High Court Holds That a Party Pleading Illiteracy May Be Recalled for Further Cross-Examination Where Subsequent Conduct Contradicts That Claim, Even After Closure of the Case
- Waboga David
- Jan 21
- 5 min read
FACTS
Centenary Rural Development Bank (U) Ltd (the Applicant) filed a Notice of Motion seeking leave to adduce additional evidence and to recall the Respondent, Mr. Bwayo Mathew (Administrator of the Estate of the late Peter Kasooli Bwayo), for further cross-examination.
The application arose after the Respondent had closed his case in Civil Suit No. 73 of 2019 on 25 February 2025, during which he had consistently pleaded and testified that he was illiterate and unable to understand English.
Subsequently, the Applicant discovered two documents allegedly authored by the Respondent after the close of his case:
A letter dated 11 March 2025, written in English and personally delivered by the Respondent to the Applicant; and
An affidavit sworn in English on 27 May 2025, filed in support of the Respondent’s application for renewal of Letters of Administration, which was availed to Court on 18 November 2025.
The Applicant contended that these documents directly contradicted the Respondent’s pleaded illiteracy and were material to the credibility of his testimony.
The Respondent opposed the application, maintaining that he remained illiterate and that the documents were drafted by third parties without his understanding of English.
ISSUES FOR DETERMINATION
The Court framed a single issue for determination:
Whether leave should be granted to re-open the Respondent/Plaintiff’s case in Civil Suit No. 73 of 2019 to allow the admission of additional evidence and further cross-examination.
A preliminary objection was also raised regarding the filing of a supplementary affidavit without leave of Court.
SUBMISSIONS
Applicant’s Submissions
Counsel for the Applicant argued that the Respondent had expressly pleaded illiteracy in paragraphs 3(g) and 5 of his reply to the amended written statement of defence and counterclaim.
Counsel further argued that the newly discovered documents, both written and sworn in English, were fresh, material, and relevant, and could not have been obtained with reasonable diligence before the Respondent closed his case.
The Respondent did not deny authorship or authenticity of the documents.
Counsel stated that re-opening the Respondent’s case would not prejudice him, as he would have the opportunity to explain the documents through re-examination.
Counsel thus stated that the Applicant, however, would suffer prejudice if denied the opportunity to test the credibility of the Respondent’s claim of illiteracy.
Respondent’s Submissions
The Respondent contended that:
The Respondent is illiterate and does not understand English
The March 11, 2025 letter was typed by a typist at a photocopier in his local language and translated to English
He lacked legal knowledge to attach a certificate of translation
The letter was not a court document and was not intended for submission to court
A court clerk helped draft the affidavit for renewal of Letters of Administration without advising about translation certificates
The application is intended to delay justice and waste the Court's time
The additional evidence is not credible, material, or relevant
LEGAL REPRESENTATION
Applicant, Learned Counsel Raymond Mwebesa, Kampala Associated Advocates
Respondent, Wanda, Sakwa & Co. Advocates
COURT'S FINDINGS
On the Preliminary Objection
The Court rejected the Respondent’s objection regarding the supplementary affidavit, finding no prejudice had been occasioned. Invoking Article 126(2)(e) of the Constitution and Section 98 of the Civil Procedure Act, the Court held:
“Considering that the supplementary affidavit in support of the application was served onto the Respondent together with the application and its supporting affidavit, to which he filed an affidavit in reply, then the Respondent was not prejudiced.”
The objection was accordingly overruled.
On Re-opening the Respondent’s Case
The Court reaffirmed the settled principles governing re-opening of cases, citing Tolit Charles Okiro v Otto Cipiriano and Hon. Justice Anup Singh Choudry v UMEME Ltd, and reiterated that a party seeking to re-open a case must demonstrate:
That the evidence is material and relevant;
That it was not reasonably obtainable before the close of the case; and
That no undue prejudice will be occasioned to the other party.
The Court quoted with approval:
“Court may grant leave to re-open a party’s case where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available.”
And further observed:
“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, and most fundamentally, whether the other party will be prejudiced.”
On the facts, the Court found it undisputed that:
The Respondent claimed to be illiterate.
The documents in question were authored after the close of his case.
The Respondent did not deny ownership or authenticity of the documents.
The Court held:
“Considering the fact that the Respondent claims to be illiterate yet the annexures… were authored by him in English, I find that the same are material and relevant to the main case.”
And further:
“The additional evidence being sought to be adduced could not have been reasonably obtained before the conclusion of the Respondent’s case.”
The Court concluded:
"In light of the above, I find it in the interest of justice and ensuring the final determination of all the issues in Civil Suit No. 73 of 2019, pursuant to Section 98 of the Civil Procedure Act and Section 37 of the Judicature Act to reopen the Respondent's case so that the Applicant can adduce the letter dated 11th March, 2025 and the Respondent's affidavit in support of his application for renewal of the Letters of Administration and for the examination of the Respondent on the same."
HOLDING
The application was GRANTED.
Orders
Leave granted to reopen the Respondent/Plaintiff's case
The Applicant permitted to adduce the letter dated March 11, 2025, and the Respondent's affidavit in support of renewal of Letters of Administration
The Respondent to be recalled for examination on these documents
Costs of the application to abide the outcome of the main suit
KEY TAKEAWAYS
Reopening Cases
Courts have discretion under Section 98 of the Civil Procedure Act to reopen a party's case where fresh evidence becomes available that could not have been reasonably discovered before
Test for Admitting Fresh Evidence
The moving party must demonstrate that:
The evidence would probably have changed the trial result
It could not have been obtained through reasonable diligence before trial
The evidence is material and relevant
The other party will not be prejudiced
Credibility Issues
Claims of illiteracy can be challenged where contradictory documentary evidence emerges, such as documents authored in English by the party claiming to be illiterate
Procedural Irregularities
Filing supplementary affidavits without leave may be excused where no prejudice results and where Article 126(2)(e) of the Constitution (substantive justice over technicalities) applies
Discovery After Closure
Evidence discovered after a party's case has closed can justify reopening if it meets the materiality and unavailability tests
No Need to Deny Authorship
A party's failure to dispute the authenticity of documents strengthens the case for their admission and examination
Interest of Justice
Courts will prioritize ensuring final determination of all issues over technical objections when the ends of justice require it
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