Rhoda Kauma & 3ors v Damalie Nantege kauma & anor (Miscellaneus Application No. 98 of 2014) [2014] UGHCCD 168 (25 August 2014)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT NAKAWA

MISCELLANEUS APPLICATION NO. 98 OF 2014

(Arising from Civil Suit No. 98 of 2014)

RHODA KAUMA

CHRISTOPHER DANIEL SSEVUME

BENON SSENYONDWA

SAMSON KYAMAGGWA ::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS

VERSUS

DAMALIE NANTEGE KAUMA

CISSY NAMBOOZE KAUMA :::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

BEFORE: HON. LADY JUSTICE ELIZABETH IBANDA NAHAMYA

RULING

This is an Application for a temporary injunction brought by Notice of Motion under Order 41 Rules 1, 2 and 9 of the Civil Procedure Rules S.I 71-1. This Application concerns property forming part of the Estate of the late NamukangulaKauma Paul which is comprised in LRV 844 Folio 22 Kyadondo Block 253 Plot 270 at Lukuli Estate (West Buganda). This Application seeks for orders that;-

1. A temporary injunction doth issue restraining the Respondents, their servants/agents or any person acting on their behalf from administering or doing anything whatsoever in the matter of the Estate of the late NamukangulaKauma Paul and / or from evicting the 1^st Applicant from land comprised in LRV 844 Folio 22 Kyadondo Block 253 Plot 270 at Lukuli Estate (West Buganda) until the final determination of the main suit or further orders of this Court.

2. Costs of the Application are provided for.

The Applicants were represented by Mr. Paul Ekoch of Messrs GP Advocates whereas Ms. Rachael Sheila Tumwebaze of M/s Mbidde& Co. Advocates represented the Respondents.

The Application is supported by the Affidavit of the Applicant, Rhoda Kauma which reiterates the grounds of this Application but briefly they are that unless immediately restrained the Respondents shall interfere with the Estate of the deceased by among others evicting the 1^st Applicant from her matrimonial home at LRV 844 Folio 22 Kyadondo Block 253 Plot 270 at Lukuli Estate (West Buganda) in spite of the wishes of the Deceased as contained in his last testament. The Applicants avers that they shall suffer substantial loss and irreparable injury if the Respondent carries out the threatened action. The suit raises triable issues in and the Applicant has a strong case with likelihood of success.

The Respondents filed an Affidavit in Rebuttal deponed by Ms. DamalieNantegeKauma (1^stRespondent). DamalieNantegeKaumastates that the averred that the Applicant’s Affidavit in support of the Chamber summons is fraudulent, vexatious and frivolous since not all the Applicants have an interest in the subject matter and are only harbouring criminal intentions. She rejected the Will and the contents thereof for being fraudulent. Furthermore, by her Affidavit, Ms. DamalieNantegeKauma deponed that the Respondents legally obtained Letters of Administration for the deceased’s Estate. DamalieNantege further admitted that notwithstanding that the deceased withdrew his gift to the 2^nd Respondent, he reinstated it prior to his death. She further averred that the purported Executors,without justification,started selling off part of the deceased’s Estate just after the burial. She denied that the deceased died testate. Therefore, the Estate ought to be administered by the lawful Administrators. That the Letters of Administration were legally obtainedby the Respondents, they filed an inventory giving the details of how the property had been distributed except the matrimonial home. She asked Court not to grant a temporary injunction on the premise that there is no status quo to be preserved. The deponent denied that the Respondents ever tried to evict the 1^st Applicant from the matrimonial home at Lukuli or any of the Applicants.

In Rejoinder by the Applicants, it was averred that the 3^rd and 4^th Applicants were named Executors of the last testament of the late Paulo NamukangulaKauma and therefore,they dohave to ensure that the deceased’s intentions as expressed in his will are fulfilled. Furthermore, that the Will is valid since it has never been never been contested, altered or abrogated. The deponent deponed that the suit land was transacted in with the express approval and authorisation of deceased prior to her death and that the Respondents’ averment that the properties forming part of the late Paulo NamukangulaKauma were distributed is spurious and ineffective since the Estate is still intact.

Resolution of issues.

I have given due consideration to the submissions of counsel and the documents on record. The Applicant, inter alia seeks orders for a temporary injunction to restrain the Respondents, their servants/agents or any person acting on their behalf from administering or doing anything whatsoever in the matter of the Estate of the late NamukangulaKauma Paul which is comprised in LRV 844 Folio 22 Kyadondo Block 253 Plot 270 at Lukuli Estate (West Buganda) until the final determination of the main suit or further orders of this Court.

This Application was brought under Order 41 r 1 & 2 of the CPR. It provides:-

‘Where in any suit it is proved by affidavit or otherwise-

1. That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, …

The court may by order grant a temporary injunction to restrain such at, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders’.

The criteria for grant of a temporary injunctionis well set out in the case of Giella vs. Casman Brown (1973) EA 358;Kiyimba Kaggwa vs. Haji A.N. Katende [1985] HCB 43. In thosecases, it was held that for a temporary injunction to be granted, the Applicant must show that there is a prima facie case with probability of success; and that the applicant might otherwise suffer irreparable damage which would not easily be compensated in damages. And if court is in doubt, it will decide the question on the balance of convenience.

Prima facie case

In Kiyimba Kaggwa vs. Haji A.N. Katende [1985] HCB 43 it was decided that a prima facie case means the existence of a triable issue or a serious question to be tried, that is, an issue which raises a prima facie case for adjudication.

The facts at hand are that the 1^st Applicant is the widow to the late NamukangulaKauma Paul. The Applicants’ case against the Respondents is that the deceased left behind a valid Will dated 7^th March 2006. This was attached and marked Annexture “B” and “D” is the translation thereof in English.The 1^stApplicant and 3 other persons to wit, BenonSsenyondwa, Samson Kyamagwa and Namasole Rebecca were appointed Executors thereof. Further, according to the Applicants, the property comprised inLRV 844 Folio 22 Kyadondo Block 253 Plot 270 at Lukuli Estate (West Buganda) which is situate in Makindye Kampala was used by the late as his matrimonial home. It seems that prior to his death, the late Namukangulahad given away some properties as gifts to the surviving children, but withdrew them prior to his death. According to the Respondents’, the deceased reinstated their rights to those properties prior to his death. It should be observed that notwithstanding the above, on or about 3^rd February, 2014, the 1^st Applicant was served with a Photostat copy of the Letters of Administration issued to the Respondents as Administrators of the Estate of the late vide High Court Administration Cause No. 886 of 2013. See Annexture “H”.The Applicants also attached a copy of a letter dated 3^rd February, 2014from the Respondents’ lawyers, Messrs Mbidde& Co. Advocates by whichthe 1^st Applicantwas ordered to vacate the matrimonial home. See Annexture “I”. Whereas, the Applicants state that the Letters of Administration were obtained by the Respondents illegally, by concealment of material facts and fraudulently and they filed a suit before this Court seeking the revocation of letters of administration. The Respondents also plead fraud on behalf of the Applicants in respect of the Will. The Respondents also claim that the purported Executors have wasted away the Estate through illegal transactions.

Therefore from the above, I hold that the case raises serious questions for determination of Court.

Irreparable injury

The definition of “irreparable injury”was enunciated inthe case of Kiyimba Kaggwa vs. Haji Katende (supra) to the effect that “there must not be physical possibility of repairing injury, but that the injury must be substantial or material which cannot be adequately compensated for in damages”.

Therefore with respect to the above and the facts at hand,I am satisfied that the Applicant will suffer irreparable injury if the Application is not granted. There is a probable threat by the Respondents to evict the 1^st Applicant from the matrimonial home notwithstanding that the Respondents denied it. This will cause irreparable injury since the Applicants would wish to continue to hold on the Letters of Administration of the Estate. In contrast, it is not denied that the 1^st Applicant is a wife to the late.

Status quo

Based upon the facts of the case before me now, the status quois that the 1^st Applicant is in occupation of the suit propertywhich is comprised in LRV 844 Folio 22 Kyadondo Block 253 Plot 270 at Lukuli Estate (West Buganda).

I have noted the submissions of Counsel for the Respondent that the letter was merely addressed to the trespassers who were living on the property without knowledge of the Administrators and the beneficiaries. That in any case there is no threat of eviction. Further, that in any case, there is no status quo to be maintained considering the fact that the distribution of the Estate has been completed and there is no threat of eviction of the widow from her matrimonial home.

Recalling the facts of this case, the Applicants are seeking Orders that a temporary injunction doth issue restraining the Respondents, their servants/agents or any person acting on their behalf from administering or doing anything whatsoever in the matter of the Estate of the late NamukangulaKauma Paul and / or from evicting the 1^st Applicant from land comprised in LRV 844 Folio 22 Kyadondo Block 253 Plot 270 at Lukuli Estate (West Buganda) until the final determination of the main suit or further orders of this Court. Although the Respondent denied that the letter in question was intended for the Applicant, I find it quite weird that the widow, who is occupying the property would be served with an eviction letter without pertinent explanation that she is not affected. With due respect, I am guided by the fact that in exercising its duty, the Court does not determine the legal rights to property but merely preserves it in its actual condition until the legal title or ownership can be established or declared [seeCommodity Trading Industries V Uganda Maize Industries & Anor [2001 – 2005] HCB 118.]Therefore,I do not see anything wrong with maintaining the state of things as they are since the Respondents are not objecting to the Applicant being in occupation of the property.

Balance of convenience

I take notice that Court is not obliged to consider this element but where it is in doubt whether to grant the Application or not, Court is supposed to consider it. Mr. Paul Ekochsubmitted on the ground that the Applicants who are in occupation of the land and have been utilising it stand to be more inconvenienced if the Application is not allowed. I agree with this submission.

For the FOREGOING REASONS, theApplication is hereby allowed. Costs in the cause.

SIGNED

.............................................................................

HON. LADY JUSTICE ELIZABETH IBANDA NAHAMYA

JUDGE

25^thAugust, 2014