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Kawooya v National Council for Higher Education (Miscellaneous Application 8 of 2013)

Supreme Court · [2014] UGSC 12 · 2014 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application in the Supreme Court for leave to adduce additional evidence in a pending constitutional appeal (Constitutional Appeal No. 4 of 2011)
Decision
Leave to adduce additional evidence granted; applicant to file the evidence within 7 days, with costs abiding the appeal

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Holding

On an application for leave to adduce additional evidence in a pending constitutional appeal, the Supreme Court restated the principles from Attorney General v Ssemwogerere (drawn from Ladd v Marshall): additional evidence is admitted only in exceptional circumstances where it is newly discovered despite due diligence, relevant, credible, capable of influencing the result, supported by proof on affidavit, and sought without undue delay. Finding that a directive letter (Annexure C7) — earlier withheld and within the respondent's exclusive possession — met all six requirements, the Court allowed the application. It declined the separate prayer to file a supplementary record of appeal, holding that a respondent may do so as of right under Rule 86(1) without leave.

Facts

The respondent, the National Council for Higher Education, had issued the applicant a Certificate of Equivalence in 2005 confirming her academic eligibility to stand for Parliament. In August 2010 the respondent recalled and cancelled the certificate, prompting the applicant's Constitutional Petition No. 42 of 2010, which the Constitutional Court decided in her favour. The respondent appealed to the Supreme Court (Constitutional Appeal No. 4 of 2011). In the pending appeal the applicant sought leave to adduce a letter (Annexure C7) dated 3 September 2010 in which the respondent directed Nkumba University to withdraw the applicant's degree. The applicant averred she became aware of the letter only after instructing new counsel, who encountered it in the proceedings of Election Petition No. 6 of 2011, and that it had been within the respondent's exclusive possession. The respondent contended the letter was not a final decision, was pre-existing, and that the application was delayed.

Issues

  1. Whether the applicant satisfied the established principles warranting the Court's exercise of its discretion to grant leave to adduce additional evidence on appeal.
  2. Whether the applicant required the leave of the Court to file a supplementary record of appeal.

Orders

  • Application for leave to adduce additional evidence allowed.
  • Applicant directed to file the additional evidence within 7 days from the date of the ruling.
  • Prayer for leave to file a supplementary record of appeal declined as unnecessary.
  • Costs to abide the determination of the appeal.

Key headnotes

Appeals — Admission of Additional Evidence — Exceptional Circumstances Test
An appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, namely where the evidence is newly discovered and could not, with due diligence, have been produced earlier; is relevant to the issues; is credible; would probably influence the result though need not be decisive; is supported by proof attached to the affidavit; and is sought without undue delay.
Documentary Evidence — Credibility — Capable of Belief
Documentary evidence is credible and capable of belief where it is on the maker's headed paper, signed by an authorised officer, certified as a true copy, and its authenticity is not challenged by the opposing party.
Appeals — Supplementary Record of Appeal — Respondent's Right Without Leave
A respondent who considers the record of appeal defective or insufficient may lodge a supplementary record of appeal as of right under Rule 86(1) of the Judicature (Supreme Court) Rules and does not require the leave of the Court to do so.

Legislation cited (5)

  • Judicature (Supreme Court) Rules r.30(2)(a)
  • Judicature (Supreme Court) Rules r.2(2)
  • Judicature (Supreme Court) Rules r.86(1)
  • Judicature (Supreme Court) Rules r.86(2)
  • Constitutional Court (Petitions and Reference) Rules 2005 r.23(2)

Cases cited (12)

  • Attorney General v P. Kawanga Ssemwogerere & 2 Others (Constitutional Application No. 2 of 2004)
  • Ladd v Marshall (1954) 3 All ER 745
  • Skone v Skone (1971) 2 All ER 582
  • Langdale v Danby (1982) 3 All ER 129
  • Sadrudin Shariff v Tarlochan Singh (1961) EA 72
  • Elgood v Regina (1968) EA 274
  • American Express International v Atulkimar S. Patel (Application No. 8B of 1986)
  • Karmali v Lakhani (1958) EA 567
  • Corbett (1953) 2 All ER 69
  • Joy Kabatsi v Anifa Kawooya & Anor (Election Petition Appeal No. 25 of 2007)
  • Joy Kabatsi v Anifa Kawooya and Electoral Commission (Election Petition No. 1 of 2006)
  • Birekeraawo Nsubuga v Muyanja Mbabali (Election Petition No. 6 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.