THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION No. 798 OF 2013
(ARISING FROM CIVIL SUIT NO. 515 OF 2013)
CO-OPERATIVE SAVINGS AND CREDIT SOCIETY
1. MICRO-FINANCE SUPPORT CENTRE
2. BALINDA WILSON
BEFORE HON. JUSTICE B. KAINAMURA
This is an application for the grant of a temporary injunction brought by Chamber Summons under Order 41 rules 1, 2, 3 and 9 of the Civil Procedure Rules S.I 71-1. The applicant seeks orders that;
A temporary injunction be issued restraining the respondents, their agents, employees and representatives from continuing to trespass on the applicant’s goods, property and office premise building in Kiruhuura centre Kasenda sub-county, Kabarole District in any way without the applicant’s consent and damaging the applicant’s buildings until the disposal of the main suit or until further orders of court.
Costs of the application be provided for.
Background of the application
The grounds of this application are set out in the affidavit in support sworn by Kunihira Oliver the accountant of the applicant. It was her assertion that on the 3/9/2013 the 2nd respondent led over 10 goons who unlawfully entered upon the applicant’s premises and attempted to take its movable property. She added that some money was taken as well. She further added that despite the intervention by the police the applicant’s property had been damaged and that the 2nd respondent threatened to return. She stated that there is a suit pending before this court to grant a permanent injunction stopping the defendant from continuing to trespass on the plaintiff’s property.
In an affidavit in reply the 2nd respondent, Mr. Balinda Wilson an employee of the 1st respondent stated that he was aware of the applicant’s loan it obtained from the 1st respondent. He added that there is already a court decree and issuance of the injunction will not only affect its execution but will also restrain the operation of another court’s order.
In rejoinder Mr. Tushabe Chris an official of the applicant denied the allegation of the applicant being indebted to the first respondent and also said this application has nothing to do with the said executions of a court order. He added that the Chief Magistrate’s Court in Fort Portal issued an interim order against execution of its decree that had been irregularly obtained by the 1st respondent.
The applicant’s counsel submitted that this is a proper case for the granting of a temporary injunction to the applicant. He cited the case of Geila Vs Cassman Brown 1973 EA 358 where spry V.P (as he then was) set the conditions for the grant of a temporary injunction:-
That the applicant’s case has a high probability of success
Irreparable damage will be suffered which would not be adequately compensated by damages and lastly.
That if court is in doubt it will consider the application on a balance of convenience.
It was his contention that the applicant’s property was in eminent danger and the status quo ought to be preserved. It was his assertion that there is a matter already filed before this court which raises very serious questions to be tried. On the ground of irreparable damage counsel submitted that there were acts already done like harassing of its officials, and there are threats to commit further trespass on its property that cannot be adequately compensated by any financial compensation. On the last condition of the balance of convenience, it was Counsel’s contention that the respondents stand to lose nothing till the disposal of the suit. He concluded by stating that the application favors the applicant who already has an interim order staying the decree.
Learned Counsel for the 1st respondent submitted that the applicant took a loan from the 1st respondent of Shs. 30,000,000/= at an interest rate of 9% per annum. Furthermore, that the applicant defaulted and a suit was instituted against it Vide FPT-00-CV-CS-15 of 2013 which was determined in its favor and a decree issued. He contended that there was no proof of the allegations of being harassed and damage done to the properties. It was Counsel’s submission that the applicant failed to show that there is a prima facie case with a likelihood of success and as such, on a balance of convenience, the respondent loses more. He stated that this is because the grant of an injunction means that the respondent will be deprived of collecting money that was rightfully due to it as a licensed institution.
Counsel for the 2nd respondent’s submissions did not depart from the 1st respondent’s submissions but added that the main suit is frivolous and vexatious as there are no triable issues. He further stated that the application is brought in bad faith to frustrate the 1st respondent’s efforts to recover the money due to it.
Applicant’s submissions in rejoinder
In rejoinder to the 1st respondent’s Counsel’s submissions, Counsel for the applicant asserted that there is a prima facie case and that irreparable damage would be occasioned if the application is not granted. Counsel added that on the balance of convenience, the applicant stands a chance of losing more since it is a smaller financial institution than the first respondent.
In rejoinder to the second respondent’s submission, Counsel for the applicant stated that the second respondent falsely alleged in his submissions that the applicant is indebted and that there was a decree against the applicant to recover Shs 32,702,322/=. Counsel in conclusion stated that the conditions necessary for the grant of an injunction have been fulfilled by the applicant and prayed for orders sought in the main suit.
I have read the affidavit of Kunihira Oliver in support of the application and the affidavit in reply deponed by Balinda Wilson. What immediately struck me was that the affidavit in support relates to alleged acts by the respondents conveniently leaves out the genesis of the matter at hand. As borne out in the 1st respondents affidavit, in reply, the applicant entered with two agreements with the 1st respondent for the advancement of a loan of Shs. 60, 0000, 000/= to be repaid within a period of 36 months at an interest of 9% per annum. The applicant defaulted on the loan agreements and the respondent illustrated a summary suit under FPT-OO-CU-CS 15 of 2013 and on 7th May 2013 extracted a decree for Shs. 23,610,959/= being the balance on the loan still outstanding. However before execution of the decree could be made, the applicant was on 11th December 2013 granted an interim order for stay of execution. All the above matters were in the Chief Magistrates Court Fortportal.
On 11th September 2013 the applicant filed a Civil Suit in this Court C.S No. 515 of 2013 for a declaration that the defendants/respondents have trespassed upon its property and seeking for a permanent injunction, general and aggravated damages and costs of the suit. It is on the basis of the above Civil Suit that the applicant filed Misc. Appl No. 798 of 2013 seeking reliefs first set out above. To my mind to what purpose is the present application being made? If indeed the respondents did trespass on the premises of the applicant, then the applicant should seek recompense in damages in the main suit and if it is a continuing trespass then the applicant should seek for an eviction order.
To me this is a clear case of abuse of the process of court and the application is accordingly dismissed with costs.