Wakilii

Muhindo Nderu v Kamanyire [2021] UGCA 212

Court of Appeal · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional evidence in a pending second civil appeal, met with a preliminary objection
Decision
Application dismissed on the preliminary objection; costs to abide the outcome of the pending second appeal

Observed later treatment

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Holding

The Court of Appeal upheld a preliminary objection to an application for leave to adduce additional evidence in a pending second appeal. The Court held that Rule 30(1)(b) of the Court of Appeal Rules confines the discretion to admit additional evidence to appeals from the High Court's original jurisdiction, and that Rule 32(2) expressly bars additional evidence on a second appeal. While an exception permits evidence to elucidate matters already on record, the applicant's notice of motion and supporting affidavit sought to adduce additional evidence, not elucidate existing evidence, and no amended application had been filed. The application was dismissed, with costs to abide the outcome of the appeal.

Outcome

Application dismissed on the preliminary objection; costs to abide the outcome of the pending second appeal

Facts

The applicant claimed to have purchased 100 acres of land from Eziron Bintu Bwambale in 1976 by unsurveyed sale agreement, developing and demarcating it. In 1992 he successfully sued to cancel a title acquired by Yafesi Malimali, and was declared entitled to 100 acres. A subsequent survey revealed an excess of about 20 acres in his possession, but his title issued was limited to 100 acres. The deceased Kamanyire Ali had bought approximately 80 acres from the same vendor and obtained title including the disputed 20 acres. The applicant sued the deceased in the Chief Magistrate's Court for trespass; the Magistrate found the applicant a bona fide occupant and held the deceased's title fraudulent. On appeal, the High Court reversed, holding the applicant was no longer a bona fide occupant and that the deceased's title was lawful. The applicant filed a second appeal to the Court of Appeal and, within it, applied for leave to adduce additional evidence, including subsequent court orders and suits concerning the disputed land.

Issues

  1. Whether the Court of Appeal has discretion to admit additional evidence in an application arising from a second appeal from the High Court exercising appellate jurisdiction.
  2. Whether the applicant's application, framed as leave to adduce additional evidence, could be treated as an application to elucidate evidence already on record.

Orders

  • The preliminary objection is upheld.
  • The application is dismissed.
  • The costs of this application shall abide the outcome of the appeal.

Rules and key headnotes

Appeals — Additional Evidence — Discretion Confined to First Appellate Jurisdiction
Under Rule 30(1)(b) of the Judicature (Court of Appeal Rules) Directions, the Court's discretion to take additional evidence applies only to appeals from decisions of the High Court acting in the exercise of its original jurisdiction, and does not extend to appeals from the High Court sitting as a first appellate court.
Second Appeals — No Discretion to Hear Additional Evidence
On a second appeal from the decision of the High Court acting in its appellate jurisdiction, Rule 32(2) of the Court of Appeal Rules empowers the Court to appraise inferences of fact but expressly denies it discretion to hear additional evidence.
Elucidation of Evidence — Exception to the Bar on Additional Evidence
Evidence not adduced at trial may exceptionally be received on appeal, not as additional evidence but to elucidate evidence already on record, where exceptional circumstances are shown; such evidence must not introduce new matters and may be called even on the Court's own volition where a party was denied a fair hearing.
Applications — Pleadings Determine Nature of Relief — Submissions from the Bar
The nature of an application is determined by the notice of motion and supporting affidavit, not by counsel's submissions from the bar; an application expressly seeking leave to adduce additional evidence cannot be recharacterised as one to elucidate evidence absent an amended application to that effect.
Judicial Notice — Court Orders and Suits as Public Documents
Court orders and suits are public documents within the meaning of sections 73 and 75 of the Evidence Act, of which the Court can take judicial notice.

Legislation cited (9)

Cases cited (4)

  • Nsereko Joseph and Others v Bank of Uganda (Civil Application No. 13 of 2009)
  • Attorney General and Another v Afric Cooperative Society Ltd (Miscellaneous Application No. 6 of 2012)
  • Kibalama Mugwanya v Butebi Investment Enterprises Ltd (Civil Appeal No. 190 of 2012)
  • G. M. Combined Ltd v A.K. Detergents (Civil Application No. 7 of 1998)

Full judgment

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

Muhindo Nderu v Kamanyire 2021 UGCA 212 (20 October 2021)
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.