Taking new evidence on appeal
I entered into a contract for the purchase of spare parts with one of my long-standing suppliers. I paid the supplier by bank transfer and have a receipt acknowledging the payment. The supplier alleged that I have not cleared my dues to him and sued me. In the course of hearing, I did not tender the electronic fund transfer form to prove the electronic transfer of fund. I lost the case in the Court of first instance and now want to appeal. Can the appellate Court accept the fund transfer form as new evidence at this stage?
CV, Mtwara
For the Court to receive fresh evidence at appellate stage, there are normally 3 conditions which must be satisfied. These conditions are the evidence sought to be admitted at the appeal level could not be obtained with reasonable diligence for use at trial. Secondly, the evidence is such that if given, it would probably have an important impact on the outcome of the case and finally that the evidence must be apparently credible, though not necessarily incontrovertible.
It is not clear why you were unable to produce the fund transfer form at trial. In order to satisfy the first criteria you must be able to prove that despite carrying out all reasonable diligence you could not obtain the fund transfer form. We do not think that proving the first condition will be easy but it is not impossible as you are privy to the facts on why the evidence wasn’t produced. The onus lies on you to prove the excuse for failure to produce the evidence at the trial Court. From what you have stated above, we believe you might be able to satisfy the second and third conditions. However, all three conditions must be met in order for the new evidence to be taken at the appeal level.