Wakilii

Byangire and Another v Buregeya (Miscellaneous Application No. 9 of 2018)

High Court · [2022] UGHCCD 142 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional evidence and argue new grounds in a pending civil appeal arising from a land dispute
Decision
Application dismissed; underlying appeal to proceed on its merits

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Holding

The High Court dismissed the application for leave to adduce additional evidence and argue new grounds on appeal. The court upheld a preliminary objection based on non-service of the application on the respondent within the statutory 21-day period, finding this a mandatory requirement going to jurisdiction. On the merits, the court held that the proposed additional evidence could have been discovered through due diligence at trial and that the applicants were attempting to patch up weaknesses in their case rather than introduce genuinely new evidence.

Outcome

Application dismissed; underlying appeal to proceed on its merits

Facts

The applicants were defendants in Civil Suit No. 03 of 2015 concerning land at Nakasagazi which the respondent had purchased from Andrew Mugisha in 2008. The respondent obtained judgment and the applicants appealed (Civil Appeal No. 050 of 2016). The applicants then filed this application seeking leave to adduce additional evidence and argue new grounds on appeal. The proposed additional evidence concerned the validity of the sale to the respondent, specifically whether Andrew Mugisha had authority to sell the land as he allegedly lacked Letters of Administration to the Estate of the late Kanyankole, and whether the respondent had locus standi to sue. The second applicant, Josephat Lusiba, was the LC 1 Chairperson of Nakasagazi village and had signed and stamped the purchase agreement between the respondent and Andrew Mugisha. The application was filed in February 2018 but the respondent claimed it was never served. The respondent filed his reply in June 2020 after being served with the applicants' written submissions filed in November 2019.

Issues

  1. Whether the application was properly served on the respondent in accordance with the Civil Procedure Rules.
  2. Whether the applicants should be granted leave to adduce additional evidence at the hearing of the appeal.
  3. Whether the applicants should be granted leave to argue new grounds on appeal.

Orders

  • Preliminary objection upheld.
  • Application dismissed for non-service on the respondent.
  • Application dismissed on the merits as devoid of merit.
  • Costs awarded to the respondent.
  • Court to proceed and hear Civil Appeal No. 050 of 2016 on its merits.

Rules and key headnotes

Civil Procedure — Service of Process — Mandatory Nature — Effect of Non-Service
Service of summons and applications within the statutory 21-day period prescribed by Order 5 rule 1(2) of the Civil Procedure Rules is mandatory and goes to the jurisdiction of the court. It is not a mere technicality but the foundation of the right to be heard. The penalty for default in service is dismissal of the suit or application.
Civil Procedure — Service of Process — Proof of Service — Affidavit of Service
Under Order 5 rule 16 of the Civil Procedure Rules, the serving officer must make or annex an affidavit of service to the original summons in all cases where service has been effected. The absence of an affidavit of service on record renders a claim of non-service valid.
Evidence — Additional Evidence on Appeal — Conditions for Admission
Additional evidence is taken on appeal only in exceptional circumstances, usually where such evidence was not available at the time of trial and could not have been obtained using reasonable diligence. The evidence must be credible and likely to influence the result of the case. An appellate court will not allow additional evidence where it appears the unsuccessful party is seeking to make a fresh case on appeal, fill up omissions, or patch up weak points in their case.
Civil Procedure — Pleadings — Parties Bound by Pleadings
Parties are bound by their pleadings. Evidence which does not support the averments in the pleadings or which is at variance with the pleadings goes to no issue and must be disregarded. Parties are not allowed to depart from their pleadings by raising new issues in submissions that were never pleaded.

Legislation cited (10)

Cases cited (6)

  • Michael Mulo Mulaggussi v Peter Katabalo (High Court Miscellaneous Appeal No. 6 of 2016)
  • Kanyabwera v Tumwebaze [2005] 2 EA 86
  • Rashid Abdul Karim and Another v Suleiman Adris (High Court Miscellaneous Application No. 9 of 2017)
  • Hon. Anifa Bangirana Kawooya v National Council for Higher Education (Supreme Court Miscellaneous Application No. 8 of 2013)
  • Adetoun Oladeji (Nig) ltd vs Nigerian Breweries plc S.C. 91 of 2002
  • Mujasi Masaba Bernard Elly v Magombe Vincent & Anor E.P.A.

Full judgment

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

Byangire and Another v Buregeya (Miscellaneous Application No. 9 of 2018) [2022] UGHCCD 142 (22 September 2022)
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.