[2024] UGCA 36

l0 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA [Coram: Egonda-Ntende, Bamugemereire & Luswata, JJA] ELECTION PETITION APPLICATION NO. 16 OF 2023, (Aising out of Dlection Petition Appeal No. 04 of 2023) (Arising out of Election Petition No. 07 of 2O21) BETWEEN ARIKO JONNY DE WEST APPLICANT

oMARA yrryENrrNE =====-:::= = RESpoNDENT

RULING OF THE COURT

## Introduction

t5

- t1] The applicant and respondent were candidates for the seat of the LCV Chairperson for Abim District in the general elections held on 14th January 2021 . The Eiectoral Commission (EC) returned the respondent as the validly elected LCV Chairperson for the District. The applicant filed Election Petition No. OO7 of 2O2l at the Soroti High Court challenging the outcome of the election. On 9/3/2023, the High Court nullified the respondent's victory on grounds that at the time of his nomination, he had not resigned from the Uganda People's Delence Forces (UPDF). The respondent accordingly filed Election Petition Appeal No. 04 of 2023 (EPA No. 4 /20231 to this Court, challenging the decision of the High Court. l0 l5 l0 - l2l The applicant has now filed this application under Rules 2(2) and 43(1) & (2) of the Judicature (Court of Appeal Rules) Directions S. I 13-10 (hereinafter the Rules of Court) to seek an orderof this court to strike out pages 11to 16 of the respondent's 35

i

| $\mathcal{S}$ | | supplementary Record of Appeal, for the reason that it does not<br>form part of the record of the High Court. The appellant in<br>addition seeks costs of the application. | |---------------|-------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | $10$ | $[3]$ | The grounds of the application were set out as follows: | | | | 1. The applicant successfully obtained judgement<br>in<br>Election Petition No.07 of 2021 against the respondent at<br>the High Court of Uganda at Soroti. | | $15$ | | 2. The respondent appealed against the Judgement of the<br>lower court to the Court of Appeal vide <b>Election Petition</b><br>Appeal No. 04 of 2023- Omara Yuventine V Ariko<br>Johnny De West. | | 20 | | 3. That on the $23rd$ May 2023, the respondent filed a<br>supplementary record of appeal with smuggled evidence<br>at pages 11 to 16 that did not constitute evidence before<br>the lower court. | | 25 | | 4. The smuggling of the certificate of service at pages 11 to<br>16 in the respondent's supplementary record of appeal is<br>aimed at extinguishing the lower court's finding that the<br>respondent had not been lawfully discharged from army<br>at the time of his nomination for the LCV Chairperson | | 30 | | Abim District. | | | | 5. That pages 11 to 16 of the respondent's supplementary<br>record be struck out for not forming part of the lower<br>court's record. | | 35 | | 6. That it is just and equitable that the orders sought in the<br>application are granted. | | 40 | $[4]$ | Mwesiga Philip an advocate of the Courts of Judicature attached<br>to the law firm of JB Byamukama & Co. Advocates, filed an<br>affidavit in support of the application. Briefly, he deposed to the |

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fact that after filing their appeal, the respondent's lawyers served

his firm with a record of appeal, which he confirmed contained the true record of the High Court at Soroti. However, that on $23/5/2023$ , the respondent again filed and served upon them a supplementary record of appeal that contained a Certificate of Service for the respondent contained in pages 11 to 16 of the supplementary record. That being aware that the Certificate of service (hereinafter Certificate) was never part of the record of the High Court, his firm sought, and on $31/5/2023$ received from the Registrar of the High Court, certified copies of the respondent's answer to the petition, affidavit in support, and all annexures thereto. Mr. Mwesiga was then able to confirm that pages 11-16 of the supplementary record did not form part of the record of the High Court. He considered the actions of the respondent's counsel as illegal and unethical, aimed at extinguishing the High Court's finding that the respondent had not been lawfully discharged from the army at the time of his nomination for the election of the LCV Chairperson, Abim District.

$[5]$ The respondent opposed the application. He filed an affidavit in reply to the application where he raised two preliminary points of law to wit:

a. The applicant has in Election Petition No. $4/2023$ already raised and made their submissions in respect of a preliminary objection regarding the impugned pages 11-16 $\overline{\text{of}}$ the appellant's supplementary record of appeal (hereinafter SRA). The appellant has likewise responded to that objection. The objection awaits the judgment of this Court and expunging the same in this application is only designed to delay the judgment in the appeal and would render the submissions of both parties on that objection, nugatory.

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$10$

$15$

$20$

- b. Mwesiga Philip as the advocate in personal conduct of the matter is prohibited from deposing to the facts of the affidavit in support of the motion. - Mr. Omara in addition generally denied all facts raised in Mr. $[6]$ Mwesiga's affidavit. He contended that the impugned Certificate $10$ was adduced at the trial and was referred to by the Judge at page 19 of his judgment. That he is in possession of the original Certificate issued to him by the Uganda People's Defence Forces (UPDF) and can produce it for the inspection of this Court. That, that notwithstanding, a copy of that Certificate appears as $15$ Annexure "B" at page 10 and Annexure " $E$ " of the supplementary record, both being parts that are not under contest in this application. That in fact, pages 11-16 of the SRA are integral pages and part of the Certificate and as such, cannot be severed from it. $20$

$\mathsf{S}$

- Mr. Omara continued that the trial Judge made a correct finding $[7]$ that he had attached the Certificate instead of a discharge certificate, but misdirected himself on the legal effect of the Certificate, which is the subject of the appeal. - Mr. Mwesiga filed an affidavit in rejoinder. He denied being the $[8]$ advocate in personal conduct of the matter and therefore not legally prohibited to depose to facts supporting the application. He asserted that the application is necessary in order to address 30 the propriety of only pages 11-16 of the SRA, and the need to strike them out because they were never part of the record at the High Court but merely an attempt by the respondent to adduce evidence without leave of this Court. He explained further that only page 10 of the Certificate was attached, but not pages 11-35 16 of the SRA, and that the reference made at page 19 of the judgment of the High Court, was limited to the contents and annexures attached to the respondent's affidavit in answer to the petition. He emphasized that in his judgment, the trial Judge

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held that the Certificate produced by the respondent did not prove that he resigned or retired from the UPDF before his nomination in accordance with the UPDF Act. He concluded by repeating his prayer that the Certificate be struck out for not forming part of the record of the High Court.

## $10$

$15$

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## **Submissions of Counsel**

- $[9]$ Both parties were present at the hearing at which the applicant was represented by Mr. Jude Byamukama who was assisted by Mr. Evans Ochieng represented the Mr. Innocent Okong. The parties opted to rely on their written respondent. submissions on record. - $[10]$ In his submissions, counsel for the applicant repeated the grounds raised in the motion. He then drew our attention to 20 Rules $87(1)$ , (3) & (5), 89 and 90(4) of the Rules of Court. He submitted then that once an appeal is filed in this Court, the Registrar is mandated to obtain from the High Court the original record and proceedings of the High Court. That a respondent may with leave file a supplementary record of appeal if they wish 25 to cure defects in their record or, to file additional documents. He submitted further that a SRA which must be prepared near as may be in the same manner as the filed record, contains only basic documents mentioned in Rule 90, because it merely 30 supplements a defective or insufficient original record of appeal. Citing the decision of the Supreme Court in **Barclays Bank of** Uganda Ltd versus Eddy Rodrigues, Civil Appeal No. 5/1987, he emphasized that a SRA can only contain documents, pleadings and exhibits that formed the record of the lower court. - 35

$[11]$

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submissions, he offered that the certified copies

Counsel continued that pages 11-16 of the SRA (being the

respondent's purported certificate of service) are invalid for not having been part of the record of the High Court. To confirm those

respondent's pleadings in respect of the petition filed in the High

of the

- Court on $10/5/2021$ , confirm that those pages were not part of $\mathsf{S}$ the annexures attached to his affidavit in support of the answer to the petition. He asserted in addition that even if the respondent claims he has the original certificate, he cannot at this point adduce it as additional evidence. He submitted further that the respondent's actions in filing the impugned parts of the SRA 10 contravened Section 74(1) of the Advocates' Act which amounted to outrageous and unethical conduct meant to undermine part of the decision of the High Court Judge. In conclusion, he prayed that pages 11-16 of the SRA be struck out and expunged from the Record of Appeal. 15 - [12] In response, Mr. Ochieng submitted that the respondent filed EPA No. $4/2023$ to contest the decision of the High Court which nullified his victory as the duly elected LC V Chairperson Abim District on grounds that at the time of his nomination, he had not 20 resigned from the UPDF. That decision was made in spite of the fact that the respondent attached his certificate of service, which is conclusive proof of his retirement. That after the respondent filed his SRA, both parties filed their conferencing notes, and in his notes, the applicant raised a preliminary objection contesting 25 the impugned pages 11-16 of the SRA, which they responded to and is now pending the decision of the Court. The applicant then filed this application on 22/8/2023, seeking the same orders but being filed out of time. They also consider this application a deliberate attempt to delay the hearing and disposal of EP No. 30 $4/2023$ , in contravention of section 145(2) of the Local Governments Act Cap 243, that directs that election appeals are heard and determined within a period of three months. - [13] Mr. Ochieng submitted in the alternative that after perusing the 35 record he filed in Court on $28/3/2023$ , the respondent realised a few attachments to the answer to the petition and affidavit had not been attached. That to cure that defect, he filed a SRA on $23/5/2023$ containing those omitted pleadings on which was attached additional parts of his certificate of service which he had 40

initially tendered and relied on at the trial, and on which the Judge partly relied to arrive at what he considered an erroneous decision. That similarly on $18/4/2023$ , the applicant filed a SRA attaching documents he had omitted to file that he considered relevant to his case. Counsel equally quoted Rule 90(4) of the Rules of Court as the provision allowing such a filing to be done and the decision of **Barclays Bank of Uganda Ltd (supra)**, to explain the import of the SRA.

Counsel continued that in their submissions with respect to EPA $[14]$ No. $4/2023$ , the applicant's counsel did raise a preliminary objection against the expunged pages. That the same advocates made submissions in their conferencing notes on appeal knowing that it would be considered by the Court before the Justices delve into the merits of the appeal. Thus, they are estopped from raising the same objection in this application which would render nugatory the conferencing notes filed by both parties in the appeal, and a waste of courts time meant to delay determination of the appeal.

[15] In particular response to the matters raised in this application, $25$ respondent's counsel contested the allegation made that the impugned pages of the SRA are being smuggled into the appeal. Counsel contended that a copy of the respondent's certificate of service was tendered at the trial as Annexure A (in paragraph $4$ ) to the respondent's affidavit in support of his answer to the 30 petition. That equally, in paragraph 5 at page 19 of his judgment, the Judge relied on those documents when making his judgment. That in fact, the point of contention in the election appeal is that the Judge wrongly evaluated that document and its legal effect when he wrongly decided that the respondent had attached a certificate of service, instead of a discharge certificate. Counsel elaborated that before his nomination, the respondent sought retirement from the UPDF under Regulation 31(3) of the Uganda People's Defence Forces (Conditions of Service) (Officers)

$15$

$10$

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$20$

- Regulations SI 307-2 (hereinafter UPDF Conditions of Service $\mathsf{S}$ Regulations), but not resignation, as was wrongly found by the Judge. - [16] Respondent's counsel contended that his learned friend being fully cognizant of the errors made by the Judge, maliciously filed $10$ this application to have the Certificate expunged instead of assisting this Court to effectively determine the matters in controversy in the appeal. Counsel considered the matters raised in the application as mere technicalities that should not prevent the merits of the appeal to be considered. He invited the Court to $15$ consider the same objection raised in the appeal as was the case in Betuco (U) Ltd & Anor versus Barclays Bank of Uganda Ltd & Others, SC Civil Appeal No. 1/2017. - [17] With respect to the second objection, respondent's counsel argued 20 that by filing the affidavit in support of the application, a contentious matter, Mr. Mwesiga contravened Regulation 9 of the Advocates (Professional Conduct) Regulations SI. 267-2. He referred to the decision in Arthur Busingye & Another versus Gianluigi Grassi & Anor HCT-00-Cc-Ma 203-2013, where it was 25 held that an advocate cannot appear before any court or tribunal in a matter in which they will be required to give evidence either verbally or by affidavit. That paragraph 13 of Mr. Mwesiga's affidavit raised contentious matters that touch on the merits of the appeal. Counsel then invited the court to strike out Mr. 30 Mwesiga's affidavit under that law and ultimately to dismiss the application with costs and instead, determine EP No. $4/2023$ on its merits. - [18] In rejoinder, to the first preliminary objection, it was contended 35 for the applicant that since EP No. 4/2023 has not yet been resolved by judgment, the application was filed in time, and therefore, the assertion that this application will render the conferencing notes in the main appeal nugatory, is merely

speculative. Counsel reiterated that the SRA filed on $23/5/2023$ contained pages 11-16 that contained smuggled documents which were not part of the lower court's record.

[19] In rejoinder to the second preliminary objection, it was contended $10$ that counsel Mwesiga's affidavit was limited to facts which were not contentious and thus would not require cross examination, and those which he was capable of proving. Counsel offered several authorities, one of which is the Supreme Court decision in Mbarara Municipal Council versus Jetha Brothers Ltd, Civil Application No, 10/2013 where it was held that where $15$ necessary, an advocate can swear an affidavit especially on matters within their knowledge. Further relying on the Kenyan authorities of Salama Beach Hotel Ltd versus Mario Rossi, CA Civil Appeal No. 10/2015 and Hakika Transporters Services Ltd versus Albert Chulah Wamimitaire, CA Civil Application $20$ **No.** 01/2016, counsel argued that this application presents appropriate circumstances for Mr. Mwesiga as an advocate to depose an affidavit. The reason being that he is attached to the firm which represented the applicant in EP No. 7/2021, and could therefore depose of facts touching matters on the High Court 25 record and which were verifiable from that source, and also on purely legal positions that are rightly within his knowledge.

## **Court's Analysis and decision**

$(2)$

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[20] This application is brought under Rules $2(2)$ , and $43(1)$ and $(2)$ , of the Rules of Court. Rule 2(2) of the Rules of Court vests in this Court discretionary powers to make such orders as are necessary to meet the ends of justice. It states:

> 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 of justice or to

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prevent abuse of the process of any such court, and that power shall extend to setting aside judgments which have been proved null and void after they *have been passed.* and shall be exercised to prevent abuse of the process of any court caused by delay.'

- $[21]$ The applicant seeks an order of this Court to expunge and strike out parts of the SRA filed by the respondent. In his reply, the respondent contends that all the contents of the SRA were properly filed and should be considered when disposing of the appeal. His counsel has raised two preliminary objections to the application which we shall dispose of first. He claims that: - a) The applicant has in Election Petition No. $4/2023$ already raised and made their submissions in respect of a preliminary objection regarding the impugned pages 11-16 $20$ of appellant's supplementary record of appeal. The appellant has likewise responded to that objection. The objection awaits the judgment of this Court and expunging the same in this application is only designed to delay the judgment in the appeal, and would render the submissions of both parties on that objection nugatory. - b) Mwesiga Philip as the advocate in personal conduct of the matter is prohibited from deposing to the facts of the affidavit in support of the motion. - [22] It is provided under Rule 43(1) that every formal application to the Court shall be by notice of motion. Further, according to Rule $43(2)$ :

"*Every formal application to the court shall be supported* by one or more affidavits of the applicant or of some other person or persons having knowledge of the facts".

It appears from the above provision that any persons who 40 professes knowledge of facts in issue in a case, are eligible to

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$10$

$15$

$10$

adduce evidence by affidavit in support of it. Such persons do not exclude an advocate like Mwesiga who has stated that his knowledge of the facts raised in the application stems from the fact that his firm filed both this application and the appeal, and previously handled the petition from which the appeal emanates. However, his presence in the application is contested in line with the provisions of Regulation 9 of the Advocates (Professional Conduct) Regulations S. I. 267-2 which generally restrict personal involvement of advocates in their clients' cases. It provides that:

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$25$

"No advocate may appear before any court or tribunal in any matter in which he or she has reason to believe that *he or she will be required as a witness to give evidence,* whether verbally or by affidavit; and if, while appearing in any matter, it becomes apparent that he or she will be required as a witness to give evidence whether verbally or by affidavit, he or she shall not continue to appear; *except that this regulation shall not prevent an advocate from giving evidence whether verbally or by declaration* or affidavit on a formal or non contentious matter or fact in any matter in which he or she acts or appears"

- [23] It is contended for the applicant and not contested, that the firm of M/s JByamukama & Co, to which Mr. Mwesiga is attached, handled the petition at the High Court from which both this application and EP No. 4/2023 emanate. For that reason, although not in personal conduct of the matter, it is conceivable that he came to know the facts of all three causes very well. He would in that regard be a competent witness in this matter. We are bound by the decision of the Supreme Court in that regard that an advocate is not prohibited to swear an affidavit where necessary, especially on matters that are well within their knowledge. See Mbarara Municipal Council versus Jetha Brothers Ltd (supra). - In this application the applicant seeks to expunge parts of the 40 $[24]$ SRA (in particular pages 11-16) for having been wrongly or fraudulently included in the SRC. Specifically, those pages contain

- $\mathsf{S}$ a Certificate of Service that the respondent seeks to largely rely on in the appeal. The respondent contends that after making a wrong interpretation of its legal import, the trial Judge came to a wrong conclusion of the respondent's status prior to his nomination as a candidate eligible for election to the post of the LC V Chairperson for Abim District. It is contended by the respondent that the $10$ Certificate was one of the documents adduced and also considered during hearing of the petition in the High Court, a contention the applicant strongly disputes. Thus, the facts that Mr. Mwesiga deposed to only appear to be confirming or disputing the presence or absence of that document on the record of the petition in the $15$ High Court. Those are purely formal and non-contentious issues whose truth or lack of it, can be verified from the records filed here and in the High Court, and nothing more. - [25] We accept the proposition of the appellant's counsel that even if 20 Mr. De West was to swear the affidavit himself, he would present to this court, verbatim what any of his counsel would advise him was available on the record. The dictum in the Kenyan decision of Salama Beach Hotel (supra) is persuasive. The Court of Appeal of Kenya held at page 2 that: 25

"as regards the appellant's objection regarding the *affidavit supporting the application, it is clear that Mr. Munyithya* has deponed only to matters within his personal knowledge as counsel acting in this matter both in the High Court and in this Court. On the facts of this application, even if the appellant were to swear the *affidavit himself, he would most certainly be repeating what he would have been informed by Mr. Munyithya. In these circumstances, we do not see a legitimate basis for this complaint.*"

[26] Even if we were to find that Mr. Mwesiga was not eligible to swear the affidavit, under Regulation 9, the remedy would be to disqualify him and in his place, request another person or the applicant himself to file an affidavit supporting the application.

However, on the whole, we have found no merit in this objection, and it is rejected.

[27] It is in addition raised as an objection that the matters raised in the application have also been raised as an objection in the conferencing notes filed by the applicant in EPA No. $4/2003$ , and that the respondent has likewise responded to them. That being so, this application is a waste of court's time designed to delay final disposal of the appeal. The applicant's counsel did not dispute that objection, but asked the court to disregard the contention that the conferencing notes in respect of the election petition filed by both parties in the appeal, would be rendered nugatory. We confirmed from the record of appeal that the applicant raised the same objection on page 2 of his conferencing notes filed in Court on $26/6/2023$ , and the respondent filed a response in their submissions filed in rejoinder on $11/7/2023$ . The only difference we perceive is that the applicant provided more detail in this application and also made a specific prayer that pages 11 to 16 of the SRA be struck out.

- $25$ [28] Although we find no merit that the application was filed out of time, we are constrained to accept the proposition by respondent's counsel that there was no specific necessity to file the motion before us. The matters being raised are restricted to the contents of the two records; the one at the High Court and the one in respect of the appeal. Since certified copies are available to the 30 Court, we believe this is a matter that could have been handled by the Court as preliminary points of law, before considering the merits of the appeal. This Court should whenever possible be spared of unnecessary litigation which creates back log. - 35

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$15$

That said, we consider it imperative to decide the application. We [29] are now better guided by the application and the evidence adduced by both sides. Should we find that the impugned pages of the SRA were wrongly filed, then our duty is to discard them, but proceed

- $\mathsf{S}$ to consider the rest of the record to decide the appeal. It is true that, that part of the conferencing notes will be rendered redundant, but we see no prejudice to the respondent. We believe that is a matter that can be atoned for by costs. - [30] The facts that appear not to be in contest are that Election Petition $10$ No. $7/2021$ was re-tried in the High Court sitting at Soroti. On $10/3/2023$ , the respondent filed EP Appeal No. $4/2023$ in this Court contesting the judgment of the High Court. Mr. Mwesiga claims his firm was served with a record on $28/3/2023$ , which they confirmed to be the true record of appeal. Subsequently, they 15 were served with a SRA on $23/5/2023$ which contained the respondent's Certificate (at pages 11 to 16) documents which were not part of the record of the High Court. In his response, the respondent contends that the certificate was adduced at the trial and considered by the Judge on page 19 of his judgment. That 20 pages 11-16 are in fact just integral pages and form part of the certificate and cannot be severed from it. He continues that the trial Judge appreciated that the certificate was adduced as part of the respondent's evidence, but he then made an erroneous evaluation of its legal import. $25$ - [31] We must clarify that in this application the task before us is not to make a finding of what the trial Judge understood the certificate to be, but only whether that evidence is properly before us on appeal. Therefore, two issues are raised for our consideration: - a) Was the respondent's Certificate of service ever part of the record when EP No. $7/2021$ was re-tried at the High Court? - b) If so, was it properly introduced into the record of EP Appeal No. 4/2023? - [32] According to Rule 87 of the Rules of Court, every appellant is mandated to file a record of appeal and Rule $87(1)$ provides for the

contents of such a record. For the purposes of this application, the record filed by the respondent should have included, (inter alia), an index of all the documents in the trial record, the pleadings, the affidavits read and all documents put in evidence at the hearing, the judgment or reasoned order, and any other documents necessary for the proper determination of the appeal. Under Rule 89(2) of the Rules of Court, following receipt of the record of appeal, the Registrar of the Court shall obtain from the Registrar of the High Court the original record of the proceedings of the High Court and, so far as is practicable, the exhibits.

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$10$

$15$

[33] Under Rules 90(3) of the Rules of Court, an appellant is permitted to file a SRA. Under Rule 90(4) it is filed only to cure defects in the original record due to want of compliance with Rule 87. Under Rule 90(5), the SRA shall be prepared as nearly as may be to the $\frac{1}{2}$ record of appeal. We accept what was presented for the applicant that the basic documents of a record are well listed in Rule 87. A SRA when filed by an appellant should merely supplement or correct a defective or insufficient original record of appeal. The party filing the SRA must in general present the same documents filed in the original record, which documents should also emanate directly from the record of the lower court. The Supreme Court in Barclays Bank Ltd versus Eddy Rodrigues, Civil Appeal No. 5/1987 described the SRA to be a record of any further documents or additional parts of documents which may be required for determination of the appeal. Further that the words "further" and "additional" are intended to refer to documents which are part of the basic documents mentioned in **Rule 85 (now Rule 90)** as forming the record of appeal. A respondent who considers that they have been served with a defective or an insufficient record, may under Rule 90 correct it by filing a SRA with all documents that have been omitted. It follows then that any additional documents should have also been part of the original documents at the trial. The concerned party cannot be permitted to introduce any new document. Those can only be

- ⁵ introduced as new evidence, after leave of Court if obtained under Rule 3O(1) (b) and (2) of the Rules of Court. - [3a] We have carefully perused the evidence in this application. Mr. Mwesiga stated in paragraphs 7, 8, and 9 of his affidavit in support of the application that after discovering that certain documents had been smuggled into the SRA, he applied for and then obtained a certified copy of part of the record from the Registrar of the High Court in Soroti. He concentrated in particular on Mr. Omara's answer to the petition and the affidavit in support thereof with its arrnexure. He confirmed from those pleadings that pages ¹1 - 16 were not part of the original record at the High Court. Those documents are marked Annexure "E" to Mr. Mwesiga's a-ffidavit. We have perused Annexure "E" and confirmed that Mr. Mwesiga's lacts as related are true. IO l5 - l0 - [35] Mr. Omara strongly contested the above facts. However, our eva-luation of the same facts confirms him wrong. In paragraph 7 of his affidavit in reply to this application, he states but does not show that pages 1 1- 16 of his SRA werc part of the original record at the High Court. What he refers to as Annexure "B" is actually marked Annexure "A" at page 10 ofthe SRA. That one document appears as Annexure "E" in Mr. Mwesiga's affidavit in support of this application and is not contested. It is the same document that the trial Judge referred to in the ltrst paragraph of page 19 of his judgment albeit mentioning a different serial number. Mr. Omara claimed at page 10 of the same affidavit that the applicant elected to certify only page 1O and then leave out pages 11-16 which are an integral part of the certificate. We chose to believe Mr. Mwesiga who countere{ that a-llegation when he stated that certification of a recofd of appeal is done by the Court and not the parties or their lawyers. We die prepared to believe that what we have as page 6O of the record of appeal filed on 28/3/2023, is what the applicant's lawyers obtained from the High Court as the original record. Mr. Omara and his lawyers provided no evidence to the contrar5r. 25 l5 l0

l0

t5

l0

- [36] We repeat that should the respondent have deemed it necessar5z to adduce additional documents beyond page 1O of his SRA, he could have done so, by first obtaining forma,l leave and then fulfilled any criteria for filing fresh evidence. This Court is bound only to consider on appeal the documents that were adduced at the tria-l, and nothing more. - 137) In conclusion, we have found merit in the matters raised by the applicant in this application and it is allowed. By order of the Court, pages 11 to 16 of the respondent's supplementar5r record of appea-l are struck out for not forming part of the record of the High Court. - [38] Each party sha.ll meet their costs of this application.

4' Signed, dated and delivered at Kampaia this /3 day of F€.4 ²⁰²⁴ 25 Catherine Bamugemere ire JUST E OF APPEAL :15 Eva K. Lus t1 JUSTIC APPEAL 30 F. M. S Egonda-Ntende JUSTICE OF APPEAL