[2012] UGCommC 175

[2012] UGCommC 175

The High Court found that the applicant could not have procured Mwase Geoffrey as a witness at trial due to his escape from police custody and subsequent conviction, satisfying the requirement that the evidence was unavailable despite reasonable diligence. The oral evidence sought is central to determining whether the transaction was a sale or a mortgage, which is at the heart of the dispute and the grounds of appeal. Although the trial court excluded oral evidence under section 92 of the Evidence Act, the High Court held that outright exclusion of such evidence is a ground for admitting fresh evidence on appeal, particularly where the evidence may clarify the true nature of the...

Citation
[2012] UGCommC 175
Parties
Applicant: Andrew Kisawuzi; Respondent: Tom Walusimbi
Court
Commercial Court of Uganda
Jurisdiction
Uganda
Judgment Date
17 August 2012
Case Number
Miscellaneous Application No. 276 of 2012
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Adduce Additional Evidence on Appeal
Outcome
application granted
Legal Topics
Admission of Fresh Evidence, Appeal Procedure, Sale of Goods, Mortgage Vs Sale Dispute, Evidence Exclusion, Contractual Impersonation
Source Language
English
Civil Procedure Commercial and Corporate Admission of Fresh Evidence Appeal Procedure Sale of Goods Mortgage Vs Sale Dispute Evidence Exclusion Contractual Impersonation

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Parties

Andrew Kisawuzi

Applicant

Tom Walusimbi

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Leave to Adduce Additional Evidence on Appeal

Legal Issues

  1. 1 Whether the applicant should be granted leave to adduce additional evidence on appeal.
  2. 2 Whether the proposed evidence of Mwase Geoffrey was unavailable and could not have been obtained with reasonable diligence at trial.
  3. 3 Whether the oral evidence sought is admissible under section 92 of the Evidence Act to contradict a written sale agreement.

Ratio Decidendi

The High Court found that the applicant could not have procured Mwase Geoffrey as a witness at trial due to his escape from police custody and subsequent conviction, satisfying the requirement that the evidence was unavailable despite reasonable diligence. The oral evidence sought is central to determining whether the transaction was a sale or a mortgage, which is at the heart of the dispute and the grounds of appeal. Although the trial court excluded oral evidence under section 92 of the Evidence Act, the High Court held that outright exclusion of such evidence is a ground for admitting fresh evidence on appeal, particularly where the evidence may clarify the true nature of the...

Court Disposition

application granted

Orders

  • Leave is granted to the applicant to adduce additional oral evidence of Mwase Geoffrey on appeal.
  • Witness summons shall issue for Geoffrey Mwase to be produced in court on a date to be fixed by the parties.