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MUKUBUYA ENOCK WILLIAM T/A POLLY POST VERSUS BULAIMU MUWANGA KIBIRIGE T/A KOWLOON GARMENT INDUSTRY

COURT OF APPEAL (CORAM: A SINGLE JUSTICE HON. JUSTICE RICHARD BUTEERA)

CIVIL APPLICATION NO. 133 OF 2014

JULY 31ST, 2014

(Arising out of Civil Appeal No. 122 of 2013) 

Civil Procedure: -----------Court of Appeal -----Taking Additional evidence-------------Power of the Appellate Court to take additional evidence-----Additional evidence-----What conditions had to be fulfilled before taking additional evidence

Quorum on taking additional evidence-----Whether a single justice had jurisdiction to hear a matter on admission of additional evidence?

This was an application brought by way of Notice of Motion under Article 126 of the Constitution, Rule 2(2) of the Judicature (Court of Appeal Rules) Directions S1 13-10, Rule 30 of the Judicature (Court of Appeals Rules) Directions S.1. 13-10 and Section 80(1) (d) of the Civil Procedure Act Cap 71.

It sought for orders that:                                                

1)  The applicant be allowed to adduce additional evidence to be relied upon during the hearing of civil Appeal No. 122 of 2013.

2)  Costs of the application be provided for.

The application was supported by the affidavit of the applicant on the following grounds:

a)   The intended additional evidence was not available to the trial judge during the hearing of Civil Suit No. 37 of 2013 by reason of negligence of the counsel engaged to represent the applicant.

b)  The intended additional evidence was within the possession of the applicant’s former lawyers who did not bring the same to the attention of the trial judge due to their negligence.

c)   The intended additional evidence is credible, material and relevant to the issues in Civil Appeal No.122 of 2013.

d)  The additional evidence is to enable this Honorable Court reach a fair and just decision and to avoid multiplicity of suits.

e)   The respondent is not likely to suffer any injustice and/or prejudice if the application is granted.

f)    It is in the interest of substantial justice that this application be granted so that the applicant can be given a right to be heard.

The applicant’s counsel was in possession of additional evidence and by negligence failed to bring it to the notice of the trial judge at the High court. The intended additional evidence was on record of appeal as annexure A1, A2, A3, B, D1 and D11 and the applicant regarded the additional evidence as relevant in Civil Appeal No.133/2014 pending before this court. And that the negligence of counsel should not be visited on the applicant. Counsel for the applicant submitted that if the additional evidence was adduced the court would have found that the case was res judicata.

On the other hand, counsel for the respondent argued that the application for additional evidence should be rejected because it did not fulfill the requirements for allowing additional evidence. Both counsel submitted that the matter was one which could be heard by a single judge.

HELD:

1.   An appellate court had power to take additional evidence or require that additional evidence is taken, and the Court of Appeal might in its discretion for sufficient reason take additional evidence.

2.   A single justice of Court of Appeal might exercise any power vested in the Court of Appeal in any interlocutory cause or matter before the Court of Appeal and that a single judge may hear an application for allowing of additional evidence.

3.   An appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, which include:

a)   Discovery of new and important matters of evidence which, after the exercise of due diligence was not within the knowledge of or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence.

b)  Evidence relevant to the issues

c)   Evidence which is credible in the sense that it is capable of belief

d)  The evidence must be such that, if given it would probably have influence on the result of the case, although it need not be decisive.

e)   The affidavit in support of an application to admit additional evidence should have attached to it, proof of the evidence sought to be given.

f)    The application to admit additional evidence must be brought without undue delay.

4.  Having considered the conditions and standards set for admission of additional evidence and considering the circumstances of the instant case and the nature of additional evidence sought to be adduced, the issue of the additional evidence was intertwined with other issues that go to the whole substance of the appeal.

5.    Allowing or disallowing admission of additional evidence in that matter in terms of justice would best be considered and adjudicated upon by the court which will have the capacity to determine the appeal finally. The discretion to allow or not to allow the additional evidence should be exercised by the full court which had power to determine the appeal rather than by a single judge.

The Application was referred to the full court for determination and the costs of the application were to abide the outcome of the main appeal.

Legislation cited and referred to in Judgment.

The Constitution of the Republic of Uganda, 1995 Articles 126

Civil Procedure Act, Cap 71 Section 80(1) (d)

Judicature Act, Cap 13, Laws of Uganda Section 12(1)

Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rules 2(2), 30, 53(1) (2).

Cases cited and referred to in Judgment

Attorney General v Paul K. Ssemwogerere and Others, Constitutional Application No. 2 of 2004 (SCC 2/04);

Hon.Anifa Bangirana Kawooya v The Attorney General;

Hon. Bangirana Kawoya v National Council of Higher Education Misc. Appl. No. 8 of 2013; 

Mr. Medad Segoona and Mr. Mpairwe Tumwebaze for the applicant

 

Mr. Frederick Mpanga and M/s Dorothy Kabugo for the respondent

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