Industrial Court Declares Witness Hostile in Social Security Contributions Dispute—Cross-examination of a co-respondent’s witness is permissible when conflicting interests arise—The declaration of a hostile witness requires a demonstrated departure from prior statements—Section 8(3) of the Labour Disputes (Arbitration and Settlement) Act (LADASA), the court exercised its discretionary power—equivalent to that of the High Court—to allow cross-examination in the interests of justice and equity.
Background
During proceedings, the 2nd Respondent presented its sole witness, Mr. Isaac Ogwang, Senior Manager-Enforcement and Litigation. His witness statement dated April 11, 2024, was adopted as his evidence-in-chief. Following cross-examination by Professor Barya, counsel for the Claimants, Mrs. Kyalimpa Matovu, appearing for the 1st Respondent, sought leave to further cross-examine Mr. Ogwang.
She argued that his testimony favored the Claimants' case, citing Section 98 of the Civil Procedure Act, which grants courts inherent powers to make orders necessary for justice. She relied on High Court Miscellaneous Cause No. 68 of 2015 (Uganda Telecom Limited v The Managing Director NSSF & NSSF), where the 2nd Respondent was ordered to refund statutory contributions made by the 1st Respondent on behalf of ineligible employees.
Opposition to the Application
In opposition, Mr. Waniala, counsel for the 2nd Respondent, confirmed that the Court of Appeal had overturned the High Court’s decision in Miscellaneous Cause No. 68 of 2018. He contended that:
The 2nd Respondent had consistently been aligned with the 1st Respondent in the dispute.
The 1st Respondent failed to amend its pleadings to explicitly frame a case against the 2nd Respondent.
The Industrial Court had previously denied the 2nd Respondent the right to cross-examine the 1st Respondent’s witness, and therefore, the same principle should apply.
Court’s Ruling
The Industrial Court recessed to deliberate on the matter and delivered its ruling, addressing key legal principles
1. Hostile Witness
The Evidence Act (Cap. 6, Laws of Uganda) does not explicitly define a hostile witness. However, the court relied on legal precedents and authoritative definitions:
Black’s Law Dictionary defines a hostile witness as one biased against the examining party, unwilling to testify, or aligned with an adverse party.
In Uganda v Ssegonga Musa, the court referenced Okwonga Anthony v Uganda [2002] UGSC 8, where Sankar’s Law of Evidence was cited, establishing that a hostile witness departs from a previous statement made during investigations.
Section 153 of the Evidence Act (Cap. 6) allows courts to permit a party calling a witness to cross-examine them as if they were an adverse party. However, this applies when the witness resiles from their previous position.
2. The Right to Cross-Examine a Co-Respondent’s Witness
In Sewava Ssalongo & 18 Others v Male Mukasa & 2 Others, Justice Henry I. Kawesa ruled that where co-defendants have conflicting interests, one may cross-examine the other’s witnesses.
The court cited Lord v Colvin, affirming that a defendant may cross-examine a co-defendant’s witness if their interests are hostile.
The court examined Mr. Ogwang’s testimony, particularly his assertion that the 2nd Respondent was prepared to release contributions to the Claimants. This directly conflicted with the 1st Respondent’s position, making cross-examination necessary.
3. Exercise of Discretion under the Industrial Court’s Powers
Invoking Section 8(3) of the Labour Disputes (Arbitration and Settlement) Act (LADASA), the court exercised its discretionary power—equivalent to that of the High Court—to allow cross-examination in the interests of justice and equity.
Conclusion
The Industrial Court declared Mr. Ogwang a hostile witness, granting the 1st Respondent the right to cross-examine him.
Key Takeaways
✅ Cross-examination of a co-respondent’s witness is permissible when conflicting interests arise.
✅ The declaration of a hostile witness requires a demonstrated departure from prior statements.
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