Wakilii

Kanyike v Electoral Commission & 2 Ors (Civil Application No. 13 of 2006)

Court of Appeal · [2007] UGCA 23 · 2007 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional evidence on appeal, arising out of an election petition appeal
Decision
Application granted; leave given to adduce additional evidence by affidavit on appeal

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Holding

On an application to adduce additional evidence in an election petition appeal, the Court of Appeal held that fraud is itself an exceptional circumstance justifying leave to admit fresh evidence on appeal, notwithstanding the general rule against fresh evidence. The Court further held that, distinct from new evidence, it may take in evidence at the appellate stage that elucidates evidence already on or emerging from the record. The applicant's proposed evidence (the third respondent's school entry records and nomination papers) emerged from the petition record and elucidated it. There is no statutory time limit on furnishing additional evidence with leave of court. Leave was granted, with costs to the applicant.

Facts

Judgment had been entered against the applicant in Election Petition No. 1 of 2006, in which he challenged the nomination, election and declaration of the third respondent as Member of Parliament for Buyikwe West Constituency in the February 2006 parliamentary elections. The applicant alleged the third respondent lacked the requisite academic qualifications and had told the trial court a lie that his 'O' level certificate contained spelling mistakes in his names, which the court believed. In this application, the applicant sought leave to adduce additional evidence on appeal, namely the third respondent's records of entry into Senior 1 at St. Mary's College Kisubi and his nomination papers for the elections. The applicant contended this evidence would prove the favourable judgment was fraudulently obtained and a nullity, and that the records emerged from the petition record but were never exhibited. He stated he obtained the information only after judgment despite extensive search.

Issues

  1. Whether the applicant had shown sufficient reason for the Court to exercise its discretion to grant leave to adduce additional evidence on appeal.
  2. Whether fraud and the elucidation of evidence already on record justified the admission of additional evidence at the appellate stage.
  3. Whether the applicant was time barred from furnishing additional evidence.

Orders

  • Leave granted to the applicant/appellant to adduce additional evidence on appeal or to call evidence elucidating on evidence already on or emerging from the record.
  • The additional evidence to be adduced by affidavit with the third respondent's records of entry to S.1 at St. Mary's College Kisubi and his nomination papers for the February 2006 elections annexed.
  • Costs of the application granted to the applicant/appellant.

Key headnotes

Additional Evidence on Appeal — General Rule and Exceptions
Except on grounds of fraud or surprise, an appellate court will not admit fresh evidence unless it was not available to the party at trial or could not have been obtained with reasonable diligence, the evidence would probably have an important influence on the result, and the evidence is apparently credible.
Additional Evidence on Appeal — Fraud as an Exceptional Circumstance
Fraud is itself an exceptional circumstance sufficient to justify the grant of leave to adduce additional evidence on appeal, and a judgment influenced by and based on fraud is a nullity and an illegality which a court cannot sanction or condone.
Additional Evidence on Appeal — Elucidation of Evidence Already on Record
An appellate court has jurisdiction to take in evidence at the appellate stage that elucidates evidence already on the record or that emerges from the record, as distinct from the introduction of altogether new matter, where doing so attains the ends of justice.
Election Petitions — Time Limits and Furnishing of Additional Evidence
While there is a statutory time limit for filing an election petition, there is no law limiting the time for furnishing additional evidence, and a party may, with leave of court, furnish additional or elucidating evidence in a deserving case.

Legislation cited (8)

  • Court of Appeal Rules r.2(2)
  • Court of Appeal Rules r.30(1)(b)
  • Court of Appeal Rules r.30(2)
  • Court of Appeal Rules r.30(3)
  • Court of Appeal Rules r.30(4)
  • Court of Appeal Rules r.43
  • Court of Appeal Rules r.44
  • Parliamentary Elections Act

Cases cited (9)

  • Karmali Tarmohamed and Another v T.H. Lakhani & Co [1958] EA 567
  • Rev. Fr. Narsensio Begumisa and Others v Erick John Tibebaga (Civil Application No. 64 of 2000)
  • G.M. Combined (U) Ltd v A.K. Detergent Ltd and Another (Civil Appeal No. 7 of 1998)
  • Fredrick J.K. Zaabwe v Orient Bank Ltd and Others (Civil Application No. 10 of 2003)
  • Namisango Vs Galiwango and another 1986 HCB.37
  • Ladd v Marshall [1954] 1 WLR 1489
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
  • R v Yakobo Busigo s/o Mayogo (1945) 12 EACA 60
  • The King v Robinson (1917) 2 KB 1098
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.