Kiwanuka v Muwanga (Miscellaneous Application 105 of 2023) [2024] UGHC 301 (3 April 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA **MISCELLANEOUS APPLICATION NO.105 OF 2023** (ARISING OUT OF CIVIL APPEAL NO. 13 OF 2022) (Arising from the Chief Magistrates Court of Rakai at Kalisizo Civil Suit NO.0062 of $2018)$ KIWANUKA DEZIDERIO.................................... **VERSUS** MUWANGA KAMAGU...................................

### **Before: HON JUSTICE LAWRENCE TWEYANZE**

### **RULING**

### Introduction.

- 1. The Applicant brought this Application under Sections 33, 38 of the Judicature Act, Section 98 of the Civil Procedure Act and Order 44 Rule 22(1a, b &2), and Order 52 Rules 1, 2 & 3 of the Civil Procedure Rules S.1 No. 71-1; Seeking for orders that the Applicant be granted leave to adduce additional evidence by way of documentary evidence, a land sale agreement dated $23/1/2010$ and a land sale agreement dated $18/3/1989$ , and costs of the Application. - 2. The Application is supported by the Affidavit of the Applicant, Kiwanuka Deziderio, who deponed that he sued the Respondent in Civil Suit No;0062 of 2018, and during Court proceeding, his Counsel tendered in Court photocopies of purchase agreements dated $18/3/1989$ , and another dated $23/1/2010$ respectively. That the originals of the said agreements were not in his possession as they were on Court file at Masaka Civil Appeal No.069 Of 2017 arising from Kalisizo Civil Suit No.016 of 2015. That by the time the trial Court decided Civil Suit No.0062 the said agreements were not on Court file. - 3. That the additional evidence to be adduced is relevant and key in determining the issue of ownership of the Suit land in Civil Appeal No.13 of 2022 that is pending determination before this Court. That the additional evidence to be adduced will probably influence the result of Civil Appeal No.13 of 2022. That the additional evidence to be adduced will have influence in determination of Civil Appeal No.13 of 2022. That the evidence to be adduced is capable of belief and is credible. - 4. That the Respondent will not be prejudiced in any way if leave is granted to adduce additional evidence, that it is instead the Applicant who will be prejudiced if leave to adduce additional evidence is not granted. That it is just, fair, reasonable and in the interest of justice that the Application to adduce additional evidence is granted.

**The Affidavit s in Reply.**

Page 1 of 7 SMMMXBI.

- 5. The Respondent, Muwanga Kamagu deponed and filed an Affidavit in reply and a supplementary Affidavit in reply wherein he stated as follows: That the Applicant's Application and its Affidavit in support, though full of falsehoods and it is an afterthought and it has been brought with inordinate delay since Civil Appeal No.13 of 2022 was filed on the $14^{th}/06/2022$ ; this Application was filed on the $18^{th}/05/2023$ after 1 year. - 6. That there is no discovery of new and important evidence which was not within the knowledge of the Applicant at the time of the trial of Civil Suit No. 0062 of 2018; That the evidence the Applicant intends to add on Court record was even tendered in as evidence in Civil Suit No. 0062 of 2018 as PE1 for agreement dated $18^{th}/03/1989$ on page 6 of the trial Court's proceedings and it was relied on by the trial Court; there is no need of bringing it again because it was already tendered in Court. - 7. That the additional evidence will prejudice the Respondent by delaying determination of Civil Appeal No.13 of 2022; that the Applicant had all the time at trial Court in Civil Suit No.0062 of 2018 to bring to Court the document dated $23th/01/2010$ but he chose not to, he is instead trying to waste Court's time trying to bring it again. - 8. That the Applicant through his lawyers while at trial Court in Civil Suit No.0062 of 2018 on page 7 of the proceedings even sought leave of Court to amend his Plaint to add facts of trespass and bring agreement dated $23/01/2010$ , which was granted but he later informed Court that they are not going to rely on the said document he is intending to bring as additional evidence; That all the documents the Applicant intends to rely on were in the custody of the Applicant during the trial of Civil Suit No. 0062 of 2018 so there is no need of bringing them again because they were already tendered in the trial Court. - 9. That the Applicant filed his appeal and even abandoned it for a full year without prosecuting it; That the Applicant has no evidence which will influence on the result of the case, both the oral and the documentary evidence are coached with deceit and afterthought.

### The Affidavit in Rejoinder.

- 10. In rejoinder, the Applicant deponed that this Application is brought before the main appeal is heard and determined and he has never abandoned Civil Appeal 13 of 2022, it was filed in time and prosecuted satisfactorily; That the additional evidence will do no prejudice to the Respondent as he has always been aware of the said agreements. - 11. That the said agreements have a nexus they do, if read together give a history of the land in dispute, they will help Court to trace the history of the transactions on the land from the Mailo owner Erinest Mujuzi to Nakabira Justine and then to the Applicant; That the original agreement dated $23/1/2010$ was on a Court file in Masaka High Court vide

Page 2 of $7$

SMMMXBD

Civil Appeal No 069 of 2017, and his previous Lawyers erred and tendered in a photocopy which was not relied on by the trial Court. That a Lawyer's mistake (the mistake of a former Lawyer) cannot be visited on the Applicant.

# Representation.

12. The Applicant was represented by M/s Sanywa, Wabwire & Co. Advocates while the Respondent was represented by $M/s$ Xander Advocates.

# **Submissions**

13. The parties were directed to file written submissions. Counsel for the Applicants filed their submissions and as well as Counsel for the Respondent. I have read and appreciated the contents of the Affidavit in support of the Application, the Respondents' Affidavit s in reply, the rejoinder and the submissions of the parties. I will refer to the submissions as and when I find it necessary since they majorly repeat the contents of the Affidavit s save for the cited authorities.

# Issue.

14. The only ground for determination is whether the Applicant has satisfied the requirements for grant of leave to adduce additional evidence on Appeal.

# **Decision of Court.**

- 15. I have carefully perused the submissions of both Counsel in this Application; the law has been properly cited and argued by both Counsel but for emphasis; for an Application for leave to file additional evidence on Appeal, the Applicant must satisfy the requirements under Order 43 rule 22 (1), & (2), of the Civil Procedure Rules. - 16. It is a settled position that an Applicant seeking leave to file additional evidence on Appeal, the Applicant must satisfy the requirements under Order 43 rule 22 (1), & (2), of the Civil Procedure Rules and those emphasized in the cases of *The Attorney General* versus Paul K. Ssemwogerere and Others, Constitutional Application No.2 of 2004 (SCC 2/04) unreported; Hon. Bangirana Kawoya vs National Council of Higher Education Misc. Application No.8 of 2013; Micheal Mabikke Vs. Law Development *Centre, Supreme Court Misc. Application No. 16 of 2015;* which include: - Discovery of new and important matters of evidence which, after the exercise of due $(i)$ 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;* $(ii)$ - *It must be evidence which is credible in the sense that it is capable of belief;* $(iii)$

Page 3 of 7

SMIMMARS

- The evidence must be such that, if given, it would probably have influence on the $(iv)$ 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;* - *The Application to admit additional evidence must be brought without undue delay.* $(vi)$ - 17. In *Attorney General versus Paul K. Ssemwogerere and others (supra)* Court stated in reference to the above requirements that "these have remained the stand taken by the Courts, for 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."* - 18. In view of the above, although one may have a right to seek leave of Court to adduce additional evidence on appeal, such right must be exercised within the above requirements and not just brought for the sake of re-opening the case. I shall address each of the grounds. - 19. A party shall not be permitted to adduce additional Evidence which is intended to patch up the weak points in the case or remove a lacuna created in the case. (See SMT Ganga Devi & others Vs. Bhagwan Das & others, 2014 (106)). In Safe Cargo Limited vs. Embakasi Properties Limited & 2 Others (2019) eKLR the Court of Appeal of Kenya made these profound observations: "It has been said time and again that the unfettered power of the Court to receive additional evidence should be used sparingly and only where it is shown that the evidence is fresh and would make a significant impact in the determination of the appeal." - 20. The Applicant seeks to introduce the following additional evidence (documents) on Appeal; - 1. Land (Kibanja) Sale Agreement dated $18/3/1989$ marked "A" and its English translation marked A2 on Kiwanuka Deziderio (Applicants) Affidavit in support. - 2. Land (Kibanja) Sale Agreement dated $23/1/2010$ marked B and its English translation marked B, between the Applicant and Nakabira Justine. - 21. The Applicant contend that the above evidence could not be adduced at trial because during Court proceeding, his Counsel tendered in Court photocopies of purchase agreements dated $\frac{18}{3}/1989$ , and another dated $\frac{23}{1}/2010$ . That the originals of the said agreements were not in his possession as they were on Court file at Masaka Civil Appeal No.069 of 2017 arising from Kalisizo Civil Suit No.016 of 2015. That by the time

Page 4 of 7

SMMMKAR

the trial Court decided Civil Suit No.0062 the said agreements were not yet on Court file. The Applicant now seeks to adduce the said documents on Appeal.

- 22. It was further averred that that the additional evidence to be adduced is relevant and key in determining the issue of ownership of the Suit land in Civil Appeal No.13 of 2022 that is pending determination before this Court. That the additional evidence to be adduced will probably influence the result of Civil Appeal No;13 of 2022. That the additional evidence to be adduced will have influence in determination of Civil Appeal No.13 of 2022. That the evidence to be adduced is capable of belief and is credible - 23. The Respondent on the otherhand contended that there is no discovery of new and important evidence which was not within the knowledge of the Applicant at the time of the trial of Civil Suit No. 0062 of 2018; That the evidence the Applicant intends to add on Court record was even tendered in as evidence in Civil Suit No. 0062 of 2018 as PE1 for agreement dated $18^{th}/03/1989$ on page 6 of the trial Court's proceedings and it was relied on by the trial Court; there is no need of bringing it again because it was already tendered in Court. That the Applicant had all the time at trial Court in Civil Suit No.0062 of 2018 to bring to Court the document dated $23th/01/2010$ but he chose not to, he is instead trying to waste Court's time trying to bring it again. - 24. That the Applicant through his lawyers while at trial Court in Civil Suit No.0062 of 2018 on page 7 of the proceedings even sought leave of Court to amend his Plaint to add facts of trespass and bring agreement dated $23/01/2010$ , which was granted but he later informed Court that they are not going to rely on the said document he is intending to bring as additional evidence; That all the documents the Applicant intends to rely on were in the custody of the Applicant during the trial of Civil Suit No. 0062 of 2018 so there is no need of bringing them again because they were already tendered in the trial Court. - 25. I have reviewed a certified copy of the record of proceedings of the trial Court. At page 6 of the record, Counsel Kalule who was then for the Plaintiff (now Applicant) applied to tender in documents dated $07/03/1989$ between the Plaintiff and E. K Mujuzi and another dated $23/01/2010$ between the Plaintiff and Nakibira Justine. For clarity, I will quote page 6-7 of the record of the trial Court which is as follows:

### "Kalule:

I apply to tender in Court agreement dated 7th March, 1989 between E. K. Mujuzi and Deziderio Kiwanuka as an exhibit and another one dated 23rd January, 2010 between Nakibira Justine and the Plaintiff.

### **Defendant:**

I received a copy of the agreement from the Plaintiff where he claims to have bought from Nakibira Justine but it has a different date from what is being tendered in Court,

Page 5 of $7$

JUMMABA

the one I have is dated 27h November 2009 but the one being tendered in Court is dated 23rd January, 2010, I object to it being tendered in Court as an exhibit.

### Kalule:

We have tendered in Court the original agreement and we don't have any other, unless he has original agreement, I pray that his objection is overruled the agreement dated $23^{rd}$ January, 2010 be admitted as an exhibit.

### Court:

Defendant raised no objection on agreement dated 7th March, 1989, it is admitted as Plaintiff Exhibit PE.1. For the agreement dated 23<sup>rd</sup> January, 2010, he has a photocopy but he says it is the same agreement that was tendered in Court in a case is Masaka, to enable this Court decide on whether to admit it or not, the Defendant is advised to present certified copy of proceedings in the case at Masaka.

### Kalule:

I seek Courts leave to amend our Plaint to include facts of trespass on the Kibanja that the Plaintiff bought from Nakibira Justine under agreement dated $23/01/10$ . Court:

Leave is granted to the Plaintiff to the amend Plaint, case adjourned to 14<sup>th</sup> April, 2021 for further hearing.

Mfitundinda George Magistrate Gr.1 $24/02/21$ $14/04/21$ Both parties in Court Fredrick Kalule for the plaintiff Charles - Court Clerk

### Kalule

I had sought to amend the Plaint, but we are not amending, we are also not relying on the agreement between the Plaintiff and Nakibira we are ready to proceed."

- 26. From the above record of proceedings, I find that the said documents are not new evidence. The documents were within the Applicant's full knowledge before and during trial. This evidence cannot qualify as new and important matters of evidence which after exercise of due diligence were not within the knowledge of the Applicant or could not have been produced at trial at the time of the Suit. The Applicant had these documents but preferred not to adduce the same during trial. The present Application in this regard appears to be an effort to re - open the case of the Applicant to adduce evidence on Appeal which is intended to patch up the weak points in the case or remove a lacuna created in the case at trial. There is no evidence on the trial record or the Application herein, that there had been an attempt to tender-in the evidence and the same was rejected by the trial Court. - 27. The Applicant did not follow the trial Court's advice on producing a Certified copy of proceedings in the case at Masaka. Instead, the Applicant's Counsel clearly informed Court that he had sought to amend the Plaint, but they are not amending, they are also

Page 6 of 7

SMMIKBA

not relying on the agreement between the Plaintiff and Nakibira and were are ready to proceed. Clearly, the Applicant had all available options but he chose not to.

- 28. I find that allowing the Applicant to adduce such evidence on Appeal would be a complete abuse of process since the said agreements were clearly and intentionally left out by the Applicant. It is settled law that a party cannot be allowed to succeed on a case that is not put forward by him. In the same vein, a party cannot be permitted to plead or set up a ground of Appeal which does not stem from the pleadings and the evidence adduced during trial. Doing so would allow parties to argue fresh cases on appeal which is barred by the Civil Procedure Rules. - 29. The agreements dated 7th March, 1989 between E. K. Mujuzi and Deziderio Kiwanuka as an exhibit and another one dated 23rd January, 2010 Between Nakibira Justine and the Plaintiff are not new and were within the knowledge of the Applicant during and after trial. Moreover, this Application was filed on 18<sup>th</sup> May 2023 and the Memorandum of Appeal in Civil Appeal No. 13 of 2022 filed on 14<sup>th</sup> June 2022. This indicates that the Application was filed almost after a year of filing the Appeal. Therefore, the Application to admit additional evidence was not brought without undue delay. In my view, these agreements appear to be an afterthought sought to be brought as additional evidence on Appeal. - 30. In the result, I find that the Applicant has failed to satisfy the requirements set out by law to warrant grant of leave to adduce additional evidence on Appeal. This Application therefore fails and it is accordingly dismissed with costs to the Respondent.

I so order.

Ruling signed and delivered by email this 3<sup>rd</sup> day of April, 2024

LAWRENCE TWEYANZE JUDGE. 3<sup>rd</sup> April, 2024.