Wakilii

Basalirwa & 3 Others v Namakula & 3 Others (Miscellaneous Application 141 of 2023)

High Court · [2024] UGHC 272 · 2024 Application Granted 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 a civil appeal against a succession suit judgment
Decision
Leave granted to adduce additional evidence on appeal; matter to proceed to appeal hearing with additional evidence

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted an application for leave to adduce additional evidence on appeal where the applicants' former counsel, who lacked a practising certificate, failed to apply for tendering of the original will and other documents signed by the deceased. The court held that the failure to tender such evidence constituted an omission that no reasonably competent member of the legal profession would have made, and that the additional evidence sought was relevant to enable proper comparison of signatures on disputed documents, particularly a marriage certificate alleged to bear a forged signature of the deceased.

Outcome

Leave granted to adduce additional evidence on appeal; matter to proceed to appeal hearing with additional evidence

Facts

The applicants appealed from a judgment in a succession suit (Civil Suit No. 53/2018 from Njeru Court). During the trial, a will of the deceased Ouma Tobby Mulumya was disputed. The applicants' defence witness (DW5, Jacob Busera) produced the original will in court, but it was not formally tendered as an exhibit. The trial court relied on comparison of the deceased's signature on a marriage certificate produced by the second respondent with the purported will. The applicants were represented by counsel who allegedly lacked a practising certificate. After judgment, the applicants discovered additional documents bearing the deceased's signature. The trial lasted approximately five years from 2019 to judgment in October 2022. The applicants sought leave to adduce the original will and other signed documents as additional evidence on appeal, alleging the signature on the marriage certificate was forged.

Issues

  1. Whether the application discloses substantial causes for grant of leave to the applicants to adduce further oral and documentary evidence on appeal

Orders

  • Application allowed.
  • Leave granted to adduce additional evidence on appeal, including the original will of the deceased and other documents signed by the deceased.
  • Costs of this application to abide the outcome of the appeal.

Rules and key headnotes

Evidence — Additional Evidence on Appeal — Exceptional Circumstances — Incompetent Representation
Where a party's counsel lacks a practising certificate and fails to tender material evidence that a reasonably competent member of the legal profession would have tendered, this constitutes an exceptional circumstance justifying admission of additional evidence on appeal, as litigants should not be penalised for omissions no competent advocate would have made.
Evidence — Additional Evidence on Appeal — Conditions for Admission — Relevance and Credibility
Additional evidence will be admitted on appeal where it is relevant to the issues, credible in the sense of being capable of belief, and would probably influence the result of the case, even if the evidence was available during trial but was not adduced due to counsel's failure to do what a competent member of the profession would have done.
Civil Procedure — Legal Representation — Duty of Court to Verify Practising Certificate
Courts have a duty under the Advocates Act to ensure that advocates appearing before them are licensed to practise law by verifying their practising certificates, and failure to do so may open the door to incompetent representation that prejudices litigants.

Legislation cited (7)

Cases cited (6)

  • Ggolooba Godfrey v Harriet Kizito (Civil Appeal No. 7 of 2006)
  • Makula International Ltd v Cardinal Nsubuga and Another [1987] HCB
  • Surgipharm(u) limited V Uganda Investment Authority and Another HCMC
  • Micheal Mabike v Law Development Centre (Court of Appeal Miscellaneous Application No. 16 of 2015)
  • Aluma Micheal Bayo and 2 Others v Said Nasur Okuti (Miscellaneous Application No. 12 of 2016)
  • Bangirana Kawoya v National Council of Higher Education (Miscellaneous Application No. 8 of 2013)

Full judgment

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

Basalirwa & 3 Others v Namakula & 3 Others (Miscellaneous Application 141 of 2023) [2024] UGHC 272 (25 April 2024)
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.