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American Express International Banking Corporation v Atulkumar Sumant Bhai Patel (Civil Application No. 8 of 1986)

Court of Appeal · [1986] UGCA 11 · 1986 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application in the Court of Appeal to adduce additional evidence by affidavit on appeal from a High Court order
Decision
Application to adduce additional evidence refused with costs to the respondent

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Holding

The Court of Appeal refused an application by American Express to adduce additional evidence by affidavit on appeal. Applying the established conditions, the court held that additional evidence will only be received where it could not have been obtained with reasonable diligence at trial, would probably have an important influence on the result, and is apparently credible. The proposed evidence — concerning problems of suing in Singapore, absence of the respondent's assets there, and the lack of a reciprocal enforcement arrangement between Singapore and Uganda — was within counsel's knowledge at trial and could have been produced earlier. The applicant had not shown due diligence, so the application was refused with costs to the respondent.

Facts

American Express International Banking Corporation had sued Atulkumar Sumant Bhai Patel in the High Court of Uganda (Civil Case No. 454 of 1983) on a guarantee signed on 31 March 1978. The suit was filed on 3 May 1983 and a defence filed in August 1983. During proceedings several affidavits were sworn, including affidavits by Dennis Singham, the applicant's counsel in Singapore. The High Court (Kantinti J.) delivered its ruling on 21 February 1985. On appeal, the applicant sought leave under rules 29 and 42 of the Court of Appeal Rules to file a further affidavit by Dennis Singham. The proposed affidavit aimed to show that suing in Singapore would create service problems outside jurisdiction, that execution would be impossible because the respondent had no known assets in Singapore, and that no reciprocal enforcement agreement existed between Singapore and Uganda. The matter underlying the appeal concerned which of the two courts was the more convenient forum.

Issues

  1. Whether the applicant should be allowed to adduce additional evidence by affidavit at the appellate stage.

Orders

  • The application is refused.
  • Costs to the respondent in any event.

Key headnotes

Evidence — Additional Evidence on Appeal — Conditions for Reception
To justify the reception of fresh evidence on appeal three conditions must be satisfied: the evidence could not have been obtained with reasonable diligence for use at trial; it would probably have an important influence on the result though it need not be decisive; and it must be apparently credible though it need not be incontrovertible.
Evidence — Additional Evidence on Appeal — Due Diligence Requirement
Where evidence was in the possession of a party at trial, or could by proper diligence have been obtained, and was not produced, no opportunity for producing it ought to be given on appeal; evidence available but not produced at trial is not 'new' evidence.
Civil Procedure — Forum Conveniens — Objective Evidence Requirement
A would-be plaintiff's genuine belief that pursuing an action locally is more advantageous than in a foreign forum is insufficient unless supported by objective evidence on which the balance of convenience can be assessed.

Legislation cited (2)

  • Court of Appeal Rules r.29
  • Court of Appeal Rules r.42

Cases cited (6)

  • Karmali Tarmohamed and Another v I.H. Lakhani & Co (1958) EA 562
  • Nash v Rochford Rural Council [1917] 1 KB 393
  • The Abidin Daver [1984] 1 All ER 470
  • Corbett v Corbett [1953] 2 All ER 69
  • Nyanzi v Kayima (Civil Appeal No. 67 of 1953) [1953] ULR Vol VII 132
  • Sheden vPatrick
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.