THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 370 OF 2011

(ARISING OUT OF CIVIL SUIT NO. 347 OF 2006)

SARIN INDUSTRIAL CORPORATION}.............. PLAINTIFF/APPLICANT

VERSUS

CHARLES TWONGERE                      }.............DEFENDANT/RESPONDENT

BEFORE HON. MR JUSTICE CHRISTOPHER MADRAMA

RULING

The applicant who is the plaintiff applied for an order of this court to issue a commission for the examination of a witness abroad. The application is brought under Order 28 rules 2, 5, and 20 of the Civil Procedure Rules and section 53 (a) and 55 of the Civil Procedure Act cap 71 Laws of Uganda 2000. The application is supported by the affidavit of Juliet Kamuzze, an advocate practising with Messrs F. Mukasa and Co. Advocates counsel for the plaintiff.

The grounds of the application are that Mr. Surinder Kumar Sarin who represents the plaintiff and is also the principal witness is resident in India and is unable to appear in court to testify due to serious illness.  The witness has been unable to travel to Uganda on account of his ill health. The evidence in support of the illness of the witness is an email to his counsel dated 1^st of July 2011 and medical certification of his condition attached to the email. The report shows that the principal witness of the plaintiff has a case of Carcinoma Distal Traverse Colon and he was operated on. It shows that the witness is still undergoing treatment. The report of the medical officer Dr, Maheshwari of Lifeline Hospital is also dated 1^st of July 2011.

At the hearing the court was addressed on the application by Serunjogi Nasa learned counsel for the applicant. The respondent was not represented though Messrs Ngaruye, Ruhindi and Company Advocates were served. Counsel submitted that the said advocates of the defendant are the only advocates on record and have not communicated to court that they no longer represent the Respondent. He prayed that the application proceeds ex parte. The record shows that the counsel for the defendant and the defendant himself never appeared for mediation and the file was sent back for hearing. Since October 2007 the matter could not be scheduled. The suit was filed in 2006 and has since not taken off. There is correspondence on record addressed to the defendant’s counsel Messrs Ngaruye Ruhindi Spencer and Co. Advocates and several hearing notices which have gone unheeded.  On the 9^th of February 2011 a hearing notice fixing the case for 10^th of February 2011 was served on the defendant’s lawyers and the notes thereon by the said lawyers indicates that they had lost contact with the defendant. When the suit was fixed for hearing again on the 9^th of May 2011, the court ruled that the suit proceeds ex parte after the lawyers Messrs Ngaruye, Ruhindi Spencer and Company Advocates who are counsel on record refused to accept service but have not taken any formal steps to withdraw from the conduct of the defendant’s case. The procedure for withdrawal of an advocate from the conduct of his or her clients case is rule 3 (2) of the Advocates (Professional Conduct) Regulations S.I. 267 – 2. It provides that whenever an advocate intends to withdraw from the conduct of a case, the advocate shall give his client, the court and the opposite party sufficient notice of his or her intention to withdraw.  In some cases leave of court is required as under rule 3 (1) (c). Whatever the option that an advocate wishes to pursue in withdrawing from the conduct of the proceedings, notice to court is required. In this case no notice has been given and Messrs Ngaruye, Ruhindi Spenser and Company Advocates are the lawyers on record.

As far as the merits of the application is concerned, the suit was mentioned for hearing or conferencing several times but the principal witness of the plaintiff was sick an unable to travel to Uganda.

Order 28 rule 4 (1) (a) provides that the court may issue a commission for the examination of any person resident beyond the local limits of its jurisdiction. This may be read together with order 28 rules 5 of the Civil Procedure Rules which allows any court to which an application has been made for the examination of a witness resident at any place not within Uganda to issue a commission or a letter of request for the examination of that witness. Section 53 of the Civil Procedure Act permits the High Court to issue a commission to examine any person subject to such limitations and conditions as may be prescribed.

I am satisfied that in this case the plaintiffs principal witness cannot travel to Uganda on account of ill health and that this is a proper case for the exercise of the court’s discretion to issue a commission to examine a witness namely Mr.  Surinder Kumar Sarin abroad. According to Odgers Principles of Pleadings and Practice in Civil Actions in the High Court of Justice Twenty – Second Edition page 535, the English practice is that the old procedure of issuing commissions has been found to be obsolete. The Foreign and Commonwealth Office at the requests of the Master of the Court in lieu of a commission sends a letter of request through diplomatic channels addressed to the foreign tribunal to examine the witness and order the required evidence to be remitted to the English Court which made the request. The learned authors note that this is the preferred modern practice rather than issuance of a commission direct to a foreign court or tribunal.

Section 55 of the Civil Procedure Act allows the High court or a Magistrates Court with the sanction of the High court to issue “a letter of request” to examine a particular witness residing at any place not within Uganda. The procedure is prescribed under order 28 rules 5 of the Civil Procedure Rules. Both the Civil Procedure Act and the prescribed rules give the court discretion whether to issue a commission or write “a letter of request” to the court where the witness resides to take the relevant deposition from the witness. I agree with the modern practice that in lieu of a commission, “a letter of request” for examination of a witness abroad is to be preferred. This letter will be sent through the diplomatic channels under the foreign office. In the premises the registrar of this court shall write a letter of request through the foreign office to the court within the local limits of which Mr. Surinder Kumar Sarin resides. After taking his evidence, the foreign tribunal or court will then through the same channels sent the witness deposition back to the High court for use as evidence in the plaintiff’s suit.

The applicant’s application succeeds and “a letter of request” for examination of the particular witness Mr.  Surinder Kumar Sarin abroad will be issued by the registrar as directed above. Costs will abide the outcome of the suit.

Ruling delivered in Court this 27^th day of October 2011.

Hon. Mr. Justice Christopher Madrama

Read in the presence of:

Serunjogi Nasa

Patricia Akanyo Court recording assistant,

Ojambo Makoha Court clerk,

Hon. Mr. Justice Christopher Madrama

27^th October 2011.