Attorney General v Byaruhanga and 2499 Others (Civil Application No. 239 of 2021) [2022] UGCA 231 (16 September 2022)

THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Muzamiru M. Kibeedi, and Christopher Gashirabake, JJA]

## **CIVIL APPLICATION NO. 239 OF 2021**

(Arising from Civil Appeal No. 246 of 2021 & Original Civil Suit No. 020 of 2003 of the High Court of Uganda at Fort Portal)

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

# **VERSUS**

#### BYARUHANGA JOHN & 2499 OTHERS 1 10 (SUING THROUGH THEIR LAWFUL <pre>1:::::::::::::::::::::::::::::::::::: ATTORNEY-REPRESENTATIVE)

#### RULING OF MUZAMIRU MUTANGULA KIBEEDI, JA

### **Introduction**

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The Attorney General of Uganda brought this application by way of Notice of Motion under Rules 15 $2(2)$ , $30(1)$ (b), (2), (3) & (4), 43 and 44 of the Judicature (Court of Appeal) Rules, S. I. No. 13-10 seeking leave of this court to adduce additional evidence on appeal. The applicant also sought an order that the costs of and incidental to this application abide the result of the appeal. The application is supported by the affidavit of Mr. Andrew Nyumba, the Acting Assistant Commissioner-Valuation, Ministry of Lands, Housing and Urban Development. 20

The background to this application is that on the 28<sup>th</sup> of May 2019, the High Court of Uganda at Fort Portal (Masalu Musene, J) passed judgment in favour of the Respondents in Civil Suit No. 020 of 2003, formerly Civil Suit No. 056 of 2001 High Court at Kampala, in which it declared that the Respondents were wrongfully evicted from the suit land located in Kyabatukura, Ruhero, Katachenga, Kamuhaho, Kabirizi and Rutooma Villages in Kitswamba Sub County, Bugoye County, Kasese District. The trial Court also awarded the respondents special damages of UGX. 52,658,658,633/= (Uganda Shillings Fifty-Two Billion, Six Hundred Fifty-Eight Million, Six Hundred Fifty-Eight Thousand, Six Hundred Thirty-three Shillings only), general, exemplary, and

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punitive damages of Ugx. 4,000,000,000 (Uganda Shillings Four Billion only), interest and costs

30 of the suit.

> It is worth noting that the assessment of the special damages by the trial Court was largely based on the "technical Assessment and Valuation Report" prepared by PW4 Joseph Mpamya, a retired District Agricultural Officer of Kasese District dated 24rh October 2015 and tendered in evidence as exhibit"PE3".

The Applicant being dissatisfied with the decision of the trial Court lodged the Notice of Appeal with the Registry of the trial Court on 1Oth June 2019. On 2no September 2021 the applicant filed the Memorandum and Record of Appeal before this court, vide: Civil Appeal N0 246 of 2021' Thereafter, on 9rh Septemb er 2021, the applicant filed this application seeking for leave to adduce additional evidence on aPPeal. 35

# 40 Grounds of the Apolication

The grounds of this application are set out in the Notice of lVlotion as follows: -

- a) That the additional evidence intended to be adduced was nol available at the Hearing of High Courl Civilsult No. 020 of 2003 (Formerly Civilsuit No. 56 of 2001 High Cout at Kampala) - b) That the evidence, if adduced at the hearing of Civil Suit No. 020 of 2003 (Formerly Clvll Sult - No. 56 of 2001 High Courl at Kampata) would have had an impoftant impact on the result of lhe case. - c) That the evidence sought lo be adduced is material, credible and of probative value in the determination of the lssues in the Appeal - d) That the evidence sought to be adduced rul/ asslst the Courl to determine the dispute 50 between the parties conclusivelY.

- e) That the respondent shall not be preiudiced in any way if this application is allowed. - f) That it is in the interest of Justice that this application is allowed'

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The above grounds are elaborated in the supporting Affidavit deponed by Andrew Nyumba, which I will refer to in detail while resolving the application.

55 The respondents opposed the application and set out their reasons in the Affidavit in Reply dated 4th November, 2021 deponed by Mr. John Byaruhanga, one of the Respondents'

#### Representation

The Learned Attorney General, Mr. Kiryowa - Kiwanuka, appeared in person assisted by Mr. George Kallemera - the Commissioner of Civil Litigation, Mr. lsaac Asingura - Principal State Attorney and Mr. Ronald Kawalya - State Attorney in the Attorney General's Chambers. On the other hand, the respondent was represented by Hon. Medard Lubega Ssegona, Learned Counsel assisted by Mr. Joseph Muhumuza Kaahwa, Mr. Jonathan Erotu, Ms. Annet Nanfuma and Mr. Bagenda lvan.

### Applicant's submissions

- 65 Counsel for the Applicant submitted that Rule 30(1Xb) of the Judicature (Court of Appeal) Rules gives this court discretion to admit additional evidence from parties before it. He cited Attornev General Vs. Paul K Ssemwoqerere and Others, Constitution al Application No. 2 of 2OO4 (SCCA 2/04) lor the conditions on which court may exercise this discretion to grant an application to adduce additional evidence. - 70 Counsel submitted that the essence of Rule 30(1) (b) is to ensure that justice is done. Counsel argued that except on grounds of fraud or surprise, the general rule is that an appellate court will not admit fresh evidence, unless it was not available to the party seeking to use it at the trial He referred to the case of Namlsan oo Vs. Galiwanoo and Anor t19861HCg.37. - 75 Counsel referred to the various letters annexed to the Affidavit in Support to illustrate to this court the numerous attempts on the part of the office of the Attorney General to secure information from the Ministry of Lands. By the said letters, the applicant was requesting for technical guidance on the matter, both in terms of ownership of the suit land and the value of the respondent's claim. That the applicant now has a report from the office of the Chief <sup>G</sup> -.-1 overnment

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Valuer indicating that the suit land used to be a forest reserve and is now a national park. That therefore the suit land does not belong to the respondents as claimed. Counsel cited the Uganda Wildlife (Declaration of Wildlife Conservation Area)(Kibale National Park)S. l. N0.46 of 2003 to show that Kibale National Park was formerly known as Kibale Central Forest Reserve as described in the Forest Reserve (Declaration) Order, 1968 and Queen Elizabeth National Park-Kibale Forest Conidor Game Reserve as declared by the Game Reserve Declaration (Amendment) Notice 1965.

Counsel also submitted the sums awarded were colossal and the application was intended to protect the tax payer's money.

Counsel concluded by submitting that the applicant satisfied all the preconditions for the grant of the application for additional evidence. And that there is no prejudice to be suffered by the respondents by grant of the application because they will have a chance to respond to it.

#### Respo ndents' arquments

The Respondents submitted that the additional evidence sought to be adduced does not satisfy the principles as set out in the case of Attornev General Vs. Paul K. Ssemwoqerere and Others, (Supra) ln particular, the principle the evidence not having been available with exercise of due diligence. Counsel argued that the evidence sought to be added is an afterthought by the Applicant as it was evidence within their knowledge and possession but chose not to adduce it at trial.

Counsel submitted that the application musl be made without delay. But the instant one was made two years after judgment.

100 Further, that the evidence is not relevant. That government valuers deal with issue of quantum. The only person and the only evidence that would be relevant if this court were determining whether the suit land is a forest reserve or national park etc is to bring a government record in the form of a map or a gazette confirming that this is a forest. Counsel submitted that there is evidence on record of the forest officers who testified in court about the issue of the forest. But

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<sup>105</sup> court dealt with the issue of compensation for the property destroyed not the ownership of the land

Above all, the Applicants were accorded adequate time to consult the Government valuer during trial. However, despite the numerous adjournments, the Applicants still failed to verify or assess the Respondents' claims during trial and agreed to the report given by the Agricultural officer.

110 The respondents concluded by praying that it is in the interest of justice that this application be dismissed

# Applicant's Reioinder

ln rejoinder, Counsel for the applicant submitted that the office of the Chief Government Valuer does not just value properties per se. They have to first ascertain ownership before doing the valuation. That it was for this reason that the Chief Government Valuer stated in his report that given that the land that the claimants were evicted from is a national park, he cannot carry conduct any valuation to this matter.

Counsel reiterated his prayer to be given a chance to file additional evidence in this matter.

# Analy sis of the Application

<sup>120</sup> Rule 30(1Xb) of the Rules of this Court, empowers this Court upon proof of "sufficient reason" to take additional evidence either by itself or to direct that the additional evidence be taken by the trial court or by a Commissioner. The Rule provides as follows: -

# "30. Power to reappraise evidence and to take additional evidence

- (1) On any appeal from a decision of the High Coui acting in the exercise of its original jurisdiction, the couft maY- - (a) Not applicable. - (b) ln its discretion, for sufficient reason take additional evidence or dtect that additional evidence be taken by the trial courl or by a commissioner. " [Emphasis added]

The principles which guide the exercise of the discretion of court have been the subject of numerous judicial pronouncements of this Court and the Supreme Court of Uganda. The erere, Supreme Courl 130 Supreme Court in Attornev General Vs Paul Kawanoa Semoq

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Constitutional Application No. 2 of 2004 (Unreported), after reviewing several persuasive judicial decisions about additional evidence on appeal summarized the law thus:

"A summary of these authorities is that an appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances which include:

- Discovery of new and important matters of evidence which, after the exercise of $(i)$ 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: - It must be evidence relevant to the issues: $(ii)$ - (iii) It must be evidence which is credible in the sense that it is capable of belief; - (iv) 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; - The affidavit in support of an application to admit additional evidence should have $(v)$ attached to it proof of the evidence sought to be given; - $(vi)$ The application to admit additional evidence must be brought without undue delay."

The rationale for the said principles was stated by the Supreme Court in <u>Ssemogerere case</u> above thus:

- "These exceptional circumstances have remained the stand taken by the Courts, for 150 obvious reasons that there would be no end to litigation unless a court can expect a party to put its full case before the court. We must stress that for the same reason, courts should be even more stringent to allow a party to adduce additional evidence to re-open a case, which has already been completed on appeal". - The additional evidence sought to be adduced by the applicant in Civil Appeal No. 0246 of 2021 155 appears to be the findings of the Technical Team sent by the Chief Government Valuer on 15<sup>th</sup> April 2021 to the area from where the dispute arose to study the area in dispute and verify the respondents' claims. The Technical Team was led by Mr. Andrew Nyumba, an Ag. Assistant Commissioner Valuation and consisted of Ms. Mercy Logose, a Government Valuer and Mr. Clovis Mainuka, a Senior Assistant Valuer - Kabarole Ministerial Zonal Office. The Report of the 160 findings of Technical Team itself was not attached to the instant application. Instead, the

applicant attached a letter addressed to the Solicitor General by the Permanent Secretary of

Jor

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Lands, Housing and Urban Development, Mrs. Dorcas W. Okalany, on 18rh May <sup>2021</sup> summarising the team's observations from the field visit in the following terms:

"1. The evictions were allegedly carried out in the early 1990s.

2. The subject land from which the evictions were supposedly made forms pai of Kbale National Park on the side that borders with lbunga Prison farm.

3. The technical assessment and valuation repoi of the claims as presented by the claimants was authored by a retired Kasese Dlstrlct Agricultural Officer based on the declarations filled and submitted to him by the claimants detailing the crops, the propefties, dwellings and agricuftural holdings allegedly owned by each of the claimants."

Given that the land ftom which the claimants were evicted is a National Park and that the basls of the claimant's technical repol is the claimants' own personal declarations as opposed to actual physical evidence we are not in a position to verify the claims."

The question for consideration by this court at this stage is whether the intended additional evidence satisfies the requirements for the admission of additional evidence on appeal as summarized by the Supreme Court in Ssemooerere case /supra).

180 185 From his submissions and Affidavit in Support, the applicant contends that the intended additional evidence is new in the sense that it was not available during the hearing of the suit by the High Court despite the numerous attempts on the part of the office of the Attorney General to secure the said information from the Ministry of Lands. That the applicant only succeeded in getting the said evidence after ludgment had already been delivered against him by the High Court. As such, the applicant craves for an opportunity to present the said evidence on appeal. The applicant attached to the application several correspondences between the applicant's Chambers and the offices of the Chief Government Valuer, the Prime Minister of Uganda and Ministry of Lands.

adjournments by the trial cou( to verify the respondent's claims with the Government Valuer but failed to utilize the opportunity. That the applicant was simply not vigilant enough and the production of the intended additional evidence is simply an afterthought intended to delay the -.") . L" enjoyment of the fruits of litigation by the respondents.

The respondents disagree. They contend that the applicant was granted numerous

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From the SSemogerere case (Supra), for evidence to qualify as "new and important" for purposes of Rule 30 (1)(b) of the Rules of this Court, it must be shown that at the time of the suit or petition, it was not within the knowledge of, or could not have been produced by, the party seeking to adduce the additional evidence, after the exercise of due diligence.

The applicant's evidence shows that at the time of the trial of the case by the High Court, he was aware that he needed the Government Valuer's Report for purposes of his defence. By the Letter of the Solicitor General addressed to the Permanent Secretary, Office of the Prime Minister on 04<sup>th</sup> April 2018, with a copy to the Senior Government Valuer, he emphasized the importance of the valuation in respect of the suit then pending before the High Court between the parties to this application thus:

"... As the practice of our office, and the requirement of the law and while prosecuting this matter for purposes of compensation, if any, court and the parties to the suit are required to be guided by the findings and valuation of the Government Valuer to be able to determine the extent of cost of such compensation."

The record of the trial court further shows that the appellant's Counsel was given several adjournments by the trial court to produce the Government Valuation Report before court. But he failed to do so. This fact was also noted in the Judgment of the trial Judge. Curiously, after the judgment of the trial court had been delivered, the applicant was able to secure the evidence from the Technical Team of the Chief Government Valuer's Office within a period of approximately six months from the date the respondents' Counsel, Ms Lukwago & Co. Advocates demanded for payment of the decretal sums from the applicant by their letter ref. No. LC/198/20/ML dated 11<sup>th</sup> November 2020.

In the premises, I find that the additional evidence sought to be adduced on appeal does not 215 meet the fundamental criteria of not having been within the knowledge of, or could not have been produced at the time of the trial by, the applicant, after the exercise of due diligence. What is apparent is that the applicant wants to use the application for purposes of adducing evidence which they ought to have produced before the High Court but did not do so despite having been given ample time and opportunity to do so. This is unacceptable as the Rule allowing additional Je 22 220

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evidence on appeal was never intended to grant the applicant a second opportunity to do before the appellate court what he ought to have done before the trial court and Illl the evidential gaps left in the applicant's case. See R Vs. Slrasi Bachumira 193d 3 EACA 41. (

The applicant also submitted that the additional evidence is intended to prove that the suit land from which the respondents were evicted forms part of Kibale National Park as a gazetted and protected area under the Mandate of Uganda Wild Life Authority (UWA) and the Uganda Land Commission. As such, the applicant contends that the eviction was lafful as the respondents were encroachers.

As observed earlier on in this Ruling, the applicant did not attach a copy of the Report of the Technical Team constituted by the Chief Government Valuer to the Affidavit Evidence in support of his application. Without the Report, this court cannot review the methodology, documents and equipment used by the technical Team all of which are key determinants of the credibility of their conclusion that the suit land forms part of Kibale National Park. Credibility of the additional evidence intended to be adduced on appeal is one of the key preconditions that the applicant had to satisfy before leave can be granted to him. ln the absence of the Report, I find that the applicant failed to discharge the burden of proof of the credibility of the intended evidence. 230 235

The aforesaid notwithstanding, the legal title to the land from which the respondents were evicted being vested in the Uganda wildlife Authority and the Uganda Land commission is not <sup>a</sup>relevant factor in the resolution of the gist of the dispute before court namely, the destruction of the respondents' property in the process of being evicted by government personnel from the land which they had been in possession for close to twenty years. What is relevant is whether at the material time the respondents had possessory rights in respect of the said land. see Wuta-OfeiVs Danquah I19iln W.1. R.1238 (Privy Council).

The relevance of the intended evidence is further drminished by the admission by the applicant's own Technicalfualuation Team after the field visit to the suit land that they are unable to verify the claims of the respondents as set out in exhibit "PE3" (the "Technical Assessment and Valuation Report of the Lost and Destroyed Properties [of the Respondents]" made by PW4 Joseph 245

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Mpamya, a retired District Agricultural Officer of Kasese District dated 24thOctober 2015) and which formed the basis of the award of the special damages in the sums which the applicant has labelled "colossal". The admission on the part of the Technical/ Valuation Team was communicated in the Letter of the Permanent Secretary to the Solicitor General dated 18th May 2021 (annexture "E" to the Affidavit in Support) in the following terms:

"Given that the land from which the claimants were evicted is a National Park and that the basis of the claimant's technical repol is the claimants' own personal declarations as opposed to actual physical evidence we are not in a position to verify the claims."

ln the circumstances, I am unable to find that the reasons furnished by applicant sufflcient for me to exercise my discretion to grant the applicant leave to adduce additional evidence on appeal. <sup>I</sup> would accordingly dismiss the application with costs to the Respondents as the successful party in the application,

| DatedthisI. F.tl- dayof<br>.' -*+.e. '<br>'<br>260 | | |---------------------------------------------------|--| | I | | | | | | MUZAMIRU MUTANGULA KIBEEDI | | | JUSTICE OF APPEAL | |

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Muzamiru M. Kibeedi, and Christopher Gashirabake, JJAI

## CIVIL APPLICATION NO.239 OF 2021

(Arisingfrom Civil Appeal No. 246 of 202 I & Original Civil Suit No.020 of 2003 of the High Court of Uganda at Fort Portal)

#### BETWEEN

ATTORNEY GENERAL APPLICANT

#### AND

BYARUHANGA JOHN &2499 OTHERS (SUING THROUGH THEIR LAWFUL ATTORN EY-REPRESENTATIVE)

RESPONDENTS

## RULING OF FREDRICK EGONDA-NTENDE. JA

- t1l I have had the opportunity to read in draft the ruling of my brother, Kibeedi, JA. I agree with it. I have nothing useful to add. - 12) As Gashirabake, JA, also agrees, this application is dismissed with costs.

Dated, signed and delivered at Kampala thisl[hay of =.tb <sup>2022</sup>

ckE da-Ntende Justice of Appeal

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

# [Coram: Egonda-Ntende, Kibeedi, Gashirabake, JJA]

### CIVIL APPLICATION NO. 239 OF 2021

{Arising from Civil Appeal No. 246 of 2021 & Original Civil Suit No. 020 of 2003 of the High Court of Uganda at Fort Portal }

#### **BETWEEN**

ATTORNEY GENERAL::::::::::::::::::::: **.....................................**

#### **VS**

**BYARUHANGA JOHN & 2499 OTHERS** SUING THROUGH THEIR LAWFUL ATTORNEY- REPRESENTATIVE

<pre>::::::::::::::::::::::::::::::::::::

# RULING OF CHRISTOPHER GASHIRABAKE, JA

I have had the benefit of reading in draft the Ruling prepared by Kibeedi, Muzamiru, JA. I concur with the reasoning and conclusions therein. I have nothing useful to add.

Dated at Kampala this.................................... .2022

Christopher Gashirabake, JUSTICE OF APPEAL