Wakilii

The Registered Trustees of the church of Uganda of Kitgum Doicese v Oryema & 18 Ors (MISCELLANEOUS CIVIL APPLICATION No. 0136 OF 2018)

High Court · [2018] UGHCCD 46 · 2018 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional documentary evidence on appeal arising from Civil Appeal No. 044 of 2017
Decision
Application for leave to adduce additional evidence dismissed with costs to the respondents

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Holding

Application for leave to adduce additional documentary evidence on appeal dismissed. The court held that the applicants failed to satisfy the requirements under the Ladd v Marshall test. The evidence sought to be introduced was not shown to have been unavailable despite reasonable diligence, would introduce a new matter not raised at trial rather than elucidate existing evidence, was not relevant to the issues on appeal, and the application was brought with unordinate delay of ten months after filing the appeal.

Outcome

Application for leave to adduce additional evidence dismissed with costs to the respondents

Facts

The applicants, the Registered Trustees of the Church of Uganda of Kitgum Diocese, sought leave to adduce additional documentary evidence on appeal arising from Civil Appeal No. 044 of 2017. The trial court had proceeded regarding land held under a temporary occupation licence. The applicants claimed to have recently discovered documents showing part of the disputed land (50 acres) was comprised in FRV 50 Folio 24, not merely held under temporary licence. They also retrieved correspondence about trespass complaints from the Church's Kampala archives. The applicants attributed the non-production of these documents at trial to an LRA rebel raid during the insurgency which destroyed or displaced church documents. The second respondent opposed the application, acknowledging he occupies part of the 50 acres decreed to the applicant. The first respondent contended most respondents do not occupy the 50 acres and that the documents were always in the applicant's custody. The appeal had been filed in December 2017 but this application was filed in October 2018, ten months later.

Issues

  1. Whether the applicants should be granted leave to adduce additional documentary evidence on appeal that was not presented at trial.
  2. Whether the applicants exercised reasonable diligence to obtain the additional evidence during the trial proceedings.
  3. Whether the additional evidence, if admitted, would probably have an important influence on the result of the appeal.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Additional Evidence on Appeal — Ladd v Marshall Test — Three Conditions
For an appellate court to admit additional evidence not presented at trial, three conditions must be satisfied: first, the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given it would probably have an important influence on the result of the case though it need not be decisive; third, the evidence must be apparently credible though it need not be incontrovertible.
Civil Procedure — Additional Evidence on Appeal — Reasonable Diligence Requirement
Except on grounds of fraud or surprise, an appellate court will not admit fresh evidence unless it was not available to the party seeking to use it at the trial or that reasonable diligence would not have made it so available. If evidence was in the possession of parties at the time of trial or by proper diligence might have been obtained but was not produced, no opportunity for producing that evidence ought to be given by granting a new trial.
Civil Procedure — Additional Evidence on Appeal — Finality of Litigation — Interest Reipublicae Ut Sit Finis Litium
In the interest of society as a whole, litigation must come to an end. When a litigant has obtained judgment in a court of justice, he is by law entitled not to be deprived of that judgment without very solid grounds. It would undermine the whole system of justice and respect for the law if it were open to a party to re-run a trial simply because potentially persuasive or relevant evidence had not been put before the trial court.
Evidence — Fresh Evidence on Appeal — New Matter versus Elucidation of Existing Evidence
Appellate courts will not admit additional evidence which introduces a matter that is altogether new, which was never raised or does not emerge at all from the evidence already on record. An appellate court may only admit evidence that elucidates on evidence already on record, as opposed to the introduction of an altogether new matter. If admitted, such evidence would have to alter the whole shape of the case to make the case decided on appeal entirely or substantially different from that decided at trial.
Civil Procedure — Additional Evidence on Appeal — Application Must Be Brought Without Undue Delay
An application to admit additional evidence on appeal must be brought without undue delay. Where judgment was delivered in November 2017, appeal filed in December 2017, but the application to adduce additional evidence was filed ten months later in October 2018 without explanation for the delay, this constitutes undue delay fatal to the application.

Legislation cited (5)

Cases cited (12)

  • Brown v Dean [1910] AC 373
  • Ladd v Marshall [1954] 1 WLR 1489
  • Skone v Skone [1971] 1 WLR 817
  • Mzee Wanje and others v Saikwa and others [1976-1985] 1 EA 364
  • Attorney General v Ssemogerere and others (Constitutional Application No. 2 of 2004)
  • Makubuya Enock William v Bulaim Muwanga Kibirige (Civil Application No. 133 of 2014)
  • Bangirana Kawoya v National Council for Higher Education (Miscellaneous Application No. 8 of 2013)
  • Karmali Tarmohamed and Another v TH Lakhani and Co [1958] EA 567
  • Namisango v Galiwango and another [1986] HCB 37
  • Anthony Kanyike v Electoral Commission and two others (Civil Application No. 13 of 2006)
  • R v Yakobo Busigo s/o Mayogo (1945) 12 EACA 60
  • Regina v Secretary of State for the Home Department ex parte Momin Ali [1984] 1 WLR 663

Full judgment

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

The Registered Trustees of the church of Uganda of Kitgum Doicese Vs Oryema & 18 Ors (MISCELLANEOUS CIVIL APPLICATION No. 0136 OF 2018) [2018] UGHCCD 46 (11 October 2018)
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.