High Court Rules that in a Request for Disclosure of Documents, the A.G. Cannot Disclaim Custody of Documents Held by Security Organs such as the Police or UPDF in Determination of Human Rights Abuse

Waboga David
Aug 27
4 min read

Introduction

The importance of discovery, disclosure, and interrogatories in court proceedings cannot be overstated. These procedural mechanisms are designed to promote fairness, prevent trial by ambush, and ensure that disputes are determined on the basis of all relevant evidence.

Discovery and disclosure allow parties to access documents and information referred to by their opponents, while interrogatories enable parties to clarify factual matters in advance of trial. Together, these tools serve the constitutional objective under Article 126(2)(e) of the Constitution of Uganda, which requires courts to administer justice without undue regard to technicalities, and ensure that the right to a fair hearing is realised in practice.

It is important to note, however, that an application for discovery or disclosure is not automatically granted. The Court must be satisfied that the request meets the requisite legal requirements, including relevance, materiality, and that the documents are within the possession or control of the opposing party. There must also be evidence of a prior attempt at voluntary cooperation, typically through a formal notice to produce documents, before the Court will compel disclosure. This ensures that the mechanism is not abused and that only documents genuinely pertinent to the matter at hand are subject to inspection.

In the recent case involving Mwesigwa Eremigio Masagazi & Naggayi Annet v Attorney General, Capt. Frank Nyakairu & Pte. Opolot Simon (Misc. Cause No. 002 of 2025), the High Court at Wakiso looked at the admissibility of an affidavit filed out of time and whether the respondents could be compelled to produce documents they had themselves referenced in their affidavits.

Background

The Applicants brought this matter alleging violations of human rights linked to the fatal shooting of their son, allegedly by a UPDF officer deployed at the residence of the second respondent.

The dispute revolved around two procedural but crucial issues:

Whether an affidavit in reply, filed out of time without leave, should be admitted; and
Whether the respondents could be compelled to produce specific documents referenced in their affidavits, including CCTV footage, deployment letters, and UPDF operational guidelines.

The Applicants, represented by Counsel Henry Byansi and Paul Waswa, objected to the late filing of the respondents’ additional affidavit and sought an order for disclosure of documents under Order 10 Rules 15 and 16 of the Civil Procedure Rules (CPR).

The Respondents, represented by State Attorneys Jackie Amusugut and Mathew Muhesi, argued for leniency on timelines and opposed disclosure on grounds of irrelevance and custody limitations.

Key Issues for Determination

Admissibility of an affidavit filed out of time without leave.
Whether the Respondents should be compelled to produce documents referenced in their affidavits.

Court’s Findings

1. Late Filing of Affidavit

The Respondents attributed delay to bureaucratic processes within the Uganda Police Force.

No direct evidence of delay was presented, but the Court took judicial notice of bureaucracy in public offices.

Citing Godfrey Magezi & Anor v Sudhir Ruparelia (S.C. Misc. Appl. No. 6 of 2003) and Kasangaki Diana v Fulgensia Tumwesigye (Civil Appl. No. 21 of 2023), the Court reiterated that procedural rules are “handmaids of justice” and should not override substantive rights.

Relying on Article 126(2)(e) of the Constitution, Section 98 CPA, and Section 37 Judicature Act, the Court validated the affidavit and enlarged time for filing.

The Applicants were granted leave to file a rejoinder.

Holding:

The affidavit in reply, though filed late, was admitted in the interest of substantive justice.

2. Compulsory Production of Documents

Applicants served a formal notice to produce under Order 10 Rule 16 CPR on 1st August 2025, which went unheeded.

The Respondents argued the request was premature and that the documents (CCTV footage, deployment letter, UPDF procedures, and Standing Orders) were irrelevant or beyond their control.

The Court applied the test in Sibamanyo Estates Ltd v Equity Bank & Others (HCT-CD-CS-MA-0730-2022), identifying three requirements for compulsory production:

Relevance, materiality, and admissibility of documents;
Possession or control of the documents by the opposing party;
Prior attempt at voluntary cooperation (notice to produce).

The Court found that:
- The documents were expressly referenced in Respondents’ affidavits and thus squarely fell within Order 10 Rule 15 CPR.
- They were highly relevant and material to determining whether the deceased was properly identified and whether the third Respondent acted within his mandate.
- The Attorney General, as Government’s legal representative under Article 250 of the Constitution, had control over police/UPDF documents and could not disclaim custody.
- The CCTV footage was “paramount” for resolving the core factual dispute.

Holding: Respondents were compelled to produce the CCTV footage, deployment letter, UPDF operational procedures, and Standing Orders for inspection by 5th September 2025.

Court Orders

Affidavit of Muzito Suzan admitted despite lateness; Applicants granted leave to file a rejoinder by 2nd September 2025.
Respondents ordered to produce the following documents for inspection:
- CCTV footage referred to in affidavits.
- Deployment letter of the third Respondent.
- Relevant excerpts of UPDF operational procedures.
- Relevant excerpts of UPDF Standing Orders on bodyguards.

Key Takeaways

Courts may relax procedural deadlines in favour of substantive justice, especially in matters implicating fundamental rights.
Once a party introduces documents into the record, they cannot later object to their inspection.
As Government’s legal representative, the AG cannot disclaim custody of documents held by security organs such as Police or UPDF.
Courts will treat CCTV footage and similar electronic evidence as critical in determining contested events involving state agents.

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