Wakilii

Zaabwe v Orient Bank Ltd and Others (Civil Application No. 17 03)

Court of Appeal · [2005] UGCA 109 · 2005 Reference Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the full Court from the decision of a single judge dismissing an application for leave to adduce additional evidence on appeal
Decision
Reference allowed; appellant granted leave to adduce additional evidence on appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal, on a reference from a single judge, held that although the rules did not prohibit a single judge from hearing an application for leave to adduce additional evidence, the better practice was for such applications to be heard by a full bench, ideally at the hearing of the appeal, to save time and costs. On the merits, the Court found the appellant had made out a case warranting the exercise of discretion to grant leave, particularly where respondents failed to produce documents requested for inspection and where an error of judgement by counsel at trial ought not be visited on the litigant. The reference was allowed.

Outcome

Reference allowed; appellant granted leave to adduce additional evidence on appeal

Facts

The appellant was the registered proprietor of land at Makerere. Ordered by the Law Council to deposit one million shillings, he could not raise it. A director of the second respondent offered to secure credit if the appellant gave the land as security. The appellant executed a power of attorney in favour of the second respondent, which issued him a cheque. The company then secured credit from the first respondent for its own purposes using the title as security, unknown to the appellant. The cheque was dishonoured, the second respondent defaulted on its mortgage, and the first respondent foreclosed. The appellant was evicted and the house sold by private treaty. He sued all respondents in the High Court, lost, and appealed. Before the appeal was heard, he sought leave to adduce fresh evidence, comprising documents subject to an unfulfilled discovery order and correspondence from National Water and Sewerage Corporation revealed during trial. A single judge dismissed the application, prompting this reference.

Issues

  1. Whether the single judge erred in hearing the application for leave to adduce additional evidence on its merits instead of referring it to a full bench.
  2. Whether the appellant satisfied the conditions for being granted leave to adduce additional evidence on appeal.
  3. Whether an error of judgement by counsel at trial should be visited on the litigant.

Orders

  • The reference is allowed.
  • The costs will abide the outcome of the appeal.

Rules and key headnotes

Court of Appeal Practice — Applications to Adduce Additional Evidence — Single Judge versus Full Bench
Although the rules do not prohibit a single judge from hearing an application for leave to adduce fresh or additional evidence on appeal, the better practice is for such an application to be heard by a full bench, preferably at the hearing of the appeal, since this saves time and costs and ensures the Court possesses all the material relating to the case.
Additional Evidence on Appeal — Conditions for Leave
Leave to adduce additional evidence on appeal may be granted where the evidence could not have been obtained with reasonable diligence at the trial, is of such a nature that it would probably influence the result of the case, and is apparently credible though it need not be incontrovertible.
Conduct of Counsel — Error of Judgement Not Visited on Litigant
An error of judgement by counsel at trial, such as declining to engage with documents tendered by the opposing party, ought not to be visited on the litigant where there is no evidence the litigant knew of or was privy to counsel's decision.

Legislation cited (2)

  • Rules of the Court of Appeal Rule 29(1)(b)
  • Rules of the Court of Appeal Rule 52

Cases cited (6)

  • Begumisa and Others v Tibebaga (Civil Application No. 64 of 2002)
  • Land v Marshall [1954] 1 W.L.R 1489
  • Karmali Tarmohamed & another v I.H.Lakhani & Co [1958] EA 567
  • Essaji v Solanki [1968] EA 777
  • Mzee Wanjie and 93 Ors v A.K. Saikwa and Ors (1982-1988) 1 KAR 462
  • Mbogo & another v Shah [1968] EA 93

Full judgment

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

Zaabwe v Orient Bank Ltd and Others (Civil Application No. 17 03) [2005] UGCA 109 (18 May 2005)
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.