Nanyonjo v Kato (Miscellaneous Application 542 of 2022) [2023] UGHCLD 209 (18 July 2023)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO **MISCELLANEOUS APPLICATION NO. 542 OF 2022** (ARISING FROM CIVIL APPEAL NO. 13 OF 2022) (ARISING FROM CIVIL SUIT NO. 50 OF 2020)

## <table> NANYONJO AISHA :::::::::::::::::::::::::::::::::::: **VERSUS**

KATO EDWARD SSALONGO :::::::::::::::::::::::::::::::::::

## BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA **RULING**

- 1. This is an application brought by Notice of Motion under the provisions of Articles 28 and 44 (c) of the Constitution of the Republic of Uganda, 1995, section 98 of the Civil Procedure Act, Cap. 71, section 33 of the Judicature Act, Cap.13, Order 43 rule 22 and Order 52 rules 1 and 3 of the Civil Procedure Rules, S. I 71-1. The application is seeking for orders that the Applicant be allowed to adduce additional evidence on appeal and that costs of the application be provided for. - 2. The grounds upon which the application is brought are set out in the Notice of Motion and supported in detail by the Applicant's affidavit dated 24<sup>th</sup> November, 2022. The grounds are that:

- (a) the Applicant filed Civil Appeal No. 13 of 2022 against the Respondent on the 28<sup>th</sup> March, 2022, challenging the decision and orders of His Worship Muinda Tadeo in Civil Suit No. 50 of 2020; - (b) at the time of the decision of the trial Magistrate, the investigations in CRB 307/2020 had not yet been concluded by the Directorate of Public Prosecutions; - (c) on the 18<sup>th</sup> May, 2022, the Directorate of Forensic Services made a report in respect to a sales agreement dated 19<sup>th</sup> July, 2017, sample fingerprints on a plain sheet of paper dated 24<sup>th</sup> March, 2022, bearing the name of Kato Edward and transfer documents of registration of title of Block 222, Plot 1074 bearing finger impression authored on each sheet; - (d) the above mentioned report made a conclusion that the known sample right thumb print were reproduced by one and the same right thumb: - (e) on the 28<sup>th</sup> June, 2022, the Director Forensic Services made another report in respect to the exhibit which was the Applicant's Samsung Galaxy J1 which contained two audio files and made a finding on page 15 paragraph 8 that: - Nalongo accepted having participated in the writing of the $(i)$ agreements and could not deny that from Maama Namatovu;

- Ssalongo accepted having received UGX. 10,000,000/= out $(ii)$ of the UGX. 12,000,000/= that is claimed by Maama Namatovu for the sale of land measuring 50 X 150; - Ssalongo allowed Maama Namatovu to fence off her land and $(iii)$ also continue using the said land; - $(iv)$ Maama Namatovu during this recording had gone to Ssalongo's place to ask him for the land title for the said land and to sign the transfer forms which Ssalongo claimed the land title was with certain woman whom he claimed she was demanding UGX. 5,000,000/=; - $(v)$ Ssalongo regretted of writing the agreement without including the amount of money that he received from Maama Namatovu. - (f) the above evidence was not available during the hearing of Civil Suit No. 50 of 2020: - (g) if the trial Magistrate had the above mentioned evidence, the court would have ruled otherwise; - (h) this application has been brought without undue delay and justice would not have served to the Applicant; and - (i) Civil Suit No. 50 of 2020 was ruled against the Applicant on the ground that there was no evidence to show that she had provided consideration for the land she purchased from the Respondent as evidenced on page 11 of the judgment.

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- 3. In opposition, the Respondent filed an affidavit in reply to the application deponed on 24<sup>th</sup> February, 2023, on the grounds that: - (a) this application has no merit, is frivolous, vexatious and constitute an abuse of court process which ought to be struck out with costs; - (b) CRB 307 of 2020 and Criminal Case No. 218 of 2020 lodged against the Respondent was basically for concealing a title deed contrary to section 278 of the Penal Code Act, in which investigations were concluded pursuant to Mr. Luwambya Musa the Respondent's lawyer seeking for disclosure which was granted, upon which he got all the statements of prosecution witnesses for purposes of hearing the matter; - (c) the Respondent appeared before court on several occasions until the 20<sup>th</sup> September, 2022, when the matter was dismissed for want of prosecution; - (d) therefore it's false for the Applicant to state that investigations in CRB 307 of 2020 and Criminal Case No. 218 of 2020 had not been concluded yet court on several occasions requested prosecution to bring witnesses but the Applicant failed to appear before court; - (e) the Applicant with reasonable diligence could have secured the forensic expert reports mentioned in her supporting affidavit in as much as Civil Suit No. 50 of 2020 and CRB 307 of 2020 were concluded in 2 years which period was plenty for her to secure the impugned reports;

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- (f) Nalongo does not deny writing the agreement dated 19<sup>th</sup> July, 2017, however, the same was written as a hoax aimed at saving the Applicant's husband who produced other children out of a wedlock and therefore, the audio in respect of Nalongo is not additional evidence perse: - (g) the two audios were available to the Applicant as part of her evidence in the trial court because she attempted to tender them thereof when she was testifying but court rejected because the same had not been served upon the Respondent's lawyers. That as much as the court rejected to the tendering in of the said audios, the same is oral evidence aimed at contradicting what is contained in a written document; and - (h) the evidence the Applicant is seeking to add is not credible to her appeal in as much as the agreement which is subject to her case has no consideration - 4. In rejoinder, the Applicant deponed that if at all the Respondent doubts the authenticity of the said attached evidence, he is free to cross examine the authors of the investigation reports. That the Directorate of Forensic Services of the Uganda Police Force made two reports on 18<sup>th</sup> May, 2022 and 28<sup>th</sup> June, 2022 and the reports were handed over to the prosecution when Civil Suit No. 50 of 2020 had already been concluded. Further, that the evidence in the two reports clearly show that there was a consideration which money was acknowledged by the

Respondent and this is confirmed in the report vide Mukono CRB 307 of 2020 dated 28<sup>th</sup> June 2022.

- 5. The Applicant added in rejoinder that the opposition of her application is done in bad faith to prevent her from bringing evidence to show that indeed the Respondent received money which he denied to have received in the lower court. Also that the Respondent's reply is false and intended to frustrate the Applicant from proving that indeed she paid money to the Respondent which he denied to have received during the trial in the lower court. - 6. When this application came up for hearing on the $2^{nd}$ May, 2023, the Applicant was represented by Counsel Sebowa Solomon and Counsel Samuel Ssemwogerere both from M/s AVRAX Advocates. The Respondent was represented by Counsel Luwambya Musa from M/s Wetaka, Bukenya & Kizito Advocates. Both parties filed their written submissions and the Applicant also filed submissions in rejoinder which are all considered in this ruling.

#### Issue

Whether the Applicant is entitled to be granted leave to adduce additional evidence on appeal.

7. It was submitted for the Applicant that by the time the trial Magistrate made his decision in Civil Suit No. 50 of 2020, investigations in CRB 307 of 2020 had not yet been concluded by the Directorate of Public Prosecutions. That the investigation revealed that the three finger

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prints on exhibit document and the known sample right thumb print were reproduced by one and the same right thumb of the Respondent. The Applicant's counsel reiterated the Applicant's averments in their submission, hence making it unnecessary to reproduce here.

- 8. That the principles and conditions an appellate court has to consider in order to exercise its discretion to allow an application such as the present one have been stated by the Supreme Court in the case of Hon. Bangirana Kawoya v. National Council of Higher Education, Misc. Application No. 8 of 2013. That there were important matters of evidence which could not have been produced at the time of the suit and the evidence is relevant to the issues at hand which is whether or not there was consideration for the purchase of the land in dispute. That this evidence is credible having been prepared by the Uganda Police during investigations of the Criminal Case No. 218 of 2020/CRB 307 of 2020 against the Respondent. - 9. Additionally, learned counsel averred for the Applicant that the above mentioned evidence if allowed in the interest of justice would probably have an influence on the case and have been attached to the Applicant's supporting affidavit. Counsel prayed that court finds time to listen to the audios and the police report attached to the application. - $10$ That this application was filed without undue delay since the judgment was made on the 10<sup>th</sup> day of February, 2022, the appeal filed on the 28<sup>th</sup> day of March, 2022 and the application for additional evidence filed on the 28<sup>th</sup> day of November, 2022, having received the

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evidence from police on the 28<sup>th</sup> day of June, 2022 and on the 18<sup>th</sup> day of May, 2022. That this application meets all the requirements as laid down in the cases of Makubuya Enock William T/a Polly Post v. Bulaim Muwanga Kibirige T/a Kowloon Garment Industry, Civil Application No. 133 of 2014 and Hon. Bangirana Kawoya v. National Council for Higher Education (supra). Counsel prayed that the application be granted with costs.

- $11.$ The Respondent's counsel on the other hand contended that it cannot be argued that the additional forensic report and audios that the Applicant seeks to be exhibited as additional evidence were not within her knowledge or could not have been produced at the time of the suit. That this is because there was plenty of time for the Applicant to produce the said reports given that both the criminal and civil matters from which the appeal arises took 2 years to their conclusion. That the audio/electronic evidence was available during trial but the same was rejected when the Applicant attempted to tender it before court in as much as it was not on court record and it had not been served upon the Respondent's counsel. That this should have been brought as a ground of appeal than wishing to use this honourable court to smuggle it thereof. - 12 Counsel submitted that investigations in CRB 307 of 2020 were concluded pursuant to which defense counsel was granted disclosure whereof he secured police statements for the prosecution witnesses. That the Applicant just failed to properly adduce the audio/electronic evidence and that with due diligence the Applicant would have secured

the forensic handwriting expert report on the day when she testified. Further, that her failure to do so during the trial depicts a complete absence of due diligence that is compounded by the Applicant's failure to seek for an adjournment to have the said documents exhibited on the adjourned dates.

- $13$ It was added for the Respondent that the appeal is basically on the purported sale transaction between the Applicant and the Respondent in respect of land comprised in Kyaggwe Block 222, Plot 1074. That however, there was no consideration in the sale agreement for the aforementioned transaction which makes it void under section 20 (1) of the Contracts Act, No. 1 of 2010, hence making the forensic handwriting expert report inadmissible for being irrelevant to the issue before court. - $14.$ That the audio / electronic evidence cannot pass the authenticity assessment laid down under section 7 (2) (a) of the Electronic Transaction Act, 2011. That in light of this provision, the test is made as to whether the information has remained complete and unaltered, except for the addition of an endorsement or any other change which may arise in the normal course of communication in light of the purpose for which the information was generated. That another test is the authenticity of the information is assessed having regard to other relevant circumstances which position was echoed in the Supreme Court case of Kakonge Umar v. Uganda, Criminal Appeal No. 0099 of 2018 15. That there is no evidence touching admission of the purported consideration though Nalongo accepts having participated in writing of the agreements and that a clear analysis of the voice notes of the conversation between Maama Namatovu the Applicant and Ssalongo, the Respondent, makes a finding that the writer of the agreement did not see consideration. That the Respondent denies having received money from the said Maama Namatovu. That the Respondent kept on telling the Applicant that he wanted money and the Applicant kept on begging or requesting him to sign for her a transfer form. Also that in the audio, the land purportedly purchased is not clearly mentioned hence making the electronic evidence unclear, equivocal and not selfexplanatory.

16. Furthermore, learned counsel submitted for the Respondent that the evidence sought to be added is oral which is against the parole evidence rule yet it is trite law that evidence cannot be admitted to add to vary or contradict a written instrument. That in contract, where a contract has been reduced in writing, neither party can rely on evidence of the terms alleged to have been agreed which is extrinsic document, that is not contained in it. Hence, that the electronic evidence is irrelevant to the appeal and will not have any influence on the result thereof

17. With regards to delay in filing this application, the Respondent's counsel averred that the trial court's judgment was delivered on 10<sup>th</sup> February, 2022, the Memorandum of Appeal was filed on the 28<sup>th</sup> March, 2022 and this application was lodged on 28<sup>th</sup> November, 2022,

more than a year after delivery of the judgment and more than 7 months after the filing of the Memorandum of Appeal. That consequently, 7 months or a 1 year's delay in lodging this application is inexcusable. That no sufficient reasons have been established by the Applicant for the presentation of additional evidence on appeal in this matter and counsel invited this court to find so with costs.

- 18. The Applicant's counsel submitted in rejoinder that it is misleading for the Respondent's counsel to submit that the said evidence was available at the trial. That whereas the judgment in Civil Suit No. 50 of 2020 was concluded and a judgment delivered on the 10<sup>th</sup> day of February, 2022, the additional evidence was obtained on the 18<sup>th</sup> May, 2022 and 28<sup>th</sup> June, 2022 several months after the delivery of the judgment. Counsel added that the additional evidence is relevant for the determination of the issues raised in the memorandum of appeal and that this being a court of justice, it cannot decline the application where additional evidence clearly shows that there was consideration paid to the Respondent. - 19 That the Respondent went ahead and signed transfer instruments for the property in issue together with the sale agreement which evidence is confirmed in the forensic police report dated 18<sup>th</sup> May, 2022 and the audio in the report dated 28<sup>th</sup> June, 2022 clearly shows that the Respondent received UGX. 10,000,000/= and this evidence is relevant to the pending appeal. That the two reports will show to court that indeed there was a transaction of a willing buyer and willing seller of the suit land but the vendor decided to turn around after

the sale of the said land. That the Respondent is not coming to court with clean hands when he alleges that the agreement was signed as a hoax and that his intention is to cheat the Applicant of land sold to her. That the Respondent should not be allowed to benefit from his acts or omission intended to cheat the Applicant. Counsel reiterated their earlier prayer that the application is granted with costs.

## **Court's consideration**

- 20. The general principle is that the appellate court should not consider anything outside the record of the lower court and cannot take additional evidence on appeal except in exceptional anv circumstances. Order 43 rule 22 of the Civil Procedure Rules provides that - "(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the High Court: but if— - (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; $or$ - (b) the High Court requires any document to be produced of any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the High Court may allow the evidence or document to be produced, or witness to be examined.

- (2) Wherever additional evidence is allowed to be produced by the High Court, the court shall record the reason for its admission." - $21.$ In Aluma Michael Bayo & Ors v. Said Nasur Okuti, **Miscellaneous Civil Application No. 0012 of 2016 Justice Steven Mubiru** held that

"In general, it would undermine the whole system of justice and respect for the law if it were open to a party to be able to re-run a trial simply because potentially persuasive or relevant evidence had not been put before the court. An obligation rests on the parties to adduce any material evidence before the court, and if they fail to do so they cannot require a second hearing to put the matter right. Exceptionally, however, justice conflicts with the principle of finality. Evidence sometimes emerges which suggests that the court may have reached the wrong decision in circumstances where it might be unjust not to reopen the judgment. Hence the courts have developed principles for determining when justice requires a case to be re-opened and a new trial ordered......"

In Ladd v. Marshall [1954] 1 WLR 1489 at page 1491 Lord $22.$ Denning said:

> "To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be that, if given, it would probably have an important influence on the


result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."

- $23$ The case of Ladd v. Marshall was followed in the Ugandan case of Karmali Tarmohamed & Anor v. I. H. Lakhani & Company [1958] E. A. 567 where it was held 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, or that reasonable diligence would not have made it so available. - $24.$ Further, in Karmali Tarmohamed and Another v. T. H. Lakhani and Co. [1958] EA 567 at page 574, the court cited the ANNUAL PRACTICE 1953 at p. 1252 where it is stated thus:

"It is an invariable rule in all the courts that if evidence which either was in the possession of parties at the time of a trial, or by proper diligence might have been obtained, is either not produced, or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by the granting of a new trial."

$25.$ The principles and conditions to be followed for the admission of additional evidence on appeal were re-stated by the Supreme Court in Hon. Anifa Bangirana Kawooya v. National Council for Higher **Education Misc. Application. No. 8 of 2013.**

$26$ A summary of these authorities is that an appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, which include:

- (a)Discovery of new and important matters of evidence which, after the exercise of due diligence, were 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; - (b)It must be evidence relevant to the issues; - (c) It must be evidence which is credible in the sense that it is capable of belief: - (d) 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: - (e) The affidavit in support of an application to admit additional evidence should have attached to it, proof of evidence sought to be given; - (f) The application to admit additional evidence must be brought without undue delay. - 27. In my judgment, where evidence which was either in the possession of a party at the time of a trial, or by proper diligence could have been obtained, is not produced leading to the case to be decided adversely to the side to which the evidence was available, no opportunity for adducing such evidence ought to be given to the said party which was reluctant or failed to exercise due diligence to ensuring that it was admitted in the trial court. Allowing such additional evidence

would undermine the whole justice system since the obligation to adduce all material evidence before the trial court rests with the party seeking to rely on such evidence failure of which such a party cannot require a second hearing to put his or her case right. This would be considered an afterthought especially where the party had plenty of time to seek audience of the trial court to admit the evidence.

28. It is also trite law that litigation must come to an end. In **Brown v** Dean [1910] AC 373, [1909] 2 KB 57, it was emphasized that:

"In the interest of society as a whole, litigation must come to an end, and when a litigant has obtained judgment in a court of justice, he is by law entitled not to be deprived of that judgment without very solid grounds."

29. From the parties' pleadings and submissions considered above, it is not in dispute that the civil suit took about 2 years to come to its final conclusion. In my view, this period was enough for the Applicant to obtain whatever evidence she deemed necessary to support her case but she failed to do so. No wonder the criminal case against the Respondent in which the Applicant was the complainant and one of the prosecution witnesses was dismissed for want of prosecution. It is the Respondent's uncontroverted evidence that the criminal case was dismissed because of the Applicant's failure to appear before court to give evidence against him.

$30$ I find that this application was an afterthought by the Applicant meant to deprive the Respondent from enjoying the fruit of the

judgment, which if allowed by this court would be very unjust on his side. Moreover, the purported sample fingerprints on a plain sheet of paper dated 24<sup>th</sup> March, 2022, bearing the Respondent's name was obtained and submitted to the Directorate of Forensic Services for their scrutiny and report after the completion of the hearing and delivery of judgment in Civil Suit No. 50 of 2020. This should have been done before or in the course of the hearing of the main suit if the Applicant desired to rely on the report as one of her evidence.

- 31. Besides, in the memorandum of appeal which in my view was even filed out of time, the Applicant stated in the 5<sup>th</sup> ground of her appeal that the learned trial Magistrate erred in law and in fact when he objected to tendering in of electronic evidence which had proof of consideration of the suit property. In contradiction, the Applicant deponed in paragraph 7 of her supporting affidavit and reiterated in her submissions in rejoinder that the said evidence was not available during the hearing of Civil Suit No. 50 of 2020. This leaves this court with a conclusion that the said affidavit in support of this application and the Applicant's submissions are tainted with falsehood which if entertained by this court would set a bad precedent in the justice system. - 32 Pursuant to the foregoing analysis, I find no merit in this application and hereby dismiss it with costs to the Respondent.

I so rule and order accordingly.

This ruling is delivered this day of July 2023 by


In the presence of:

- (1) Counsel Samuel Ssemwogerere from M/s AVRAX Advocates, for *the Applicant;* - (2) Ms. Nanyonjo Aisha, the Applicant; - (3) Mr. Kato Edward Ssalongo, the Respondent; - (4) Ms. Pauline Nakavuma, the Court Clerk.