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A.G. of Republic of Uganda v East African Law Society and Another (Appeal 1 of 2013)

East African Court of Justice · [2015] EACJ 65 · 2015 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory appeal from the First Instance Division's ruling granting leave to adduce additional evidence in electronic format
Decision
Appeal dismissed and matter remitted to First Instance Division for hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Appellate Division held that the First Instance Division properly exercised its discretion in granting leave to adduce additional electronic evidence. The Court found that the 1st Respondent provided sufficient grounds for the delay in obtaining the evidence, which was in the custody of third parties and required diplomatic negotiations. The Court emphasized that Rule 46(1) of the EACJ Rules permits filing of documents after pleadings close with leave of court, and that Rule 1(2) grants inherent power to make orders necessary for the ends of justice. The new evidence did not constitute separate causes of action but merely elaborated on incidents already pleaded. No prejudice would result as the Appellant would have opportunity to rebut the evidence.

Outcome

Appeal dismissed and matter remitted to First Instance Division for hearing on merits

Facts

The East African Law Society filed a Reference before the EACJ alleging Treaty violations by Uganda arising from walk-to-work protests following the 2011 General Elections. At the scheduling conference on 23 February 2012, parties agreed all evidence would be by affidavit. Subsequently, on 3 September 2012, the Law Society applied for leave to adduce additional evidence in electronic format (video footage from NTV Uganda) which it stated had been difficult to obtain due to diplomatic hurdles and corporate red tape, only becoming available on 25 June 2012. The First Instance Division granted leave on 13 February 2013. The Attorney General appealed, arguing the trial judges improperly exercised their discretion.

Issues

  1. Whether the learned trial Judges of the First Instance Division properly exercised their discretion in allowing the 1st Respondent leave to adduce additional evidence in electronic format after the close of pleadings.

Orders

  • Appeal dismissed.
  • Matter remitted to the First Instance Division for determination of the Reference on the merits.
  • Costs of this Appeal to be in the cause.

Rules and key headnotes

Civil Procedure — Additional Evidence — Discretion to Admit After Close of Pleadings — Principles Governing Exercise of Discretion
A court has discretion under Rule 46(1) of the EACJ Rules of Procedure to grant leave for filing of documents after the close of written proceedings. An appellate court will only interfere with the exercise of such discretion where the judge misdirected himself on governing principles, took into account matters he ought not to consider or failed to consider matters he ought to have considered, or where the exercise of discretion was plainly wrong.
Evidence — Additional Evidence — Ladd v Marshall Test — Application in International Court Context
The principles in Ladd v Marshall governing admission of fresh evidence require that: (i) the evidence was not available at trial or could not be obtained with reasonable diligence; (ii) the evidence must be credible and of such nature that it would have important influence on the result; and (iii) the evidence must be patently credible though need not be incontrovertible. Where a party provides grounds showing evidence was in custody of third parties and required diplomatic negotiations to obtain, and the evidence is filed and available for assessment, the court may properly exercise discretion to admit it.
Evidence — Electronic Evidence — Admission After Scheduling Conference Agreement — Two-Stage Process
The process for admitting new evidence requires a two-pronged approach. First, the court addresses the application as a prima facie case to determine whether the evidence is relevant and helpful. Only after admission does the court proceed to substantive consideration of the merits, authenticity, and evidentiary value of that evidence, at which stage the opposing party may rebut and challenge it.
Civil Procedure — Scheduling Conference Agreements — Court's Power to Override for Ends of Justice
An agreement at a scheduling conference to limit evidence to affidavit format does not preclude a court from ordering otherwise where necessary for the ends of justice. Rule 1(2) of the EACJ Rules grants inherent power to make orders necessary for the ends of justice. Where new evidence in electronic format is critical to determination of the case, the need to admit it to answer authoritatively all issues in dispute outweighs adherence to a procedural agreement on format.
Civil Procedure — Additional Evidence — Distinction Between New Evidence and Evidence Elucidating Existing Record
Evidence that adds more incidents to the same transaction already pleaded, showing additional details, faces, and circumstances of events already on record, does not constitute a new cause of action. Such evidence merely elucidates, expounds, or clarifies evidence already on the court's record and is analogous to providing more and better particulars. An increase in the number of incidents to the same transaction does not create separate causes of action barred by limitation.
Civil Procedure — Substantive Justice versus Procedural Technicality — Balancing Exercise
A court of justice must perform a balancing act between procedural fairness and substantive justice. Where the overall potential for value-added in admitting proposed evidence outweighs earlier procedural agreements or technical objections, and where the evidence is critical to authoritative and conclusive determination of all issues in dispute, the court's currency should be tendered in substance over form. The settlement of a dispute cannot be made to depend mainly on a point of procedure.
Evidence — Prejudice from Admission of Additional Evidence — Opportunity to Rebut
No prejudice is occasioned to a party by admission of additional evidence where that party is given adequate opportunity to challenge the content and veracity of the evidence by putting forward its own evidence in rebuttal. The fact that admission of extensive new evidence may require reopening of some aspects of pleadings is not a bar where it enables the court to make a fair and informed decision after examining all possible evidence on the issues placed before it.

Legislation cited (9)

  • Treaty for the Establishment of the East African Community
  • EACJ Rules of Procedure Rule 46(1)
  • EACJ Rules of Procedure Rule 1(2)
  • EACJ Rules of Procedure Rule 53(3)
  • EACJ Rules of Procedure Rule 109(2)
  • Constitution of Uganda 1995 Article 126(2)
  • Constitution of Kenya 2010 Article 159(2)(d)
  • Constitution of Tanzania Article 107A(2)
  • ICJ Rules Article 56

Cases cited (23)

  • American Express International Banking v Atul [1990-1994] EA 10
  • The Abidin Daver [1984] All ER 470
  • Ladd v Marshall [1954] CA 745
  • Attorney General v Ssemwogerere and Others (Constitutional Application No. 2 of 2004)
  • Charles Ian Walter Braithwaite and Chief Personnel Officer, Public Service Commission and Attorney General, No. 687/2007 (Supreme Court of Judicature, Barbados)
  • Bitaitana and Others v Kananura [1977] HCB 34
  • Raila Odinga v Independent Electoral and Boundaries Commission and Others (Petition No. 5 of 2013)
  • Karmali Tarmohamed and Another v IH Lakhani & Co [1958] EA 567
  • Taylor v Taylor (1944) 11 EACA 46
  • Corbertt v Corbertt [1953] 2 All ER 72
  • GM Combined Ltd v AK Detergents Ltd (Civil Appeal No. 7 of 1998)
  • Attorney General of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • Mbogo v Shah [1968] EA 10
  • Shah v Allu [1974] 14 EACA 46
  • Rex v Yakobo s/o Mayenga (1954) 12 EACA 60
  • The King v Robinson [1917] 2 KB 1098
  • Ebrahim Kassim v Habre International Ltd (Reference No. 16 of 1999)
  • Nottebohm Case (Second Phase) [1955] ICJ Reports 6
  • The Free Zones Case, Eighth Annual Report, PCIJ, Series E, No.8, pp. 267-268
  • Kasikili/Sedudu Island Case [1999] ICJ Reports 1045
  • La Grand Case [2001] ICJ Reports 466
  • Armed Activities on the Territory of the Congo (Uganda) CR 2005/2 (11 April 2005), p.9
  • Aggarwal [1965] EA

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

A.G. of Republic of Uganda v East African Law Society and Another (Appeal 1 of 2013) [2015] EACJ 65 (16 January 2015)
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.