Teopista Nabbale and Another v Namatovu (Civil Application No. 0158 of 2016) [2017] UGCA 151 (6 November 2017)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION No. 0158 OF 2016 1. TEOPISTA NABBALE 2. CAROLINE AUMA NATAYA :::::::::::::::::::::::::::::::::: $\cdot$ VS

GRACE NAMATOVII::::::::::::::::::::::::::RESPONDENT CORAM: HON. JUSTICE S. B. K. KAVUMA, DCJ **RULING OF THE COURT**

#### **Introduction**

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This is an application for orders that: 15

- *a) The applicant be granted leave to adduce additional evidence* on appeal consisting of the following: - $i$ ) Transfer Instrument for the suit land comprised in Kyadondo Block 244 Plot 541, situate at Kisugu signed by the $2^{nd}$ and the $4^{th}$ defendants in favor of the $1^{st}$ *defendant/ applicant/ appellant.* - Signed copies of the $2^{nd}$ and the $4^{th}$ defendants ii) identifications. - The $2^{nd}$ and the $4^{th}$ defendants' passposition iii) ptographs. - The Consent Judgment in HCCS No. 362 of iv)

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- **Vj <sup>5</sup>** *The Applications made by the 2nd and the 4th defendantsfor removal ofcaveatsfrom the suit land.* - *vi) The Notice to the caveator ofapplication to remove the caveatfrom, the suit land comprised in Kyadondo Block 244 Plot 541, situate at Kisugu.* - **<sup>10</sup>** *vii) The Postage receipt dated 29th May 2012.*

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*b) The costs of and incidental to this application to abide the outcome ofthe Appeal.* (Sic)

The Application is brought by way of Notice of Motion under Rules 2, 30(1) (b) (2), & (4), 43 & 44 of the Judicature (Court of Appeal Rules) Directions S. I. No. 13-10. It is supported by the affidavit of the 1st

## Background

applicant, dated 6th May 2016.

**nd** The background to the application is that the 1st applicant/ appellant herein was the 1st defendant in HCCS No. 243/ 2013. She is the registered proprietor ofthe land comprised in Kyadondo Block 244, Plot 541, situate at Kisugu, having bought the same from Sew^nya John, Kawalya Dorah and Walusimbi Allen who are adm^^&torsyof the estate of the late Kristina Nabaggala, and were th|<sup>2</sup>nS^£<afid <sup>4</sup>th defendants in HCCS No. 243 of 2013.

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### **<sup>5</sup> Grounds of application**

The grounds upon which the application is premised were stated briefly in the Notice of Motion and laid out with detail in the affidavit in support ofthe application. The 1st applicant averred, *among other things,* that:

- *Upon signing the Purchase Agreement and payment of the consideration agreed upon, the trio (2nd' 3rd and 4th defendants) handed to her the Certificate ofTitle to the suit land, together with a signed transfer form, signed copies of their respective Identifications and their Passport- sizephotographs.* - *• The trio further introduced her to the respective Bibanja holders for purposes of negotiating with them and to have all the encumbrances on the suit land removed to enable her effect a transfer into her name.* - *dAbdul* **•** *Among the Bibanja- holders introduced to her was Abdul Lugoloobi Mugaalasi who sold his interest to her by Agreement dated 12th December 2011, and the said Administrators ofthe late Kristina Nabbagala's estate also signed a Consent Judgment by which they withdrew HCCSNo. 362 of2010 against Lugoloobi Mugaalasi.* - **r** • *She carried out a search with the Land Registry and obtained copies ofthe Application which the said Administrators had made*

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*for removal of the caveats on the suit land and Notice to the Caveator ofthe said application to remove the caveatfrom the suit land.*

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- *Upon expiry of the 60 days stipulated in the Notice, the caveat lapsed and was duly removed by the Registrar ofTitles.* - *The trio attempted to turn against her and complained to Kabalagala Police Station that she stole the Certificate of Title to the suit land, but upon investigations, Police established that they had given itfalse information and they were accordingly charged. Walusimbi Allen and Kawalya Dorah went into hiding but the 2nd defendant- John Ssewanyana was found guilty of giving false information to Police that she stole the Certificate of Title to the suit land. The Court was convinced that she bought the suit land from them and that they had handed to her the Certificate of Title and a Transfer Form duly signed in herfavor.* - **20** *name. El • passport Tnto her • On 11th November 2014, during the cross examination of Walusimbi Allen, the 3,d defendant in HCCS No. 23of 2013, he denied ever signing a Transfer Form and ever giving Id. size photographs to her to effect a transfer ofthe* - **25** • *At the time offiling the defence in HCCS No. 243 of'zOlS, she didn'<sup>t</sup> have copies ofAnnexures 'A', 'B', 'C', 'El', 'E2' and 'F2' as they were kept with the Land Registry and the file couldn't be*

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- *traced but be but was later traced and she managed to obtain copies thereofand sought to adduce them in the course ofthe trial, but the trial Judge rejected her application on grounds that there was a lacuna in the law which only allowsfor additional evidence to be adduced on appeal.* - *The Orders sought are necessary to show Court that she lawfully acquired the suit land and the respondents will not be prejudiced by the Court granting her Orders sought.* - *She hereto attached the Memorandum of Appeal in respect of which she craves to be allowed to adduce additional evidence in order to enable Court effectively and conclusively resolve the dispute.* **(Sic)**

#### **Affidavit in reply**

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**th** In reply to the application, an affidavit dated the <sup>13</sup> day of February 2017 was sworn by the respondent. She averred, *among other things,* to the effect that:

- *She was the plaintiffin HCCS No. 243 of2013 and the respondent in Court ofAppeal Civil Appeal No. 243 of2013.* - *ahehoods, vMfpNytient* • *The instant application is defective, tainted^. brought in bad faith and aimed at prejudicmg. herein and should be struck out.*

*registered as proprietor on the suit land was rightlyfound by the trial Judge in HCCS No.* • *The applicant was through fraud as 243 of2013.*

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- *She denies the averments in the applicant's affidavit in support and shall put the applicant to strictproofthereof.* - **10** • *She did not sign the Consent Judgment annexed to the affidavit in \* support and as such cannot be said to have sold her interest to the applicant or even to have accepted any of the terms of the said judgment.* - *She never received any notification of the intention by the Administrators to remove the caveat as a beneficiary ofthe estate ofthe late Kerina Ajiru Nataya and any removal ofthe caveat was donefraudulently.* - *• Paragraph 10 ofthe applicant's affidavit is tainted with falsehood as the applicants at all material times had access to the documents, annexed and marked A', 'B', 'C', 'El', 'E2' and 'F2' or on exercising diligence should have obtained them from the Land Registry.* - *if the* • *The applicant has not adduced any evidence in pp* I *allegations stated therein.* - **25** *tjnfifxfi by introducing evidence which is not new as it was always in the possession of the respondent and is now seeking to prejudice the • The instant application is intended to abuse*

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*applicant, using court process to fraudulently deprive the applicant ofher interest in the suit land. . .*

- *• The evidence now sought to be adduced on appeal shall have no influence on the outcome ofthe appeal as thatfact remains that the respondent as caveator was never effectively notified of the intention to remove her caveat and as such it could not have legally lapsed to enable the applicant acquire any interest in the suit land.* - *The applicant has not shown sufficient reason for the Court to exercise its discretion to grant her leave to adduce additional evidence on appeal.* - *• It is in the interest ofjustice that this application is dismissed with costs against the applicant.* (Sic)

## Representation

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**'0** At the hearing of the Application, the applicants were represented by Ms. Tamale Lydia, David Kaggwa & Joseph Kyazze, (court, applicants), while the respondents were represented Opolot & Mr. Isaac Mpanga, (counsel for the respohdefjt)< for the )dekele

## **The** case for **the** applicants

**5** Counsel for the applicants heavily relied on the affidavit in support of the Application. He submitted that the evidence sought to be adduced is

**5** highly credible and relevant for the fair and final resolution of the issues raised in the lower court. He stated that if given, this additional evidence will have an important influence on the result ofthe case.

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He contended that it was not an afterthought, seeing that the Application had expeditiously been brought and reference to it made in the Record of Appeal that counsel would seek leave of court to adduce additional evidence and that evidence was made part ofthe Record ofAppeal. Also at conferencing, it was brought to the attention of the Registrar. He noted that the grant of the application would not prejudice the respondents in any way and that it was just and equitable that the orders sought are granted.

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Counsel cited several cases where court may take additional evidence, including: **Karmali Tarmohammed and another v LH. Lakhani & Company [1958] <sup>1</sup> E. A 567; Hon. Anifah Bangirana Kawooya vs. NCHE Supreme Court Civil Application No. 12 of 2014;** where it has been settled that an Appellate Court may exercise discretion to admit additional evidence only in exceptional circumstances.

found **S1** t was It was counsel's contention that the learned trial Jud that the sale and the transfer of the suit land to a fraudulent. He submitted that the evidence sought to be artduded' related to the process that culminated in the removal ofthe respondent's caveat on the suit property and its transfer to the 1st applicant. He added that the **5** evidence sought to be adduced was credible given that it was duly certified by the Commissioner for Land Registration to be used for court purposes.

It was his submission, therefore, that the applicant had made out a case to warrant the admission of the additional evidence and prayed that Court grants the applicant leave to adduce it.

The case for the respondent

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In opposition to the Application, counsel for the respondent submitted that there was nothing new or extraordinary that was not available to the applicant at the time of the trial. On the specific documents, he noted that the Registrar of Titles was a partyjoj Court and the applicants never those documents. ie matter before the High it they intended to rely on

re; being the cadent as **\*** Regarding the Consent Judgment, counsel submitted that the document was not known to the respondent because she was not a party to this issue. To him, on the contrary, the applicant had these documents, and more so, the consent was between the administrators^5the late Nabagala's estate and one, Abduli Mugalaasi. The a beneficiary ofthe consent, the same had no bearing^ it did not affect her interests.

**25** Counsel further observed that a casual perusal of documents Pl, Pl E2 and Pl E2, Fl, F2 showed that the certified copies were obtained on 18th

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**5** of November 2014, and the judgment in the High Court case having been delivered on 24th of August 2015, they had a whole lot of time to have them adduced because they had a counter claim, and trial had begun in April.

**10** He argued that the said Memorandum was not proper in law as it did not have an appeal number, was not received by court and it was therefore, just a draft Memorandum.

He submitted further that annexures Bl, B2, B3 were public documents, which ought to have been certified unless they were manufactured from Nasser Road. It was his view that unless the applicant produced certified copies and attached applications to prove that he duly applied for them and had the relevant fees paid, the same should be rejected.

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**20** Counsel submitted that the duty to take additional evidence was discretionary and it was important to prove that the evidence could not have been gained with reasonable diligence for court use at the trial. On the importance of the evidence, counsel for the respondent expresseddoubt as to whether the evidence could have any influep£f?W argued that the respondent'<sup>s</sup> case was water-tight and the e\w«^sought to be adduced could not change it.

**>5** He argued that the evidence was not obtained lawfully and as such, with uncertified documents, it could not be credible. It was on the basis ofthe above that counsel contended that the application had no merit under the

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**5** law. He referred to the case of **Hon. Anthony Kanyike Civil Application** No. **13 of 2016** and asked Court to expound on those principles and apply the same here.

In addition, counsel for the respondent observed that the reason the evidence was not adduced at trial was because it was not credible. He referred to annexure E2, the minutes of the Commissioner where she clearly stated that the caveat by the Administrator General should not be cancelled. He wondered why the same would now be used to support a case for unlawfully removing the caveat.

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**15** He argued that the Application fell short ofshowing the relevance ofthe. evidence to the case. According to counsel, given the fact that the evidence was available before the trial commenced, the applicant was caught in a haphazard case which she was trying to perfect on appeal.

On the competence of the Application, counsel submitted that the affidavit indicated that the same had been translated to the deponent and yet, there were no particulars ofthe person who translated^ that in the circumstances, Court finds that the applicang^l the requirements for the grant ofthe Application, fHp/prayed ofsatisfied

On the certified documents, counsel argued that it was not proved by the respondent that the applicant had control over the access of the said documents and neither was it shown that she was the cause ofthe loss of the files. He argued that that being the averment of the applicant, if

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**5** uncontroverted by the respondent, it was deemed to be true. He noted that on obtaining those documents, the applicant exercised due diligence and applied to Court to have them added but the Court rejected the same on the grounds alluded to by the applicant in her affidavit.

**10** It was his contention that there was no dispute that the documents related to the subject matter in the Appeal and were therefore pertinent to the resolution ofthe grounds of appeal. He argued that the respondent would suffer no prejudice if the documents were admitted and the Appeal determined on merit.

**15** On the argument that the Registrar of Titles was a party to the suit who i could have been asked to produce the documents, counsel submitted that the applicant was pursuing her own Appeal and not a joint one appeal with the said Registrar. It was his view that the Registrar being a party was no guarantee that the applicant had access to the documents in the possession of a co-party.

**20 25** t she will mpeal. He of the fit He^r^yed that It was his view that the respondent had not demonstrate suffer any adverse prejudice ifthe documents are ad^Ws reiterated that this Court is mandated under Artrnlg. Constitution to adjudicate disputes conclusively oirm Court upholds this mandate by allowing the application in the terms prayed for. n

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## Court's consideration of the Application $\mathsf{S}$

Court derives its jurisdiction in this matter from Rule 30 of the Judicature (Court of Appeal Rules) Directions S. I.13-10, particularly 30 $(1)$ (b) which provides:

"(1) On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court $may-$

(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."

In exercising that discretion, the court is guided by well-established 15 principles. In American Express International Banking Corporation v Atulkumar Sumant B. Patel [1987] HCB 35, it was held:

> "The principles upon which additional evidence could be granted cited in all these authorities were crystal clear and could not be bent to meet a situation in any given case unless it was shown that such evidence was not available at the time of trial; secondly it should be shown that there was due diligence in obtaining it and thirdly that the evidence would have an important influence on the outcome of the case if produced."

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**5** The Supreme Court authority of Attorney General v Paul K. Ssemogeiere and Others Constitutional Application No. 2 of 2004, Court cited a number of authorities which are relevant to the court's discretion to admit additional evidence and thereafter stated:

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

> (i) Discovery of new and important matters of evidence which, after the exercise of 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;

(ii) It must be evidence relevant to the issues;

(iii) It must be evidence which is credible in the sense that it is capable of belief;

of the case, (iv) The evidence must be such that, if given, it would probably have influence on the result although it need not be decisive;

n to/admit ^fp^pof of (v) The affidavit in support of an apt additional evidence should have attach the evidence sought to be given;

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## **(vi) The application to admit additional evidence must** be **brought without undue delay."**

I have carefully studied the Record of this Application, and taking into consideiation the submissions of counsel for both parties, I note that the applicants are pursuing an Appeal in their own right and it is, therefore, inconsequential that the Commissioner Land Registry was one of the parties in the High Court case.

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Secondly, it is discernible that the documents the applicants seek to adduce as additional evidence form a part of the crux of the subject matter of this whole case. It is, in my view, very important that the Appeal is heard on its merits and all parties given the opportunity to present their respective cases, in the interest ofjustice to all.

On a careful scrutiny of the evidence intended to be adduced by the applicants, I am satisfied that the same is credible and may have an important influence on the decision Court may reach at the conclusion of the hearing ofthe case.

Court is satisfied that the applicants exercised due diligence in obtaining that evidence and brought this Application without d^7in the circumstances. *}*

e in the best **25** qptan-t to note There is a pending Appeal before this Court and interests ofjustice that this Application is allowed. fcsT

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that the dispute to be resolved in the Appeal contains an element of $\mathsf{S}$ feared fraudulent conduct.

Further, it has not been satisfactorily shown how prejudicial it shall be to the respondent if this Application is granted. Taking into account all the above, I am satisfied that the applicants have shown sufficient cause to justify their Application. This indeed, in my very considered view, is an Application where the provisions of Article 126 (2) (e) of the Constitution would be invoked in the interest of substantive justice in the matter being placed over and above technicalities.

I, therefore, allow the Application and order that:

- 1. This Court shall take the additional evidence sought to be adduced by the applicant. - 2. The said evidence shall be by affidavit. - 3. The costs of the application to abide the outcome of the Appeal. - I so order. $20$

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day of $\overline{V}$ $\overline{V}$ $\overline{V}$ $\overline{V}$ 2017 Dated at Kampala this......


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