Wakilii

Mujasi v Magombe & Anor (Election Petition Appeal No. 0027 of 2017)

Court of Appeal · [2017] UGCA 24 · 2017 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional evidence on appeal in an election petition appeal
Decision
Application for leave to adduce additional evidence dismissed; matter left to be resolved in the pending cross appeal

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Holding

The Court of Appeal dismissed an application for leave to adduce additional evidence (Declaration of Results Forms for 7 polling stations) in an election petition appeal. The applicant conceded the evidence was not new; it had been available at trial but was rejected because the 7 stations were never pleaded or contested. The Court held that parties are bound by their pleadings and that evidence not admitted at trial in respect of matters not in issue cannot be admitted as additional evidence on appeal. Applying the principles in Kawooya, the application failed the first condition. The Court further found the issue premature, as the propriety of the rejection was already raised as a ground in the applicant's pending cross appeal.

Outcome

Application for leave to adduce additional evidence dismissed; matter left to be resolved in the pending cross appeal

Facts

During the trial of an election petition challenging the result for Mbale District Chairperson, the trial Judge ordered the Electoral Commission to produce Declaration of Results (DR) Forms for all polling stations. The 1st respondent had challenged results in 19 polling stations, and the trial Judge admitted only the DR Forms for those contested stations, ruling the others irrelevant to the issues. The applicant sought to introduce DR Forms for 7 additional polling stations that were never pleaded or contested, doing so by annexing them to his final written submissions rather than by application to amend pleadings. The trial Judge rejected these forms as a departure from the pleadings and as irregularly introduced at a stage prejudicial to the respondents. On appeal, the applicant applied for leave to adduce those 7 stations' DR Forms as additional evidence, conceding the evidence was not new but arguing it ought to have been admitted at trial and would elucidate the record.

Issues

  1. Whether the applicant satisfied the principles under which an appellate court may admit additional evidence on appeal.
  2. Whether Declaration of Results Forms for 7 polling stations that were not pleaded or contested at trial could be admitted as additional evidence on appeal.

Orders

  • The application is dismissed.
  • Costs to be in the cause.

Rules and key headnotes

Additional Evidence on Appeal — Conditions for Admission
An appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, including where the evidence is new and could not with due diligence have been produced at trial, is relevant and credible, would probably influence the result, and the application is brought without undue delay.
Additional Evidence on Appeal — Evidence Not New Available at Trial
Where a party concedes that the evidence sought to be adduced was available at trial and is not new, the first condition for admission of additional evidence on appeal is not satisfied and the application must fail.
Pleadings — Parties Bound by Pleadings — Evidence at Variance with Pleadings
Parties are bound by their pleadings, and evidence directed to matters not raised in the pleadings or not in issue at trial goes to no issue and cannot be admitted, whether at trial or as additional evidence on appeal.
Additional Evidence on Appeal — Distinction Between New Evidence and Evidence Elucidating the Record
Evidence that merely elucidates evidence already properly on the record may be admitted, but where the material was justifiably rejected at trial and was never properly on record, it cannot be admitted on appeal as elucidating evidence.
Election Petitions — Scope of Evidence — Uncontested Polling Stations
In an election petition, evidence is confined to the polling stations and results actually placed in issue by the pleadings; DR Forms for stations that were neither pleaded nor contested are irrelevant and properly excluded.

Legislation cited (4)

  • Judicature (Court of Appeal) Rules r.2(2)
  • Judicature (Court of Appeal) Rules r.30(1)(b)
  • Parliamentary Elections (Election Petitions) Rules r.15
  • Code of Civil Procedure Act (India) Order 41 r.27

Cases cited (15)

  • Hon. Anifa Bangirana Kawooya vs the National Council for Higher Education SCMA No.8/2013 (unreported)
  • Attorney General v Paulo Ssemogerere and Others (Constitutional Application No. 2 of 2004)
  • Ladd v Marshall [1954] 3 All ER 745
  • Skone vs Skone (1971), 2A 582 at 582
  • Langdale v Danby [1982] 3 All ER 129
  • Nadrudin Shariff vs Taarlochhan Singh (1961) EA.72
  • Karmali v ... EA 274
  • American Express International vs Atul ... (1958), EA.567
  • Corbett (1953), 2 All ER 69
  • F. Zabwe vs Orient Bank and 5 Others SCCA No. of 2006 (unreported)
  • IS Combined (U) Ltd v A.K. Detergents and 4 Others (Civil Appeal No. 7 of 1998)
  • Interfreight Forwarders (U) Ltd v East African Development Bank [1990-1994] EA 117
  • Civil Appeal NO.219 of 2013 Independent Electoral and Boundaries Commission and 2 Others vs. Steven Mutinda Mule and 2 Others
  • ADETOUN OLADEJI (NIG) LTD VS. NIGERIA BREWERIES PLC S.C 91/2002
  • Attorney General and Another v Africa Cooperative Society Ltd (Miscellaneous Application No. 6 of 2012)

Full judgment

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

Mujasi Vs Magombe & Anor (Election Petition Appeal No. 0027 of 2017) [2017] UGCA 24 (29 August 2017)
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.