Fresh Issues On Appeal

Grace Karuhanga Butare v Ssanyu Mukasa Kyazike (Civil Application No.652 of 2007) [2009] UGHC 96 (17 June 2009);

Flynote: 

Search Summary: 

This is an appeal against the judgement and orders of Mukono District Land Tribunal dated 9th March 2006 in Claim No.6 of 2004.

The Appellant was the registered proprietor of the suit land comprised in Kyaggwe Block 188 Plot 9 at Nakapinyi.  The Respondent filed Mukono District Land Tribunal Claim No.6 of 2004 for cancellation of the Appellant’s title on the ground that she was registered fraudulently on the title deed.  The Tribunal heard the Respondent’s claim exparte, gave judgment in her favour and a consequential order was extracted to cancel that Appellant’s title.

 

During trial, It was contended for the Respondent in cross-appeal that this court should allow fresh evidence to be called and that this court has powers under order 43 rules 22 of the CPR.

 

Court stated that this was a case where the Respondent was represented by a professional lawyer who was granted the liberty to proceed exparte without any adversary.  With the above privilege, he was free to lead his witnesses calmny and with confidence.  He was free to sweep all the corners of the Respondent’s claim.  Having failed to do so then it would not be appropriate to allow him to re-assemble his evidence.  That would tantamount to the court entering the arena of litigation.

It should be observed that before additional evidence is adduced there must be an application to that effect and there ought to be sufficient reasons to justify the reception of additional evidence.  Whether or not to grant such application is in the discretion of the court.

Headnote and Holding: 

Court held that in the instant case there were no exceptional circumstances as indicated above to justify adducing of additional evidence.

 

All in all, court found no merit in the cross-appeal.  There was no evidence to support the Respondent’s claim.  The cross-appeal was an afterthought.  The appeal was accordingly allowed with costs while the cross-appeal is dismissed.  The Applicant was awarded costs both in the lower court and the High Court.  The order cancelling the Applicant’s title was accordingly vacated.

Subscribe to RSS - Fresh Issues On Appeal