; but insteod they opied to contemptuously storm out of ihe Court os eorlier stoted, thereby voluntOrily closing lhemselves out of their own cose for which they hod been given on opportuniiy to be heord ond def end themselves. 20 25
For emphosis; the oppliconts did noi intend io hove o legol representotion ot ony one point os cloimed, ond even when lhey were ollowed to represenl themselves and were afforded an opportunity to be heard and present their defence, they sat on their rights and opted not to participate in the court proceedings out of their own volition. They, therefore, cannot now turn around and seek to benefit from their rude; contemptuous and time wasting conduct.
In conclusion and from all the fore-going; this application is a clear abuse of Court $\mathsf{S}$ process and is dismissed accordingly.
$5$
Costs of the application shall be borne by the applicants.
Ombitatie Anna . B. Mugenyi
Judge 10 25<sup>th</sup>.03.2024
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