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

Key Facts

Transaction Type

Issues

• The respondents argued that the application is a fishing expedition. The court evaluated the specificity of the requests and found that the documents sought are directly relevant to the issues in the suit. The court emphasized that the application is based on the pleadings and that the requests are not overly broad. Therefore, the application does not constitute a fishing expedition and is properly granted.
• The court evaluated whether the documents sought, including bank statements and email exchanges, are relevant and material to the underlying suit. The applicants argued that the documents pertain to the fraudulent sale of their properties and are necessary for the proper determination of the case. The court found the documents to be sufficiently explicit and consistent with the applicants' case, establishing a prima facie basis for their relevance and materiality.
• The court assessed whether the documents are in the respondents' possession, custody, or control. It concluded that the 1st respondent, as the bank, has control over the documents. The 5th respondent, being the account holder, was appropriately joined. The court ordered the 1st respondent to produce the documents under oath. Other respondents denied possession, but the court found that the 5th respondent is in a position where their absence could impair their ability to protect their interest, justifying their inclusion.
• The respondents claimed that the email exchanges are protected by advocate-client privilege. The court examined the nature of the privilege, noting that it only applies to confidential communications intended for legal advice. Since the emails in question were copied to third parties and did not involve confidential legal advice, the court determined that the privilege does not apply. Therefore, the documents are not excluded from discovery on privilege grounds.

Holdings

• The court determined that the documents sought (bank account statements and email exchanges related to the 'Performance Based Guarantee') are sufficiently explicit, consistent with the applicant's pleaded case, and have a sufficient prima facie basis to justify discovery. These documents are material and relevant to proving the applicants' claim that the sale of their mortgaged properties was conducted through dishonest collusion between the bank, its lawyers, and the purchaser.
• The application for discovery was granted, requiring the 1st respondent (Equity Bank Uganda) to furnish the applicants with certified copies of specified bank statements and email exchanges under oath within 14 days. The court found no valid legal grounds (such as privilege or inaccessibility) to deny the discovery request, and rejected the respondents' arguments that it constituted a 'fishing expedition.'

Remedies

• The costs of the application are to abide the outcome of the suit.
• Discovery application granted; the 1st respondent is ordered 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 (1st August 2020 to 30th August 2020), the 3rd respondent's dollar account statement for account number 1002201586895 (25th September 2020 to 10th October 2020), certified copies of email exchanges on the subject 'Performance Based Guarantee' sent on 25th September 2020, and the executed copy of the 'Performance Based Guarantee' between the 1st, 2nd, and 5th respondents.

Legal Principles

• The ruling clarifies that documents are admissible in discovery if they are relevant and material to the suit. Advocate-client privilege was found inapplicable here because the emails were copied to non-legal third parties, and the respondents failed to plead specific privilege claims. The court emphasized that discovery must not be used as a fishing expedition, requiring requests to be specific and tied to the pleadings.
• The court held that applicants need only show a sufficient prima facie basis for the existence and relevance of documents, without the strict balance-of-probabilities standard required at trial. Respondents, however, must assert privilege or non-possession explicitly, as mere conclusory statements were insufficient to block discovery. The ruling underscores the lower evidentiary burden in pre-trial discovery.
• The court distinguished discovery proceedings from trials, noting that discovery requires proof on a 'prima facie' basis rather than the 'balance of probabilities' standard. This allows applicants to seek documents based on plausible allegations consistent with their pleadings, even if not yet proven, as long as the request is not speculative or a fishing expedition.

Precedent Name

• Loftin v. Martin
• Wadri Mathias v. Dranilla Angella
• John Kato v. Muhlbauer AG
• Dresdner Bank Ag. v. Sango Bay Estates Ltd
• R. v. O'Connor et al.

Key Disputed Contract Clauses

Cited Statute

• The Judicature Act
• The Evidence (Bankers' Books) Act
• The Civil Procedure Rules
• The Evidence Act
• The Civil Procedure Act
• The Advocates (Professional Conduct) Regulations

Judge Name

Passage Text

• Having examined the applicants' pleadings in the suit and the defences thereto, I find that an application calling for inspection and taking certified copies of the dollar account statement for account number 1036200727349 operated by the 5th respondent with the 1st respondent bank, for the period 1st August, 2020 to 30th August, 2020; the inspection and taking certified copies of the dollar account statement for account number 1002201586895 operated by the 3rd respondent with the 1st respondent bank, for the period from 25th September, 2020 to 10th October, 2020 is sufficiently explicit to enable the court determine their relevance and materiality.
• In conclusion, I find that the applicant has made out a proper case for the grant of an order of discovery as against the 1st respondent. It is for that reason that the application is hereby allowed.
• Similarly, having examined the applicants' pleadings in the suit, I find that an application calling for discovery on oath of certified copies of email exchanges addressed to the 1st respondents. Managing Director's email address samuel.kirubi@equitybank.co.ug on the subject entitled 'Performance Based Guarantee'... is sufficiently explicit to enable the court determine their relevance and materiality.

Damages / Relief Type

• General and aggravated damages for the unlawful sale of the applicants' properties.
• Recovery of the properties (Simbamanyo House and Afrique Suites Hotel) sold by the respondents.
• Permanent injunction to prevent further disposition of the applicants' mortgaged properties.
• Costs of the application and underlying suit.
• Declaration that the sale of the applicants' mortgaged properties was unlawful and fraudulent.