George V. Katongole vs Mariam Nabyonga and 2 Others (Civila Appeal No. 22 0f 1997)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

The appeal arose from a disputed land sale in which the trial judge relied on a comparison of the 1st respondent's specimen signature (exhibit D2) with the signature on the sale agreement. On appeal D2 and ten other exhibits were missing. Both counsel proposed either allowing the respondent to make a fresh specimen signature or, alternatively, ordering a retrial. The Court refused to allow a fresh specimen signature, holding it would amount to manufacturing evidence. Because the vital evidence was missing, the Court ordered a retrial, with each party to bear the costs of the appeal.

Facts

The appellant claimed that the 1st respondent had sold him a piece of land at Rubaga Hill, Kampala, and that the sale was concluded and a transfer effected. When the appellant attempted to enter the land, the 1st respondent denied the sale and the execution of the transfer, leading to High Court proceedings to resist eviction. During trial the 1st respondent alleged fraud, claiming the signatures on the sale agreement and transfer deed were not hers and that her title deed had been stolen. The trial judge directed the 1st respondent to write a specimen signature (exhibit D2) for comparison with the signature on the sale agreement, and relied on that comparison in the judgment. On appeal, exhibit D2 together with ten other exhibits were found to be missing, and both counsel agreed D2 was vital to the case.

Issues

1. Whether the 1st respondent should be permitted to make a fresh specimen signature to substitute the missing exhibit D2.
2. Whether a retrial should be ordered where vital documentary evidence has gone missing on appeal.

Orders

• Retrial ordered.
• Each party to bear the costs of the appeal.

Key headnotes

Legislation cited (1)

• Rules of the Court of Appeal Rule 29(1)(b)