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Teopista Nabbale and Another v Namatovu (Civil Application No. 0158 of 2016)

Court of Appeal · [2017] UGCA 151 · 2017 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional evidence on appeal
Decision
Application allowed; the Court to take additional evidence by affidavit

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Holding

The Court of Appeal granted leave to adduce additional evidence on appeal. Applying the established principles, the court held that an appellate court may admit additional evidence only in exceptional circumstances where the evidence could not, with due diligence, have been produced at trial; is relevant and credible; and would probably influence the result. The court found the documents relating to the disputed land transfer were credible, central to the subject matter, and might influence the appeal's outcome; that the applicants exercised due diligence; and that the application was brought without delay. As the dispute involved alleged fraud, hearing the appeal on its merits served substantive justice under Article 126(2)(e), and the respondent had shown no prejudice.

Facts

The 1st applicant was the registered proprietor of land at Kisugu, Kyadondo Block 244 Plot 541, having bought it from the administrators of the estate of the late Kristina Nabaggala, who were defendants in HCCS No. 243 of 2013. She claimed the sellers handed her the certificate of title, a signed transfer form, copies of their identifications and photographs, and that caveats on the land were removed following notice to the caveator. In the High Court suit, the trial judge found the transfer fraudulent. The applicants sought leave to adduce additional evidence on appeal, including the transfer instrument, identifications, a consent judgment, caveat-removal applications and notices. The respondent, the plaintiff in the High Court suit, opposed the application, contending the documents were always available to the applicants, were not new, were uncertified and unlawfully obtained, and would not influence the appeal's outcome.

Issues

  1. Whether the applicants satisfied the conditions for leave to adduce additional evidence on appeal under Rule 30(1)(b) of the Court of Appeal Rules.

Orders

  • This Court shall take the additional evidence sought to be adduced by the applicant.
  • The said evidence shall be by affidavit.
  • The costs of the application to abide the outcome of the appeal.

Key headnotes

Civil Procedure — Appeals — Additional Evidence on Appeal — Conditions for Admission
An appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances: where the evidence, despite due diligence, could not have been produced at trial; is relevant to the issues; is credible; would probably influence the result though need not be decisive; is attached to the supporting affidavit; and the application is brought without undue delay.
Civil Procedure — Appeals — Additional Evidence — Due Diligence and Access to Documents
Where an applicant pursues an appeal in her own right, the fact that another party (such as the Registrar of Titles) was a co-party in the lower court is inconsequential to whether the applicant had access to documents, and does not defeat a claim of due diligence.
Civil Procedure — Substantive Justice — Article 126(2)(e) of the Constitution
Where a dispute contains an element of alleged fraud and the additional evidence forms part of the crux of the subject matter, the interest of substantive justice under Article 126(2)(e) of the Constitution justifies hearing the appeal on its merits over technicalities, provided no prejudice to the opposing party is shown.

Legislation cited (5)

  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.2
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.30(1)(b)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.43
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.44
  • Constitution of Uganda 1995 art.126(2)(e)

Cases cited (5)

  • Karmali Tarmohammed and another v I.H. Lakhani & Company [1958] 1 E.A 567
  • Kawooya v NCHE (Supreme Court Civil Application No. 12 of 2014)
  • Hon. Anthony Kanyike Civil Application No. 13 of 2016
  • American Express International Banking Corporation v Atulkumar Sumant B. Patel [1987] HCB 35
  • Attorney General v Ssemogerere and Others (Constitutional Application No. 2 of 2004)
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.