Emomeri v Shell Uganda Limited (Miscellaneous Application 35 of 98) [1999] UGCA 41 (11 March 1999)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA MISCELLANEOUS CIVIL APPLICATION NO.35/98

HON. MR. JUSTICE C. M. KATO, J. A. CORAM:

........... ... APPLICANT JULIUS EMOMERI ........... - VERSUS -

SHELL (U) LTD ............................ RESPONDENT

## RULING OF THE COURT (Single Judge):

This is an application for leave to adduce additional evidence at the hearing of the appeal. The application is by a notice of motion dated 16/7/98. It was filed under the provisions of Rule 29 (1) (b) and (2) of the rules of this court. The application is supported by the affidavit of the applicant Julius Emomeri and that of his counsel Mr. George Emesu; both affidavits are dated 16/7/98. Mr. Moses Ojakol counsel working in the firm of advocates representing the respondent swore an affidavit in reply to that of Mr. Emesu and Mr. Emomeri.

The notice of motion outlined 4 grounds upon which the application is based. The four grounds are:

- That the said additional evidence is relevant and $(a)$ material to the merits of the Appellant/Applicant's appeal. - That the said additional evidence was not known and/or $(b)$ available or accessible to the not was Appellant/Applicant at the time of trial of the suit.

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- That part of this additional evidence points to $(c)$ illegality and nullity of the defence proceedings and submissions of the Respondent which the Honourable Court can not Countenance and condone. - That the appellant/Applicant will suffer injustice, $(d)$ substantial and irreparable damage and loss if his Application to adduce the said additional evidence is allowed to facilitate a proper and just not determination of his Appeal on the merits.

Mr. Emesu, for the applicant submitted that the additional evidence was relevant and material to the applicant's pending appeal. He further submitted that the additional evidence was not known to the applicant and the court at the time of the trial. He contended that if the evidence being sought to be adduced had been known at the trial the proceedings would not have ended in favour of the appellant since there would have been no defence on record. It was his contention that if the additional evidence is not adduced his client will suffer injustice, substantial and irreparable damage. The basis of Mr. Emesu's argument was that at the time the case was being heard the defendant (now respondent) was represented by a firm of Advocates known as Kateeba & Co. Advocates and at that time Mr. Kateeba had no practising certificate, which in Emesu's view rendered the defence a nullity. He supported his submission with the case of: Sadrudin Shopiff v Tar Lochan Singh [1963] EA 659.

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On his part Mr. Serwanga-Sengendo, opposed the application on the ground that the applicant had not advanced sufficient cause to enable the court to grant leave for production of

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additional evidence at the hearing of the appeal. According to him the evidence which the applicant wants to adduce was available at the time of the trial. He submitted that with reasonable diligence the applicant would have discovered that Mr. Kateeba was barred from practising, at any rate he contended it $m$ was not Kateeba who represented the respondent at the trial, it was Mr. Turyakira who handled the case throughout. He further submitted that the additional evidence being sought has no bearing on the merits of the case as it concerns the conduct of an advocate. In his view the additional evidence has no influence on the outcome of the case. He quoted the case of: Karmali Tar Mohamed and another v Lakhani & Co. [1958] EA 567 in support of his submission.

Rule 29 (1) (b) of the Court of Appeal Rules under which this application was lodged reads as follows:

> "29 (1) (b) On any appeal from a decision of a High Court acting in the exercise of its original jurisdiction, the court may in its discretion, for sufficient reason, take evidence direct that additional $or$ additional evidence be taken by the trial court or a commissioner."

Two points merge out of this provision of the law. The first is that the power to admit fresh or additional evidence on appeal is discretionary. The second point is that before the court can admit such evidence the applicant must establish that there is sufficient reason as to why that evidence should be adduced. It should be pointed out that an appellate court will only allow

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ATTAINED IT THE ORIGINAL

additional evidence to be adduced in exceptional cases see: Elgood v R (1968) EA 274.

In the instant case the evidence which the applicant is intending to call is to the effect that at the trial the respondent's case was conducted by an advocate who was not supposed to practice law at that time. According to the available records on the file the case was conducted by one Turyakira but not Mr. Kateeba whose practising certificate had been cancelled. It follows that the additional evidence which the applicant is intending to call had no bearing to the outcome of the case at the trial as it only concerns the conduct of an advocate but not the merit of the case.

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Considering all the circumstances of this application I find that the applicant has not established sufficient reason to warrant this court permitting him to adduce fresh or additional evidence on appeal. In the circumstances the application is dismissed with costs to the respondent.

Dated at Kampala this $\mathbb{R}^{\mathbb{H}}$ ..... day of $\mathbb{R}^{\mathbb{H}}$ ....................................

JUSTICE