Dr. Sheik Ahmed Mohammed Kisuule v Greenland Bank Limited (In Liquidation) (Civil Appeal 9 of 2016)

Supreme Court · [2019] UGSC 80 · 2019 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second civil appeal from the Court of Appeal's dismissal of an appeal against the High Court's refusal of an application to review its judgment.

Decision

Appeal dismissed; the judgment and orders of the Court of Appeal upheld.

The full judgment

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Holding

On a second appeal, the Supreme Court considered whether the Court of Appeal erred in upholding the High Court's refusal of an application to review its judgment. The Court held that review under section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules requires discovery of a new and important matter that, after due diligence, was not within the applicant's knowledge, and must be made without unreasonable delay. The letter relied on had been within the applicant's own knowledge and surfaced only one year and eleven months after judgment, justifying the finding that it was suspect. The lower courts' concurrent findings disclosed no error of law. The appeal was dismissed with costs.

Facts

The appellant and one Kiriisa Yahaya obtained a loan of UGX 30,000,000 from the respondent bank in November 1995 to start a cooking oil factory, securing it with two certificates of title over land at Makerere Kikoni. After default, the appellant assumed sole responsibility for repayment under a new account but defaulted again. The bank sold the pledged securities for about UGX 7,265,000, leaving an outstanding balance, and sued to recover roughly UGX 78,000,000 plus interest and costs. The appellant claimed the bank had agreed to freeze or waive interest, which the bank denied. The High Court found no waiver and entered judgment for the bank with interest at 15% per annum and costs. In 2007 the appellant applied to review that judgment, relying on a letter dated 14 July 1998 said to evidence the freezing of interest, which he claimed had been misplaced in Saudi Arabia where he had served as Ambassador. The trial judge found the letter suspect and refused review.

Issues

Whether the Court of Appeal erred in holding that the application for review was brought five years after delivery of the High Court judgment.
Whether the Court of Appeal erred in supporting the trial judge's finding that the letter of 14 July 1998 was suspect and was not a new and important matter that could have been availed at the trial.
Whether the Court of Appeal erred in agreeing with the trial judge that the appellant had failed to adduce credible evidence to support his claim that the respondent waived interest on the loan.
Whether the Court of Appeal erred in failing to address the new terms of the alleged fresh agreement.
Whether the Court of Appeal, as a first appellate court, failed to re-evaluate the evidence on record and subject it to fresh scrutiny.

Orders

Appeal dismissed.
Judgment and orders of the Court of Appeal upheld.
Costs awarded to the respondent in this Court and the Courts below.

Key headnotes

Civil Procedure — Review of Judgments — Conditions for Review under Section 82 CPA and Order 46 CPR

An application for review under section 82 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules succeeds only where the applicant shows the discovery of a new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced at the time, or a mistake or error apparent on the face of the record, or some other sufficient reason, and the application is made without unreasonable delay.

Civil Procedure — Review of Judgments — Unreasonable Delay and Laches

Delay in bringing an application for review is a relevant consideration even where the trial court did not rely on it; a delay of one year and eleven months after judgment, compounded by failure to mention the evidence during the suit, is unreasonable and a first appellate court is entitled to take it into account.

Evidence — Discovery of New and Important Matter — Due Diligence Requirement

A document that was within the applicant's own knowledge and which he merely failed to trace does not constitute new and important matter capable of grounding a review, and its belated emergence long after judgment justifies treating it as suspect.

Civil Procedure — First Appeal — Duty to Re-appraise Evidence

A first appellate court is obliged to re-appraise the entire evidence and come to its own conclusion on issues of both fact and law; this obligation is founded in the common law rather than in the rules of procedure.

Civil Procedure — Second Appeal — Non-interference with Concurrent Findings of Fact

A second appellate court will not interfere with concurrent findings of fact of the lower courts unless the first appellate court erred in law by failing to subject the evidence as a whole to fresh and exhaustive scrutiny.

Legislation cited (8)

Civil Procedure Act s.82
Civil Procedure Rules Order 46 r.1
Evidence Act s.58
Evidence Act s.59
Evidence Act ss.100-103
Court of Appeal Rules r.29(1)
Court of Appeal Rules r.92(1)
Court of Appeal Rules r.92(2)

Cases cited (9)

Muyodi v Industrial & Commercial Development Corporation & Anor (2006) 1 EA 243
Mohammed Allibhai v Bukenya and Departed Asians Custodian Board (Civil Appeal No. 56 of 1999)
Administrator General v Bwanika James and Others (Civil Appeal No. 7 of 2003)
Coghlan v Cumberland (1898) 1 Ch 704
Pandya v R (1957) EA 336
Shartilal M. Ruwala Vs R (Supra)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
Fr. Narsensio Begumisa and Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)

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