Wakilii

Okana v Ocaya (Civil Revision 5 of 2022)

High Court · [2022] UGHC 49 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for revision of Chief Magistrate's ruling, itself arising from revision of LC III Court judgment in land dispute
Decision
Application dismissed as incompetent and misconceived; respondent retains possession of land

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a Notice of Motion must be supported by affidavit evidence under O.52 r.3 CPR — a motion without affidavit is incompetent and must be struck out. Held further that revision is not a substitute for appeal, and a party who withdraws an appeal and vacates land cannot later challenge the same judgment by way of revision after 13 years. The conduct amounts to approbation and reprobation. Application dismissed.

Outcome

Application dismissed as incompetent and misconceived; respondent retains possession of land

Facts

Applicant sued respondent over land in LC II Court in 2008 and lost. He appealed to LC III Court which dismissed the appeal on 27 May 2008. Applicant then filed Civil Appeal No. 36 of 2008 in Chief Magistrate's Court, Gulu, but withdrew it on 24 September 2009, paid costs, and vacated the suit land. Over 10 years later, in January 2020, the applicant lodged Misc. Application No. 1 of 2020 seeking revision of the LC III Court judgment. The Chief Magistrate dismissed it on 1 June 2022. Applicant then filed this application in the High Court on 22 August 2022 seeking revision of the Chief Magistrate's ruling and orders for vacant possession and compensation.

Issues

  1. Whether the Notice of Motion was competent without a supporting affidavit.
  2. Whether the case is a proper one for the exercise of revisionary jurisdiction.
  3. Whether the Chief Magistrate acted illegally or with material irregularity in dismissing the revision application.
  4. Whether the applicant's conduct amounted to approbation and reprobation of the LC III Court judgment.

Orders

  • Notice of Motion struck out for lack of supporting affidavit.
  • Application for revision dismissed as incompetent and misconceived.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Notice of Motion — Requirement for Supporting Affidavit
A Notice of Motion must be supported by affidavit evidence under O.52 r.3 of the Civil Procedure Rules. Rule 3 requires that all motions must contain grounds supported by evidence adduced by affidavit, and a copy of the affidavit must be attached to and served with the motion. A Notice of Motion standing alone without a supporting affidavit is incompetent and must be struck out.
Civil Procedure — Revision — Requirement for Complete Record
An application for revision must be accompanied by a complete record of the proceedings in the lower court. Where an applicant files a formal motion for revision but fails to attach the complete record including affidavits and submissions from the lower court proceedings, the application is fatal and must fail.
Civil Procedure — Revision — Discretionary Jurisdiction and Lapse of Time
The High Court may decline to exercise revisionary jurisdiction under s.83 of the Civil Procedure Act where from the lapse of time or other cause, the exercise of that power would involve serious hardship to any person. A revision application filed 13 years after the impugned judgment and after the applicant had withdrawn an earlier appeal and vacated land will be refused on grounds of lapse of time.
Civil Procedure — Revision — Not a Substitute for Appeal
Revision is not a substitute for appeal. Where a party appeals a decision but subsequently withdraws the appeal, that party cannot later challenge the same decision by way of revision application. Withdrawal of an appeal implies that the appellant is no longer aggrieved and has conceded the decision of the lower court.
Civil Procedure — Approbation and Reprobation
A party who has accepted and acted upon or acquiesced in and recognized a judgment, order, or decree of court cannot subsequently take an inconsistent position with reference to it. Such a person waives the right to have the same reviewed by the appellate court. Mayhem would be created if a litigant were allowed to approbate and reprobate court judgments, as it would tie down adversaries in different directions over the same subject matter and waste public resources.

Legislation cited (8)

Cases cited (18)

  • Phillips v Copping [1935] 1 KB 15
  • Makula International Ltd v Cardinal Nsubuga & Rev. Father Kyeyune (Civil Appeal No. 4 of 1981)
  • Belvoir Finance Co Ltd v Harold G Cole Ltd [1969] 2 All ER 904
  • Kaingana v Dabo Boubou [1986] HCB 59
  • Rubaramira Ruranga v Electoral Commission & Attorney General (Constitutional Petition No. 21 of 2006)
  • J Hoareau v R [1962] 1 EA 809
  • Mabalangaya v Sanga [2005] 1 EA 236
  • Yahaya Kariisa v Attorney General (Civil Appeal No. 7 of 1994)
  • Jenkins v Bushby (1889) 11 Ch 484
  • National Enterprises Corporation v Mukisa Foods Ltd (Civil Appeal No. 42 of 1997)
  • Jaffer v Gupta [1959] EA 406
  • Gulu Municipal Council v Nyeko Gabriel [1997] 1 KALR 9
  • Wadri Mathias & 4 Others v Dranilla Angella (Civil Revision No. 7 of 2019)
  • Opoka Santo v Ali Marino (Miscellaneous Application No. 147 of 2014)
  • Ddegeya Trading Stores (U) Ltd v Uganda Revenue Authority (Civil Appeal No. 44 of 1996)
  • Lakhmashi Brothers Ltd v R Raja & Sons (1966) EA 313
  • Rainga case (1965) E.A 703
  • Hon Gerald Kafureeka Karuhanga v Attorney General & 2 Others (Miscellaneous Cause No. 60 of 2015)

Full judgment

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Okana v Ocaya (Civil Revision 5 of 2022) [2022] UGHC 49 (22 December 2022)
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.