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Attorney General & National Environment Management Authority v DMW (U) Limited (Civil Application 314 of 2020)

Court of Appeal · [2021] UGCA 203 · 2021 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional evidence on appeal from a High Court judgment
Decision
Application for leave to adduce additional evidence on appeal granted; additional evidence to be admitted in Civil Appeal No. 138 of 2020

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Holding

The Court of Appeal granted the applicants leave to adduce additional evidence on appeal. It first overruled the respondent's oral preliminary objections, holding they raised questions of fact rather than pure points of law and had not been pleaded or notified in advance. On the merits, the Court found the additional evidence — a letter from the Surveyors Registration Board questioning the author's competence to value sand deposits — was new, relevant, credible and lodged without undue delay. Although the Court declined to find fraud, it held that where additional evidence impugns the core foundational premise of a judgment, the due-diligence requirement may be relaxed in the interests of justice and the rule of law. The application was allowed without costs.

Facts

DMW (U) Limited sued the Attorney General and the National Environment Management Authority in the High Court contesting the cancellation of its sand mining licenses over land in Kalungu district. In May 2020 the trial court found for DMW and awarded compensation of UGX 178,000,000,000, relying on three sand valuation reports prepared by Mr. Fred Kigereigu, a Senior Geologist. The applicants appealed and applied to the Court of Appeal for leave to adduce additional evidence — principally a letter from the Chairperson of the Surveyors Registration Board, received after judgment, asserting that Mr. Kigereigu was not a registered surveyor and was not legally authorised to issue valuations of assets. The applicants argued this evidence was unavailable at trial and impugned the integrity of the judgment. DMW opposed, arguing the evidence was not new, that a geologist is the competent professional to value sand, and that due diligence had not been exercised.

Issues

  1. Whether the preliminary objections to the legal capacity of the Second Applicant's law firm and to its procurement were pure points of law that could dispose of the application.
  2. Whether the applicants satisfied the conditions for admitting additional evidence on appeal under Rule 30(1)(b) of the Court of Appeal Rules.
  3. Whether the requirement of due diligence should be relaxed where additional evidence impugns the foundational premise of the trial court's judgment.

Orders

  • The preliminary objections raised by the Respondent are overruled.
  • Counsel for the Second Applicant to lodge proof of their law firm's legal capacity to operate in Uganda with the Court's Registry.
  • Application allowed.
  • The Court shall admit additional evidence in Civil Appeal No. 138 of 2020 in the terms set out in the letter from the Chairperson of the Surveyors Registration Board dated 1st June 2020.
  • The additional evidence shall be presented by way of affidavits.
  • No order as to costs (Respondent not condemned to costs as no fraud or intentional misrepresentation was found).

Key headnotes

Preliminary Objections — Requirement of a Pure Point of Law
A preliminary objection must raise a pure point of law arguable on the assumption that the pleaded facts are correct; where the objection requires proof of facts, such as the death or retirement of a law firm's partners, or breach of professional conduct regulations, it cannot be raised as a preliminary objection.
Preliminary Objections — Notice and Professional Courtesy
An objecting party should ordinarily give the opposite party prior notice of an intention to raise a preliminary objection so that it may respond; failure to do so, leaving the other party caught unawares, weighs against entertaining the objection.
Additional Evidence on Appeal — Conditions for Admission
Additional evidence may be admitted on appeal where it is new and was not available at trial despite due diligence, is relevant to the issues, is credible, would probably have influenced the result, is supported by proof attached to the affidavit, and is sought without undue delay.
Additional Evidence on Appeal — Relaxation of Due Diligence Where Judgment's Foundational Premise Impugned
Where additional evidence, though not establishing fraud, impugns the core foundational premise of a judgment, an appellate court may relax the due-diligence requirement and admit the evidence in the interests of justice and the rule of law.
Fraud — Requirement of Intentional Deception
Fraud entails an intentional perversion of truth or false misrepresentation calculated to deceive; it is distinguished from negligence, mistake or error, and a mistaken presumption by all parties as to a witness's competence does not amount to fraud.
Expert Evidence — Competence and Professional Qualification of Expert
Expert opinions relied upon by courts are grounded in the witness's credentials and competence; the impeachment of an expert's professional competence renders nugatory the claim to expertise, and qualification in geology does not in itself qualify a person to undertake the valuation of assets, which is the prerogative of a registered valuation surveyor.

Legislation cited (12)

  • Judicature (Court of Appeal Rules) Directions r.2(2)
  • Judicature (Court of Appeal Rules) Directions r.30(1)(b)
  • Judicature (Court of Appeal Rules) Directions r.30(2)
  • Judicature (Court of Appeal Rules) Directions r.30(3)
  • Judicature (Court of Appeal Rules) Directions r.30(4)
  • Judicature (Court of Appeal Rules) Directions r.43
  • Judicature (Court of Appeal Rules) Directions r.44
  • Surveyors Registration Act Cap. 275 s.1
  • Surveyors Registration Act Cap. 275 s.3
  • Advocates (Professional Conduct) Regulations reg.24(3)
  • Advocates (Professional Conduct) Regulations reg.24(4)
  • Public Procurement and Disposal of Public Assets Act s.70

Cases cited (16)

  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696
  • Attorney General v Paul K Ssemogerere & Others (Constitutional Application No. 2 of 2004)
  • Takhar v Gracefield Developments Ltd & Others [2019] UKSC 13
  • Wood v Gamlings (1993) PIQR 76 (Court of Appeal)
  • Lattimer v Cumbria CC (1994) PIQR 395 (Court of Appeal)
  • Anifa Kawooya Bangirana v National Council for Higher Education (Miscellaneous Application No. 8 of 2013)
  • Michael Mabikke v Law Development Centre (Miscellaneous Application No. 16 of 2015)
  • Kakembo v Roko Construction Ltd (Civil Appeal No. 5 of 2005)
  • The Ikarian (1993) 2 Lloyds Reports 68
  • Cala Homes v Alfred McAlpine (1995) CILL 1083
  • Henderson v Henderson (1843) 3 Hare 100
  • Canada v Granitile (2008) 302, 303 DLR 40
  • Fredrick J K Zaabwe v Orient Bank Ltd & 5 Others (2007) 1 ULR 98
  • Attorney General of Uganda v Media Legal Defence Initiative & 19 Others (EACJ Appeal No. 3 of 2016)
  • Attorney General of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • Attorney General of Tanzania v Africa Network for Animal Welfare (EACJ Appeal No. 3 of 2011)
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.