[2024] UGHCCD 167

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL DIVISION MISCELLANEOUS APPLICATION NO. 1191 OF 2023 ARISING FROM CIVIL SUIT NO. 272 OF 2021 HON. JUSTICE ANUP SINGH CHOUDRY::::::::::::::::::::::::::APPLICANT VERSUS**

**UMEME LIMITED::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

## **BEFORE: HON. JUSTICE SSEKAANA MUSA**

## **RULING**

The applicant brought this application under Article 126(2)(e) of the Constitution, Section 98 of the Civil Procedure Act and Section 17 (2) 7 Section 33 of the Judicature Act and Order 52 seeking the following order;

- i) The applicant be allowed to re-open his case and present the original plans of the bungalow which was demolished in 2008 at Plot 4 Nambi Road Entebbe as well as costs of the application. - ii) That costs of the application be in the Cause

The application was supported by the Applicant's affidavit which briefly stated;

1. That I am the Plaintiff in the above matter which was concluded on 7th December 2023

- 2. That both parties were directed to file their submissions on 4th January 2024 and 25th January 2024 respectively, and to report back to Court for mention on 12th February 2024. - 3. That the evidence sought to be adduced is one that the Applicant came upon or discovered as new and crucial evidence which after the exercise due diligence was not within his knowledge at the time of hearing his case as he could not recall it. - 4. That the new evidence will aid and guide the Honorable Court in arriving at the right facts and giving safe ruling in the interest of justice. - 5. That grant of the application shall not prejudice the opposite party's case/defense. - 6. That is in the interest of justice and equity that the Applicant/ Plaintiff be allowed to reopen its case and present the original plans of the bungalow which was demolished in 2008 at Plot 1 Nambi Road Entebbe to allow substantive justice to be administered without undue regard to technicalities.

The Respondent filed an affidavit in reply sworn by Susan Nafula Bukenya the Respondent's legal manager that briefly stated as follows;

- 1. That the application is incompetent, meritless, misconceived and only intended to waste the court's time. - 2. The Applicant did not make reference or draw any relevance of the original plans of the bungalow in his plaint, joint scheduling memorandum or trial bundle.

- 3. The plans sought to be presented are not relevant in the determination of the issues agreed to at scheduling and further the plan attached is not one for the bungalow but for a garage extension. - 4. The Applicant had sufficient time and opportunity to adduce all the evidence he deemed relevant to prove his claim and that the belated application seeking leave to reopen the Plaintiff's case is an afterthought and an abuse of court process. - 5. The plan sought to be adduced is not a new and important matter of evidence and that even if it is given, it would probably have no influence on the outcome of the case. - 6. The application is a tactic attempt to mire the court with endless litigation in a matter where an expeditious hearing was at the Applicant's behest and where both parties closed their respective cases for final submissions. - 7. It is in the interest of justice that the application is dismissed with costs.

The Applicant filed an affidavit in rejoinder stating that;

- 1. The lapses and irregularities during his self-representation are not significant and can be rectified like oversight of failing to formally amend his pleadings to reflect certain matters among others were due to procedural unfamiliarity. - 2. Throughout the trial various references were made to the bungalow house. When I purchased the property at plot 4 Nambi in 2008, it comprised of a bungalow with extensions including a garage and a

boy's quarter however this structure was demolished and replaced by the current house.

- 3. During trial I could not recall this new and crucial evidence which was not available at the time of the hearing due to the passage of approximately 15 years between demolition of the bungalow and initiation of the suit. - 4. The bungalow plan is relevant since it consists of the main house and two extensions that is the garage and boy's quarter occupying the area where the current disputed corridor of 3 phase power lines was installed by the Respondent. - 5. The evidence sought to be adduced is new significant and discovered after the exercise of due diligence. It is not an afterthought and was not within my knowledge at the time of the case hearing. - 6. If presented at trial, the evidence could potentially influence the outcome.

The only issue for determination is *whether the Applicant should be allowed to reopen his case and present the original plans of the bungalow which was demolished in 2008 at Plot 4 Nambi Road Entebbe.*

The applicant was represented by *Joshua Byamazima* while the respondent was represented by *Allan Mark Lutaaya*

The parties filed written submissions as directed and they were duly considered by this Court.

*Whether the Applicant should be allowed to reopen his case and present the original plans of the bungalow which was demolished in 2008 at Plot 4 Nambi Road Entebbe.*

The applicant's counsel submitted that when the parties closed their respective cases and after being directed to file submissions, the applicant found the original plans by Entebbe Municipal Council when the bungalow was constructed in 1996. The applicant submitted that this application was brought without undue delay and therefore it is properly brought before this court.

The applicant's counsel submitted that the constitution enjoins court to ensure that substantive justice is administered without undue regard to technicalities. It was his contention that the court may at any stage recall a witness who has been examined, and may be cross examined.

The applicant's counsel submitted further that the applicant was selfrepresented and was ignorant of the procedure of amending his original pleadings in summary suit when the matter was converted into an ordinary suit.

The respondent's counsel submitted that the applicant has not disclosed and proved sufficient grounds to have the suit reopened. In counsel's view this application is an afterthought intended to delay the progress of the suit.

The respondent further contended that the general purpose of Order 12 rule 1 of the Civil Procedure Rules is to hold a scheduling conference is to ensure that a party, comes to court upon fully understanding, internalizing and preparing for his case. This would also require the applicant to acquaint himself with all the procedures required to pursue his claim.

The documents (plans) are not relevant to the issues currently being considered by court in the determination of the suit. The evidence sought to be admitted/introduced does not have any foundation in any of the pleadings and or pre-trial documents already filed on court record. The applicant should not be allowed to patch up the weak points in his case and or remove the lacuna(s) created therein.

The respondent contended that the admission of the new evidence will prejudice its case since this application has been filed after more than 2 years when the suit was filed in 2021.

## *Analysis*

The considerations for reopening of a closed case to admit new evidence are that the new evidence must be should have any influence on the result (materiality/relevance) and secondly the applicant must prove such could not have been obtained by reasonable diligence.

In the case of *671122 Ontario Ltd v Sagaz Industries Canada Inc 2001 SCC 59, 2 SCR 983 (SCC)* court held that tests, which is intended to assist the trial judge in exercising his or her discretion to reopen the trial, requires the moving party to:

- (i) Show that the evidence he or she seeks to adduce is such that, if it had been presented at the trial, it would probably have changed the result, and - (ii) Prove that such evidence could not have been obtained by reasonable diligence before the trial.

A trial court has unfettered discretion to reopen a trial after judgment has been pronounced but before an order is entered. The discretion is to be used sparingly to avoid fraud and abuse of the court process. The fundamental consideration in each is to prevent a miscarriage of justice. The scope of the discretion is generally narrower where judgment has been issued, and the

test becomes even more rigorous depending on whether the order has or has not been entered. See *Peier v Cressy Whistler Townhomes Limited Partnership, 2011 BCSC 773, [2011] BCJ No. 1085*

While the ambit of the judicial discretion is acknowledged as being unfettered, it must be exercised cautiously so as to prevent an abuse of process. In considering whether to reopen, the court should turn its mind to the relevance of the proposed evidence, the effect, if any, of reopening on the orderly and expeditious conduct of the trial at large, and most fundamentally, whether the other party will be prejudiced if the reopening is permitted. See *Vander Ende v Vander Ende, 2010 BCSC 597, [2010] BCJ No. 804(SC): R v Hayward (1993), 86 C. C. C 3d 193 (Ont C. A)*

The applicant contends that evidence he seeks to bring forth will elucidate the evidence already on record in order to meet the ends of justice. The interests of justice favours the grant of leave to reopen the case and any prejudice the respondent will be minimal since they will cross examine the applicant on the evidence he wishes to tender in court.

This court allows the applicant to reopen his case to have the architectural plans/ admit the original plans of the bungalow which was demolished in 2008 at Plot 4 Nambi Road Entebbe to be tendered in court in evidence and the respondent shall be at liberty to cross examine the applicant.

The costs shall be in the cause.

I so order.

*SSEKAANA MUSA JUDGE 25th October 2024*