Were v Sam Sewanyana and Another (Civil Application Number 252 of 2013) [2015] UGCA 2031 (2 December 2015)

THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CIVIL APPLICATION NUMBER 252 of 2013

(Arising out of Nicholas Were vs Sam Sewanyana & another, Court of Appeal *Civil Appeal Number 22 of 2013)* $\mathsf{S}$

NICHOLAS WERE ::::::::::::::::::::::::::::::::::

**VERSUS**

1. SAM SEWANYANA

$\mathbf{a}_{\text{max}}$

2. KARLSON NGOLOBE :::::::::::::::::::::::::::::::::::: $10$

Coram: HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA

### **RULING**

- The applicant seeks an order for leave to adduce additional evidence brought by $15$ way of Notice of Motion dated 9<sup>th</sup> September 2015. The grounds of this application are set out in the motion but particularly in the affidavit of the applicant dated 25<sup>th</sup> August 2015. At the hearing of this application, the applicant sought leave to file a supplementary affidavit dated 19<sup>th</sup> October 2015, - which was granted. The respondents were neither present nor were they $20$ represented during the hearing despite having been served according to the affidavit of service of Oyella Lillian dated 19<sup>th</sup> Octabre 2015. It seems however that the application was received in protest citing that counsel who is in:s personal conduct of the case was appearing in an earlier fixed matter. No further action was taken on their part to fix another date or seek adjournment. An 25 affidavit in reply was deponed by Mr. Saad Seninde who is an advocate at Oketcha, Baryaranga & Co. Advocates.

The background to this application is that in 1993, the applicant and his wife, Evelyn Were (now deceased) incorporated Goodman Agencies Limited in which


# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPLICATION NUMBER 252 of 2013

(Arising out of Nicholas Were vs Sam Sewanyana & another, Court of Appea *Civil Appeal Number 22 of 2013)* $\overline{5}$

NICHOLAS WERE ::::::::::::::::::::::::::::::::::

# **VERSUS**

- 1. SAM SEWANYANA - 2. KARLSON NGOLOBE :::::::::::::::::::::::::::::::::::: $10$

Coram: HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA

# **RULING**

- The applicant seeks an order for leave to adduce additional evidence brought by $15$ way of Notice of Motion dated 9<sup>th</sup> September 2015. The grounds of this application are set out in the motion but particularly in the affidavit of the applicant dated 25<sup>th</sup> August 2015. At the hearing of this application, the applicant sought leave to file a supplementary affidavit dated 19<sup>th</sup> October 2015. - which was granted. The respondents were neither present nor were they $20$ represented during the hearing despite having been larved herording do the affidavit of service of Oyella Lillian dated 19<sup>th</sup> October 2015. It seems however that the application was received in protest citing that counsel who is in s personal conduct of the case was appearing in an earlier fixed matter. No further action was taken on their part to fix another date or seek adjournment. An $5$ affidavit in reply was deponed by Mr. Saad Seninde who is an advocate at Oketcha, Baryaranga & Co. Advocates.

The background to this application is that in 1993, the applicant and his wife, Evelyn Were (now deceased) incorporated Goodman Agencies Limited in which

$\mathbf{I}$

the applicant held 75% of the shares while Evelyn Were took the remaining 25% of shares. In 1995, the applicant sold 25% of his shares to the first respondent, Mr. Sam Sewanyana and a transfer duly signed and registered. However, in 2001, Mr. Sewanyana purportedly relinquished his shares to the applicant. A share transfer (Exh. B) was signed but not registered though Mr. Sewanyana denies ever signing any such transfer. Another purported transfer of shares (Exh. C) between the applicant and Evelyn Were is said to have been signed by her but was not registered as well. The second respondent, Karlson Ngolobe obtained Letters of Administration to the estate of his late mother, on 27<sup>th</sup> July 2006 and subsequently claimed her shares in Goodman Agencies Limited.

### The applicant's case

$5$

$10$

- The applicant deponed that the new evidence he has discovered shows that the respondents filed forged documents in the company registry. He stated that the $15$ said evidence of forgery was not in his knowledge by the time Company Cause No. 44 of 2007 (arising out of HCCS No. 719 of 2007) was heard by Hon. Justice V. F Musoke-Kibuuka, J by reason of negligence of his counsel Mr. Patrick Yehangane of M/s Capital Law Partners who was previously engaged to represent him at the High Court. The applicant further states that counsel did $\overline{.0}$ not bother to thoroughly scrutinize all the documents until he engaged M/s Semuyaba, Iga & Co. Advocates and M/s Okuku & Co. Advocates. He also states that it is not until he opened up criminal charges of forgery and uttering false documents against Karlson Ngolobe vide CRB 4100/2012 at CIID CPS Kampala that the Police helped him to discover the above-mentioned forgeries. - The applicant further stated that the evidence of forgery sought to be adduced is 7 crucial and very necessary for the applicant/appellant's case as the matter involves shares of M/s Goodman Agencies Ltd a company which he set up and has spent a substantial time building. If the said evidence is disallowed, the applicant argued, it leaves the second respondent's false evidence to stand as the $\mathcal{L}$

truth on record, whereas not

## The respondents' case

5 10 15 The respondents' case can be deduced from the affidavit in reply dated 19th October 2015 by Seninde Sad, counsel for the respondent. In reply to the motion, Seninde Sad deponed that the applicant instituted Company cause No. 44 of 2007 alleging fraud against the respondents in the High Court which judgment was awarded in favour of the respondents which is now the subject of the applicant <sup>s</sup> appeal to this Court. He argued that the applicant was therefore knowledgeable about the alleged fraud but failed to prove his allegations. Counsel stated that the new evidence sought to be adduced is <sup>a</sup> tactic by the applicant to reopen Company Cause No. 44 of 2007 and HCCS No. 719 of 1997 and yet he has not demonstrated any impediment to show his failure to adduce this additional evidence at that stage. He prayed that the application be rejected as it will be prejudicial to the respondents.

#### Resolution

This application was brought under Rule 2(2) and Rule 30(l)(a), (b) and (2) of the Judicature (Court of Appeal Rules) Directions, SI 13-11.

20 Rule 30 provides as follows:

*"30. Power to reappraise evidence and to take additional evidence.*

*(1) On any appeal from <sup>a</sup> decision ofthe High Court acting in the exercise of its originalJurisdiction, the court may*

*(a) reappraise the evidence and draw inferences offact; and*

- *(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.* - *(2) When additional evidence is taken by the court, it may be oral or by affidavit and the court may allow the cross-examination ofany deponent. "* - 30 There is no doubt that Rule 30(1) (b) of the Rules of this Court gives this court

3b

discretion to admit additional evidence from parties before it. The question for determination now is whether the applicant has satisfied this Court to exercise its discretion and allow the applicant to adduce additional evidence.

5 The applicant further relied on Rule 2(2) of the Rules of this Court which vests inherent powers in this Court to make such orders as are necessary to meet the ends of justice. It provides as follows:

*"2. Application*

*(V....*

10 15 *(2) Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Court, to make such orders as may be necessary for attaining the ends ofJustice or to prevent abuse of the process ofany such court, and thatpowershall extend to setting aside Judgments which have been proved null and void after they have been passed, andshall be exercised to prevent abuse ofthe process ofany court caused by delay. "*

Relying on various authorities, the case of Hon. Anifa Bangirana Kawooya vs National Council for Higher Education, Misc Appl. No. 8 of 2013 (SC) lays down the principles under which additional evidence can be admitted as hereunder:

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

- *(i) Discovery ofnew and important matters ofevidence which, after the exercise ofdue diligence, was not within the knowledge of, or could not have been produced at the time ofthe suit or petition by, the party seeking to adduce the additional evidence;* - *(H) It must be evidence relevant to the issues;* - *(Hi) It must be evidence which is credible in the sense that itis capable ofbelief;*

<sup>4</sup> 3?^

- *M The evidence must be such that, ifgiven, it wouldprobably have influence on the result of the case, although it need not be decisive;* - *(v) The affidavit in support of an application to admit additional evidence should have attached to it, proofofthe evidence sought to be given;*

- *(vi) The application to admit additional evidence must be brought without undue delay.* - 10 The Court went on to give the rationale for these principles as follows: *"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 up its full case before the court. "* - 15 20 In the instant case, the new evidence sought to be adduced includes the affidavits of Ajiambo Diana Rose and Namawero Sandra which are to the effect that their handwriting on the "TO WHOM IT MAY CONCERN" letters purportedly written by them were forged. These letters (which were relied upon by the second respondent to obtain Letters of Administration to the estate of his late mother, Evelyn Were) state that the two had consented to Kalson Ngolobe being granted letters of administration, and were witnessed/stamped by Magoli Abia, the area LCI of Makina village Busitema Sub-county, Busia district. - 25 30 In paragraph 10 of his affidavit in support, the applicant deponed that while obtaining Letters of Administration vide HCT-00-CV-AC-407-2006 in the names of NGOLOBE KALSON to the estate of the late NAFUNA EVERLYNE JESSICA (deceased), the second respondent forged <sup>a</sup> "TO WHOM IT MAY CONCERN letter purporting that he as the widower had died (i.e. that the deceased was not survived by a widower as indicated in the Petition for letters of

Administration) and his daughters and son. to wit Ajambo Diana Rose. Wafula Brian and Sandra Namawero had consented to his obtaining Letters of Administration whereas they did not.

- <sup>I</sup> note that the findings contained in <sup>a</sup> report dated 29th of July 2015 by Ms Chelengat Sylvia who is <sup>a</sup> Certified Handwriting Expert from the Directorate of Forensic Service of Uganda Police Department of Questioned Documents is <sup>a</sup> recent development. She deponed an affidavit dated 25th August 2015 verifying the contents of the Handwriting Experts Report Lab Ref; FS/D226/2015 which she authored. The report basically examines Exhibits A, B, F, H, 3-15 (TO - <sup>10</sup> WHOM IT MAY CONCERN LETTERS) against specimen of police statements made by Ajambo Diana Rose, Wafula Brian, Sandra Namawero and Magoli Abia in relation to CRB 4100/2012 at CUD CPS Kampala.

Ordinarily, the Courts are obliged not to close their eyes to illegalities like forgery or fraud. A court of law cannot sanction what is illegal, and illegality <sup>15</sup> once brought to the attention of the court overrides all questions of pleading, including admission made thereon. (See: Makula International Ltd -vs- His Eminence Cardinal Nsubuga & Another, [1982] HCB 11)

What needs to be tested however is whether the applicant meets each of the <sup>0</sup> requirements enunciated above. In determining the relevance of the additional evidence to the issues for consideration by this Court, the grounds of appeal are, *inter alia,* that:

"2. *The Learned trial Judge erred in law and fact when he held that the second respondent properly applied for Letters of Administration in the* <sup>5</sup> *estate of the late Evelyn Were in Administration Cause No. 407 of<sup>2006</sup> whereas the said tetters were granted in the names ofNgolobe Karison as son of the late Nafuna Evelyn Jessica who was not at all <sup>a</sup> shareholder in M/s Goodman Agencies Ltd.*

*3. The Learned trial Judge erred in law and fact when he held that the second respondent could apply for tetters ofadministration for his mother*


*una Evelyn Jessica when he was below the majority age.*

*4. The Learned trial Judge erred in law and fact when he held that the second respondent Karison Ngolobe could inherit shares of Evelyn Were withoutproper letters ofadministration"*

10 15 Undeniably, the issue of Letters of Administration obtained by the second respondent has <sup>a</sup> great bearing on the issue of shareholding in Goodman Agencies Ltd. It is my finding that the Handwriting Experts Report is capable of belief since it was made by <sup>a</sup> forensic examiner. Nonetheless, this is subject to scrutiny by the Court admitting it. The affidavit of Chelenget Sylvia in support of the application to admit additional evidence is attached as proof of the evidence sought to be given. It is also <sup>a</sup> requirement that the application to admit additional evidence must be brought without undue delay. <sup>1</sup> find that this evidence is quite fresh and is brought without undue delay before the hearing of the main appeal.

In the result, given the reasons <sup>I</sup> have already discussed and in the circumstances of this case, the additional evidence sought to be adduced is relevant to the appeal and is hereby allowed with costs to abide the outcome of the main appeal. <sup>1</sup> order that the applicant file <sup>a</sup> supplementary record of appeal within <sup>7</sup> days and serve the respondents. The respondent may file <sup>a</sup> reply within 14 days. The main appeal should be fixed for hearing. <sup>1</sup> so Order.

Dated at Kampala, this .^..^7. day of

HON. JUST FFREY KIRYABW1RE

Justice of Appeal