[2025] UGHC 419

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

# **MISCELLANEOUS APPLICATION No. 104 OF 2024**

**(Arising from HIGH COURT KITGUM - CIVIL APPEAL No. 041/2024)**

5 **(Arising from MISCELLANEOUS APPLICATION No. 059/2017 - REVIEW: THE CHIEF MAGISTRATE'S COURT OF KITGUM)**

# **(ARISING FROM CIVIL SUIT No. 059/2013: THE CHIEF MAGISTRATE'S COURT OF KITGUM HOLDEN AT KITGUM)**

# **DR. DAVID WILFRED OCHAN APPLICANT**

## 10 **Versus**

#### **PAULINE OTIKA RESPONDENT**

# **BEFORE: HON. MR. JUSTICE PHILIP W. MWAKA.**

# **RULING.**

## **Introduction and Background.**

- 15 [1]. The Applicant, in his first prayer, seeks an Order from this Court enlarging time within which he may file a Memorandum of Appeal and serve it upon the Respondent; secondly, an Order that Written Submissions he already filed on the Record of the Court in **Civil Appeal No. 041/2024** are validated; and thirdly, an Order that each of the Parties bears their own Costs. - [2]. The Motion instituting the Application was filed on the 8 20 th August, 2024 citing **Section 79(1), 96 and 98 of the Civil Procedure Act, Cap. 282; Section 33 of the Judicature Act, Cap. 16 and Order 51 Rule 6 of the Civil Procedure Rules, SI 71-1.** Attached is an Affidavit in support deponed by David Wilfred Ochan with annexes including **Misc. Application No. 059/2017** for Review 25 of the Judgement in **Civil Suit No. 059/2013** denied by the Lower Court.

#### **The Applicant's Case and Submissions.**

[3]. The grounds relied on by the Applicant in the Motion and Affidavit are that he was dissatisfied with the Ruling and Orders of Her Worship, Esther Nakadama Mubiru, then Chief Magistrate, Kitgum in **Misc. Application No. 059/2017** delivered on the 16 30 th May, 2018 - dismissing the Application thereby denying a Review of the Judgement and Orders in **Civil Suit No. 059 /2013: Pauline Otika Vs. Kitgum Cooperative Savings and Credit Society Ltd** - in which he had contended that he had been deprived of his land unheard having not been party to the Suit in which the Respondent 35 herein was declared the owner of the suit land in dispute. The Applicant avers that upon dismissal of **Misc. Application No. 059/2017** - which he contends was also without him being heard - he instituted an Appeal in the High Court, Gulu Circuit by filing a Memorandum of Appeal *vide* **Civil Appeal No. 041/2019** together with a Letter requesting certified copies of the Proceedings on the 1 40 st October, 2019. The Applicant then avers that the Memorandum of Appeal was subsequently misplaced and his Counsel had not retained copies. Neither is there any copy of a Memorandum of Appeal on the Record of this Court. This Court observed the absence of a Memorandum of Appeal on the 28th February, 2024 which position subsists todate. It is the Applicant's case 45 that in the absence of a Memorandum of Appeal for which he faults his former Counsel without any fault of his own and with the time within which to institute an Appeal having lapsed; he prays that the Orders sought are granted to enable him pursue the Appeal with a high likelihood of success and contest the Ruling of the Learned Trial Magistrate dismissing his Application 50 for Review reiterating that the Ruling deprived him of his land unheard. It is also his case that this Application has been filed promptly upon realising the absence of the Memorandum of Appeal and the Respondent who has also already filed Submissions in the Appeal will not suffer any prejudice. A draft Memorandum of Appeal is attached to the Applicant's Affidavit.

55 [4]. The Applicant submits that the foregoing constitutes sufficient cause to grant the Application and it is just and equitable that the Application is granted.

#### **The Respondent's Case and Submissions.**

[5]. The Respondent filed an Affidavit in Reply on the 5 th December, 2024 in 60 opposition to the Application. The Affidavit is riddled with technicalities but the substance of which is firstly, the Respondent would raise an unspecified preliminary objection; secondly, the Respondent had following a full Trial in the Main Suit before the Lower Court received Judgement in her favour to the effect that the sale of her land being the suit subject matter in dispute to 65 the Applicant was unlawful and as a consequence the suit land described as situate at Uhuru Drive Road in Kitgum Municipality was restored to her during which Trial the Applicant was neither a Party nor sought to be heard by being joined or added; thirdly, the Applicant had had an opportunity to be heard in his Application for Review but when the matter came before the 70 Lower Court neither he nor his Counsel were in attendance and by which time execution of the Judgement and Orders of the Lower (Trial) Court had been concluded with her having being reinstated onto the suit land and thus there was no basis for a stay of execution or a Review which the Applicant had sought; fourthly, it is admitted that both Parties had in fact filed Written 75 Submissions in respect of **Civil Appeal No. 041/2019** prior to discovery of the absence of a Memorandum of Appeal and that the grounds were raised in the Appellant's/Applicant's Written Submissions; fifthly and lastly, the Respondent contests the Applicant's averments regarding a wrong file being transmitted by the Lower Court to the High Court which the Applicant had 80 averred was the basis of his claim of the Memorandum of Appeal being misplaced which existence she doubts and emphasizes that neither her nor her Counsel were served with any Memorandum of Appeal by the Applicant or his Counsel arising from the dismissal of the Application for Review.

[6]. It is the Respondent's case and submission that the Application is greatly 85 prejudicial to her therein facing uncertainties, delays and inconvenience whilst incurring more costs with the litigation being inconclusive and it is in the interests of Justice that the Application is dismissed.

#### **Proceedings before the Court.**

- [7]. Directions were issued for filing Written Submissions. The Applicant 20th 90 March, 2025; Respondent - 21st April, 2025; and, Rejoinder - 25th April, 2025. The Applicant filed on 18th March, 2025 and Respondent on 5th June, 2025. - [8]. There were no Rejoinders filed on the Record of the Court. - 95 **Representation.** - [9]. Counsel Nuwasasira Paulsen represented the Applicant who was absent. - [10]. Counsel Olet Emmanuel represented the Respondent who was present.

#### **Considerations and Determination of the Court.**

100 [11]. This Application for enlargement of time within which to file a Memorandum of Appeal and subsequently serve it on the Respondent as well as for validation of Written Submissions already filed by the Applicant as the Appellant in **High Court Civil Appeal (Gulu) No. 041/2019** now cited as **High Court Civil Appeal (Kitgum) No. 041/2024** arises in origin from the 105 refusal to grant a Review by the Lower (Trial) Court and dismissal of the Application for Review on the 16th May, 2018 which this Court observes from the Lower Court's Proceedings was on the basis of the Learned Trial Magistrate's concurrence with the Respondent therein and herein that - **"The Application has been overtaken by events. There is nothing to be stayed** 110 **or Reviewed in the circumstances since ownership has changed hands. The Respondent is now in possession. I do find the Application without merit and do dismiss the same. Each party to pays its own costs"**.

- [12]. The **Issues** to be determined by this Court, which shall be considered together, are - firstly and foremost, **Whether the Application is competent** - 115 **and, or properly before this Court** and secondly, **Whether the Applicant has provided sufficient grounds for grant of the Orders sought in the Application being for enlargement of time within which to file a Memorandum of Appeal and validation of Written Submissions already filed in High Court Civil Appeal (Kitgum) No. 041/2024**. - 120 [13]. In respect of the first Issue which is raised by this Court in its discretion, it is following the dismissal of the Application for Review on the 16th May, 2018 which had been filed on the 28th December, 2017 under **Section 82 and 98 of the Civil Procedure Act** and **Order 46 Rules 1, 2 and 8 of the Civil Procedure Rules** that the Applicant contends he filed the elusive 125 Memorandum of Appeal which neither appears on the Record of this Court nor was it served on the Respondent. Its existence is only as good as the Applicant's word. It is significant that the Attorney whom may have supposedly prepared the claimed Memorandum of Appeal or the Firm has not deponed an Affidavit lending credence to the Applicant's averments. - 130 [14]. This Court has gone to great lengths to establish whether a Memorandum of Appeal may exist including a review of all documents and annotations on the file. None exists. Notably, it transpired during the Court's proceedings on the 28th February, 2024 in the now **High Court Civil Appeal (Kitgum) No. 041/2024** that the Court observed a copy of an unsigned Memorandum of 135 Appeal presented by the Parties which had not been filed in Court but somehow indicated the hand filled number **High Court Civil Appeal (Gulu) No. 014/2019.** It thus did not constitute a Court document. Neither could it be placed on the Record of Court. **High Court Civil Appeal (Gulu) No. 014/2019** is cited in the Applicant's (Appellant's) Submissions filed on the 11 140 th December, 2020. It is however cancelled out in pen and replaced with the number it bore before transfer to this Circuit **Civil Appeal No. 041/2019**.

- [15]. Clearly, the realization that a Memorandum of Appeal had not been duly filed on the Record of this Court instituting the Appeal - which apparently only now exists in a vacuum - prompted the Applicant as the Appellant in the 145 impugned Appeal to file this Application seeking enlargement of time and validation on the 8th August, 2024 to supposedly remedy the fundamental anomaly, after the fact. The implication is therefore that since the determination of **Misc. Application No. 059/2017** on the 16th May, 2018 which the Applicant contends he is aggrieved by and thereby seeks to Appeal 150 he has not duly instituted an Appeal todate being a period of in excess of seven (7) years. This, without doubt, constitutes an inordinate delay. - [16]. This Court is conscious that **Order 44 Rule 1(t) of the Civil Procedure Rules** provides: **"An Appeal shall lie as of right from the following Orders under Section 76 of the Act - an Order under Rule 4 of Order** 155 **XLVI granting an Application for Review."** - [17]. Therefore, since the Lower (Trial) Court did not grant the Application for Review and instead denied it, the Applicant (Appellant) did not have an automatic right of Appeal. In the event that the Applicant considered himself aggrieved by the denial of his Application for Review and intended to Appeal, 160 he would be required as a mandatory condition precedent as a matter of Law to first seek and duly obtain leave of the Lower (Trial) Court to institute an Appeal. The following provisions reproduced *verbatim* hereunder are instructive in the circumstances of this Application. - [18]. **Order 44 Rule 2 of the Civil Procedure Rules** provides: **"An Appeal** 165 **under these Rules shall not lie from any other Order except with leave of the Court making the Order or of the Court to which an Appeal would lie if leave were given".** - [19]. **Order 44 Rule 3 of the Civil Procedure Rules** provides: **"Applications for leave to Appeal shall in the first instance be made to the Court making** 170 **the Order sought to be Appealed from"**.

**See: Civil Appeal No. 027/2017 (Gulu): Zura Mohammed Nassim Vs. Latim Andrew; Civil Appeal No. 194/2023 (Kitgum): Dorina Akera Vs. Jererimson Okema Opira & Irene Opira; Misc. Application No. 013/2024 (Kitgum): New Vision Printing & Publishing Co. Ltd Vs.** 175 **Atek Lillian & Anor; Etc.**

[20]. This Court observes that the Applicant did indeed obtain leave of the Lower (Trial) Court to Appeal its decision denying the Review *vide* **Misc. Application No. 031/2018: Dr. David Wilfred Ochan Vs. Pauline Otika** to the High Court. The Order allowing leave to Appeal was granted on the 7 180 th May, 2019. The Order is attached to the Applicant's Written Submissions. Thus, the Applicant upon his success in obtaining leave to Appeal in that matter would have under **Section 79(1) of the Civil Procedure Act** and **Order 43 Rule 1 of the Civil Procedure Rules** been required to institute an Appeal by filing a Memorandum of Appeal within Thirty (30) days from the 7 th May, 2019 with the window for filing lapsing on the 6th 185 June, 2019. As belaboured herein-above, the Applicant did not duly file a Memorandum of Appeal much as there are Written Submissions and other documents citing the impugned and incompetent **Civil Appeal No. 014/2019** of which the Court has already observed that the related Memorandum of Appeal citing 190 the hand filled number was unsigned and neither was it filed on the Record of the Court therefore not constituting a Court document and only being in the possession of the Parties simply shown and noted by the Court in its proceedings of the 28th February, 2024. This was the apparent basis of the filing of their Written Submissions on 11th December, 2020 and 3rd February, 195 2021 whilst under the High Court Gulu Circuit prior to transfer of the file to this Circuit upon the Gazettement of this Court Circuit in November, 2023 following which the Court observed absence of a Memorandum of Appeal on the 28th February, 2024. The proceedings of the Lower (Trial) Court which are on the Record of this Court were certified on the 28th February, 2024. 200 [21]. In respect of the second Issue in regard to the merits, the Applicant rightly submits on the relevant grounds or cause to be considered in an Application for enlargement of time and, or leave to Appeal out of time relying on long standing Appellate precedent citing *inter alia* **CACA No. 158/2014: Mutaba Barisa Kweterana Ltd Vs. Bazirakye Yeremiya & Another** citing *inter alia* 205 **Supreme Court Civil Application No. 18/2009: Horizon Coaches Ltd Vs. Edward Rurangaranga and Another** and **Supreme Court Civil Application No. 10/2002: Godfrey Magezi & Another Vs. Sudhir Ruparelia** that the Supreme Court and Court of Appeal have extensively laid out numerous instances in which a Court may grant enlargement of time or 210 leave to Appeal out of time. **See also: Supreme Court Civil Application No. 03/2012: Tropical Africa Bank Ltd Vs. Grace Were Muhwana; Etc.** [22]. The foregoing concepts and remedies are each generally distinguishable in application much as they result in the same effect and outcome being filing an Appeal. The former relates to extension (or enlargement) of time to do or 215 perform a required act belatedly often due to an inadvertence or an omission or a failure or a delay by a Party, an Advocate or a Court where the basis of an Appeal has already been established including *inter alia* belated filing of a Memorandum of Appeal or request for certified Judgement and Proceedings made; while the latter relates to where no action has been pursued outright in 220 instituting an Appeal and one aggrieved intends to institute an Appeal. In the latter, the scope of enquiry of the Court would tend to be more extensive and would involve a consideration of the likelihood of success of the intended Appeal and the degree of importance attached to the subject matter of the intended Appeal. Matters regarding land ownership and interests generally 225 merit grant to enable a substantive determination unless otherwise great prejudice is occasioned or unacceptable indolence or other circumstances in Law or in fact unacceptable to a Court within the Judicious exercise of its discretion. **See: Shanti Vs. Hindocha & Others [1973] EA 207; Etc.**

- [23]. The *"good reason"* or *"good cause"* or for that matter *"sufficient cause"* relating to 230 an Application for enlargement of time or leave to file an Appeal out of time should relate to the inability or failure or delay in taking a particular step in time in order to justify grant of the Application. The mistake or omission or delay or inadvertence of Counsel has long been held as a ground for grant of either remedy as has been the protracted efforts and waiting often involved 235 in obtaining certified copies of a Judgement and Record of Proceedings required to constitute a Record of Appeal. It is important that the entire span of the delay should be accounted for to justify grant. **See: SCCA No. 9/1993: Nicholas Roussous Vs. Gulam Hussein Habib Virani & Another; Sango Bay Estates Et Al Vs. Dresdner Bank AG [1971] EA 17; Etc.** - 240 [24]. The Respondent counters the Application with contentions of inordinate delay and indolence on the part of the Applicant, prejudice occasioned to her by the protracted litigation since 2013 and the absence of sufficient cause for grant of the Application submitting that the Applicant was not under any hardship to justify the delay in filing a Memorandum of Appeal. - 245 [25]. Upon consideration of the foregoing, this Court hereby finds as follows: Firstly, the Applicant had in fact taken affirmative steps by initially seeking from the Lower (Trial) Court leave to Appeal which he was granted on the 7 th May, 2019 followed by him seeking to obtain the certified Judgement and the Record of Proceedings of the Lower (Trial) Court evidenced by the Letter from the Deputy Registrar dated 2 250 nd October, 2019 with the documents certified on the 28th February, 2024. - [26]. In resolution of the first Issue, this Court finds that the Application being for enlargement of time to take an essential follow up step being the filing of a Memorandum of Appeal - which was omitted or neglected after earlier 255 measures taken - is competent and properly before the Court. The Court observes that the failure to file a Memorandum of Appeal speaks directly to the competence of the Appeal itself which finds itself inert in a vacuum.

- [27]. Secondly, as regards the merits and substance of the Application, the fact conceded by the Applicant that he did not file a Memorandum of Appeal 260 required to institute an Appeal under **Order 43 Rule 1 of the Civil Procedure Rules** let alone within the Thirty (30) days prescribed by **Section 79(1) of the Civil Procedure Act** todate in the circumstances of this case renders all his earlier efforts in vain and futile with the consequence that **Civil Appeal No. 041/2024** is only in name and without foundation thus 265 incompetent and liable to be struck out with or without costs. This is unless it is otherwise saved and preserved by the grant of this Application which can only be done in the Judicious exercise of discretion by the Court upon considering the relevant factors presented. - [28]. In resolution, the initial factor considered is the Applicant's averment that he 270 had earlier filed a Memorandum of Appeal in one of the Appeal reference numbers he did not stipulate which he claims is misplaced. This Court finds that the Applicant's claim of the misplacement of a Memorandum of Appeal well knowing of and about the unsigned and unfiled Memorandum of Appeal in **Civil Appeal No. 014/2019** observed by the Court and in his possession 275 is disingenuous. The ground is not credible. This Court hereby declines to grant the Application on the basis of a supposedly misplaced Memorandum of Appeal with no known copies other than the aforementioned unsigned and unfiled document in the possession of the Parties. - [29]. The next factor considered is the time it has taken and thus the delay in 280 bringing this Application. The Memorandum of Appeal should have been duly filed in this Court by the 6th June, 2019 following grant of leave to Appeal by the Lower (Trial) Court on the 7th May, 2019 *vide* **Misc. Application No. 031/2018**. The failure to file a Memorandum of Appeal in the last six (6) years would require a credible and compelling explanation. This Court finds that 285 the delay is indeed inordinate. The Court is not, in good conscience, inclined to accept or Judiciously exercise its discretion in granting the Application.

- [30]. The other factor considered is the blame placed by the Applicant on his previous Counsel for failing to pursue an Appeal by duly filing a Memorandum of Appeal timely. This, the Court finds, is the only factor which 290 meets the criteria of being credible. There was clearly a change in Counsel as evidenced by the Notice of Change of Advocates on the Record of the Court. It however does not altogether justify the period of six (6) years which lapsed without any action in seeking to pursue any intended Appeal. The Court cannot accept that the Applicant can entirely abrogate or disclaim all 295 responsibility for not duly pursuing his Appeal. - [31]. Separately and most significantly, this Court is cognisant that even as the Applicant now seeks to pursue this instant Application and with it the purpose of recovering the land described as on Uhuru Drive in Kitgum Municipality which was the suit subject matter contested in the Lower (Trial) Court in **Civil** 300 **Suit No. 059/2013** between Pauline Otika and Kitgum Cooperative Savings and Credit Society Ltd in which he was not a party and to which he now seeks to also be joined or added as a litigant claiming ownership or interest by way of Review hence these protracted proceedings; he at the same time filed, as - the Plaintiff, **High Court Civil Suit (Kitgum) No. 09/2024: Dr. David** 305 **Wilfred Ochan Vs. Kitgum Cooperative Savings and Credit Society Ltd** in which he simultaneously seeks the recovery of the purchase price he paid to the Defendant in purchasing the same property when it was sold off on the basis that the Respondent herein had taken credit and had not repaid it. - [32]. The suit was originally given the number **High Court Civil Suit No.** 310 **06/2022** by the High Court Gulu Circuit with the Plaint having been filed on the 9th March, 2022. The Applicant was not sitting idly by during the six (6) years the Memorandum of Appeal was not filed but it would appear that he instead elected to pursue the recovery of the purchase price he had paid with damages and interest on it. This negates the contention faulting his Counsel.

- 315 [33]. As the requisite procedures in the suit have progressed, the matter has so far already been duly Scheduled following completion of pre-Trial preliminaries had in the Summons for Directions before the Learned Deputy Registrar with Witness Statements having already been filed. The matter is thus ripe for Trial and therefore in the advanced stages. Simultaneously, the Parties had even 320 previously engaged in negotiations for amicable settlement for refund of the purchase price with an offer and a counter-offer made which being inconclusive is now subject of litigation. - [34]. This poses the peril that should this Court sanction or otherwise condone the Applicant's pursuit of the land in dispute in the Lower (Trial) Court by 325 granting the Application while at the same time entertaining the suit before it in respect of recovery of the purchase price; the potential for two conflicting outcomes by two different Courts from which parallel inconsistent remedies are sought becomes a real possibility. Had the Applicant elected to pursue either course of litigation, this would not arise. He has chosen and seeks to 330 maintain both. This is tantamount to one seeking to have their cake and to also eat it, or simply put double-dealing. Meaning, in this instance, potentially recovering the disputed land and at the same time also recovering his purchase price he had paid. Inevitably, this Court therefore finds that the Applicant's simultaneous pursuit in different litigation of different contradicting remedies 335 over the same land in the different respective Courts constitutes a fundamental contradiction and is an approbation and reprobation. This constitutes an abuse of the process of the Courts and is thus an absolute bar to grant of the Application in the Judicious exercise of the discretion of the Court. This Court, on this ground alone, declines to exercise its discretion in 340 granting the Application. The Application fails and is hereby dismissed.

**See: Lissenden Vs. CAV Bosch (1940) AC 12; Evans Vs. Bartlam [1937] UKHL J0430-1; High Court Miscellaneous Application No. 414/2022: Simbamanyo Estates Ltd Vs. Equity Bank Uganda Ltd & 2 Others.**

[35]. Having carefully considered the Application by Motion, the supporting 345 Affidavit and Annextures, the responsive Affidavit and Annextures, the respective Submissions of the Parties and all relevant factors in the circumstances of this Application; this Court finds that the Application is without merit and it is hereby dismissed. Each Party shall bear their own Costs.

## **Order(s) of the Court.**

- [36]. Accordingly, the Court makes the following Orders: - 1. The Application, Miscellaneous Application **No. 104/2024**, is hereby dismissed. - 355 2. Each Party shall bear their own Costs.

It is so Ordered.

**Signed and Dated on the 17th day of June, 2025 at High Court, Kitgum Circuit.**

360 **Philip W. Mwaka**

**Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Ruling was delivered in Open Court on **Tuesday, 17th June,**

- 370 **2025 at 10:00am** by the Presiding Judge, High Court Kitgum Circuit. Certified copies shall be retained on the Record of the Court to be duly provided to the Parties. - 1. Counsel for the Applicant (Present) Mr. Paulsen Nuwasasira. - 2. The Applicant (Absent) Dr. David Wilfred Ochan. - 375 3. Counsel for the Respondent (Present) Mr. Olet Emmanuel. - 4. The Respondent (Present) Ms. Pauline Otika.

**Philip W. Mwaka**

380 **Acting Judge of the High Court.**

**High Court Kitgum Circuit.**

**17th day of June, 2025.**

- 5. Court Clerk present at the Hearing Mr. Ongom Samuel Grey.