Wakilii

Wateta Moses & 4 Ors v. Hajira Natoli (Misc. Applic. No.229 Of 2009) (Misc. Applic. No.229 of 2009)

High Court · [2009] UGHC 203 · 2009 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 District Land Tribunal judgment
Decision
Application and underlying appeal dismissed; execution of the original judgment had already been completed and the disputed land sold to a third party

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the application for leave to adduce additional evidence was dismissed. The applicants failed to prove that the proposed evidence could not have been obtained with due diligence at trial, as the witnesses who held the relevant documents testified and could have been compelled to produce them. The surveyor's report was incredible given the body of evidence on record. The applicants delayed inordinately in bringing the application, and the underlying appeal had been rendered moot by execution of the judgment, including sale of the disputed land to a third party not before the court.

Outcome

Application and underlying appeal dismissed; execution of the original judgment had already been completed and the disputed land sold to a third party

Facts

The applicants appealed a District Land Tribunal judgment finding them liable for trespass on the respondent's titled land. After judgment and before the appeal was heard, execution was carried out: the respondent was put in possession, and the applicants' land was sold at auction to recover costs. More than two years after filing the appeal, the applicants sought leave to adduce additional evidence including a surveyor's report and documents allegedly showing fraud. They claimed they had been denied access to documents held by the District Land Surveyor's office during the trial. The respondent opposed, arguing that the relevant officials had testified at trial, the applicants failed to request production of documents or cross-examine the witnesses adequately, and execution had been completed rendering the appeal academic.

Issues

  1. Whether the applicants satisfied the six principles required for leave to adduce additional evidence on appeal as set out in Attorney General v Semogerere.
  2. Whether the proposed additional evidence was discovered after due diligence and could not have been produced at trial.
  3. Whether the proposed additional evidence was relevant, credible, and likely to influence the result of the appeal.
  4. Whether the application was brought without undue delay.
  5. Whether the appeal had been rendered moot by execution of the judgment below.

Orders

  • Application for leave to adduce additional evidence dismissed with costs to the respondent.
  • Civil Appeal No. 1 of 2007 dismissed with costs to the respondent.

Rules and key headnotes

Additional Evidence on Appeal — Test for Leave
For leave to adduce additional evidence on appeal to be granted, the applicant must prove: (i) discovery of new and important evidence which after due diligence was not within the applicant's knowledge or could not have been produced at trial; (ii) the evidence is relevant to the issues; (iii) it is credible and capable of belief; (iv) it would probably influence the result of the case, though need not be decisive; (v) proof of the evidence is attached to the affidavit in support; and (vi) the application is brought without undue delay.
Additional Evidence on Appeal — Due Diligence
Where witnesses who hold relevant documents testify at trial, a party cannot claim after trial that the evidence could not have been obtained with due diligence if that party failed to cross-examine the witnesses or request production of the documents during the proceedings. Due diligence requires a party to exploit opportunities available at trial to secure the evidence.
Appeals — Raising New Issues
A new point of law or fact raised for the first time on appeal ought not to be entertained unless the court is satisfied that the evidence establishes beyond doubt that the facts, if fully investigated, would have supported the new plea. A party may not raise a new issue on appeal if the other party had no opportunity to meet it at trial.
Certificate of Title — Impeachment for Fraud
For a certificate of title to be impeached for fraud under sections 77 and 176 of the Registration of Titles Act, the fraud must have occurred before or in the process of acquisition of the title or registration of any other interest and with the knowledge of the registered proprietor.
Mootness — Effect of Execution on Appeal
An appeal is rendered moot and cannot be entertained where the orders of the lower court have been fully executed, the subject matter of the dispute has been sold to a third party not before the court, and any relief granted on appeal cannot be practically enforced. Courts do not decide cases for academic purposes; orders must have practical effect and be capable of enforcement.

Legislation cited (6)

Cases cited (8)

  • Makerere University v St Mark & Others (1994) 5 KLR 26
  • Attorney General v Semogerere (Supreme Court Constitutional Appeal No. 2 of 2004)
  • North Staffordshire Railway Co v Edge [1920] AC 254
  • Bitarabeho v Kakonge (Civil Appeal No. 4 of 2000)
  • Makula International Ltd v Cardinal Nsubuga [1982] HCB 11
  • Katarikawe v Katwiremu [1977] HCB 210
  • Uganda Corporation Creameries Ltd v Reamaton Ltd (Civil Reference No. 11 of 1999)
  • Environmental Action Network Ltd v Eryau (Civil Application No. 98 of 2005)

Full judgment

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

Wateta Moses & 4 Ors Vs. Hajira Natoli (Misc. Applic. No.229 Of 2009) (Misc. Applic. No.229 of 2009) [2009] UGHC 203 (19 January 2009)
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.