Wakilii

Dr. David Wilfred Ochan v Pauline Otika (Miscellaneous Application No. 104 of 2024)

High Court · [2025] UGHC 419 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for enlargement of time to file memorandum of appeal and validation of written submissions already filed
Decision
Application dismissed; applicant's appeal remains incompetent for want of a memorandum of appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application for enlargement of time to file a memorandum of appeal. The court found that the applicant's claim of a misplaced memorandum was not credible, the six-year delay was inordinate and inadequately explained, and most significantly, the applicant's simultaneous pursuit of contradictory remedies in different courts—seeking both recovery of the disputed land and recovery of the purchase price paid for it—constituted approbation and reprobation and an abuse of court process.

Outcome

Application dismissed; applicant's appeal remains incompetent for want of a memorandum of appeal

Facts

The applicant sought to appeal a 16 May 2018 ruling dismissing his application for review of a judgment in which the respondent was declared owner of disputed land. The applicant claimed he filed a memorandum of appeal in October 2019 which was subsequently misplaced. No memorandum of appeal appeared on the court record. The court observed an unsigned, unfiled memorandum in the parties' possession during proceedings on 28 February 2024. The applicant had obtained leave to appeal on 7 May 2019, giving him until 6 June 2019 to file the memorandum. Six years elapsed without a memorandum being filed. Meanwhile, the applicant filed a separate civil suit in March 2022 seeking recovery of the purchase price he paid for the same disputed land, which suit had progressed to advanced stages with witness statements filed and the matter scheduled for trial.

Issues

  1. Whether the application is competent and properly before the court.
  2. Whether the applicant has provided sufficient grounds for grant of enlargement of time to file a memorandum of appeal and validation of written submissions already filed.

Orders

  • The application, Miscellaneous Application No. 104/2024, is hereby dismissed.
  • Each party shall bear their own costs.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal — Mandatory Requirement Where No Right of Appeal Exists
Where a lower court dismisses an application for review, no automatic right of appeal arises under Order 44 Rule 1(t) of the Civil Procedure Rules, which grants a right of appeal only from orders granting review applications. An aggrieved party must first seek and obtain leave of the lower court as a mandatory condition precedent before instituting an appeal.
Civil Procedure — Appeals — Memorandum of Appeal — Failure to File Within Prescribed Time
Failure to file a memorandum of appeal within the thirty days prescribed by Section 79(1) of the Civil Procedure Act renders an appeal incompetent and liable to be struck out. An appeal exists only in name and without foundation where no memorandum of appeal has been filed.
Civil Procedure — Enlargement of Time — Grounds for Grant — Inordinate Delay
An application for enlargement of time to file a memorandum of appeal requires a credible and compelling explanation where the delay is inordinate. A delay of six years without any action in pursuing an intended appeal will not be condoned absent exceptional circumstances.
Civil Procedure — Abuse of Process — Approbation and Reprobation — Pursuit of Contradictory Remedies
A party who simultaneously pursues contradictory remedies in different courts over the same subject matter—seeking both recovery of disputed property and recovery of the purchase price paid for that property—engages in approbation and reprobation. Such conduct constitutes an abuse of court process and is an absolute bar to the grant of discretionary relief.

Legislation cited (12)

Cases cited (13)

  • Mutaba Barisa Kweterana Ltd v Bazirakye Yeremiya & Another (Court of Appeal Civil Appeal No. 158 of 2014)
  • Horizon Coaches Ltd v Edward Rurangaranga and Another (Supreme Court Civil Application No. 18 of 2009)
  • Godfrey Magezi & Another v Sudhir Ruparelia (Supreme Court Civil Application No. 10 of 2002)
  • Tropical Africa Bank Ltd v Grace Were Muhwana (Supreme Court Civil Application No. 03 of 2012)
  • Zura Mohammed Nassim v Latim Andrew (High Court Civil Appeal No. 027 of 2017)
  • Dorina Akera v Jererimson Okema Opira & Irene Opira (High Court Civil Appeal No. 194 of 2023)
  • New Vision Printing & Publishing Co. Ltd v Atek Lillian & Another (High Court Miscellaneous Application No. 013 of 2024)
  • Shanti v Hindocha & Others [1973] EA 207
  • Nicholas Roussous v Gulam Hussein Habib Virani & Another (Supreme Court Civil Appeal No. 9 of 1993)
  • Sango Bay Estates v Dresdner Bank AG [1971] EA 17
  • Lissenden v CAV Bosch (1940) AC 12
  • Evans v Bartlam [1937] UKHL J0430-1
  • Simbamanyo Estates Ltd v Equity Bank Uganda Ltd & 2 Others (High Court Miscellaneous Application No. 414 of 2022)

Full judgment

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Dr. David Wilfred Ochan v Pauline Otika (Miscellaneous Application No. 104 of 2024) [2025] UGHC 419 (17 June 2025)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.