Turyareeba Yonah v Kahangire Eliab (Civil Application 1188 of 2023) [2024] UGCA 39 (15 February 2024)

Full Case Text

#### 5 THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CTVIL APPLICATION NO. 1188 OF 2023

## (Artsing from Clvll Appeal No. OO3 of 2OL7l

## TURYAREEBA YONAII ::::::::::::: APPLICANT

#### 10 vERSUS

KAHANGIRWE ELIAB ::::::::::: RESPONDENT

#### RULING

## BEFORE HONOURABLE LADY JUSTICE EVA K. LUSWATA

## Introduction and brlef Facts

15 1l The applicant being the judgement debtor in Civil Suit No. 969 of 2018, filed this application by motion under Section 7 of the Judicature Act, Rules 2(2lr, 3o(ll(2)(3)) and 43(ll(2) and 44(1) of the Judicature (Court of Appeal Rules). He seeks this court for an order to allow him adduce additional evidence in Civil Appeal No. OO3 of 2Ol7 that is pending before Court. The additional evidence is in respect of a judgment alleged to have been delivered in the Magistrate's Court at Kayonza in Civil Appeal No. 36 of 1966. He in addition seeks an order for costs. 20

2] The application filed by $M/s$ Sage Advocates and opposed by $M/s$ $\mathsf{S}$ Rwaganika, Baku & Co. Advocates is premised upon 16 grounds. which are contained in the notice of motion. Some of those grounds were in fact a narrative of the facts of the case, and I therefore paraphrase as follows:

- That the respondent filed HCCS No. 027 of 2009 in the i. High Court of Uganda in Mbarara against the applicant for recovery of land among others. That on the 25th October 2016, judgment in HCCS No. ii. 027 of 2009 was delivered by His Lordship Justice favour $of$ the respondent David Matovu in (Kahangirwe). That in his judgement, the honorable trial Judge iii. heavily relied on Exhibit PI which is a judgment dated 02nd August 1966 which court found out to be a - certified true copy and a genuine court document. That the trial court held that though the applicant iv. herein wasn't a party to the said 1966 suit, he is bound by the said decision. - The applicant being dissatisfied by the decision of the $v$ . trial court filed Civil Appeal No. 03 of 2017 Turyareeba Yonah v Kahangirwe Eliab in this honourable court. - Applicant has discovered new and important matters vi. of evidence which after the exercise of due diligence, could not have been produced at the time of hearing in the lower courts. - The evidence relates to the issues in the appeal mainly vii. the validity and authenticity of the alleged judgment of the Magistrates' Court at Kayonza in Civil Suit No. 036 of 1966 E Kahangire v Z. Katyoko & Anor. - That the applicant lodged a complaint with the office viii. of the Hon Chief Justice on the ground that the judgment in alleged Civil Suit No. 36 of 1966 E Kahangirwe v Katyoko & Anor which the High Court heavily relied on was a forgery and never existed. - That the Chief Justice through his Personal Assistant ix. a one Natwijuka Aloysious B wrote to the Magistrate Grade One Ntungamo a letter dated 16th October 2017

$\overline{2}$

to confirm the authenticity of the judgment in Civil Suit No. 36 of 1966.

That in his Letter to the Personal Assistant to the Chief $\mathbf{x}$ . Justice dated 17th October 2017, the Magistrate Grade I Ntungamo confirmed that there are no records concerning the case file for Civil Suit No. 36 of 1966 and further that the basis under which the judgment from Kayonza court was certified by the Magistrate court in Ntungamo is unknown.

- The evidence is credible and thus capable of being xi. believed and the same wasn't available during the hearing of HCCS No.027 of 2009. - The admission of the new evidence does not in any way xii. prejudice the Respondent. - The evidence, if admitted, would have an influence on xiii. the result of the appeal. - It is in the interest of justice that the Applicant be xiv. permitted to adduce additional evidence. - The application has been brought without delay after $XV$ . the discovery of that evidence. - It is in the interest of Justice that this application be xvi. granted and costs abide the final outcome of the appeal. - 3] Mr. Turyareeba Yonah the applicant swore an affidavit in support of the motion in which the above grounds were amplified. He added that the genesis of the conflict dates way back on $9/9/2003$ when he filed a complaint in the LCI Court of Omukibare Village, against the respondent, Kahangirwe Eliab who is his brother. The complaint was decided in Turyareeba's favour and an appeal by Kahangirwe was declined by the LCII Court, Kyobwe Parish on grounds that the complaint was res judicata. Kahangirwe's appeal to the Chief Magistrate's Court Mbarara succeeded on grounds that the LCII Court was not constituted when they denied the appeal before them. The Magistrate ordered Kahangirwe to pursue 3

$\mathsf{S}$

- 5 a retrial. Kahangirwe instead liled HCCS No.27 l2OO9 in Mbarara High Court (hereinafter the suit). - 4l Turyareeba further deposed that at the hearing of the suit, Kahangirwe relied heavily on a judgment purportedly delivered in Civil Suit No. 36 of 1966 of the Magistrate's Court at Kayonza (hereinafter the Kayonza suit and Kayonza judgment). He contended that the suit never happened, an issue he labored to raise at the trial and even attempted to contest, but was ignored. That before a judgment was rendered in the suit, he tried but failed to trace the origins of the Kayonza judgment from its Court. That he continued with that search until he discovered a new and important matter that there has never existed a suit from which the Kayonza judgment emanated. He considered that since the Kahangirwe introduced that evidence in his pleadings and then relied on it in his submissions, it heavily influenced the decision of the High Court and is also likely to influence the decision of this Court, on appea-l. - 5l That following his discovery, Turyareeba lodged a complaint with the office of the Chief Justice and on 17 lIOl2Ol7, he received conlirmation from the Grade 1 Magistrate Court at Ntungamo that no records were found concerning Civil Suit No. 36/ 1966 of Kayonza Court or the Kayonza judgment. He considered the information from the Court credible, and that its admission on appeal does not prejudice Kahangirwe for he still retains a right to rebut it and that it should assist the Court to finally adjudicate the matters before it. He concluded that the application which was

5 presented without inordinate delay ought to be allowed to meet the interests of justice.

- 6l Mr. Kahangirwe who was represented by M/s Rwaganika, Baku & Co. Advocates opposed the application. He in that respect deposed to facts in the aflidavit in reply. He stated that the dispute has been the subject of trials in several courts including the Kayonza Grade III Court. That the subject matter, a piece of land, was a gift from his late father. That at some point, he filed the Kayonza suit against Katyoko and Nzaire, which he won and both men were evicted. He then occupied the suit land unintermpted until 2004, when Turyareeba using the judgment of the LCIII Court of Kayonza, regained occupation of it. That the decision of the Kayonza Court was eventually nullified by the Chief Magistrate of Mbarara on appeal with an order that the Turyareeba pursues his appeal before the LCIII Court, but he did not do so. - 7l Mr. Kahangirwe admitted that in the suit in the High Court, he relied on the judgment of the Kayonza suit which was admitted as his exhibit without contest from the applicant. That in addition, during the proceedings at Mbarara, he called his father Mr. Elifaz Rutagaruhira as a witness, and the latter gave unchallenged evidence that Nzaire and Katyoko were defendants in the Kayonza suit and were both evicted during execution of the judgment. That in addition, one David Twahirwa another witness also testified that he was acquainted with and confirmed as authentic, the signature of E. R. Rwamutemba the Magistrate who signed the judgment of the Kayonza suit. That the High Court was satisfied S

- 5 with that un challenged evidence and delivered judgment in Mr. Kahangirwe's favour, now on appeal. Therefore, that the allegations that he forged the judgment in the Kayonza suit or committed illegalities is baseless. - 8l Mr. Kahangirwe concluded that Turyareeba delayed in fixing his appeal in this Court, and also filed this application 7 (seven) years Iate, and only as an afterthought. Further, that the application does not meet the principles that a Court considers before granting leave to adduce additionat evidence, arrd ought to be dismissed with costs. - 9) In an affidavit in rejoinder, Turyareeba stated that he had occupied the suit land long before his father died and that the respondent lost the case in the LCI Court of Omukibare Village. That the essence of this application is that the existence or not of the judgment in the Kayonza suit is a question of law that this Court should decide and its admission at the trial without contest was a mistake of his former lawyers that should not be visited on him. Even then, at the trial he contested the judgment as being a nullity for rising out of a non-existing suit. Further that he first came to know that the judgment did not exist after judgment of the High Court was delivered, and its certification by a Magistrate in another Court raises suspicion of its existence. Further that the handwriting expert's report used only seeks to verify the authenticity of signatures but not existence of the judgment or its origins. 15 20 25

# s Applicantssubmisslons

- 101 Mr. T\-rryareeba's counsel introduced his submissions by giving a detailed background of suit which begun in the LCI Court of Omukibare. I traversed those facts in the background. Counsel emphasized that the Judge considered the Kayonza judgment as an authentic document and therefore the applicant, although not party to the proceedings, was bound by it. That it was after the judgment that the applicant made a complaint to the Chief Justice of its existence and received certified confirmation that it did not. He then submitted that the new matter they seek to introduce into the appeal is that confirmation. - I l] Counsel argued strongly that from the facts, the only logical conclusion is that, at the time the Judge made his decision in the suit, neither T\rryareeba nor the Court were aware that the Kayonza judgment did not exist in the court records. Counsel argued that considering the grounds in the memorandum of appeal, it is clear that the matters he wished to introduce directly related to the issues in the appeal. - l2l Turning to the application, counsel drew Court's attention to the law that allows the Court to admit additional evidence and some cases that had discussed it. He cited for example, Commlssloner Land Reglstrar & Anor versus LukwalJu, SC Civtl Appltcatlon No. L2l2Ol6, Liberty Constructlon Ltd versua Lamba Enterprises Ltd, CA Ctvtl Application No. 318/2O21 and Blsmlllah Tradlng & Anor veraus Falcon Estatee, CA Ctvtl

5 Appllcatlon No. 328/2O2 8. Out of those precedents, counsel pointed out what he believed were the conditions that his client needed to fulfil before what he considered new and important matters of evidence. Counsel continued that the information in issue having been obtained from the Chief Justice, the head of the Judiciary and acting in his supervisory role, it is credible and is capable of influencing the result of the appeal. He in addition considered that this application was presented without inordinate delay soon after Turyareeba's current lawyers discovered the anomaly. 10

## 15 Respondent's submissions

13] As a precursor to his submissions, Mr. Rwaganika gave a brief history of the dispute and previous litigation to solve it. He conceded that the High Court Judge based his decision on the judgment of the Kayonza suit which was delivered by the late E. R Rwamutemba on 2/811966. That during the process of execution of the High Court judgment, Turyareeba filed Miscellaneous Application No. 196/20 16 in which he relied on the same evidence he now seeks to adduce as additional evidence. That in order to rebut allegations in that application, Kahangirwe filed affidavits of Sebuwufu Erisa a handwriting expert, and another by David TWahirwa, the latter who was acquainted with the late E. R. Rwamutemba's signature. Both witnesses confirmed it as a judgment authored by Rwamutemba, and also confirmed his signature.

- 5 14] Counsel then pointed us to the established principles that a Court should consider before allowing additional evidence to elucidate that which is already filed on record. He cited for example, AG & Anor vergus Afric Cooperatlve Soclety Ltd, SC Misc. App. No. 6l2OL2 and IIon. Anlfa Banglrana Kawoya versus Natlonal Councll for Hlgher Education, SC Misc. App. No. 8l2OL3, Counsel also drew our attention to the documents that are the subject of this application and added that the impugned judgment is not attached to the letters from the office of the Chief Justice. He in addition noted that the responses to the inquiry by Turyareeba were made witJt "lightening speed" which raises issues of credibility. He wondered how a search for records dating back to 1966 could be achieved in just one day. 10 - 15] Counsel further contended that nothing was shown by his Worship Magomu to confirm that the case number and parties under it did not exist. Further that Natwijuka Aloysius B, and His Worship Magumu the authors of TY9 and TY1O, should have sworn affidavits to own those documents and to explain their conclusions. In counsel's view, T\rryareeba was aware of the impugned documents because they were mentioned in the Kahangirwe's pleadings in respect of the suit filed in 2009. In addition, that evidence was adduced at the trial in the High Court that Katyoko and Nzaire were evicted from the suit land as a result of the same judgment. That the applicant who was aged 25 years and in school at the time the judgment in the Kayonza suit was delivered, ought to have known about it. 25

5 161 Counsel added that Turyareeba had not given sufficient reasons to sustain the orders he sought, and as a contemnor of an order of the Chief Magistrate's Court of Mbarara, the Court should not entertain him. That both parties in fact relied on the impugned documents in Misc. App No. 196 l2016, an application Turyareeba filed to contest the taxation proceedings, and as such, they cannot be classified as new and important matters. That nothing was shown that there was contest to the judgment in Kayonza being adduced in the High Court and therefore, the application is misconceived. In conclusion that the application was filed with inordinate delay, 7 (seven) years after the information was obtained from the office of the Chief Justice in 2017' 10 15

## Applicant's submlssions ln reIoinder

25 l7l In rejoinder, applicant's counsel generally reiterated his earlier submissions. He added in particular that Kahangirwe did not dispute the fact that a complaint was lodged with the Chief Justice and followed up by H/W NatwUuka Aloysius his personal assistant, as well as H/W Magomu who wrote back to the Chief Justice to confirm there were no records to confirm the existence of the Kayonza suit. That all that information was provided by judicial oflicers acting in their official capacities. He emphasized that evidence that attempted to confirm the existence of the judgment in the Kayonza suit, or its admission as an exhibit in the High Court suit, is not enough to confirm its existence. He continued that conferencing of the appeal did not bar a party from

- 5 adducing additional evidence if such evidence is necessary to determine the main issues in dispute in the appeal. - 18] Counsel stated in conclusion that his client had presented a proper case for this Court to allow the prayer to adduce additional evidence. Conversely, Kahangirwe did not demonstrate that he would be adversely affected by such evidence which was infact relevant to the issues for determination, and which stand to influence the outcome of the appeal.

## Declsion of Court

- 191 Mr. T\rryareeba Yonah seeks leave of the Court to adduce additional evidence in his appeal. He states that the evidence only came to his knowledge after the decision at the High Court was rendered. He considers the evidence pivotal and should assist the Court to fully and fairly adjudicate upon the issues raised in the appeal. Conversely, it is stated for Mr. Kahangirwe that T\rryareeba who is in contempt of an earlier court order should not take benefit of further orders of a court. Further that he was aware in time of the matters he wishes to adduce, and does not fulfil any one of the criteria set down before such an order can be granted. 15 20 - 201 The application is presented under Rule 30(l)(b) of The Judicature (Court of Appeal Rules) Directions (hereinafter Rules of Court) which provides as follows: 25

oOn any appealfrom a deci-sion of tte High Court acting in tle exercise of its ortginal jurisdiction, the court may

in its discretion, for sufficient reason, take additional evidence."

21] It is evident that the powers given here are discretionary, and for the Court to be invoked, there must be sufficient reason adduced. Both counsel quoted substantial authority in which criteria that must be considered before an appellate court can admit new evidence was given, I will follow the Supreme Court case of Commissioner Land Registration & Anor versus Emmanuel Lukwajju (Supra), which in turn followed AG versus Paul Kawanga Semwogerere & Anor, Civil Application No. 12/2016 and AG & IGG versus Afric Cooperative Society Ltd, Civil **Application No. 12/2016.** It was held that:

> " .... an Appellate Court may exercise its discretion to only exceptional additional evidence in admit circumstances, which include:

- Discovery of new and important matters of $(i)$ 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:* - *It must be evidence relevant to the issues;* $(ii)$ - It must be evidence which is credible in the sense (iii) that it is capable of belief; - *The evidence must be such that, if given, it would* $(iv)$ *probably have influence on the result of the case, although it need not be decisive;* - The affidavit in support of an application to admit $(\nu)$ additional evidence should have attached to it, *proof of the evidence sought to be given;* - The application to admit additional evidence must $(vi)$ *be brought without undue delay.*

$5$

5 221 In this matter, the applicant seeks to adduce two documents into the appeal, namely: -

- I A letter dated 16/1012017 in which the personal assistant of the Chief Justice writes to the Magistrate Grade I Ntungamo Court with a request that they are certain whether the records a Magistrate relied upon to certify the Kayonza judgment exist. (Annexure TY9 to T\rryareeba's affrdavit) . - A letter dated 17 l|O/2OL7 by the Magistrate Grade I Ntungamo Court responding to the personal assistant of the Chief Justice stating that after cross checking with records, he confirmed that Kayonza Grade III Court once existed, but that there were no records concerning the file. (Annexure TY1O to T\rryareeba's affidavit) 11. - 20 231 ln paragraphs 14 and 15 of his affidavit, Turyareeba stated that he begun to search for records to prove the authenticity of the Kayonza judgment before judgment of the High Court was delivered. That he continued with that search after judgment was rendered until he approached the office of the Chief Justice and lodged a formal complaint. His evidence is that he lirst came to know of the non-existence of the Kayonza judgment onl7/lol2ol7, when the Magistrate Grade I Ntungamo Court notified the personal assistant ofthe ChiefJustice that no records existed concerning the file. - ll

24] The decision of the High Court was attached to this application. It $\mathsf{S}$ is evident that although the Judge considered the evidence of other witnesses presented by Kahangirwe at the trial, he also substantially relied on the Kayonza judgement when resolving the issue of whether Kahangirwe owned the suit land. He held at page $2$ and $3$ of his judgment as follows: 10

> "The said suit land was according to the Plaintiff and PW2 Elifaz Ruta Garuhira the subject of a court case in 1966 between the Plaintiff on the one hand and a one Katyoko and Nzaire on the other.

- This court has seen a certified copy of the Judgment of His 15 *Worship E. R Rwamutemba Magistrate Grade III delivered on* $2^{nd}$ August 1966 which is exhibit P1. This court finds this judgment to be a genuine court document. - Although the Defendant was not a party to the decision in Civil Suit No 36 of 1966 he is bound by the decision of the parish 20 court of Kyobwe where the Defendant was a party and which decision was admitted in this case as exhibit P3. The parish *court of Kyobwe upheld the judgment of the Magistrate Grade* III in Civil Suit No 36 of 1966. - It is important to state that in his Judgment the magistrate 25 *found a follows: -*

"PW1 was Y. Bazarirabusha, the father of the plaintiff *who told this Court that he was the one who had given* the land in question to the plaintiff and therefore he *knew it very well".*

- 5 251 I would lind correct the submission that evidence may rebut the existence of the Kayonza judgment and is therefore an important piece of evidence that is relevant to the outcome of the appeal. - 261 However, my l-rndings above are not sufficient to secure the orders sought. The cardinal rule is that litigation must come to an end and it is only in the most deserving cases that matters of evidence can be resurrected at the point of an appeal. T\rryareeba must satisfy the court that the information he has discovered about the Kayonzajudgment was not in his knowledge at the trial, or that he could not have come to that knowledge even after exercise of due diligence. - 271 I }:ave confirmed from Turyareeba's affidavit that the Kayonza judgment was hrst mentioned, and was also attached to the plaint and amended plaint that Kahangirwe {iled in the High Court on 6/ 4 l2OO9 and 29 I 2 I 2O 12 respectively. It was again attached to T\rryareeba's affidavit as TY6. The Kayonza judgment was delivered on 21811966 by E. R. Rwamutemba, a Magistrate Grade III, to determine a suit between Kahangirwe (as plaintiff) and Z. Katyoko and Nzaire (as defendants). The Magistrate found that the latter were in trespass of undescribed land within his jurisdiction, and which was the properry of Kahangirwe. - 28]1 In paragraph 8 of his defence to the suit, Turyareeba contested the Kayonza judgment contending that it was not an authentic document and had been forged. In the amended defence, he changed that to say that if the judgment existed, Kahangirwe was

- 5 party to that suit, not in his personal capacity, but as a representative of his family's interests. Paradoxically, he maintained that not being a party to those proceedings, he could not be bound by the Kayonzajudgment. I have noted however that his contention that during the trial he contested the Kayonza judgment from being admitted as Kahangirwe's evidence, was not borne by the record. - 291 At page 27 of the certified record of the High Court, on 3/ 3 /2OO5, Kahangirwe as PWl, mentioned the Kayonza judgment in his evidence and even identifred it. His counsel Mr. Rwaganika applied to tender it into evidence. There was no actual contest to that application. Mr. Katembeko the defence lawyer only commented that the judgment of 1966 was certified in 2OO4. The Kayonza judgment was then admitted into evidence as PWl. When presenting his case in defence, T\rryareeba denied knowledge of the suit of 1966 or its judgment contending that the judgment was not authentic. However, T\rryareeba and his two witnesses admitted knowing both Nzaire and Katyoko and the fact that both were ever in possession of the land in dispute. - 3Ol I can deduce from the above facts that Turyareeba came to know about the judgment early enough in the suit. He also knew at the same time, that it was a pivotal piece of evidence used to bolster the claim against him. Thus, the onus was on him to adduce evidence to rebut it. He claims that during the trial, he began his search or inquiry to confirm the existence of the Kayonza proceedings and judgment at the Kayonza Magistrate's Court. 16

- 5 However, he adduced no evidence to that fact. The Kayonza judgment and attendant record of the Magistrate Grade III Court are all public documents and his search for them would have entailed a fairly transparent process including correspondence between him and the relevant court. There is still no evidence of his alleged search after the High Court judgment, up until 17/lO/2017 when in TY9, His Worship Natwijuka addressed his inquiry to the Ntungamo Magistrate's Court. T\rryareeba or his advocates should have known early enough in the suit that the most obvious place to locate information about the Kayonza judgment was in the relevant Court. In my view, he has not demonstrated that they had exercised due diligence to produce that evidence at the time the case was heard in the High Court. 10 - 311 It may be argued that the contents of TY1O may be credible and thus capable of being believed. It is in fact a public document and according to Section 73(iii) of the Evidence Act, would require no further proof. However, it cannot be dispelled that HW Magomu's conclusions may have been the result of a hastily done search, which he reported the very same day he received the inquiry from the Chief Justice's office. This is a 1966 judgment, properly certified by a Court, which is expected to be the custodian of such information. HW Magomu admitted that the Kayonza Grade III Court once existed but did not give any details of the records he looked at before coming to the conclusion that the file of the case did not exist. It may entail a revisit of that search and other

- 5 processes that should have best been handled at the trial, but not by this Court, on appeal. - 321 I also find the timing of filing this application rather suspect. T\rryareeba claims to have learnt of the information regarding the Kayonzajudgment in October 2017. Although that was after he filed the appeal here, he only raised the need to adduce this evidence when he filed this application on 8/ill2o23, which is nearly six years later. He appeared to have been galvanized to revive the appeal only after Kahangirwe's lawyers moved the Court to fix its conferencing. He has not explained that inordinate delay, which in my view, strongly discounts the strength of his case. - 331 For the reasons given above, I am not persuaded that it is in the interests ofjustice to allow the application. Turyareeba had ample opportunity to produce that evidence during hearing of the case at the High Court. Even when he came to know of that evidence, he did not act diligently to file this application. Allowing it would be prejudicial to Kahangirwe's appeal. - 34| In conclusion, the application is dismissed and costs shall bide the outcome of the appeal.

| !.{day of DATED at Kampala the 2024. | |--------------------------------------------| | | | | | . LUSWATA EV CE OF APPEAL |