Court dismisses Zzimwe’s application to submit new evidence in case against govt 

The Court of Appeal has dismissed an application filed by Zzimwe Enterprises, Hardware, and Construction Limited seeking to introduce new evidence in support of its case in which it wants the government to compensate it for the cancellation of a road construction contract.

According to court documents, Zzimwe Construction Limited was on November 6, 2008, awarded a contract for the rehabilitation of the Kalapata-Piire road in Kaabong district which was later terminated for breach of contract.

Dissatisfied, Zzimwe filed a case in 2014 in the Commercial court seeking general and compensatory damages for the loss of its construction equipment, loss of income, business, punitive and aggravated damages for the illegal detention of its construction equipment, and interest on the sums at a rate of 38 per cent per annum from the date the cause of action accrued until payment in full and the costs of the litigation.

The High court dismissed the case which forced Zzimwe to appeal the ruling. However, when the hearing started, it applied to seek the leave of court to introduce new evidence. It is a rule that the Court of Appeal unless in peculiar circumstances relies only on evidence that was deduced in the lower court to determine the appeal.

The new evidence that Zzimwe sought to introduce is related to letters that the company says if accepted, would substantially lead the court to make a different finding.

But in their ruling in a lead judgment written by Monica Mugenyi and joined by Irene Mulyagonja and Christopher Madrama, the court held that the new evidence that Zzimwe sought to introduce amounted to nothing of value especially because it was available when the case was being heard at the High court and was never presented.

“The trial court’s judgment was delivered on 25th October 2018 and this application was lodged on 22nd December 2020, more than two years after the delivery of the judgment on appeal. ln my view, a two-year 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,”

They added, “It 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,” Mugenyi held before dismissing the application with costs.