Makubuya v UMEME Limited (Civil Application 18 of 2019)

Supreme Court · [2021] UGSC 31 · 2021 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to adduce additional evidence on second appeal, brought under section 98 of the Civil Procedure Act and Rules 2(2), 42 and 43 of the Supreme Court Rules

Decision

Application to adduce additional evidence dismissed; recusal application also dismissed

The full judgment

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court dismissed an application to adduce additional evidence on second appeal. The recusal request against Justice Opio-Aweri was refused as the judge's son was neither a party nor advocate and no credible evidence of bias was shown. The proposed invoices were dated after the High Court judgment and so were not new evidence; the applicant showed no due diligence and ought to have sought to produce them in the High Court or Court of Appeal. The applicant had never pleaded special damages and could not indirectly amend his plaint on second appeal. The Electricity Disputes Tribunal record was not evidence. The application, filed six months after the appeal, was also dilatory.

Facts

The applicant sued the respondent in the High Court (HCCS No. 534 of 2012) for compensation for machines lost through economic loss attributed to the respondent. The High Court found in the applicant's favour, awarding general damages, interest and costs, and referred the matter to the Electricity Disputes Tribunal to value the machines for compensation. The respondent appealed to the Court of Appeal and obtained a stay halting the valuation. The Court of Appeal upheld an award of general damages but found the applicant had not pleaded special damages. On second appeal to the Supreme Court, the applicant sought to adduce fresh evidence — a valuation report and invoices from MOK & Associates dated 12 March 2015, and the Electricity Disputes Tribunal ruling and proceedings — contending he had pleaded and proved special damages. The invoices post-dated the High Court judgment, delivered in February 2015. The application was brought roughly six months after the appeal was filed.

Issues

Whether Hon. Justice Opio-Aweri should recuse himself on the ground that his son was employed by the respondent.
Whether the applicant should be allowed to adduce additional evidence on second appeal.
Whether the applicant had pleaded special damages in his claim in the High Court.
Whether the ruling and proceedings of the Electricity Disputes Tribunal could be treated as admissible additional evidence.
Whether there was undue delay in bringing the application.

Orders

Application for recusal of Hon. Justice Opio-Aweri dismissed.
Application to adduce additional evidence dismissed.
Costs to abide the outcome of the main appeal.

Key headnotes

Recusal of Judicial Officers — Test for Apparent Bias — Insufficiency of Unsupported Allegations

A judicial officer is not bound to recuse himself merely because allegations of bias are raised; the allegations must be substantial, and a reasonable litigant, mindful of the presumption of judicial impartiality, must have a reasonable apprehension that the officer was or might be biased.

Additional Evidence on Appeal — Conditions for Admission — Requirement of New Evidence and Due Diligence

Additional evidence will not be admitted on appeal unless it is new and important matter which, after the exercise of due diligence, was not within the party's knowledge or could not have been produced at the time of the suit; evidence post-dating the trial judgment and capable of earlier production does not qualify.

Additional Evidence on Second Appeal — Failure to Seek Production at First Appeal

A party who failed, without justification, to seek leave to produce additional evidence before the first appellate court cannot be permitted to adduce that evidence for the first time on second appeal.

Special Damages — Requirement of Specific Pleading and Strict Proof — No Indirect Amendment on Appeal

Special damages must be specifically pleaded and strictly proved; a party who did not plead special damages at trial cannot indirectly amend the plaint on second appeal by adducing evidence to establish such damages.

Applications to Adduce Additional Evidence — Undue Delay

An application to admit additional evidence must be brought without undue delay; an application filed some six months after the appeal was filed amounts to dilatory conduct.

Legislation cited (6)

Civil Procedure Act s.98
Judicature Act s.7
Supreme Court Rules r.2(2)
Supreme Court Rules r.42
Supreme Court Rules r.43
Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019 para.4

Cases cited (10)

Attorney General and IGG v Afric Co-operative Society Ltd (Miscellaneous Application No. 6 of 2012)
Attorney General v The East African Law Society (Civil Appeal No. 1 of 2013)
Fredrick J.K Zaabwe v Orient Bank Ltd & 5 Others (Civil Appeal No. 4 of 2006)
Mumbere v Uganda (Criminal Appeal No. 15 of 2014)
Attorney General v Paul K. Ssemwogerere & 2 Others (Constitutional Application No. 2 of 2004)
Hon. Anifa Bangirana Kawooya v National Council for Higher Education (Civil Appeal No. 8 of 2013)
Kyagulanyi Ssentamu Robert v Yoweri Kaguta Museveni Tibuhaburwa & 2 Others (Miscellaneous Application No. 3 of 2021)
Prof. Isaac Newton Ojok v Uganda (Criminal Appeal No. 33 of 1991)
Musoke David v Departed Asians Property Custodian Board (Civil Appeal No. 1 of 1992)
Borham-Carter vs. Hyde Park Hotel [1948] 64 TLR, 177

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