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Zzimwe Enterprises ,Hardwares and Constructions Limited v Attorney General (Civil Application 353 of 2020)

Court of Appeal · [2021] UGCA 215 · 2021 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 a civil appeal against a High Court (Commercial Court) judgment
Decision
Application for leave to adduce additional evidence dismissed with costs to abide the main appeal

Observed later treatment

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Holding

The Court of Appeal dismissed an application under Rule 30(1)(b) of the Court of Appeal Rules for leave to adduce five letters as additional evidence on appeal. Applying the principles in Attorney General v Ssemogerere, the Court held that some letters concerned recovery of an advance payment guarantee, which was irrelevant to the action in detinue over retained construction equipment, while others were within the applicant's knowledge or available with due diligence and so were not 'new' evidence. None shed light on the contractual provisions central to the appeal. The application, lodged over two years after the trial judgment, was also brought with inexcusable delay. The application was dismissed with costs to abide the cause.

Outcome

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

Facts

The applicant was awarded a contract for the rehabilitation of the Kalapata-Piire Road by the Government of Uganda in November 2008. Following termination of the contract, the Government retained the applicant's road construction equipment, which was subsequently vandalised. The applicant sued in the High Court (Commercial Court) for compensatory damages for loss of equipment and income, based on an action in detinue. The suit was dismissed with costs. The applicant appealed and filed the present application for leave to adduce five letters as additional evidence: correspondence concerning recovery of an advance payment guarantee from the applicant's bank, and letters from the RDC of Kaabong District and the Ministry of Works regarding abandoned and vandalised equipment. The applicant claimed it only obtained the letters from the Ministry of Works in November/December 2020, having earlier lost some during the foreclosure of its head office by Tropical Bank. The Attorney General opposed the application, contending the evidence was neither new nor relevant and sought to introduce a fresh cause of action in unjust enrichment.

Issues

  1. Whether the additional evidence sought to be adduced on appeal constituted new and important matters of evidence that could not, with due diligence, have been produced at trial.
  2. Whether the additional evidence was relevant to the issues in the appeal and would influence its result.
  3. Whether the application to adduce additional evidence was brought without undue delay.

Orders

  • Application dismissed.
  • Costs to abide the cause.

Rules and key headnotes

Civil Procedure — Additional Evidence on Appeal — Exceptional Circumstances
An appellate court may exercise its discretion under Rule 30(1)(b) of the Court of Appeal Rules to admit additional evidence on appeal only in exceptional circumstances; namely where the evidence is new and important, was not within the party's knowledge or producible with due diligence at trial, is relevant and credible, would probably influence the result, is proved by affidavit, and the application is brought without undue delay.
Evidence — Additional Evidence — Meaning of 'New' Evidence
Evidence that would reasonably be within the knowledge of, and with due diligence available to, an applicant is not new evidence for purposes of an application for leave to adduce additional evidence on appeal; a document the applicant knew existed but lost can be re-obtained through a certified copy and so does not qualify as new.
Civil Procedure — Finality of Litigation — Whole Case Rule
Parties should normally advance the totality of their case at first instance and may not, save in exceptional circumstances, raise on appeal a point which could with reasonable diligence have been discovered and canvassed at trial, since there would be no end to litigation unless courts expect a party to put its full case before the trial court.
Evidence — Relevance of Additional Evidence — Influence on Result
Additional evidence will not be admitted on appeal where it is irrelevant to the issues in contention or unlikely to influence the result; evidence addressing matters not pleaded or central to the appeal, or which fails to illuminate the determinative contractual provisions, lacks the importance required for admission.
Civil Procedure — Additional Evidence — Undue Delay
Although Rule 30(1)(b) prescribes no time frame, an application to adduce additional evidence lodged more than two years after delivery of the trial judgment, where the documents were readily available, is brought with inexcusable and undue delay warranting dismissal.

Legislation cited (1)

Cases cited (5)

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

Full judgment

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

Zzimwe Enterprises ,Hardwares and Constructions Limited v Attorney General (Civil Application 353 of 2020) [2021] UGCA 215 (9 February 2021)
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.