See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/361437426

THE LAW ON WITNESS STATEMENTS IN UGANDA

Article · June 2022

CITATIONS READS
0 2,318

1 author:

Omongole Africano
Law development centre, Uganda
3 PUBLICATIONS   0 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

THE EFFECTIVENESS OF THE NATIONAL ENVIRONMENT ACT, 2019 IN PREVENTING CLIMATE CHANGE IN UGANDA View project

The Law on Protection of Labour in Non-Standard Forms of Employment (NSFE) in Uganda What has Covid-19 exposed? View project

All content following this page was uploaded by Omongole Africano on 21 June 2022.

The user has requested enhancement of the downloaded file.

 THE LAW ON WITNESS STATEMENTS IN UGANDA
Order 18 rule 5 of The Civil Procedure Rules (CPR), is to the effect that evidence of a witness in
a trial should ordinarily be taken down in the form of a narrative. Where the procedural
requirements are thwarted the notion of a fair trial will be curtailed. See Okot and Ors v
Lamoo1
Previously Uganda had no law on witness statements and mainly relied on precedents. For
instance Hon. Justice Irene Mulyagonja opined that witness statements had been used in the
commercial court from as far back as 2004 and the practice has developed as to how they are to
be employed. She added that the genesis of the use is found in rule 5 of the Constitution
(Commercial Court) (Practice) Directions which provides that ordinary rules of procedure of
the High Court will apply to commercial actions subject to clarifications set out in the practice
directions. See Spear Motors vs. AG and 2 others2
However, The Civil Procedure (Amendment) Rules, 2019 under O.5r.5A (now O.18r5A) has
been amended to provide for witness statements.
A witness statement is a written testimony signed by a witness and filed in court and served on
the opposite party for purposes of having it tendered in court as the evidence in chief of the
witness_O.18r5A(10) of the CPR as amended.
The evidence of a witness consists of a witness statement that is filed after the scheduling
conference on the direction of the trial judge and served upon the opposite party_ O.18r5A(1)
read together with second schedule, paragraph 5 of the CPR as amended, Husaain
Hasanali Jivani v Merali Jivra Tajdin & Anor3
Thus the rules require witness statement to be filed on the date fixed by the trial Judge after the
scheduling conference_ O.18r5A(6) of the CPR as amended. A witness who does not file
his/her witness statement can not be heard except with leave of court_ O.18r5A(7) of the CPR
as amended. Witness statements are to be exchanged after the scheduling conference where all
points of agreement and disagreement had been disclosed and agreed upon. Witness statements
are exchanged within the period given by the court to avoid the rebuttals and counter rebuttals.
See Seruwagi Mohammed vs. Yuasa Investments Ltd4
The party in default has to apply for leave of court to extent time within which file his/her
statement. In considering whether to enlarge time or not, the court should consider the interest of
justice_ Order 51 rules 6 of the Civil Procedure Rules and S.96 and 98 of the Civil
Procedure Act. However a witness statements filed after the testimony of witnesses is to be
given trifling weight rather than being excluded (though court has the power to exclude them)

1 Civil Appeal 26 of 2018

2 HCCS NO. 692 of 2007
3 Civil Suit No. 471 OF 2015
4 Civil Suit Number 324 of 2013
Africano Omongole
LLB (Mak), Dip LP (LDC)
Associate JT Advocates, P. o. box 4390 Kampala
but extension would be given only in special circumstances. Court grants the application to
extend time to file the statements in the interest of justice. The costs of any application for
enlargement of time are to be borne by the Applicant. See Barclays Bank of Uganda Limited
& 2 Ors v Ayebazibwe5 and Seruwagi Mohammed vs. Yuasa Investments Ltd (Supra)
It is unethical to prepare witness statements having in mind the testimonies of the
Plaintiff’s witnesses and that evidence is given trifling weight. See East African Court of
Appeal in Andiazi vs. Republic6 and Semande vs. Uganda7 and Seruwagi Mohammed vs.
Yuasa Investments Ltd (Supra)
The Form and Content of a Witness Statement is provided for under O.18r5A(8) of the
CPR as amended
It states that a witness statement shall—
(a) include the full name, address, age and occupation of the witness;
(b) include the number of the statement eg PW1 (Plaintiff Witness Statement 1) or DW1;
(c) include identified and verified initials of each document referred to;
(d) be numbered in paragraphs;
(e) include a statement of the witness regarding the witness’s present and past relationship, if
any, with any of the parties—
(i) whether the witness is a party to the proceedings or an employee of the party; and
(ii) where relevant, the capacity in which the statement is made and a description of his or her
background, qualifications, training and experience, if the information may be of relevance to the
dispute or to the contents of the statement;
(f) be recorded in English and as far as possible, in the witness’s own words;
(g) where the witness statement was not recorded in English, a statement in the language in
which the witness statement was originally prepared and the language in which the witness
wishes to give testimony at the hearing;
(h) where the witness writes the statement in a language other than English, the statement shall
include a translation of the statement verified by the translator, on oath;
(i) give a full and detailed narration of the facts and the source of the witness’s information as to
those facts, sufficient to serve as the witness’s evidence in the matter in dispute;

5 Miscellaneous Application No. 1187 OF 2016

6 [1967] EA 813 (CA)
7 [1999] 1 EA 321
Africano Omongole
LLB (Mak), Dip LP (LDC)
Associate JT Advocates, P. o. box 4390 Kampala
(j) include documents on which the witness relies, that have not already been agreed to at the
scheduling conference and contained in the trial bundle, shall be provided subject to any rules of
procedure on scheduling conference;
(k) contain a statement at the bottom as to whether he or she believes the statement of fact in it to
be true;
(l) sufficiently identify any document to which the statement refers without repeating its
contents, unless it is necessary for identification of the document;
(m) be legible and typed on one side of the paper and bound in a manner that does not hamper
filing; and
(n) be dated and signed at the bottom of every page.
Tendering in the witness statement
The witness statement is formally tendered as evidence in chief of the witness by the witness
appearing in court and taking oath to indicate that indeed that witness made the statement in
question. O.18r5A(2) of the CPR as amended. The rules allow the witness to seek leave of
court to correct any typographical, arithmetic or other error which does not go to the substance of
the testimony filed and served on the opposite party and the witness is required to countersign in
court any correction made prior to such statement being admitted as the evidence in chief of the
witness_ O.18r5A(3) of the CPR as amended
Examination of the witness
When the evidence has been formally received on the court record by order of the court
admitting it as evidence in chief of the witness, the witness may be cross examined on his or her
witness statement at the option of the opposite counsel or party_ O.18r5A(4) of the CPR as
amended
Evidence Act Cap 6, S.136 provides for examination-in-chief; cross-examination;
reexamination. The examination of a witness by the party who calls him or her is called his or
her examination-in-chief. The examination of a witness by the adverse party is called his or her
cross-examination. The examination of a witness, subsequent to the cross examination, by the
party who called him or her, is called his or her reexamination.
Evidence Act Cap 6, S.137 provides for the Order of examinations. Firstly, the witness is
examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party
calling them so desires) reexamined. However, the examination and cross-examination must
relate to relevant facts, but the cross-examination need not be confined to the facts to which the
witness testified on his or her examination-in-chief. On the other hand, reexamination is directed
to the explanation of matters referred to in cross-examination; and, if the new matter is, by
permission of the court, introduced in reexamination, the adverse party may further cross
examine upon that matter.
Africano Omongole
LLB (Mak), Dip LP (LDC)
Associate JT Advocates, P. o. box 4390 Kampala
A witness or his/her counsel may raise objections if questions put to him/her offend the rules of
examination.
Evidence Act Cap 6, S.138 provides for Cross-examination of person called to produce a
document. It states that a person summoned to produce a document does not become a witness
by the mere fact that he or she produces it, and cannot be cross-examined unless he or she is
called as a witness.
Witnesses not appearing
Except with the consent of the parties, a witness who does not appear to tender in the witness
statement and be cross examined is liable to have his or her statement expunged from the court
record. O.18r5A(5) of the CPR as amended
As we have already seen, the witness will have no audience before court if his/her statement is
expunged from record_O.18r5A(7) of the CPR as amended

PROBLEMATIC WITNESS STATEMENTS

INADMISSIBLE PARAGRAPHS IN WITNESS STATEMENT
A witness statement shall not include any matter of information or belief which are not
admissible in evidence; or contain lengthy quotations from documents or provide legal or other
arguments. See O.18r5A(9) of the CPR as amended
WITNESS STATEMENT AMOUNTING TO WRITTEN STATEMENT OF DEFENCE
(WSD)
The rule prohibits legal arguments from being raised in the witness statement as the statement is
only a written testimony (rather than legal arguments) of what was perceived by the witness. It is
the witnesses’ evidence in chief submitted to court on oath, [See O.18r5A(2) of the CPR as
amended] and as such the witness may be cross examined on his or her witness statement at the
option of the opposite counsel or party after the evidence has been formally received on the court
record by order of the court admitting it as evidence in chief of the witness [See O.18r5A(4) of
the CPR as amended].
SCHEDULE 2 Part IV Guidelines for Scheduling Conference under r.4(p) states that a
witness statement shall be recorded in accordance with these directions. (iv) whether the
statement is made from the witness’ own knowledge and the source of any matter of information.
A witness statement shall not include any matters of information or belief which are not
admissible and where admissible, shall state the source of any matters of information or belief.
(vi) a witness statement shall not contain lengthy quotations from documents nor engage in
legal or other arguments.

Africano Omongole
LLB (Mak), Dip LP (LDC)
Associate JT Advocates, P. o. box 4390 Kampala
In a persuasive precedent with similar issues, the High Court of England & Wales in
Greencastle MM LLP and Payne & Ors 8 in upholding the objections to a witness statement
had this to say on witness statements drafted in violation of the Practice Directions 57AC
(cognate to the CPR Amendment of Uganda in regards to witness statements)... I have real doubt
whether Mr Quinlan and Mr Richard Taylor has read the Practice Direction or, if they have,
whether they understood the effect and purpose of it. That is because the first witness statement
of Mr Quinlan does, really, exactly what the Practice Direction was designed to prevent trial
witness statements of fact from doing, that is to say referring to matters that were not within the
knowledge of the witness (other than properly presented hearsay evidence), commenting on
documents that have been disclosed and presenting argument in support of a party's case. In
particular witness statements should not –(1) quote at any length from any document to which
reference is made, (2) seek to argue the case, either generally or on particular points, (3) take the
court through the documents in the case or set out a narrative derived from the documents, those
being matters for argument, or (4) include commentary on other evidence in the case (either
documents or the evidence of other witnesses), that is to say set out matters of belief, opinion or
argument about the meaning, effect, relevance or significance of that other evidence
The court continued and elaborated the options available to it in these circumstances. First, to
withdraw permission for the witness statements, in whole or in part, leaving the Claimant to
apply for permission to adduce a further witness statement. Second, to withdraw permission
for the existing statements but order that the witness statement(s) be re-drafted in
accordance with Practice Direction 57AC; third, to do surgery to the existing witness
statements, by excising those passages that are objected to by the Defendants that I agree
are non-compliant and, possibly, the further paragraphs that I have identified; fourth, to
require evidence to be given orally in chief at the trial; and the fifth to let the matter go on to trial
and make an adverse costs order.
The court was reluctant to the first option, which seemed to be disproportionately punitive to the
Claimant, nor to take the last of the options since it is most unsatisfactory for a serious breach of
the practice direction to be ignored and the problems left to be dealt with at trial.
The court gave permission to the Claimants to prepare a replacement, fully compliant statement
as Cutting out only parts of the witness statement also had the disadvantage of leaving parts of
the rest of the statement incoherent. Thus where there is a "sensible alternative to striking out the
witness statements", that would be preferable.

8 [2022] EWHC 438 (IPEC). Stephanie High; Disputes Quick Read: The new witness statement preparation rules
– a year on (2022), gives a detailed commentary on witness statements (available at
https://www.taylorwessing.com/en/insights-and-events/insights/2022/04/dqr-the-new-witness-statement-
preparation-rules) (accessed on 10th June 2022)
Africano Omongole
LLB (Mak), Dip LP (LDC)
Associate JT Advocates, P. o. box 4390 Kampala
Mansion Place Ltd v Fox Industrial Services Ltd9 decision shows that in an appropriate case
the court will strike out passages in trial witness statements where they do not comply with the
requirements.
2. WITNESS STATEMENT RAISING ISSUES NOT CONTEMPLATED IN THE JOINT
SCHEDULING MEMORANDUM.
Hon. Lady Justice Olive Kazaarwe Mukwaya in Dr. Lubega Khalid v Mariam G. Muzei10
held that a joint scheduling memorandum from the parties made reference had ‘agreed facts’ that
were vehemently denied by Counsel for the Defendant in his submissions. A copy of the Joint
Scheduling Memorandum on the lower court record was not traced. The importance of a
scheduling conference before the court is that it acts as a preliminary step to hearing civil suits.
Order 12 rule 1 of the Civil Procedure Rules S.1 71-1 provides for Scheduling conference.
(1) The court shall hold a scheduling conference to sort out points of agreement and
disagreement, the possibility of mediation, arbitration and any other form of settlement—
Under this rule, the holding of a scheduling conference is mandatory. It is the responsibility of
the court to hold the scheduling conference. When parties are permitted to file a joint scheduling
memorandum, the court is still duty bound to conference with the parties and adopt the joint
scheduling memorandum after review and amendments were necessary. In the case of Stanbic
Bank (Uganda) Limited v Uganda Cros Limited,11 Tseekoko, JSC, held that;
‘That a trial court is expected to hold a scheduling conference to sort out points of agreement and
disagreement, the possibility of mediation, arbitration and any form of settlement…This is the
stage when proper issues would emerge.’
In Seruwagi v Yuasa Investiments Ltd (supra) the plaintiff objected to the defendant’s witness
statement filed and served out of the prescribed time. The statement also raised new facts/issues
not agreed upon during scheduling. Court agreed that the purpose of conducting a scheduling
conference is to obtain the points of agreement and disagreement by which process issues are
narrowed down for trial. The points of disagreement become the controversies on which to lead
the evidence of the witnesses. Agreed documents are normally admitted by consent while those
documents which are not agreed would be subjected to the ordinary rules of evidence in their
production. They would be produced by a competent witness who will testify or lay the
foundation for the admission. Foundation is laid in the written testimony. In other words it is not
necessary to hear the evidence of the opposite party before adducing evidence from the witnesses
of the defence. The most important point is that the controversies are the controversies on which
to lead the witnesses who can prove or disprove any relevant fact concerning the controversy
9 [2021] EWHC 2747 (TCC)
10 Civil Appeal 170 of 2019
11 SCCA 4 of 2004 (unreported)
Africano Omongole
LLB (Mak), Dip LP (LDC)
Associate JT Advocates, P. o. box 4390 Kampala
 before the court. Because the scheduling conference is meant to narrow down the issues and
will help the court understand in addition to the pleadings the actual matter in controversy,
both parties can present their witness statements out of the outcome of the scheduling
conference. Timelines to file witness statements at the same time are to be complied with to
avoid the unethical conduct defence looking for answers to any adverse testimony of the
Plaintiff.12 It is also supposed to alleviate mischief where the Defendant uses the opportunity to
try to rebut every matter of fact in the written testimony of the plaintiff, giving undue advantage
to the Defendant's side because the Plaintiff has no right of rebuttal. Secondly the defence will be
better prepared because they would be answering all or any controversy generated by the
Plaintiff’s witnesses in their written testimonies.
Court went and ahead to hold that Procedural rules are handmaidens of justice; not meant to
exclude the defence for failure to file witness statements. For that matter the witness
statement will be considered under the criteria of whether it should be given trifling weight. 13
Exercising the discretionary power of the court under rule 7 of The Constitution (Commercial
Court) (Practice) Directions, court held that the Plaintiffs objection has merit but decline to
strike out the witness statement. Instead the Plaintiff is awarded costs as a penalty or sanction
under rule 7 and the Defendant is further permitted under rule 6 of Order 51 of the Civil
Procedure Rules to serve the witness statement late. The witness statement having been filed
and served albeit 8 days late, the period for filing and service is extended and the witness
statement filed on court record and served will be admitted in evidence and the filing late thereof
is validated by enlargement of time to accommodate the late filing. The extension of time is with
costs to the Plaintiff under order 51 rule 6 of the Civil Procedure Rules.
Court allowed Plaintiff to file a supplementary witness statement responding to any new
area of controversy which could have emerged from the Defendants witness statement. The
statement was ordered to be filed and served within 7 days from the date of this order and before
the hearing date if the Plaintiff deemed it necessary.

12 As was also held by Christopher Madrama Izama J in HUSSAIN HASANALI JIVANI MERALI
JIVRA TAJDIN, CIVIL SUIT NO 471 OF 2015
13 Christopher Madrama Izama J in HUSSAIN HASANALI JIVANI MERALI JIVRA TAJDIN refers to the
Supreme Court in Semande vs. Uganda [1999] 1 EA 321. In those cases it was held that a witness who listens
to testimonies of other witnesses before testifying is bound to have his or her evidence given trifling weight. Of
course evidence can be assessed on merits and in this suit the facts are primarily agreed facts and what is in
controversy may be legal or some facts yet to be adduced in evidence. It follows that the question of what
weight to be given to the Plaintiff's evidence can only be considered in the evaluation of the evidence after
testimonies of witnesses and not at this stage of the proceedings. Failure to file in time at this stage and in the
circumstances of this suit should not be a basis for barring the Plaintiff from testifying. The only question for me
to consider is whether to dismiss the suit for delay or apply other sanctions.
Africano Omongole
LLB (Mak), Dip LP (LDC)
Associate JT Advocates, P. o. box 4390 Kampala

View publication stats