In Uganda, the duty of the first court of appeal in evaluation of the evidence was considered by
the Supreme Court of Uganda in the case of Ephraim versus Francis SCCA No. 10 of 1987
where the Supreme Court of Uganda per Odoki J at page 6 of his judgment held that the duty of
the first appellate Court is now well settled. It is to re consider and evaluate the evidence, and
come to its own conclusions. The court followed the case of Selle and another v Associated
Motor Boat Company Ltd and others [1968] 1 EA 123 and judgment of Sir Clement De
Lestang Vice-President at Page 126:
" Briefly put they are that this court must reconsider the evidence, evaluate it itself and
draw its own conclusions though it should always bear in mind that it has neither seen nor
heard the witnesses and should make due allowance in this respect. In particular this
court is not bound necessarily to follow the trial judge‘s findings of fact if it appears
either that he has clearly failed on some point to take account of particular circumstances
or probabilities materially to estimate the evidence or if the impression based on the
demeanour of a witness is inconsistent with the evidence in the case generally.‖
The overriding principle is whether failure to take into account a particular matter complained
about in the appeal is strong enough to have changed the conclusion of the trial court. If no
prejudice was occasioned by any error of the trial court, the decision of the trial court should not
be overturned. The principle applies to both civil and criminal proceedings as held in the East
African Court of Appeal case of Peters v Sunday Post Limited [1958] 1 EA 424 at page 429:
―An appellate court has, indeed, jurisdiction to review the evidence in order to determine
whether the conclusion originally reached upon that evidence should stand. But this is a
jurisdiction which should be exercised with caution.‖
Finally in High Court Miscellaneous Application No 580 of 2015, arising from this appeal I held
that Order 43 of the Civil Procedure Rules is applicable to appeals under the Trademarks Act to
the High Court until new rules are enacted by the Chief Justice in consultation with the Attorney
General. Order 43 rule 20 of the Civil Procedure Rules allows the court on the basis of evidence
to consider the decision of the lower court as to whether it can stand or not and it provides as
follows: