Wakilii

Nakku Makubuya v Sunna (Miscellaneous Application 781 of 2023)

High Court · [2023] UGHCLD 180 · 2023 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 civil appeal arising from a land trespass suit
Decision
Application dismissed; parties directed to proceed with filing written submissions in the underlying appeal

Observed later treatment

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Holding

The High Court dismissed an application for leave to adduce additional evidence on appeal. The applicant failed to show substantial cause. The proposed evidence—a handwriting expert's report, a plaint from another suit, and a lease agreement—could have been obtained with due diligence during the six-year trial. The evidence would not have an important influence on the appeal's outcome, and the original suit was for trespass, not fraud.

Outcome

Application dismissed; parties directed to proceed with filing written submissions in the underlying appeal

Facts

The applicant, Ms. Nakku, sued Mr. Suuna in the Chief Magistrate's Court of Mengo (Civil Suit No. 43 of 2014) for trespass on unregistered land at Lugala LC 1 Village, Lubya Parish, Lubaga Division, Kampala District. She sought eviction, a permanent injunction, general damages, interest, and costs. Judgment was delivered against her. She appealed to the High Court (Civil Appeal No. 96 of 2020). After filing the appeal, she sought leave to adduce additional evidence: a letter from her lawyers dated February 8, 2021, a handwriting expert's report dated June 11, 2021, a plaint from another suit (C/s No. 1015 of 2011) involving one Ssebaduka Samuel against NHCC for trespass, and a 1996 lease agreement between Buganda Land Board and NHCC. She claimed this was new and important evidence discovered after the trial. The respondent opposed, arguing the evidence could have been secured during the six-year trial with due diligence and that allowing it would prejudice him.

Issues

  1. Whether the applicant has shown substantial cause to warrant leave to adduce additional evidence on appeal.
  2. Whether the proposed additional evidence could have been procured with reasonable diligence at trial.
  3. Whether the proposed additional evidence would have an important influence on the outcome of the appeal.

Orders

  • Application dismissed with costs to the respondent.
  • Appellant to file written submissions within two weeks from the date of the ruling, not later than July 14, 2023.
  • Respondent to file written submissions within two weeks from July 14, 2023, not later than July 28, 2023.
  • Any submissions in rejoinder to be filed within one week from July 28, 2023.
  • All written submissions to be uploaded on the Judiciary ECCMIS Portal within the timelines given, not more than five sheets each, in font size not smaller than font size 12.

Rules and key headnotes

Civil Procedure — Additional Evidence on Appeal — Test for Leave under Order 43 Rule 22
To obtain leave to adduce additional evidence on appeal, the applicant must show substantial cause by demonstrating that the evidence could not have been procured with reasonable diligence at trial, that it would have an important influence on the outcome of the case, and that it is credible though not necessarily incontrovertible.
Evidence — Expert Evidence — Handwriting Expert Reports — Duty of Due Diligence at Trial
Where a party had ample time during a six-year trial to engage a handwriting expert but failed to do so, the party cannot be granted leave to adduce such expert evidence on appeal, as it could have been procured with reasonable diligence at trial.
Civil Procedure — Additional Evidence on Appeal — Exceptional Circumstances Required
Parties to an appeal shall not be allowed to produce additional evidence except in exceptional circumstances, and the thrust of Order 43 Rule 22 of the Civil Procedure Rules is to restrict such applications to cases where substantial cause is shown.

Legislation cited (3)

Cases cited (3)

  • Hon. Anthony Kanyike v Electoral Commission & Ors (Civil Appeal No. 13 of 2006)
  • Karmali Tarmohammed & Anor [1958] E.A
  • American Express International Banking Corp v Atulkunarpatel (Civil Appeal No. 8 of 1986)

Full judgment

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

Nakku_Makubuya_v_Sunna_(Miscellaneous_Application_781_of_2023)_[2023]_UGHCLD_180_(30_June_2023)
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.