THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
COMMERCIAL COURT DIVISION
(Arising from HCT-00-CC-CS-0083-2008)
Modern Electronics Ltd Applicant
Mark Kazoora Respondent No.1
Vanessa Kazoora Respondent No.2
Mathew Kazoora Executors of the Estate of Late John Kazoora Respondent No.3
Suzanne Kazoora Respondent No.4
Max Kazoora Respondent No.5
Abby Junju Respondent No.6
BEFORE: THE HONOURABLE MR. JUSTICE FMS EGONDA-NTENDE
The applicant is seeking an injunction under Order 37 Rule1, 2, and 9 of the Civil Procedure Rules to restrain the respondents from evicting or in any way interrupting the applicant’s quiet enjoyment of the premises situate at Plot No. 53 Kampala Road, and that provision be made for costs of this application. This application is supported by an affidavit sworn by Mr. Salim Hiran, the managing director of the applicant. Briefly the applicant contends that it executed a 4 year tenancy agreement with respondents no.3 and 4, who acted on behalf of respondents no.1, 2 and 5 as executors of the will of late John Kazoora, the registered proprietor of the premises.
Respondents no. 3, 4 and 5 do not oppose this application. It would have been surprising had they opposed the same, given that Respondents No.3 and No.4 signed the agreement that put the applicant into possession.
Respondents No.1, 2 and 6 oppose this application. Respondents No.1 and 2 contend firstly that the applicant has no contract with the executors of the estate of the late John Kazoora. Secondly that the agreement on which the applicant relies was not properly executed by the applicant and that the respondent no.3 did not sign the same.
Respondent no.6 adopts the reasons given by respondents no.1 and 2 and claims to be the true tenant of the premises in question having executed a tenancy agreement with respondent no.1 and 2 in respect of the same premises.
From the affidavits of the parties I can gather the following facts. Plot No.53 Kampala Road is a business premise. The registered proprietor is John Kazoora. The Respondents No.1 to 5 are siblings and the executors of the will of the John Kazoora.
Respondents No.3 and 4 held powers of attorney, at the material time, from respondents no.1, 2, and 5 authorising them to act for the donors ‘in their uncontrolled discretion in every respect concerning all matters relating to the late John Wycliffe Rutagyemwa Kazzora’s affairs in the Republic of Uganda and Kenya in as full and ample manner as’ the donors ‘would do personally all which matters’ were placed in the donnees 'unrestricted power and discretion with full authority to bind the donors’. This power of attorney was executed on 3rd February 2000.
In pursuance of that authority the respondent no.3 and 4 entered into a written tenancy agreement for a period of 4 years with the applicant for valuable consideration. This agreement was executed on 20th November 2007. Respondents No. 3, 4 and 5 accept this position and this agreement. Respondent No.3 has sworn an affidavit to the effect that he personally signed this tenancy agreement.
On 11th March 2008 respondent no.6 signed a tenancy agreement in respect of the same premises with respondents no.1 and 2 for a term of 2 years with effect from 1st March 2008 for an agreed consideration. Respondents no.1 and 2 claim to have signed on behalf of the estate of John Kazoora.
It is clear that when the agreement with the applicant was made those acting on behalf of the estate of the John Kazoora had the authority to act for the said estate. I reject the claims that no such authority existed.
The claims that the said agreement is not properly signed by the applicant have may be an issue at the trial but on these interlocutory proceedings I am satisfied that the applicants signed the agreement in question. I am also satisfied that the respondent no.3 signed this agreement. I accept his word on oath that he did so.
The applicant seeks in the main suit, among other things, specific performance of the tenancy agreement, general damages, and an injunction to protect its interests. If the injunction is not granted, and the applicant is evicted, as the respondents no.1, 2 and 6 are clearly intent on doing, the claim for specific performance will be rendered nugatory. The applicant’s interest in the premises in question precede the interest of the respondent no.6 which was created much later.
I am satisfied that there was contract between the applicant and the first 5 respondents, which the respondents no.1, 2 and 6 are intent on disrupting. The applicant has established a prima facie case, showing that there is serious question to be tried. It may be debateable whether the applicant would suffer irreparable loss or not. However, on the balance of convenience, given that if the injunction is not granted, the applicant’s claim for specific performance would be rendered nugatory, I am satisfied that the applicant has made out a case for a temporary injunction to issue.
I do issue a temporary injunction to restrain the defendants/respondents from disturbing the applicant’s quiet enjoyment, occupation and or possession of Plot No.53 Kampala Road, for a period of one year, or such other period as this court may order, or until the determination of the head suit, whichever is earlier. I further order the respondents no.1, 2 and 6 to pay to the applicant and the respondents no.3, 4 and 5 the costs incurred in respect of this application.
Signed, dated and delivered this 11th day of June 2008