Wakilii

American Express International Banking Corporation v Atulkumar Sumant Bhai Patel (Civil Application No. 8 of 1986)

Court of Appeal · [1986] UGCA 21 · 1986 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application in the Court of Appeal to adduce additional evidence by affidavit on an appeal from a High Court order.
Decision
Application to adduce additional evidence refused with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal refused an application to adduce additional evidence by affidavit at the appellate stage. Applying the established conditions for the reception of fresh evidence, the court held that the proposed evidence concerning the difficulties of suing and enforcing judgment in Singapore was not new; it was available at the time of trial and was within the knowledge of the applicant's counsel. The applicant had not shown due diligence in obtaining or producing it earlier. As the evidence could reasonably have been included in an earlier affidavit sworn in 1984, the conditions for admitting additional evidence were not met and the application was refused with costs to the respondent.

Outcome

Application to adduce additional evidence refused with costs to the respondent

Facts

The applicant bank sought leave to file additional evidence by affidavit of its Singapore counsel, Dennis M. Singham, on appeal from a High Court order in a suit arising from a guarantee signed on 31 March 1978. The proposed affidavit was intended to show that a suit against the respondent in Singapore would face difficulties: service outside the jurisdiction would be problematic, the respondent had no known assets in Singapore against which execution could be levied, and because there was no reciprocal enforcement agreement between Singapore and Uganda, any Singapore judgment could not be enforced in Uganda where the respondent had assets. The suit had been filed on 3 May 1983, and numerous affidavits, including one by Singham on 8 February 1984, had already been sworn. Telex messages seeking clarification of these procedural matters were sent to Singham in July and August 1986, some three years after the suit was filed. The High Court ruling had been delivered on 21 February 1985.

Issues

  1. Whether the applicant should be allowed to adduce additional evidence by affidavit at the appellate stage.
  2. Whether the applicant satisfied the conditions for reception of fresh evidence, particularly that the evidence could not with reasonable diligence have been obtained for use at the trial.

Orders

  • The application is refused.
  • Costs to the respondent in any event.

Rules and key headnotes

Appeals — Reception of Additional Evidence — Conditions to be Satisfied
Before an appellate court will admit additional evidence, three conditions must be satisfied: the evidence could not have been obtained with reasonable diligence for use at the trial; it would probably have an important influence on the result though it need not be decisive; and it must be apparently credible.
Additional Evidence — Due Diligence — Facts Within Party's Knowledge at Trial
An application to adduce additional evidence will be refused where the facts sought to be proved were within the knowledge of the party or its counsel at the time of trial and could have been produced then; such matters constitute evidence not produced rather than evidence newly discovered.
Forum — Objective Evidence Required to Justify Preferred Forum
A litigant's belief, however genuine, that it would be advantageous to proceed in the local forum rather than a foreign forum is insufficient to displace the more natural and appropriate forum unless supported by objective evidence.

Legislation cited (2)

  • Court of Appeal Rules rule 29
  • Court of Appeal Rules rule 42

Cases cited (6)

  • Karmali Tarmohamed and Another v I.H. Lakhani & Co [1958] EA 562
  • Nash v Rochford Rural Council [1917] 1 KB 393
  • The Abidin Daver [1984] 1 All ER 470
  • Corbett v Corbett [1953] 2 All ER 69
  • Nyanzi v Kayima (Civil Appeal No. 67 of 1953)
  • Sheden v Patrick

Full judgment

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

American Express International Banking Corporation Vs Atulkumar Sumant Bhai Patel (Civil Application No. 8 of 1986) [1986] UGCA 21 (7 November 1986)
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.