American Express International Banking Corporation v Atulkina (Civil Application 8 of 1986) [1989] UGSC 8 (7 July 1989)

IN THE,SUPREME COURT OF UGANDA

### AT MHL'CO

CORAM: MANYINDO, D. C. J., ODOKI, J. S. C., PLATT, J. S. C.

# CIVIL APPLICATION KO. 8 OF 1985

#### BETWEEN

AMERICAN EXPREGS INTENRATIONaL

banking corporation

AND

ATULItIMAR SUM ANT PATEL .\*• RESPONDENT

*A.*FLICANT

(Application for the decision of Hon\* Mr\* Justice D. L. K. Lubogo, Ag\* J. A. in Court of Appeal for Uganda Civil Application Mo\*8/86 - American Express International Banking Corporation versus Atulkumar Sumantbhai Patel given at Meng© on the 7/11/86\*

in

## H. C. C. S. NO. 49V83

#### RULILU: OF THE COUR?

few of the stops which were taken, prior to the matter being referred to us from the decision of the azn.-.le Jude© ®f this Court, Mr\* Justice Lubogo« It would be useful to describe a

The present Applicant, the American Express International Banking Corporation, brought suit No\* 45^ of 198j in the Hi h Court, claiming tlu.it the present Respondent, Mr\* Atulkumar Patel, was liable under an unlimited guarantee to the Applicant in the sum of rather more than U. Ghs 302 million\*

When the pleadings had been closed, Mr\* Patel claimed by Notice of Motion that the Corporation suit should be disciosod or alternative ly stayed, ©s being vexatious and an abuse of the process of the Court

2/..\*.

Tho ground in this claim wag that the contract originated in Singapore and the present dispute should be justitiated in Singapore and not Uganda Er. Justice Kantinti, of happy memory, decided that the Respondent was right, and stayed the proceedings on 24th February, 1985\* The present Applicant then appealed. But not long before the appeal was due to bo heard, the Applicant sought the leave of this Court on Notice of Motion, to adduce additional evidence. Er. Justice Luboge, as he then was, decided that additional evidence could not be adduced. **It** is from bis order of 7th November, 1986, that thio reference has been made to the Full Court, under rule 54 «f the Court of A peal Rules.

JO should commence with a reference to rule 29 of the Rules which empowers this Court to take additional evidence under certain conditions. and especially to rule 29(1)(b) which rcads:-

> "(b) in its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence is taken by the trial court or by a commissioner."

Whcro a discretion is to be exerc.sed for "sufficient reason", the discretion is not entii'ely unfettered, and. in general the indulgence sought, can only be granted for some good reason beyond hut might ©eem on balance to be humane. This is vividly illustrated by the decisions concerning the nature of a sufficient reason in rule 4 of the Rules, as it stands at present.

Secondly, tho nature of ^he reasons has been considered in several cases to which Mr. Justice Lubog© was referred. Jo may say that th© principles which have been received in Uganda (Sec Civil Appeal N©.67 of 1953 KY. NZI Vs KAYIMA, Uganda Law Reports Vol VII p. 1J2) and in East Africa in KARMALI V. LAKEAJI (1958) E. A. 567, may be succinctly gathered from BIRKETT L. J.'s opinion in CORBETT Vs CORirTT (1953) 2 ALL E. A. 69 on p.?2

"It is an invariable rule in all the Courts that if evidence which either was in possession of the parties at the time of the trial, or by proper diligence might have been obtained, is either not produced, or has not been procured, and the case is decided adv^rsly to the side to which the evidence was available, no opportunity in producing that evidence ought to be given by a new trial#'<sup>1</sup>

This lira rerained the stand taken by the Courts, for obvious reasons that there would be no end te litigation, unless a Court can expect a party to put his full case before that' Court.

It is pleasant to record that indeed, there was no dispute between Counsel on this reference as to the principles to be applied. It was their application to the facts that gave rise to debate#

At the hearing before Mr# Justice Kantinti, the respondent's claim that the suit should be disposed of in Singapore, wqg disputed by the because of the difficulties that the Applicant r/ight encounter in following that course. These difficulties were sot forth in the affidavit of a Singapore Advocate, Mr# Dennis Sinjhau# He advanced the views that it could be ciort procedurally imprudent and financially fur one thing the Respondent had left Singapore# Secondly, it was nut known whether the Respondent had assets in Singapore which could be attached# If there were no assets, the judgment would have to be transferred to Uganda for execution. It was feasible for the Court in Uganda to entertain the dispute and that would cause no inconvenience to the Respondent, whe now resides in Uganda# Mr# Justice Kantinti did not think that these factors outweighed the factors which attracted him as indicating that the suit should be determined in Singapore# As the appeal has yet te be hoard we refrain from making any comment on the merits of that dispute# prohibitive, to seek redress in Singapore, because, Applicant,

*- <sup>5</sup> -*

It now transpires that the Applicant would like to add further details to Mr# Singham's original affidavit# Mr# Singha® has indicated that Mi'# Patel would be able to consider whether he would submit t® defence of limitation, whether he would agree to satisfy any judgment given by the Singapore Court# All these matters woro apparently known to hearing the motion# They were not put forward# The present opinion is not based on some new statute or judicial decision# It is quite clear that these factors are given in clarification of Mr# Singham's first opinion# It would appear therefore to be a case precisely within the scope of the situation which Birkett L. J# had in mind# The Applicant's advisors had the information as to the law applicable in Singapore# It could have been proved by evidence# It was not, and now, alas, it is too late# the Applicant's advisers at the time that Mr# Justice Kantinti was the jurisdiction ®f the Singapore Courts, whether he would waive a

of the difficulties which Counsel may face when dealing with this kind of intenrational case# But we are unublo to say that these difficulties amount to a special reason within rule 29• Indeed the principles accepted as to when additional evidence can be received are so clear, tliat it would be wrong to allow the evidence to be adduced# and wo are, of course, aware *d \'lc* listened attentively te Mr# Mugerwa's pleas ad cisoricoxYiam,

For these reasons, Lubogo, which he set out fully# As a result, we dismiss the reference with costs# we entirely agree with the opinion ef Mr# Justice

5/...

- 4 -

- <sup>5</sup> *-* Dated at Meago thia day ef 1989•

> S. T. NANYINDO DEPUTY CHIEF JUSTICE

B. J. ODOKI justice of the supirr.n court

H. G. FLATT JUSTICE OF THE SUPREME COURT