Zzimwe Enterprises ,Hardwares and Constructions Limited v Attorney General (Civil Application 353 of 2020) [2021] UGCA 215 (9 February 2021)


THE REPUBLIC OF UGANDA

### THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Madrama, Mulyagonja & Mugenyi, JJA)

# **CIVIL APPLICATION NO. 353 OF 2020**

(Arising from Civil Appeal No. 116 of 2019)

## **ZZIMWE ENTERPROSES, HARDWARES &** CONSTRUCTION LIMITED ....................................

#### **VERSUS**

ATTORNEY GENERAL ....................................

$\mathbf{1}$

#### RULING OF MONICA K. MUGENYI. JA

#### A. lntroduction

- 1. Zzimwe Enterprises, Hardwares & Construction Limited ('the Applicant') was on 6th November 2008 awarded a contract for the rehabilitation of Kalapata-Piire Road by the Government of Uganda, represented herein by the office of the Attorney General ('the Respondent'). Following the termination of the contract by the Respondent, the Applicant instituted Civil Suit No. 809 of 2014 in the High Court of Uganda - Commercial Court ('the Trial Court') seeking general/ compensatory damages for the loss of its construction equipment, loss of income/ business, punitive/ aggravated damages for the illegal detention of its construction equipment, interest on the incidental sums at a rate of 38% per annum from the date the cause of action accrued until payment in full and the costs of the litigation. The suit was dismissed with costs. - 2. Aggrieved by the Trial Court's decision, the Applicant Company has since lodged Civil Appeal No. 116 of 2019 in this Court challen ging the judgment and decree of the High Court (Mugenyi Bitature, J) dated 25th October 2018. lt did also file the present Application seeking leave of the Court to present additional evidence on appeal. - 3. The Application is brought under Rule 30 of the Judicature (Court of Appeal Rules) Directions, Sl 13-10 ('Court of Appeal Rules'), and is premised on the following grounds (reproduced verbatim): - (a) Th6 Applicant has discovered and impoftant mattors of evidence which, after the exercise of due diligence, could not have been produced at the time of (the) heaing of Hioh Coutl Civil Suit No. 809 of 2014. - (b) The evidanc? relates to tf,e ,ssuos rn the appeal. - (c) Tho evidence is cradible and thus capable of being believed. - (d) The evidence, if admifted, shall have an influence on the result of the appeal. - (e) The Respondent shall not be prejudiced if the application is allowed

- 0 n is in the interests of justice that the Applicant be allowed to adduce the additional evidence. - (g) This Application has been mado without undue delay - 4. lt is supported by the afiidavit of Mr. Paul Kasagga, the Managing Director of the Applicant Company, dated 2lstDecember 2020. Mt. Kasagga attests to having been unaware of the existence of all the five letters sought to be adduced as additional evidence until November 2020 when he secured copies of the same from the Ministry of Works & Transport following a concerted search therefor. Meanwhile, in a supplementary affidavit dated 13th September 2021, the same deponent testifies that he had failed to trace the letter from the Ministry of Works & Transport to M/s Tropical Bank Ltd dated 4th May 2011 (Annexure E) and that from the Resident District Commissioner (RDC) of Kaabong District dated 4th September 2012 (Annexure G). Aboutthe remaining three letters, the deponent claims to have had no prior knowledge of them whatsoever, having only found out about them in December 2020. - 5. The Application is strongly opposed by the Respondent, which filed an affidavit in reply to that effect deposed by Mr. Alex Onen, a former Principal Engineer with the Ministry of Works & Transport. Mr. Onen essentially attests to the Application being a misconceived and unlawful attempt to re-open a closed case, urging that Applicant company was in fact aware of the letters comprised in Annexures E and G as the former was copied to it while the latter was addressed to it. On the other hand, the Annexure H is opined to be immaterial to the parties' dispute as the equipment referred to in that letter did not belong to the Applicant. ln any event, Mr. Onen opines that the Applicant is not competent to tender the additional evidence in court as it was not the author of the letters in question. lt is averred that the Respondent would indeed be prejudiced by the additional evidence given that it introduces a new cause of action in unjust enrichment yet the cause of action that was before the trial court was grounded in detinue. - 6. At the hearing of the Application, the Applicant was represented by Messrs. Edmund Kyeyune and Albert Byamugisha, while Mr. Geoffrey Atwine, Principal

State Attorney, represented the Respondent. Both parties relied upon written submissions filed in the matter.

#### B. Parties' Submissions

7. The Applicant relies on the legal position on the admission of additional evidence on appeal as summed up by the Supreme Court in Attornev General & Another v Afric Cooperative Societv Ltd. Miscellaneous Aoolication No. 6 of 2O12 as follows

> 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; - (iv) It must be such that, if given, it would probably have influence on the result of the case, although it need not be decisivel - The affidavit in support of an application to admit additional evidence should have attached to it, proof of the evidence sought to be given; (v) - The application to admit additional evidence must be brought without undue delay. (vi) - 8. lt is argued that the Applicant was unable to trace the additional evidence in time to present it before the Trial Court, any yet the evidence is relevant to the issues in contention. Annexures E and F, letters to Tropical Bank Ltd seeking to recover an outstanding balance on the advance payment extended to the Applicant under the contract, is opined to be relevant to the question as to whether the Respondent legally retained the Applicant's construction equipment given that pursuant thereto a certified copy of the Applicant's bank statement indicated that the outstanding monies had indeed been remitted the Bank. ln addition, the Applicant seeks to adduce Annexure H in evidence to establish that as at 25th April 2013 (the date of that letter) the Applicant's machinery was still in the custody of the Respondent's agents, the Kaabong District police.

- 9. lt is argued that insofar as the works' Project Manager had on 1 8th November 2010 handed all the equipment, plant, materials and temporary works to the Ministry of Finance, Planning and Economic Development, the vandalism of the equipment referred to in Annexure G (a letter from the RDC of Kaabong District) would have an influential bearing on the Applicant's claim for compensation for its vandalized equipment and machinery. - 10. The evidence sought to be adduced is opined to be credible given that it is official correspondence from the Respondent's officials. lt is attached to the affidavit in support of the Application, which Application (it is proposed) was brought without undue delay, having been filed immediately after the Applicant obtained the additional evidence from the Ministry of Works and Transport. - 1 1 . Conversely, the Respondent contends that the conditions under which an appellate court may admit additional evidence under Rule 30(1)(b) of the Court of Appeal Rules was construed in the case of Attorney General v Paul K. Ssemoqerere & 2 Others. Constitutional Application No. 2 of 2004 (Supreme Court) to entail the following exceptional circumstances (per Odoki, CJ): - 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 the petition by, the party seeking to adduce the additional evidence; (i) - It must be evidence relevant to the issues; (iD - It must be evidence which is credible in the sense that it is capable of belief; (iii) - 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; (iv) - The affidavit in support of the application to admit additional evidence should have attached to it, proof of the evidence sought to be given; (v) - The application to admit additional evidence must be brought without undue delay. (vi) - 12. For ease of reference, Rule 30(1)(b) provides as follows: - (1) On any appealfrom a decltion ofthe Hlgh Courtactlng ln the exerclae of lts orlglnal jurlsdlction, the court may - (a)

- (b) ln its discretion, for sufficient reason, take additional evidence or direct that additional evidence be taken by the trlal court or by a commissioner. (my emPhasis) - 13. lt is the Respondent's contention that the evidence sought to be adduced on appeal cannot be categorized as 'new' insofar as it hinges on an Advance Payment Guarantee submitted by the Applicant, which (it is opined) the said company knew would inevitably be called upon once it defaulted on its obligations under the contract. Relying on the averments in paragraph 11 of the affldavit in reply, it is argued that Tropical Bank Ltd (the Applicant's Bank) could not have cashed the guarantee in 2011 without the Applicant's knowledge. Furthermore, the letters in contention were readily available and thus, with reasonable due diligence the Applicant would have accessed them from its Bankers or the relevant government agencies. lts failure to do so before the trial depicts a complete absence of due diligence that is compounded by the Applicant's failure to utilize the process of discoveries to have the said documents produced even after the commencement of the trial. lt is opined that the additional evidence is neither new nor important to the action in detinue that was before the Trial Court, but rather represents an attempt by the Applicant to introduce a new cause of action in unjust enrichment. - 14. lt is further argued that the evidence in support of the Application is selfcontradictory to the extent that in paragraph 9 of his affidavit, Mr. Kasagga feigns ignorance of the letters sought to be admitted but, in paragraph 10 of the same affidavit attests to continued efforts to search for them. This is opined to be proof that the Applicant did in fact know of the existence of the letters. ln any event, the letter dated 4th May 2011 was copied to the Applicant, while that of 4th September was addressed to the same company. - 15. Meanwhile, the letters of 4th September2012 and 25th April 2013 are opined to be irrelevant to the parties' dispute given that their author, the RDC of Kaabong District, had no authority to communicate as they did to the Applicant and equipment referred to in the latter letter did not belong to the said company. lt is the Respondent's contention, in any event, that the recovery of the Advance payment had no bearing on Clause GCC 61 .1 of the parties' contract, under which

the termination of the Applicant ensued and the equipment was taken over. Contrary to the Applicant's assertions, the recovery of the advance payment extended to the Applicant is opined to have no correlation with the cited contractual provision, which designates the equipment in contention to be the Respondent's property in the event of contract termination on account of the Applicant's default. The recovery of the advance payment is purported to simply represented one of the remedies available under the contract. The additional evidence is thus alleged to be neither relevant nor credible.

- 16. Accordingly, on the authority of the decision in Woods v Gamlin 3 1993) P.t. Q. R P. 7 CA that one of the conditions for the admission of additional evidence on appeal is that the evidence though not decisive would probably have an important influence on the result of the appeal; it is the contention that the letters in issue presently have no probative value and would have no influence on the determination of the Appeal. - 17.|n terms of the timeliness with which the Application was filed, learned Counsel observes that the application in Others (supra) was filed six months after the delivery of the judgment on appeal, adjudged to have been brought with undue delay and dismissed. He thus considers the present Application to have been brought with inordinate delay, having been lodged on 22nd December 2020, more than two years after the delivery of the judgment by the Trial Court on 25th October 2018. lt is thus opined that the Applicants have not demonstrated any exceptional circumstances as would warrant the admission of additional evidence in this Appeal. - 18. By way of rejoinder, the Applicant reiterates the averments in paragraphs 6 9 of Mr. Kasagga's supplementary affidavit that Annexures E and G had got lost following the foreclosure of its head office by Tropical Bank Limited, while it had no knowledge whatsoever of Annexures D, F and H that entail communication between the Respondent, the Ministry of Finance, Planning and Economic Development and the said Bank. - 19. As to whether the evidence sought to be adduced is new and important, my understanding of the Applicant's position is that the said evidence is not quite

additional evidence but evidence which elucidates that which is already on record. Hence the contention that the letters from the Ministry of Finance to Tropical Bank Limited elucidate the evidence already on record that whereas the Applicant owed the sum of Ushs. 453,455,2361= only, the Respondent recovered Ushs. 565,372,5111= on 3'd August 201 1 ; which is also useful in determining whether the Respondent was justified in retaining the Applicant's equipment.

20. That evidence is thus opined to be relevant lo Ground 2 of the Appeal, that was purportedly also in contention before the lower court. lt is argued that the contestation on the excessive recovery of funds and retention of equipment in excess of the remedy delineated in Clause GCC 60.1 is intended to demonstrate the highhandedness of the Respondent so as to justify an award of general, punitive, aggravated and exemplary damages.

#### C. Court's Determination

- 21. Rule 30(1Xb) of this Court's Rules of Procedure does grant the Court the discretion in exceptional circumstances to admit additional evidence on appeal upon the presentation of satisfactory grounds therefor by an applicant. As quite rightly proposed by learned Counsel for the Respondent, the principles governing the exercise of courts' discretion in applications such as the present one are well articulated in Attorney Genera <sup>I</sup>v Paul K. Ssemoqerere & 2 Others (supra). The same principles are re-echoed in the latter case of Attornev General & Another v Afric Cooperative Society Ltd (supra) that was cited by the Applicant. - 22.|n addition to the principles laid down in the foregoing authorities, I am cognizant of the principle that parties should normally advance the totality of their case on the first bout of litigation, it not being open to them (save in exceptional circumstances) to raise a point which should have been raised then and which, with reasonable diligence, could have been discovered and canvassed in the first trial. See Protazio Bequmisa v Wilfred Nuwaqaba & Anoth er. Civil Aool, n No. 23 of 2022. citing with approval Takhar v Gracefield Developments Ltd & Others (201il UKSC 13. - 23.|n the same vein, in Attorney General v Paul K. Ssemooerere & <sup>2</sup> Others (supra), the Ugandan Supreme Court emphatically enjoins appellate courts'to be stringent about admitting additional evidence on appeal observing that there would be no end to litigation unless a court can expect a party to put its full case before it.' The duty upon this Court, therefore, is to determine whether the totality of the circumstances before it in this Application would warrant the grant of a relief that is stringently reserved for the rarest, exceptional instances. - 24. ln this Appeal, the additional evidence sought to be adduced is attached to the affidavit in support of the Application as follows: - l. A letter dated 8th April 2011 from the Ministry of Works & Transport requesting the Ministry of Finance, Planning & Economic Development to expedite the process of the recovery of advance before they could conclude on the termination modalities (Annexure 'D'); - ll. Letters dated 4th May 2011 (Annexure'E') and 2nd August 2011 (Annexure 'F') from Ministry of Finance, Planning & Economic Development to M/s Tropical Bank Ltd demanding that the Advance Payment Guarantee be paid to the Ministry; - lll. A letterdated 4th September2012lrom the Office of the President, Resident District Commissioner of Kaabong District requesting the Applicant to collect its abandoned machinery and to put it in a more secure location (Annexure 'G'); and - lV. A letter dated 25th April 2013 from the Ministry of Works & Transport requesting the District Police Commander, Kaabong District to release equipment on site which was not owned by the Applicant to pick up its machinery and/ or earth moving equipment stationed in Kaabong, Karamoja (Annexure'H'). - 25. I find no reason to question the credibility of the letters in terms of their authenticity as communication between the persons and offices delineated therein, neither has it been contested by the Respondent. To that extent, the additional evidence is indeed capable of belief. The Respondent nonetheless questions the cogency or persuasiveness of the additional evidence, a matter that alludes to the relevance of the letters to this Appeal and the influence they might have on the result thereof.

- 26. The background to the Appeal in respect of which this Application arises is that upon termination of a road construction contract by the Uganda Government, it retained the Applicant's road construction equipment that was subsequently vandalized. See paragraphs 3, 4(g) and 11 of the Amended Plaint in the record of appeat. The Applicant thus sought compensatory reliefs for loss of income and the destroyed equipment arising from an action in detinue. lndeed, arising therefrom, the Applicant proffers the following grounds of appeal before this Court: - L The leamed tial Judge ened in law and in fact in holding that the ptaintiffs claim of non-peiormance being a result of force maieure and insuryency in the area were false and unbelievable. - ll. The leamed tial Judge ened in law and in fact in holding that the defendant was justified in retaining the plaintiff s construction equipment. - tll. The teamed tial Judge ened in law and in fact in holding that the defendant was not liable for special damages for /oss of income aising out of detinue. - lV. The leamed trial Judge ened in law and in fact in not awarding general, punitive, aggravated and exemplary damages. - V. The leamed tial Judge ened in law and in fact in not awarding interest to the appellant. - 2T. Grounds 1 and 2 above highlight the substantive issues that were before the Trial Court, Grounds 3, 4 and 5 simply reflecting consequential reliefs accruing therefrom. On the other hand, the letters presented as Annexures D, E and F to the affidavit in support of the Application pertain to the calling of an Advance Payment Guarantee that had been furnished by the Applicants. The import of those letters is to seek to recover on behalf of the Ugandan Government such balances on the advance payment as had not been utilized by the Applicant under the terminated contract. To my mind, this barely has anything to do with the retained road construction equipment that is in contention in the Amended Plaint. That pleading does not reflect the disparity in the sums owed by the Applicant

against the Advance Payment Guarantee and the sums recovered by the Respondent thereunder as having been in issue before the lower court so as to become a matter of contention on appeal. I therefore find Annexures D, E and <sup>F</sup> irrelevant to the Appeal and unlikely to have any influence on the result thereof, and would decline to grant leave for their admission as additional evidence on appeal.

- 2E. Annexures G and H, however, do appear to have a bearing on the Appeal insofar as they purport to address the issue of the construction equipment. The question is whether they represent new and important matters of evidence and were within the Applicant's knowledge or with the exercise of due diligence could have been discovered and produced before the Trial Court, so that the totality of the Applicant's case would have been presented there. lf that were so, then the issue would be whether this Application for their admission was brought without undue delay so as to bring finality to litigation and avert prejudice to the opposite party. - 29. Of new evidence on appeal, this Court did in Protazio Bequmisa v Wilfred Nuwaqaba & Another (supra) observe as follows:

The stringent approach recommended in Attornev General v Paul K. Ssomooerore & 2 Others (supra) for the acceptance of additional evidence by an apPellate court lends itself to the propositjon that evidence thal would reasonably be in the knowledge of and, with due diligence, available to an applicant is not tantamount to new evidence for purposes of applications for leave to adduce additional evidence on appeal.

30. ln the instant case, Annexure G is a letter dated 4th September 2012 from the RDC of Kaabong District to the Applicant company requesting it to collect its abandoned equipment from the roadside and relocate it to a place where its security could be guaranteed by the District. The Applicant does not deny knowledge of the said letter, only contending that it got lost in the course of the foreclosure of its head office by Tropical Bank Limited. lt seems to me that since the Applicant was aware of the existence of that letter, it could have secured a certified copy thereof from the RDC's office upon the loss of the original copy. Consequently, the letter was both within the knowledge of the Applicant and readily available to it with the exercise of due diligence, it cannot be categorized as new evidence.

- 31. Furthermore, I am unable to deduce the evidential worth or importance of the said letter. lt would appear to confirm that the Applicant's evidence was abandoned and some of it was vandalized, without specifically stating the extent of the vandalization or how much of the equipment had been vandalized as at September 2012, lhe date thereof. My understanding of the Appeal is that the issue of vandalization is not so much in contention as is the question of whether the Applicant is entitled to recompense therefor. Without delving into the merits thereof, it seems to me that the Appeal primarily hinges on the contractual provisions that address the parties' handling of the road construction equipment upon termination of the contract. Annexure G does not shed any light on this so as to assume any degree of importance. - 32.1 am satisfied, therefore, that Annexure G is neither a new nor important piece of evidence for purposes of Civil Appeal No' 1116 of 2019, and would decline to admit it as additional evidence therein. - 33. Similarly, Annexure H confirms the retention of the Applicant's equipment by Government of Uganda, which issue is not in dispute, without shedding any light on the contractual provisions pertaining thereto. Therefore, although that letter is neither addressed nor copied to the Applicant company so as to be presumed to have been within its knowledge, it does not appear to be either relevant or important to the Appeal. I would thus decline to grant leave for its admission thereto. - 34. With regard to the question of timely lodging of applications of this nature, Rule 30(1)(b) does not prescribe a time frame within which such applications may be lodged. lt would thus ordinarily fall to a court to exercise judicial discretion in making a determination as to whether or not there has been undue delay in the filing of the application. ln Attornev General v Paul K. Ssemooerere & 2 Others (supra), against the backdrop of its admonition for finality in litigation, the Supreme Court exercised its discretion to adjudge an application that was brought six months after the delivery of the judgment on appeal to have been lodged with undue delay.

- 35. ln the matter presently before the Court, the Trial Court's judgment was delivered on 25th October 2018 and this Application was lodged on22nd December 2020, more than two years after delivery of the judgment on appeal. ln my view, a twoyear delay in lodging this Application is inexcusable in a case where all the letters sought to be adduced as additional evidence were lying in the Ministry of Works and Transport, and the Applicant with reasonable diligence would have come across them earlier. - 36. lt follows then that no sufficient reasons have been established by the Applicant for the presentation of additional evidence on appeal in this matter, neither would the Applicant company benefit from the remedy available under Rule 30(1Xb) of the Court of Appeal Rules.

### D. Conclusion

37. ln the result, lwould dismiss this Application. Costs to abide the cause.

It is so ordered.

Dated and delivered at Kampala this day of .......... .........., 2023.

Monica K. Mugenyi Justice of Aooeal

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

(Coram: Madrama, Mulyagonja & Mugenyi, JJA) **CIVIL APPLICATION NO. 353 OF 2020** (Arising from Civil Appeal No. 116 of 2019)

# ZZIMWE ENTERPROSES, HARDWARES & CONSTRUCTION LIMITED::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

#### RULING OF IRENE MULYAGONJA, JA

I have had the benefit of reading in draft the ruling of my sister, Monica K. Mugenyi, JA. I agree with the decision that the application should be dismissed, with costs to abide the main cause.

Dated at Kampala this $09^{\circ}$ day of *Rbrug* 2023.

Irene Mulyagonj

**JUSTICE OF APPEAL**

# THE REPUBLIC OF UGANDA.

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(CORAM: MADRAMA, MULYAGONJA, MUGENYI, JJA)

CIVIL APPLICATION NO 353 OF 2020 (ARISING FROM CIVIL APPEAL NO 116 OF 2020) ZZIMWE ENTERPRISES, HARDWARES & <table>

CONSTRUCTION LIMITED} APPLICANT

### **VERSUS**

ATTORNEY GENERAL} ....................................

## RULING OF CHRISTOPHER MADRAMA, JA

I have had the benefit of reading in draft the ruling of my learned sister Hon. Lady Justice Monica K. Mugenyi, JA.

I concur with her ruling and the reasons therein for finding that the applicants application has no merit and ought to be dismissed. As my learned sister Hon. Lady Justice Irene Mulyagonja, JA agrees, the applicant's application stands dismissed with costs to abide the outcome of the appeal.

$09.02.2021$

Dated at Kampala the \_\_ day of January 2023

$2$ $\sim$

Christopher Madrama

Justice of Appeal