Wakilii

Tibahwerayo v Namuli (Misc. Application No. 433 of 2018)

High Court · [2019] UGHCFD 1 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to adduce additional evidence in pending appeal from Chief Magistrate's Court divorce decree
Decision
Application to adduce additional evidence dismissed

Observed later treatment

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Holding

The High Court dismissed an application to adduce additional evidence on appeal concerning matrimonial property. Held that where evidence was within the applicant's knowledge at trial or could have been obtained with due diligence, and the applicant had opportunity to seek production orders during the trial, the court will not permit fresh evidence on appeal. The duty to adduce material evidence rests on parties at trial; appellate courts will not allow a party to re-run a trial simply because evidence was not put before the lower court.

Outcome

Application to adduce additional evidence dismissed

Facts

The applicant filed Divorce Cause No. 33 of 2016 at Nakawa Chief Magistrate's Court. Judgment was delivered determining that certain properties belonged individually to the respondent and were not matrimonial property. The applicant appealed and subsequently filed this application seeking leave to adduce additional evidence concerning the properties for the appeal court's consideration. The applicant stated he had inadvertently omitted to petition on property issues, that he lacked documentary evidence during trial, and that the respondent had disappeared with relevant documentation. He sought to produce additional evidence regarding properties at Mbuya Kinawataka, Ben Kiwanuka shop, and Makerere Kagugube, and sought an order compelling production of leasehold application documents for land at Kibulu Kiganda. The respondent did not oppose the substance of the application.

Issues

  1. Whether the application to adduce additional evidence should be granted.

Orders

  • Application dismissed.
  • Each party to bear their own costs.

Rules and key headnotes

Civil Procedure — Additional Evidence on Appeal — Conditions for Admission
Parties to an appeal are not entitled to produce additional evidence unless the lower court refused to admit evidence which ought to have been admitted, or the appellate court requires the evidence to enable it to pronounce judgment, or for any other substantial cause the court may allow the evidence to be produced.
Civil Procedure — Additional Evidence on Appeal — Litigation Must Come to an End
Litigation must come to an end. A party cannot re-run a trial simply because potentially persuasive or relevant evidence had not been put before the court. An obligation rests on parties to adduce material evidence before the trial court, and if they fail to do so they cannot require a second hearing to put the matter right.
Civil Procedure — Additional Evidence on Appeal — Requirements for Exceptional Admission
An appellate court may exercise discretion to admit additional evidence only in exceptional circumstances: the evidence must be newly discovered important matter which after due diligence was not within the party's knowledge or could not have been produced at trial; it must be relevant and credible; it must be capable of influencing the result of the case; proof of the evidence must be attached to the affidavit in support; and the application must be brought without undue delay.
Civil Procedure — Additional Evidence on Appeal — Evidence Within Party's Knowledge at Trial
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 trial, or reasonable diligence would not have made it available. Where evidence was in the possession of a party at trial or by proper diligence might have been obtained, and the case was decided adversely, no opportunity for producing that evidence ought to be given.
Civil Procedure — Production Orders — Duty to Seek During Trial
Where a party lacks documentary evidence during trial, the party ought to seek a production order at that stage since courts are permitted under Order 10 rule 14 of the Civil Procedure Rules to order production of evidence at any time during the pendency of a suit. Failure to do so precludes later application for production on appeal.

Legislation cited (5)

Cases cited (8)

  • Brown v Dean [1910] AC 373
  • Aluma and 2 others v Said Okuti (HCMA No. 12 of 2016)
  • Makubuya Enock William v Bulaim Muwanga Klbirige (Civil Application No. 133 of 2014)
  • Bangirana Kawoya v National Council for Higher Education (Misc. Application No. 8 of 2013)
  • Karmali Tarmohamed and Another v T.H. Lakhani and Co. [1958] EA 567
  • Namisango v Galiwango and another [1986] HCB 37
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Musisi Gabriel v Edco Ltd & Anor (MA No. 386 of 2013)

Full judgment

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

Tibahwerayo v Namuli (Misc. Application No. 433 of 2018) [2019] UGHCFD 1 (26 August 2019)
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.