Attorney General & Anor v Afric Cooperative Society Ltd [2014] UGSC 6

Supreme Court · 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 civil appeal

Decision

Application allowed; full IGG report admitted in evidence; receivership issue left to be raised in the main appeal

The full judgment

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Holding

On an application to adduce the full IGG report in a pending appeal, the Supreme Court held that, since a summary of the report was already on the record and had been relied on by the courts below, the full report was not new or additional evidence but evidence elucidating evidence already on record, falling outside the exceptional-circumstances restriction in Rule 30. Given the exceptional circumstances — serious allegations of fraud and forgery of a consent judgment and colossal sums of public money — the Court invoked its inherent power under Rule 2(2), section 98 of the Civil Procedure Act and Article 126 of the Constitution to admit the report so it could finally determine the appeal. The receivership issue was left for the main appeal.

Facts

The dispute traces to the Idi Amin era when government unlawfully confiscated the respondent's motor vehicles and blocked its bank accounts. The respondent sued in 1981, and in 1989 the parties entered a consent judgment; the respondent was compensated for the vehicles but the claim for blocked accounts remained. A government auditor found about Shs.128.8 billion due by 2005, which the Attorney General approved. The IGG then stopped the payment alleging fraud. The respondent's judicial review application was dismissed by the High Court but allowed by the Court of Appeal, which quashed the IGG report for breach of the right to a fair hearing and held the IGG lacked power to investigate a court judgment. The Attorney General appealed to the Supreme Court. In that appeal the applicants sought to adduce the full IGG report, contending the courts below had only seen a summary letter dated 1 December 2005, and that the full report disclosed allegations of fraud and a forged consent judgment.

Issues

Whether the full report of the Inspector General of Government constitutes additional evidence or merely elucidates evidence already on the record.
Whether the Court should exercise its inherent power under Rule 2(2) of the Supreme Court Rules to admit the full IGG report notwithstanding Rule 30.
Whether the respondent, being allegedly in receivership, had legal capacity to sue.

Orders

Application to admit in evidence the report of the IGG allowed.
No new matters beyond the report permitted.
Each party to bear its own costs of the application.

Key headnotes

Civil Procedure — Additional Evidence — Elucidation of evidence already on record

Evidence that merely elucidates evidence already on the court record is not additional evidence, and its admission is therefore not governed by the exceptional-circumstances restriction that applies to genuinely new additional evidence.

Civil Procedure — Inherent Powers of the Court — Rule 2(2) Supreme Court Rules

The Supreme Court may exercise its inherent power under Rule 2(2) of the Judicature (Supreme Court Rules), reinforced by section 98 of the Civil Procedure Act and Article 126 of the Constitution, to make such orders as are necessary for the ends of justice, notwithstanding the apparent absence of discretion under Rule 30 to admit additional evidence.

Evidence — Additional Evidence on Appeal — Exceptional circumstances

An appellate court may admit additional evidence only in exceptional circumstances, namely that the evidence could not with due diligence have been produced earlier, is relevant and credible, would probably influence the result, is proved by affidavit, and is sought without undue delay.

Administrative Law — Judicial Review — Quashing a decision without examining the impugned document

A court should call for and study the actual document under challenge before quashing it; quashing a report the court has neither seen nor evaluated is unsatisfactory where the validity of the underlying investigation turns on its contents.

Civil Procedure — Fraud — Effect on judgments

Fraud vitiates everything; a forged judgment is a nullity and confers no legal rights upon any party.

Legislation cited (10)

Judicature Act s.7
Judicature (Supreme Court Rules) r.2(2)
Judicature (Supreme Court Rules) r.30
Judicature (Supreme Court Rules) r.42(1)
Judicature (Supreme Court Rules) r.42(2)
Judicature (Judicial Review) Rules 2009 rr.5, 6, 7
Civil Procedure Act s.98
Constitution of Uganda 1995 art.126
Inspectorate of Government Act s.19
Cooperative Societies Act

Cases cited (9)

G.M. Combined Ltd v A.K. Detergents (Supreme Court Civil Appeal No. 7 of 1998)
Makula International v His Eminence Cardinal Nsubuga (Court of Appeal Civil Appeal No. 4 of 1981)
Nsereko Joseph and 2 Others v Bank of Uganda (Supreme Court Civil Application No. 13 of 2009)
John Jet Mwebaze v Makerere University and Another (Civil Application No. 78 of 2005)
R -Vs- SOUTHAMPTON JUSTICE, Ex. PARTE GREEN (1976) 1 Q.B 11
Attorney General v Paul Kawanga Ssemwogerere and Another (Supreme Court Civil Application No. 2 of 2004)
NEWHART DEVELOPMENT LTD -Vs- COOPERATIVE COMMERCIAL BANK LTD (1978) 1 Q.B 814
AVALON MOTORS LTD (IN RECEIVERSHIP) -Vs- BERNARD LEIGH GADSDEN MOTOR CITY LTD (1998) S.J.26(S.C)
REX -Vs- YAKOBO BUSIGS S/O MAVEGO (1945) 12 EACA 60

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