Trial Bundles and Exhibits in Civil Litigation: Evolution of trial bundle practices, filing procedures, and critical considerations for preparation.

Hitherto, there was no requirement to file trial bundles. Counsel for either party would appear before court, with their witnesses and documents to be exhibited in evidence (both originals and copies thereof) and would lead their witnesses on the documents and thereafter have the same tendered in evidence. This practice was laden with challenges of lengthy trials and sometimes, trial by ambush and unnecessary adjournments sought by counsel to confirm authenticity of documents being presented.

The practice started changing first with the introduction of Order 6 Rule 2 and Order 7 Rule 14 (1) & (2) of the CPR, which required documents to be relied upon by a party either to be attached or filed with the Plaint or to be set out in the list of documents that must be filed together with the pleadings. This would put the adversary party on notice of the documents to be expected at the trial. Fakrudin & Anor v Kampala District Land Board & Anor (Civil Suit No. 570 of 2015)

This was followed with the introduction of the procedure of scheduling conference under Order 12 of the CPR as amended. This was made mandatory and it is through such procedure that parties would share documents to be relied upon in support of defence of the suit, agreed documents and disputed documents would be identified, all before the trial. This facilitated a smooth hearing. At the time, though, scheduling was done in court, without necessarily filing a scheduling memorandum. See; Tsekooko JSC in Tororo Cement Co. Ltd v Frokina International Ltd (Civil Appeal No. 2 of 2001

The introduction of the requirement to file a Joint scheduling Memorandum further improved the practice. This is so because parties were given an opportunity during the preparation of the JSM to share the documents they intend to rely upon and the same would be set out in the JSM. Those disputed and those agreed for either side would be easily identified. See the rationale of conducting scheduling as explained in Tororo Cement Co. Ltd v Frokina International Ltd (Civil Appeal No. 2 of 2001

By the time the trial commences, either party would know which documents required to be formally exhibited by witnesses and the ones that are agreed and need no further proof except reference thereto by witnesses. Adoma Tumusiime versus Bushenyi District LGC HCT 0032/2012. This is a commendable litigation strategy. Sometimes advocates have filed a Joint trial bundle because they had the opportunity of going through the documents and identified common documents and a few disputed documents that are set out separately but in the same trial bundle. (There are judges who insist on counsel filing one joint trial bundle for ease of reference)

The Procedure of filing Trial Bundles
The practice of scheduling conference led to the procedure of filing trial bundles of   documents that are already set out in the Joint Scheduling Memorandum as ones parties intend to exhibit in support of their respective cases or defences. The bundles make subsequent reference to documents by the witnesses, counsel and the court quiet simplified.

It is now a requirement under Order XI A (1) the Civil Procedure Amendment Rules 2019; that for purposes of preparing for every action and before scheduling and trail, directions be given for the future course of the action to secure just, expeditious and economical disposal of the matter. The Plaintiff is now required under Sub rule (2) of the said order to take out summons for directions.

One of the directions that are now given is for parties to file a joint scheduling Memorandum, Trial Bundles and witness statements, within the timelines prescribed by the Court, or such other time as may be extended by the court. That is now the legal basis for filing trial bundles.

The advocate preparing a trial bundle must be guided by the pleadings. This is in compliance with the principle in Order 6 Rule 7 CPR that parties are bound by their pleadings. The documents must speak to the Plaintiffs case or defendant’s defence as pleaded. The position of the law was settled by the Supreme Court in SCCA No. 02/2019 Luyimbazi Sulaiman versus Stanbic Bank (U) Limited. The court held that “It’s a cardinal rule that a party is bound by their pleadings and it is not open to the court to base its decision on an un-pleaded issue. Even where there is discordance between what is pleaded and the evidence or submissions, such that either the submissions or evidence cover up a defect in the pleadings, the cardinal rule still applies.  

Secondly, counsel should be guided by the law governing the subject matter of the dispute in identifying the documents relevant to support or defend an action. Mubiru J in Kaggwa v Olal & 6 Ors (Civil Appeal No. 0010 of 2017) [2018] UGHCLD 65. 

Further, in determining the relevancy of documents and what documents are required to be included in the trial bundle, the advocate, whether for the Plaintiff or the Defendant should further be guided by the law governing the burden and standard of proof as per  Sections 101-106 of the Evidence Act. The burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue.

The burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence. Jovelyn Barugahare v. Attorney General S.C. C.A. No 28 of 1993, it was held that; he who asserts must affirm. The onus is on a party to prove a positive assertion and not a negative assertion. It therefore means that, the burden of proof lies upon him who asserts the affirmative of an issue, and not upon him who denies, since from the nature of things he who denies a fact can hardly produce any proof.

Documents 

The documents included must be those relevant to support or defend the suit, not all documents availed by the client. The practice of filing all documents availed by the client without reading through and identifying the relevant ones has some pitfalls; namely; the trial may end without any witnesses speaking to any such documents, some of the documents are actually adverse to the parties’ case and this is discovered during cross examination. See: Okello Gorge J in HCCA No. 14/2015 Ayella David versus Kalokwera Gladys.

The documents included in the trial bundle must rhythm with those attached to the pleadings and must be checked very well. The possibility of a party relying on two inconsistent documents, some attached to the pleadings and different copies in the bundle may turn out to be adverse to the party’s case. See Okello Gorge J in HCCA No. 14/2015 Ayella David versus Kalokwera Gladys where there were two varying translated versions of the same document. 

The competent witnesses, who are likely to speak to the documents should be identified and should have an opportunity of perusing and discussing with counsel those particulars documents and the contents therein. Nakiranda v Kasujja (HCCS 115 of 2012) [2014] UGCommC 148 (where the Plaintiff did not testify as she was in Sweden and the Attorney who testified could not speak to the contents of the documents). The court noted that the Plaintiff produced one witness whose evidence was directed to prove that the Defendant received a soft loan of US$50,000 from the Plaintiff. The witness confessed to court in cross examination and re-examination that whatever they told court was not based on his personal knowledge or information received from the Plaintiff. The implication is that in the absence of proof, the Plaintiff’s evidence on record is hearsay and inadmissible under section 59 (a) of the Evidence Act cap 6 and as a holder of a power of attorney, hearsay evidence of PW1 enjoys no exception.

We have seen witnesses denying knowledge of documents in their trial bundles or looking at counsel for answers upon being cross examined on such documents or witnesses and counsel being shocked by the content of their own documents. 

We have also seen documents being identified as PIDs or DIDs and they are not exhibited in evidence for want of a competent witness. Unless it is not objected to, the person competent to tender the document in evidence should be called as a witness for proof of its authorship or due execution, unless it is admissible under one of the exceptions provided for the admissibility of a secondary evidence or to the rule against hearsay evidence. Mubiru J in Kaggwa v Olal & 6 Ors (Civil Appeal No. 0010 of 2017) [2018] UGHCLD 65.

Where there is a likelihood of original documents or certified copies being required whether under the law of evidence (Sections 60-64 of the evidence Act) or insistence by court or counsel for the other party, at the time of preparation of the trial bundle, these should be obtained. Mubiru J in Kaggwa v Olal & 6 Ors (Civil Appeal No. 0010 of 2017) [2018] UGHCLD 65. Again we have seen documents being marked as DIDs and PIDs without being exhibited for want of originals and or certified copies. See HCCA No. 14/2015 Ayella David versus Kalokwera Gladys.

Expert Reports

Where the documents to be included in the trial bundle include expert reports, it is pertinent to confirm that the expert is duly qualified and competent to render such reports and that they are duly executed and stamped. See; Attorney General versus DMW (U) Limited Civil Application No. 314/ 2020. We have seen documents at trial where they are drafts, some are unsigned and others signed but not stamped and some signed by incompetent persons. It may be too late to salvage the case. See Criminal Appeal No. 001/2021 Aliganyira Betty versus Uganda.

Electronic evidence 

Where the documents included in the bundle include electronic evidence for example flash disks, CDs, photographs or other audio or visual evidence, counsel must be prepared to bring a competent witness to tender them in subject to satisfaction. It is not enough to include them in the trial bundle and refer to them in the witness statement. Amongin Jane Frances Akili Vs Lucy Akello & Anor (HCT – 02 – CV – EP – 0001 – 2014) [2015] Before accepting electronic evidence, a court will determine if the evidence is relevant, whether it is authentic, or hearsay, or whether a copy is acceptable or the original is required.  It is apparent that the use of digital evidence has increased in the past and that is why courts which were hesitant to admit it have now accepted it as one of the best evidence. But like any other evidence the proponent of electronic or digital evidence must lay the proper foundation which makes the evidence reliable. Courts are mainly concerned about reliability of such digital or electronic evidence.

The foundation should include the following; Reliability of the equipment used. The manner in which the basic data was initially entered. The measures taken to ensure the accuracy of data as entered. The method of storing the data and precautions taken to prevent loss or alteration. The reliability of the computer programs used to process the data. And the measures taken to verify the accuracy of the program; what software was used to preserve digital evidence in its original form and to authenticate it for admissibility? The competence of the person who accessed the original data. This person must be competent to do so and able to give evidence explaining the relevance and implication of what he did. An independent third party should be able to examine the process and achieve the same results. The person in charge of the process of acquiring information through the electronic process has the responsibility for ensuring that certain standards are met because this kind of evidence can easily be modified and or duplicated. Digital evidence is often attacked for its authenticity due to the ease with which it can be modified although it would be necessary to sustain such an agreement with proof of tampering. See; also Lydia Wanyoto Mutende versus Hon. Nakayenze and EC.

The documents should be set out with some level of chronology and should flow with the party’s case and line of evidence where possible and should be arranged as such. This makes reference in the witness statements and reference by court and counsel quite simplified. It is a good impression created where the witness statement flows coherently with the trial bundle rather than uncoordinated arrangement of documents, where a witness, counsel and court have to struggle to identify the document.

 

The bundles should be paginated for ease of reference. Where possible, separators may be used to separate the documents for ease of reference by court, counsel and the witnesses rather than witnesses having to be told to count from the first page and until they reach a particular place of the bundle to identify the document. 

Where some documents are discovered in the course of the trial, good practice dictates that a supplementary trial bundle be filed and served on the adversary party in reasonable time before the trial. This should be drawn to the attention of the Court at the next hearing, where if they are not objected to, they may be marked as well.

We have seen advocates filing trial bundles after closure of their cases. If all the witnesses have concluded their testimonies, who will speak to these documents. In other instances, advocates have attached documents to their final submissions and made submissions on them. Advocates will have constituted themselves into witnesses at the bar. All this arises from ill preparation or delayed reaction, or becoming wiser after reading submissions of the adversary parties. Ofcourse the courts have castigated such unconventional practices. 

Trial Bundles/ Exhibits and Witness Statements
The filing of trial bundle does not per se, render the documents therein exhibits not part of the evidence on record. At scheduling, those documents have to be marked as admitted by consent/ without objection whether in form or content and are marked as exhibits by court and assigned exhibit numbers. Tumusiime & 318 Ors v Bushenyi District Local Government & Anor (HCT-05-CV-CS-0032-2012) 

Where some of the documents are objected to, they are not deemed to be exhibited. Counsel for the party or witness must at the time of leading the witness, immediately after their witness statement is admitted on record take them to the document, they identify and confirm knowledge of the document, the back ground to the document and the circumstances under which the document was executed, whether they refer to it in their witness statement, among others and thereafter have the document tendered through the witness. Mubiru J in Kaggwa v Olal & 6 Ors (Civil Appeal No. 0010 of 2017) [2018] UGHCLD 65. Advocates sometime forget and remember during submissions to refer to the document which was not exhibited.

In the preparation of witness statements, the advocate and witness must be alive to the documents in the trial bundle and the witnesses must speak to those documents in so far as they relate to their evidence and must set out the pages where the documents appear in the bundle. The documents should be referred to in the preparation of the witness statement as if counsel was leading the witness in the witness box. Seruwagi Mohammed vs. Yuasa Investments Ltd Civil Suit Number 324 of 2013.

Again, it’s not uncommon for advocates and witnesses to present witness statements that do not speak to nor allude to any documents in the trial bundle in the imagination that after all, the bundles were admitted at scheduling. Those documents may not speak for themselves and they are rendered irrelevant. This is another common mistake. In Seruwagi Mohammed vs. Yuasa Investments Ltd Civil Suit Number 324 of 2013, it was noted in that ruling that Counsel takes the written testimony of the witness in Chambers and is duty bound not to couch the witnesses or even help the witness with their testimony but to record the testimony from the witnesses as if he were leading them in the court. 

It my humble view that a good litigation strategy does not begin at the time of filing trial bundles but right away from the interview with the client, through preparation of pleadings, preparation of the scheduling memorandum and subsequently the trial bundle and witness statements. Any omissions of the types enumerated herein above may impact on the litigation and ultimately jeopardise the chances of success of the suit or defence.