Wakilii

Frederick Zaabwe v Orient Bank Limited and Others (Miscellaneous Civil Application 17 of 2003)

Court of Appeal · [2003] UGCA 51 · 2003 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application before a single judge of the Court of Appeal under rule 29 of the Rules of the Court seeking an order to adduce additional evidence on appeal.
Decision
Application to adduce additional evidence dismissed with costs to the respondents

Observed later treatment

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Holding

A single judge held that, although the better practice is for an application to adduce additional evidence under rule 29 to be made at the hearing of the appeal when the court has all the facts before it, both a single judge and the court hearing the appeal have concurrent jurisdiction to entertain such an application. On the merits, the applicant failed to show sufficient reason: the documents could, with reasonable diligence, have been produced at trial since his counsel had been shown them but declined to engage with them, and no evidence of fraud was disclosed on the face of the materials. The application was dismissed with costs to the respondents.

Outcome

Application to adduce additional evidence dismissed with costs to the respondents

Facts

The applicant sued the respondents in the High Court for a declaration that the sale of his property by the first respondent as mortgagee was wrongful. He lost and appealed to the Court of Appeal. He then applied under rule 29 for leave to adduce additional evidence at the hearing of the appeal, comprising documents said to relate to dealings and correspondence between the National Water and Sewerage Corporation and the first and second respondents. He contended these documents came into his possession after judgment, that the second respondent had not defended the suit, and that the first respondent's employees had declined to attend court, leaving him no means of discovery. He further alleged the documents revealed fraud in the sale of his property. The respondent opposed, relying on the affidavit of the applicant's trial counsel, Mr. Bamwite, which showed that respondents' counsel had on two occasions given him lists of documents and that Bamwite, after cross-examination, had declined to examine documents one Dick Omara was to produce, regarding them as not properly listed.

Issues

  1. Whether a single judge of the Court of Appeal has jurisdiction to hear an application to adduce additional evidence on appeal under rule 29.
  2. Whether the applicant established sufficient reason to be permitted to adduce additional evidence at the hearing of the appeal.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Appeals — Additional Evidence — Jurisdiction of Single Judge under Rule 29
Both a single judge of the Court of Appeal and the court hearing the appeal have concurrent jurisdiction to entertain an application under rule 29 to adduce additional evidence, though the better practice is for such an application to be made at the hearing of the appeal when the court has all the relevant facts and materials before it.
Additional Evidence on Appeal — Reasonable Diligence Requirement (Ladd v Marshall)
An applicant seeking to adduce additional evidence on appeal must show sufficient reason, including that the evidence could not, with reasonable diligence, have been produced at trial; where counsel was shown the documents during trial but declined to examine or produce them, the applicant cannot later assert he only became aware of them after judgment.
Additional Evidence on Appeal — Allegation of Fraud
Where additional evidence is sought on the basis that it reveals fraud, the application will fail if nothing on the face of the documents reveals evidence of fraud.

Legislation cited (6)

  • Rules of the Court of Appeal r.29
  • Rules of the Court of Appeal r.52(1)
  • Rules of the Court of Appeal r.52(2)
  • Rules of the Court of Appeal r.42
  • Rules of the Court of Appeal r.43
  • English Rules of the Supreme Court 1883 Order 58 r.9

Cases cited (6)

  • Kanwagi Tar Mohamed and Another Vrs. I. H. Lakhani and Company (1958) EA 567
  • Sadrudin Sheriff Vrs. Tarlochan Sign (1961) E A. 72
  • Mzee Wanjie and Others (1982 - 88) I EAR 462
  • Elgood v Regina (1968) E A. 274
  • Ladd v. Marshall [1954] 1 WLR 1489 at 1491
  • Rev. Fr. Narsensio Begumisa and Others v Eric John Tibebaga, Civil Application No. 44 of 2002

Full judgment

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

Frederick Zaabwe v Orient Bank Limited and Others (Miscellaneous Civil Application 17 of 2003) [2003] UGCA 51 (16 September 2003)
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.