Fredrick J.K. Zaabwe v Orient Bank Limited and Others (Civil Miscellaneous Application 17 of 2003) [2003] UGCA 20 (16 September 2003)

Full Case Text

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## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

MISC. CIVIL APPLICATION NO. 17 OF 2003 (Arising from CiYiLAp^e-aJ4^OTHd)-trf^003T~

FREDERICK J. K. ZAABWE APPLICANT

10 VERSUS

ORIENT BANK LTD AND OTHERS RESPONDENTS

## CORAM: RULING J. F. BERKO, JA. HON. MR. JUSTICE J

**20** This is an application brought under *rule 29 ofthe Rules ofthe Court* seeking for an order to allow the applicant to adduce additional evidence. The grounds aie that: -

> *the additional evidence orfresh evidence indicates that the 1st respondent's loan was repaid in full;*

> *(ii) the r' respondents were, therefore, not entitled to sell the applicant's land either as mortgagees or otherwise;*

**(iii)** *this additional evidence indicatesfraud on the part ofthe Ist and 2':d respohdents;*

f/19 *had the additional evidence been adduced there would have been an. issue whether the fr respondent's loan was fully repaid,*

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*(v) (iiid fmldlLiLJidjdUi()-ru-d-&rfresh-^vat^^ affects the judgment that was given. It also seeks that the costs or incidental-to the application should abide the result of the appeal.*

10 **o** The application is supported by two affidavits of the applicant. The first one was deponed to on 28lh February 2003 and filed in his Court on 03/03/2003. The second was deponed to on 3/9/2003 and filed on the same day. The application was opposed by the I"' respondent alone as the 2nd respondent did not defend the suit. One Dick Omara. the Credit Manager of the Is1 respondent, deponed to an affidavit in support of the contention of the lsl Respondent. I shall revert to the contents of the affidavits later.

This application'was put before me as a single judge. Rule 29 under which the application is brought reads: - •

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*"29 (I) On any appeal from a decision of a High Court acting in this exercise ofits originaljurisdiction, the Court may: -*

*re-appruise the evidence and draw inferences offact;*

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. ' *(b) in. its discretion, for sufficient reason, take additional evidence or direct that additional evidence be taken by the trial Court or by a commissioner.*

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*When additional evidence is taken by (he Court, it may be ora! or by affidavit and the Court may allow the cross-examination of any deponent. "*

The app beation -does, not seeleTeave-gf-tlrc Court to adnuce~additionaf evidence. It rather seeks for an order to adduce the additional evidence.

With regard to the practice and procedure for bringing such application to Court, I wish to refer to the case of *Kanwagi Tar Mohamed and Another Vrs. I. II. Eukhani and Company (1958) EA 567.* That appeal was from the decision of H. M. High Court for Uganda to the former Court of Appeal of Uganda. At the hearing of appeal, the appellants therein, applied to admit **/** *7* fresh evidence in support of their defence. The Court of Appeal considered the affidavit in support of die application and concluded that the appellants had failed to establish that the evidence sought to be adduced at the trial would not, with reasonable diligence, have been made available at the trial and dismissed the application.

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This case shows that application for leave to adduce fresh or additional evidence is heard by the Court hearing the appeal.

The second case is *Sadrudin Sheriff V'rs. Tarlochan Sign (1961) E A. 72.* This was an appeal from the judgment of learned Chief Justice of Kenya sitting on appellant jurisdiction. The learned Chief Justice, at tire hearing of the appeal, admitted further evidence on an application by the respondent. This case also supports the view that such applications are heard at the - hearing of the appeal. '

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This next case is *Mizee Wanjie and 93 Others vis. zin. January 2006*

$(1982 - 88)$ I KAR 462. This was an appeal from the High Court at Mombasa, Kenya. At the hearing of the appeal, the appellants sought leave under rule 29 (1) (a) of the Kenyan Court of Appeal Rules, (which gives the Court power on any appeal from a decision of the superior Court acting in exercise of its original jurisdiction, in its discretion, for sufficient reason, to take additional evidence or direct additional evidence to be taken by the trial Court) of the Court to direct that additional evidence be taken. The application was considered by the Court and disposed off before the hearing of the appeal continued.

The last case I wish to refer to is *Elgood* $\nu$ *Regina (1968)* $E$ *A. 274*. That was a criminal case. It was an appeal from the judgment of the Supreme -Court of Seychelles at Victoria. At the hearing of the appeal, an application for leave to adduce additional evidence under rule 42 of the Eastern African Court of Appeal Rules, 1998 was granted. Upon the grant of the 2 application the witness, the applicant wanted to testify, gave evidence on gath, there and then, before the Court and was cross-examined by the otherside.

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These decisions show that the practice has been that such applications are made at the hearing of the appeal and not to a single judge of that Court before the hearing of the appeal. The decisions of the former Eastern African Court of Appeal are good law in Uganda.

Rule 29, under which the application was brought, is silent on the mode practice of such applications. The mode of practice of Order 58 rule 9 of

*the English Rules ofthe Supreme Court, 1883 as amended,* is that *"a party who wishes to adduce further affidavit or other documentary evidence should give to the other side notice ofhis intention to applyfor [eave at the hearing. "* (Sec *Annual Practice 1958 page 1262).*

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I admit that an application for leave to adduce further evidence is not one of the applications a single judge is expressly prevented by rule 52 (2) from •hearing. I have also not come across any authority which expressly prohibits O a single judge from hearing such application. It would seem, therefore, that a io single judge can hear such an application *under rule 52 (1).* Indeed, the Honourable Deputy Chief Justice, sitting as a single judge, has dealt with a similar application, in Civil Application44-&r-^4-oI-2£lQ2Jji. the case of *Rev. Er. Narsensio Begumisa and Others* v *Eric John Tibebaga,* though she proceeded under *rules 29 (J) and (2), 42 and 43 ofthe Rules ofthis Court.* In my humble view, having regard to the principles upon which the appellant court in Uganda will exercise its discretion in deciding whether or not to receive further evidence, as laid down by *Lord Denning L. J.* as he then was, Qin *Ladd v. Marshall [1954f, I IVLR (1489 at 1491)* and cited with approval by the Eastern African Court of Appeal, I think, that the better practice is for 20 the application to be made at the hearing of the appeal. This is because it is .. only al llial singe that the Court will be in possession of all the facts and materials relating to the case.

*I.'* However, as it can be seen from the authorities above, both a single judge of tins court and (he court hearing the appeal have concurrent jurisdiction in the matter. 1 would, therefore, proceed to deal with the merit of the application.

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Gouri judgment. The applicant sued the respondents at the High Court for a declaration that -. his property sold by the respondent as a mortgagee was wrongful. He lost the case at the High Court. He has appealed to this Court against the High He now wants leave to adduce additional or further evidence at the hearing of the appeal.

**10 o** The additional evidence he intends to adduce at the hearing of the appeal are documents the appellant alleged came into his. possession after the judgment. These documents are set out in paragraph 7 of his affidavit in support of the application. These documents relate the " dealings' and correspondence between the National Waler and Sewerage Corporation and the 1st and 2nd respondents. The applicants contends that as the 2nd. respondent did not defend the suit, he had no means of getting access to those documents. Further, the Pl respondent's employees who dealt with the ■' mortgage and the 2nd,4"', 511' and 6lh respondents declined to attend court and consequently, he had no means of discovering these documents.

He. further contends that at the time he became aware of the existence of those documents, it was not possible to produce them or have them produced in Court. The reasons why he could not do that is contained on the affidavit of Mr. Edward Bainwilc, learned counsel who represented the applicant at the High Court.

•Finally, the applicant contends that the fresh evidence contained in the documents relates to fraud which needs to be investigated by the Court. The allege fraud relates to rhe sale of his property. In support, he relied on the cases *Sadrudin Sharijf* v *Tarlchan Singh s/o Swala Singh 1961 E A 72*

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where it was held that as the question illegality arose *ex improvise* in the trial Court, it the discretion of the Supreme Court to admit on application and to have denied the application would have been to ( risk rank injustice to the respondent. He, also relied on *Karmaji Tarmohomed andAnother C. I. H. Lakhani and Company (supra).*

The application has been opposed by the respondent. On the first ground that the applicant only became aware of the documents, the respondents contends that it is not true. The stand of the respondent seems to be io • supported by record of appeal and the affidavit of Mr. Bamwite. The evidence of Bamwite shows that on two occasions counsel for the respondents gave him a list of documents. The first list is set out in paragraph 8 and 9 of his affidavit. On the 19/9/2001 counsel for the respondents gave him another set of documents which the respondents counsel intimated to Mr. Bamwite that he wanted one Dick Omara to produce. These documents are set out in paragraph ]2 of B.amwite's affidavit.

The record shows that Mi'. Bamwite said lie was not interested in them. Ln 20 paragraph 13 of his affidavit. Mr. Bamwite gave the reasons why he was pot interested in those documents. It reads:

> *"13 That the above documents were not stated in the list, of documents and the lists of documents did not state the witness who was to produce them and what evidence was to be produced about them.* "

The above averment shows that the legal advisor of the applicant did not avail himself of the opportunity of producing the evidence he now seeks the

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leave of the Court to produce. Instead, he allow the opportunity to slip by on mere technicality. The applicant cannot be heard, now, to say that he only became aware of the existence of the documents after judgment. Though, Baniwite was shown the document after he had completed the crossexamination of the witness who was to produce the documents, since the ----------------------------------Court was still ceased with the matter, he ought to have looked at the $\Lambda$ documents and decided on their relevancy to his clients case. He was wrong to have just brushed the documents aside.

With regard to the allegation of fraud, nothing has been shown to me which on the face of it reveals evidence of fraud.

For the above reasons, I have come to the conclusion that the applicant has failed to show sufficient reason for the grant of the application. I would dismiss the application with costs in favour of the respondents.

Dated at Kampala this. (G. E. day of C. S.) $\dots 2003.$

Justice of Appeal.

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