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Nsabwa v Wasswa & 2 Ors (Miscellaneous Application No. 130 of 2017)

Court of Appeal · [2017] UGCA 39 · 2017 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional evidence on appeal, arising from Civil Appeal No. 288 of 2016
Decision
Application to adduce additional evidence on appeal dismissed with costs

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Holding

The Court of Appeal dismissed an application to adduce additional evidence on appeal. Applying the principles in Ladd v Marshall, the Court held that the letter from an Assistant Registrar suggesting the respondents' Letters of Administration were forged was not a newly discovered matter, as the underlying information was on public court record and obtainable through due diligence at trial. The evidence was neither relevant to the grounds of appeal nor credible, being mere speculative opinion, and would not influence the result. The Court further found undue delay and dilatory conduct, the application being an afterthought filed only after a hearing notice issued. The application was dismissed with costs.

Facts

The applicant is the administrator of the estate of the late Sepiriya Rusiko Kaddu Mukasa, holding Letters of Administration issued in 2008. The respondents held Letters of Administration over the same estate dated 8 May 2002. In the underlying matter, judgment was delivered on 5 May 2016 and, following an application for review, a ruling in favour of the applicant was delivered on 31 October 2016, with the trial Judge finding the respondents' grant to be a forgery and revoking it. The applicant filed a notice of appeal on 4 November 2016. On 19 September 2016 he obtained a letter from an Assistant Registrar of the High Court Family Division stating it was likely the respondents' grant was a forgery. The applicant then applied to adduce this letter as additional evidence on appeal, contending it revealed an illegality. The respondents opposed, arguing the information could have been obtained at trial, was irrelevant, not credible, and the application was an afterthought.

Issues

  1. Whether the letter sought to be adduced constituted a discovery of a new and important matter not obtainable through due diligence at trial.
  2. Whether the proposed additional evidence was relevant to the issues on appeal.
  3. Whether the proposed additional evidence was credible.
  4. Whether the proposed additional evidence would probably influence the result of the appeal.
  5. Whether the application to adduce additional evidence was brought without undue delay.

Orders

  • Application dismissed.
  • Costs awarded against the applicant.

Key headnotes

Civil Procedure — Additional Evidence on Appeal — Conditions for Admission
An appellate court may exercise its discretion to allow additional evidence only in exceptional circumstances: the evidence must be newly discovered and unobtainable at trial through due diligence, relevant to the issues, credible, likely to influence the result, supported by proof attached to the affidavit, and the application brought without undue delay.
Civil Procedure — Additional Evidence on Appeal — Due Diligence and Public Records
Information available at all material times on a public record in a court of law cannot be said to have been newly discovered after judgment; such evidence is obtainable through the exercise of due diligence at trial and does not qualify as a new and important matter.
Civil Procedure — Additional Evidence on Appeal — Credibility of Speculative Opinion
A registrar's speculative opinion on a matter outside her expertise, such as the likelihood of forgery based solely on a discrepancy in names, lacks the credibility required to be admitted as additional evidence on appeal.
Civil Procedure — Additional Evidence on Appeal — Undue Delay and Dilatory Conduct
Although a delay of approximately six months in filing an application would not ordinarily be undue, dilatory conduct and the appearance of an afterthought, particularly where the application follows the issue of a hearing notice, may render the delay undue in the circumstances.

Legislation cited (6)

  • Judicature (Court of Appeal Rules) Directions, SI 13-10 r.43(1)
  • Judicature (Court of Appeal Rules) Directions, SI 13-10 r.43(2)
  • Judicature (Court of Appeal Rules) Directions, SI 13-10 r.1(2)
  • Judicature (Court of Appeal Rules) Directions, SI 13-10 r.1(4)
  • Civil Procedure Act s.98
  • Constitution of the Republic of Uganda 1995 Article 126(2)(e)

Cases cited (3)

  • Ladd v Marshall [1954] 3 All ER 745
  • Attorney General v Paul K. Ssemogerere and Others (Constitutional Application No. 2 of 2004)
  • Anifa Kawooya v National Council for Higher Education (Miscellaneous Application No. 8 of 2013)
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.