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Zziimwe Enterproses Hardwares and Construction Limited v Attorney General (Civil Application No. 353 of 2020)

Court of Appeal · [2023] UGCA 60 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional evidence on appeal, arising from Civil Appeal No. 116 of 2019.
Decision
Application for leave to adduce additional evidence dismissed with costs to abide the main appeal.

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Holding

The Court of Appeal dismissed an application for leave to adduce additional evidence on appeal. Applying the principles in Attorney General v Ssemogerere and Afric Cooperative Society, the Court held that appellate courts must be stringent in admitting additional evidence, which is reserved for rare, exceptional circumstances. The letters sought to be adduced were either irrelevant to the retained construction equipment in dispute, or were within the applicant's knowledge and obtainable with due diligence, and thus not new evidence. Moreover, a delay of more than two years in lodging the application, when the letters lay accessible in the Ministry of Works and Transport, was inexcusable and constituted undue delay.

Outcome

Application for leave to adduce additional evidence dismissed with costs to abide the main appeal.

Facts

The applicant company was awarded a contract in November 2008 for the rehabilitation of Kalapata-Piire Road by the Government of Uganda. Following termination of the contract, the Government retained the applicant's road construction equipment, which was subsequently vandalized. The applicant sued in the High Court Commercial Court (Civil Suit No. 809 of 2014) claiming compensatory damages for loss of equipment and income in an action grounded in detinue; the suit was dismissed. The applicant appealed (Civil Appeal No. 116 of 2019) and filed this application seeking leave to present five additional letters as evidence. The letters concerned recovery of an advance payment guarantee from the applicant's bank and correspondence regarding the retained and abandoned equipment. The Managing Director attested he was unaware of the letters until locating them at the Ministry of Works and Transport in late 2020. The Attorney General opposed the application, arguing the evidence was neither new nor relevant, was known to the applicant, and sought to introduce a new cause of action in unjust enrichment.

Issues

  1. Whether the applicant satisfied the conditions for the admission of additional evidence on appeal under Rule 30(1)(b) of the Court of Appeal Rules.
  2. Whether the evidence sought to be adduced was new, relevant and important to the appeal.
  3. Whether the application was brought without undue delay.

Orders

  • Application dismissed.
  • Costs to abide the cause.

Rules and key headnotes

Appeals — Admission of Additional Evidence — Exceptional Circumstances Under Rule 30(1)(b)
An appellate court may exercise its discretion to admit additional evidence on appeal only in exceptional circumstances, requiring that the evidence be new and important, discoverable only after due diligence, relevant to the issues, credible, likely to influence the result, supported by proof, and sought without undue delay.
Appeals — Finality of Litigation — Duty to Present Full Case at First Instance
Parties should normally advance the totality of their case at the first bout of litigation, and it is not open to them, save in exceptional circumstances, to raise on appeal a point which could with reasonable diligence have been discovered and canvassed at trial.
Additional Evidence — Meaning of 'New Evidence' — Knowledge and Availability
Evidence that would reasonably be within an applicant's knowledge and, with the exercise of due diligence, available to it, is not new evidence for purposes of an application for leave to adduce additional evidence on appeal.
Appeals — Additional Evidence — Undue Delay
Where an application to adduce additional evidence is lodged more than two years after delivery of the trial judgment, and the evidence was readily accessible with reasonable diligence, the delay is inexcusable and defeats the objective of finality in litigation.

Legislation cited (1)

Cases cited (5)

  • Attorney General v Afric Cooperative Society Ltd (Miscellaneous Application No. 6 of 2012)
  • Attorney General v Ssemogerere (Constitutional Application No. 2 of 2004)
  • Woods v Gamlings (1993) P.I.Q.R P. 7 CA
  • Protazio Begumisa v Nuwagaba (Civil Application No. 23 of 2022)
  • Takhar v Gracefield Developments Ltd & Others [2019] UKSC 13

Full judgment

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

Zziimwe Enterproses Hardwares and Construction Limited v Attorney General (Civil Application No. 353 of 2020) [2023] UGCA 60 (9 February 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.