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Progressive Group of Schools Ltd and Another v Absa Bank (U) Ltd and Another (Misc Application No 490 of 2022)

Court of Appeal · [2023] UGCA 404 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application in a pending civil appeal seeking leave to adduce additional evidence on appeal
Decision
Application to adduce additional evidence (Statement of Account and Power of Attorney) granted; documents admitted for consideration of the appeal

Observed later treatment

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Holding

The Court of Appeal allowed the applicants' application to adduce additional evidence in a pending appeal. Applying the guidelines from Attorney General v Ssemwogerere, the Court held that the Statement of Account was not new evidence but material tending to elucidate a partial statement already on record (Exh D16(i)), which was permissible under the principle in G.M Combined and Rex v Yakobo Busigs. The Power of Attorney, though not previously led, was crucial to the alleged illegality and fraud in the sale, and the respondents (who created and were aware of the documents) would suffer no prejudice. Costs to abide the outcome of the appeal.

Outcome

Application to adduce additional evidence (Statement of Account and Power of Attorney) granted; documents admitted for consideration of the appeal

Facts

The 1st applicant obtained banking facilities from the 1st respondent secured by properties belonging to the 2nd and 3rd applicants. A dispute arose over how much of the loan was actually disbursed and whether the sale proceeds of the mortgaged properties were applied to the debt. The 1st respondent recalled the loan, enforced the mortgage and sold the properties to the 2nd respondent. The applicants filed High Court Civil Suit No. 204 of 2009 challenging the sale as illegal and fraudulent; the suit was dismissed. They appealed (Civil Appeal No. 349 of 2020). In this application they sought leave to adduce two further documents: a fuller Statement of Account (a continuation of Exh D16(i) already on record) said to show no deposit of sale proceeds, and a Power of Attorney (Instrument No. 8486/05) said to show that a signatory to the sale agreement lacked authority to execute it on behalf of the 1st respondent.

Issues

  1. Whether the applicants should be permitted to adduce additional evidence, namely a Statement of Account and a Power of Attorney, on the pending appeal under Rule 30(1)(b) of the Court of Appeal Rules.

Orders

  • Application allowed.
  • Costs shall abide the outcome of the appeal.

Rules and key headnotes

Additional Evidence on Appeal — Guidelines under Rule 30(1)(b) Court of Appeal Rules
An appellate court may, in its discretion and for sufficient reason, admit additional evidence where the evidence was not within the party's knowledge or producible despite due diligence, is relevant and credible, would probably influence the result though need not be decisive, is proved by the supporting affidavit, and the application is brought without undue delay.
Additional Evidence — Elucidation of Evidence Already on Record Distinguished from New Evidence
Evidence adduced to elucidate or complete evidence already on the record, such as the remaining portion of a statement of account already partly tendered, is not treated as new evidence and may be admitted to throw light on the case, provided it causes no prejudice to the opposing party.
Mortgage — Sale by Mortgagee — Authority of Signatory under Power of Attorney
A Power of Attorney is crucial to determining the legality of a mortgagee's sale where its terms bear on whether the person who executed the sale agreement had authority to do so; such a document may be admitted on appeal to establish alleged illegality or fraud in the sale.
Illegality — Duty of Advocate Not to Mislead the Court
Under Regulation 17(f) of the Advocates (Professional Conduct) Regulations, an advocate must not allow the court to be misled by remaining silent about a matter within their knowledge which would affect proceedings; where counsel drew the very documents in issue, no prejudice arises from their admission.

Legislation cited (6)

  • Judicature (Court of Appeal Rules) Directions r.2(2)
  • Judicature (Court of Appeal Rules) Directions r.30(1)(b)
  • Judicature (Court of Appeal Rules) Directions r.43(1)
  • Judicature (Court of Appeal Rules) Directions r.43(2)
  • Judicature (Court of Appeal Rules) Directions r.44(1)
  • Advocates (Professional Conduct) Regulations reg.17(f)

Cases cited (8)

  • G.M Combined (U) Ltd v A.K Detergent Ltd and Others (Civil Appeal No. 7 of 1998)
  • Attorney General v Paul Kawanga Ssemwogerere and Another (Civil Application No. 2 of 2004)
  • Attorney General and Another v Afric Cooperative Society Ltd (Miscellaneous Application No. 6 of 2012)
  • Makula International v His Eminence Cardinal Nsubuga and Another (Civil Appeal No. 4 of 1981)
  • Rex v. Yakobo Busigs s/o Mavego (1945) 12. EACA 60
  • The King v. Robinson [1914] 2 KBD 1098
  • Fredrick J.K Zaabwe v Orient Bank and Others (Civil Appeal No. 4 of 2006)
  • Williams v Turner (2008) QSC 327

Full judgment

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Progressive Group of Schools Ltd and Another v Absa Bank (U) Ltd and Another (Misc Application No 490 of 2022) [2023] UGCA 404 (8 May 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.