Wakilii

Aluma & 2 Ors v Okuti (Miscellaneous Civil Application No. 0012 of 2016) 2017 UGHCLD 28 (2017-03-29)

High Court · [2017] UGHCLD 28 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional evidence on appeal arising from Civil Suit No. 0023 of 2013
Decision
Application for leave to adduce additional evidence refused

Observed later treatment

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Holding

Held that the application for leave to adduce additional evidence on appeal was dismissed. The evidence sought to introduce proof of ownership by a third party not involved in the proceedings was irrelevant to determining the relative strengths of the competing claims between the parties. The evidence does not elucidate evidence already on record but introduces an entirely new matter. The decision by counsel not to adduce the evidence at trial was an error of judgment, not a mistake of counsel, and is therefore binding on the applicants. The application was also brought two years late without explanation.

Outcome

Application for leave to adduce additional evidence refused

Facts

The applicants were unsuccessful at trial in Civil Suit No. 0023 of 2013, where the trial court found that the disputed land belonged to the respondent. The applicants sought leave to adduce additional evidence on appeal, comprising documents allegedly proving that the land belonged to a third party firm, not the respondent. They claimed they had provided these documents to their advocate during trial but he failed to lead them to produce the documents in evidence. The applicants argued this was a mistake of counsel that should not be visited on them. The respondent opposed the application, contending the documents were irrelevant. The application was filed in December 2015, two years after the appeal was lodged in 2013, without explanation for the delay.

Issues

  1. Whether the court should grant leave to adduce additional evidence (both oral and documentary) at the hearing of the appeal.
  2. Whether the evidence sought to be adduced satisfies the legal test for admission of fresh evidence on appeal as set out in Ladd v Marshall.
  3. Whether the failure to adduce the evidence at trial was a mistake of counsel that should not be visited on the applicants or an error of judgment binding on the applicants.

Orders

  • Application dismissed with costs to the respondent.

Rules and key headnotes

Civil Procedure — Additional Evidence on Appeal — Test for Admission
An appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, which require: (i) discovery of new and important evidence which, after due diligence, was not within the knowledge of or could not have been produced at trial; (ii) the evidence must be relevant to the issues; (iii) the evidence must be credible; (iv) the evidence must be such that, if given, it would probably have an important influence on the result; (v) the affidavit must attach proof of the evidence sought; and (vi) the application must be brought without undue delay.
Land Law — Ownership Disputes — Relative Title
In cases involving questions of ownership of land, the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B, A is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession of the land.
Civil Procedure — Additional Evidence on Appeal — Relevance Requirement
Evidence sought to be adduced on appeal that introduces an entirely new matter never raised at trial and which does not emerge from the evidence on record will not be admitted. Evidence proving that the true owner of disputed property is a third party not involved in the proceedings is irrelevant to determining the relative strengths of the competing claims between the actual parties and therefore inadmissible on appeal.
Civil Procedure — Counsel's Conduct — Mistakes versus Errors of Judgment
A distinction exists between mistakes of counsel (acts of unskilfulness, carelessness or lack of knowledge resulting from inadvertence, negligence or incompetence) and errors of judgment by counsel (the product of deliberate application of mind to assessing probabilities and making choices during litigation). Whereas mistakes of counsel should not be visited on the litigant, a litigant is bound by errors of judgment of counsel, as litigants rely on their advocate's capacity at judgment and rational decision-making.
Civil Procedure — Additional Evidence on Appeal — Evidence Available at Trial
It is an invariable rule that if evidence was in the possession of parties at the time of trial, or by proper diligence might have been obtained, but was not produced, and the case is decided adversely to the party to whom the evidence was available, no opportunity for producing that evidence ought to be given on appeal. It would undermine the system of justice if a party could re-run a trial simply because potentially persuasive evidence had not been put before the trial court.
Civil Procedure — Additional Evidence on Appeal — Delay in Application
Applications for the admission of additional evidence must be brought without undue delay. Where an application to adduce additional evidence is filed two years after the appeal was lodged, without furnishing any explanation for the inordinate delay, the application may be dismissed on that ground alone.

Legislation cited (2)

Cases cited (17)

  • Brown v Dean [1910] AC 373
  • Ladd v Marshall [1954] 1 WLR 1489
  • Skone v Skone [1971] 1 WLR 817
  • Mzee Wanje and others v Saikwa and others [1976-1985] I EA 364
  • Attorney General v Ssemogerere (Constitutional Application No. 2 of 2004)
  • Makubuya Enock William v Bulaim Muwanga Kibirige (Civil Application No. 133 of 2014)
  • Bangirana Kawoya v National Council for Higher Education (Miscellaneous Application No. 8 of 2013)
  • Karmali Tarmohamed v TH Lakhani [1958] EA 567
  • Namisango v Galiwango [1986] HCB 37
  • Kanyike v Electoral Commission (Civil Application No. 13 of 2006)
  • R v Yakobo Busigo (1945) 12 EACA 60
  • Regina v Secretary of State for the Home Department ex parte Momin Ali [1984] 1 WLR 663
  • Ocean Estates Ltd v Pinder [1969] 2 AC 19
  • Bamanya v Zaver (Civil Application No. 70 of 2001)
  • Ggoloba Godfrey v Kizito (Civil Appeal No. 7 of 2006)
  • Nalumansi v Bale (Civil Application No. 2 of 1999)
  • Ridehalgh v Horsefield [1994] Ch 205

Full judgment

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Aluma & 2 Ors v Okuti (Miscellaneous Civil Application No. 0012 of 2016) 2017 UGHCLD 28 (2017-03-29)
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.