Wakilii

Fredrick J.K. Zaabwe v Orient Bank Limited and Others (Civil Miscellaneous Application 17 of 2003)

Court of Appeal · [2003] UGCA 20 · 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 to adduce additional evidence on a pending appeal
Decision
Application to adduce additional evidence dismissed with costs

Observed later treatment

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Holding

The single judge held that although the better practice is for an application to adduce additional evidence to be made at the hearing of the appeal, both a single judge and the full court have concurrent jurisdiction to entertain it. On the merits, applying Ladd v Marshall, the applicant failed to show sufficient reason: the documents had been offered to his counsel during trial but were brushed aside, so he could not claim to have only become aware of them after judgment. Nothing on the face of the documents revealed fraud. The application to adduce additional evidence was accordingly dismissed with costs to the respondents.

Outcome

Application to adduce additional evidence dismissed with costs

Facts

The applicant sued the respondents in the High Court seeking a declaration that the sale of his mortgaged property by the respondent bank was wrongful. He lost and appealed to the Court of Appeal. Pending the appeal, he applied under rule 29 to adduce additional evidence comprising documents allegedly obtained after judgment, relating to dealings and correspondence between the National Water and Sewerage Corporation and the respondents. He contended that the documents showed the loan had been fully repaid, that the bank was not entitled to sell as mortgagee, and that they revealed fraud. The evidence showed that during the trial counsel for the respondents had given the applicant's counsel, Mr. Bamwite, lists of documents and a set of documents one Dick Omara was to produce, but Mr. Bamwite declined them as not properly listed. The applicant therefore had an opportunity to examine the documents during trial.

Issues

  1. Whether a single judge of the Court of Appeal has jurisdiction to hear an application to adduce additional evidence under rule 29 of the Rules of the Court.
  2. Whether the applicant had shown sufficient reason for the Court to take additional evidence on appeal.

Orders

  • Application to adduce additional evidence dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Additional Evidence on Appeal — Jurisdiction of Single Judge under Rule 29
Both a single judge and the full Court of Appeal have concurrent jurisdiction to entertain an application to adduce additional evidence under rule 29, though the better practice is for such an application to be made at the hearing of the appeal when the court is in possession of all the facts.
Evidence — Admission of Fresh Evidence on Appeal — Sufficient Reason and the Ladd v Marshall Principles
An applicant seeking to adduce additional evidence on appeal must show sufficient reason; where the evidence was available and offered during trial but his counsel declined to examine it on a technicality, the applicant cannot later claim to have become aware of it only after judgment and the application will fail.
Evidence — Allegations of Fraud — Burden to Show Prima Facie Evidence
Where additional evidence is sought to be adduced on the basis of alleged fraud, the application will be refused if nothing on the face of the documents reveals evidence of fraud.

Legislation cited (5)

  • Rules of the Court of Appeal r.29
  • Rules of the Court of Appeal r.42
  • Rules of the Court of Appeal r.43
  • Rules of the Court of Appeal r.52
  • 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
  • Mree Wunjie and another v Gumer (1982 - 88) 1 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 44 of 2002

Full judgment

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

Fredrick J.K. Zaabwe v Orient Bank Limited and Others (Civil Miscellaneous Application 17 of 2003) [2003] UGCA 20 (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.