Court name
HC: Civil Division (Uganda)
Judgment date
28 September 2017

Kigongo v Kakeeto & Anor (Miscellaneous Application-2017/144) [2017] UGHCCD 146 (28 September 2017);

Cite this case
[2017] UGHCCD 146

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

AT MPIGI

MISC. APPLICATION NO.  144 OF 2017

KIGONGO EDWARD NAKABALE:::::::::::::::::::::::::::::::APPLICANT

VERSUS

KAKEETO ROGERS & ANOTHER:::::::::::::::::::::::::::RESPONDENTS

 

BEFORE: HON. JUSTICE WILSON MASALU MUSENE

 

RULING

The  Applicant, Kigongo Edward  Nakabale, filed  this application under Section 98 of the Civil procedure Act and O. 41  rules 1 (a)  and order  50  rules  1 and  3 of the civil  procedure  rules.  The Respondent  is  Kakeeto  Rogers.

 

The application is for orders that:-

  1. A temporary  injunction doth issue  restraining the Respondents, their servants, agents, employees and or any other person who  may be  acting under their instructions  from trespassing ,  mining  sand, cutting  down trees, evicting and  or carrying out any dealings  on the suit property  at  Lubanda, Lukonge, Mpigi District  pending  the disposal of civil Suit No.   105  of 2017.
  2. Costs  of this application be provided for. 

The grounds in support of the application are contained in the affidavit of kigongo Edward Nakabaale  but briefly are:-

  1. The Applicant is the lawful owner/occupant  of land measuring approximately  15 acres  and situate at Lubanda, Lukonge, Mpigi District.
  2. The applicant has been  in uninterrupted  occupation, use and possession of the said land/kibanja for  over 20 years and carried out  developments thereon.
  3. The  Mpigi District land Board,  without the knowledge and or consent of the applicant granted a free  hold  title comprised in Free Hold Register, Volume  HQT 49 Foio 23, Block (Road) 267  Plot 36 at Lubanda, Lukonge Josephine  Nantaba  which included the applicant’s  kibanja/land.
  4. That upon the illegal  acquisition of the said Free Hold Register, Volume  HQT 49 Folio 23, Block (Road)  267 Plot 36 at Lubanda, Lukonge, the said  Josephine Nantaba  transferred the same to the 1st Respondent.
  5. The 1st and 2nd respondents or their agents  entered unto or trespassed on the applicant’s land.
  6. The 1st and  2nd  Respondent forcefully entered unto  the Applicant’s land cut the  chain and some trees and  are mining   sand.
  7. The acts of the Respondents unto  to the applicant’s land amount to trespass and fraudulent acquisition of land hence the subject of the main suit.
  8. That   the main suit shall be rendered  nugatory if the temporary injunction order is not granted.

The Applicant  is represented by M/s  Nandaah wamukota & Co. Advocates, while the Respondent is represented by M/S Bbaale & Partners, Advocates and Legal  Consultants.  On record  is an affidavit in reply  by Kakeeto Rogers, opposing  the application.  The pertinent paragraphs are:-  3,5,6,7,10,11,12,14 and 15. For avoidance of doubt, I reproduce them here below:-

3)         That  in 2016  I purchased land comprised  as Free hold register Volume 49 Folio 23 Mawokota Block 267  Plot 36  Land at Lukonge from Josephine Nantaba.  A copy of the Certificate of Title is hereby attached and marked annexture P.

5)         That the applicant thereafter instituted a suit against me

and the  2nd  Respondent vide civil suit No. 93 of 2016  claiming that my said land was part of his land comprised  as Block 267 Plot 8.  A copy  of the plaint is hereby attached and marked annexture . Q.

6)         That in the said matter the applicant had also  applied for an interim order vide Misc. application No. 36 of 2017  and before the same could be entertained court made directive  to the effect that a joint survey be conducted to determine in whose land was the said mining being  conducted from and the intended dam construction.  A copy of the application is hereby  attached and marked annexture R.

7)         That whereas the applicant disobeyed  the court order by refusing to be part of the  joint survey  we proceeded and conducted the survey which indicated that where the mining  is being conducted and also where the applicant intended to construct a dam is in my land and not in the applicant’s  said land.  A copy of the survey report  is hereby attached and marked annexture S.

10)       That my said land is totally  different  from the applicant’s land  comprised  as Mawokota Bock 267  Plot8  and therefore he has no locus to carry out any activity in the land that doesn’t  belong to him.

11)       That I bonafidely purchased the said land and I have  no claim whatsoever in land comprised as Mawokota Block 267  Plot 8  which belongs to the applicant and I have never cut down  trees in the Applicant’s land as he alleges.

12)       That I only use  the access road which passes through the applicant’s land to transport sand which access  road  also connects to the spring  well and the same has for the long period  been used by all the local people of the area to fetch water among other activities.

 

14)       That the applicant has not demonstrated in any way that he will suffer any injury, damage or mental suffering that cannot be  adequately  compensated by an award of damages if this application is to be dismissed.

15)       That the balance of convenience lies with  keeping me in possession of my  land and on that basis, this application ought to be dismissed.

The   Advocates on both sides also filed written submission

Counsel for the applicant stated that applicant who is the lawful owner and occupant  of land /kibanja  for which he has been in occupation  and use for  over 20 years .  He added that  this land measures  approximately  15 acres  and is situate at Lubanda, Lukonge, Mpigi District, Mpigi District Land Board   without the applicants knowledge or consent of the applicant granted a free hold title comprised in free hold Register , Volume HQT 49 Folio 23, Block (Road) 267  Plot 36  at Lubanda, Lukonge to Josephine Nantaba which included  the Applicant’s kibanja/land.  Upon the illegal acquisition of the said free hold  Josephine Nantaba transferred the same to the 1st Respondent.  Further  submissions were that  the 1st and  2nd Respondents and/or their  agents entered onto the applicants land and stoped his  workers from constructing  a dam  claiming that Josephine Nantaba  transferred the same to the 1st  Respondent.  The 1st and  2nd Respondents forcefully entered onto the applicants land and cut down some trees and are mining   sand.  It was  further  submitted that  the Respondents and/or  their agents   destroyed  the applicants dam which  affects the value and use of the applicant’s land  and that the Respondents are still mining  sand thus  affecting the Applicant’s  land/Kibanja. 

 

Counsel emphasized that the main suit will be rendered nugatory  

if the sand mining continues, hence need for temporary Injunction.  He quoted Order 41   rule  (1) of the Civil Procedure   rules  which  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, or wrongfully sold in execution of a decree; or
  2. That the defendant threatens or intends to remove or dispose of his or her property with a view to  defraud his or her creditors.

The Court  may y order grant a temporary injunction to  restrain such act, 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 suitor until further orders. 

Counsel  also made  reference to the principles to be considered  when considering  application for temporary  injunction, namely:-

 

  1. The Applicant  must show  that there is a substantial  matter to be investigated with high chances of success.
  2. That the applicant  would suffer irreparable  injury  which  damages would not be  capable of atoning.
  3. That the balance of convenience is in favour of the Applicant.

He added that since applicant has been  in  un interrupted occupation and use of  land/kibanja  in dispute for over  20 years, and planted  Eucalyptus  trees and a  water dam,  then he has established  a prima facie case with a likelihood of success.  On suffering of  irreparable  injury, counsel for the applicant  quoted the case of  Kiyimba Kaggwa  versus  Hajji Abdu  Nasser  Katende  [1985] HCB, supra,  court observed that irreparable injury  does not mean that  there must not be physical  possibility of repairing the injury  but means  that the injury  must be a  substantial or material one that is one that cannot be adequately compensated for in damages.

 

He added that the applicant further  avers  in paragraph 7 that the vehicles used to ferry and transport  pass  through   his land  thus destroying  the applicant’s  water dam as evidence in the pictures annexed to the application. 

 

He concluded that the activities of    the Respondent are affecting  use of applicant’s  land,  and leading to serious  damage which calls for a temporary injunction.

 

In reply, counsel for the Respondent instead accused  the applicant of encroaching on the suit land comprised in Free hold  Register  volume  49  Folio 23,  Mawokota, Block 267  Plot 36.  He added that the applicant was trying   to clear  part of  the suit land in preparation to construct a water  dam thereon without the consent of the Respondent claiming that the said land belongs to him and that it was created  out  of his mailo land comprised as Block 267  Plot 8  which is adjacent  to the suit land whereas not.

 

Further  that the applicant  subsequently  instituted  Civil suit No. 93  of 2016  claiming that the Respondent’s  title was created out of his said mailo  land and out of the said  suit he instituted  an interim  and temporary  applications vide Misc. applications No. 35 o and 36  of 2016  respectively .

 

It was  further submitted that the applicant  then before  prosecuting  Misc. application No. 35  of 2016  sought  to have the same amended thus they  filed Misc. application No. 53 of 2017  however  this Honourable Court dismissed the application and implored  the  parties to  focus  on the head suit but since the applicant had not gotten  what he wanted that is  restraining the Respondent from utilizing  what belongs to him he instead fo  fixing  civil suit No. 93 of 2016  for hearing  he rather  filed  another suit vide civil suit no. 105 of 2017  over the same suit land and also instituted Misc. Application No,.1 44 of 2017  purposely to obtain  a restraining order against the Respondent. 

 

Counsel for the Respondent further stated that since the applicant subsequently  sought  to amend  the main application No. 35 of 2016 by filing  Misc.  application No. 53  of 2017 which  application was dismissed by this very court and directed parties  to focus  on the head suit  but instead   of having  the head suit  fixed for hearing  the applicant  instead instituted  civil suit No. 105 of 2017  and also instituted  therein  Misc. application No. 144 of 2017  over the same piece of land but this time  claiming that  the is a lawful  bonafide  occupant  of thesuit land diverting  from his earlier position in Civil  Suit No. 93 o 2016  that it forms part of his land comprised as Block 267  Plot 8. 

It was  maintained that the applicant’s application is an  abuse of court  process to get  a way of restraining the Respondent from using  his land, hence  two causes over the same land against the respondent.

Counsel for Respondent  concluded that the present suit is misconceived  and the causes of action in each case are totally  different.    He added that court should not change status  quo by stopping the excavation of sad.  It was also submitted that the applicant has not demonstrated how he will suffer irreparable  injury  and so the application be dismissed on balance of convenience, counsel submitted that the applicant will not be put to  a disadvantage if injunction is not granted.  Counsel for Respondent concluded that granting  of a temporary injunction will have the effect of determining the main suit and the Respondent will be evicted. 

 

This court has considered the submissions on  both sides in this application.  The law  on granting temporary injunction is an exercise of judicial discretion which must be exercised by  Court  judiciously .  The case of Sargat  vs Patel 91949) 16 EACA 63  is in point.  In  this case court  stated that an injunction is a prohibitive, equitable remedy  issued or granted by a court at suit of a petitioner directed at a Respondent forbidding the Respondent from  doing some act which the Respondent is threatening or attempting to commit or restraining a Respondent in continuance thereof, such act being unjust, inequitable  or injurious to the petitioner and not such as can be addressed by action at law.

Section 38  of the judicature Act Cap  13  gives  this honourable court power to grant  orders of a temporary injunction in all cases  in which it appears to it to be just and  convenient to do so to restrain any person from doing acts.  The general   principles governing the grant of temporary  injunction are well settled as laid down in the case of American Cyanamid  Co.  Vs Ethicon Ltd (1975)  AC 396  which has been International SCCA NO. 8  of 1990 and Kiyimba Kaggwa vs  Hajji A.N. Katende (1985)  HCB 43.

The principles are:

  1. The applicant  must show that there is a prima  facie  case with a likelihood  of success.
  2. The applicant  would suffer irreparable  injury  which damages would not be capable of atoning  if the temporary injunction  is denied  and status quo  maintained  and
  3. The  balance of convenience is in favour of the applicant.

I will now proceed tolook at these principles inr elation to this case because each case muist be considered upon its own peculiar  facts.

Whether  there is a prima facie case with a probability of success.

 

In answering  this question, the applicant is required to show that there is a prima facie case with a probability of success of the pending suit.

 

A prima facie case with a probability of success is no more than that the Court must be satisfied  that the claim is not frivolous  or vexatious.  In other words, that there is a serious  question to be tried.  In Robert  Kavuma  vs M/S  Hotel  International SCCA NO. 8 of 1990  Wambuzi CJ  as he then was emphatic and stated that the applicant is required at this state of trial, to show a prima facie case and a probability of success but not success.

As to whether the suit establishes a prima facie case with a probability of success, case  law is to the effect that though the applicant has to satisfy  court that there is merit in the case, it does not mean that one should succeed.  It means that there should be a triable issue, that is, an issue which raises a prima facie case for adjudication.  The case of Kiyimba Kaggwa (1985), HCB 43 is in point. 

As  far as  the  present case is concerned, the plaintiff/applicant’s case  under paragraph  3 of the plaint is that the respondent’s  title  comprised in free hold Register, Volume  HQT49 Folio 23,  Block  267  Plot 36  at Lubanda, Lukonge  contains 15 acres of applicant’s land   or Kibanja.  The applicant  claims to have been in possession of that kibanja for 20 years and that the respondent has forcefully entered the said land fo Plaintiff/applicant, cut trees and is mining  sand. In the  written statement of Defence  filed on 17.8.2017,  the 3rd  Defendant  (Kakeeto Rogers)  under paragraph  5 (II)  avers that in 2016, he purchased land in question, free hold Register volume 49  Folio 23  Mawokota Block 267  Plot 36  from Josephine Nantaba  and he started utilizing   it buy excavating sand.  Then uner paragraph 7 of the written statement of defence, the  3rd Defendant, Kakeeto Rogers  contends that the land of applicant/Plaintiff, though  on the same Block  267, just Boarders his .  So  kakketo  Rogers denies trespass.  The merging issues are :

  1. Whether  the Respondent, kakeeto  bought land in dispute which contains  15 acres of applicant
  2. Whether   Respondent cut the trees of applicant and is excavating land thereon.
  3. Whether the land in dispute is different from the one of applicant
  4. Whether  the suit land is  a swamp  and has never been used by  Plaintiff/applicant  as stated under paragraph   9  of the Written statement of Defence.

 

The above issues among other serve to illustrate  that there are triable  issues  in the matter and therefore a prima facie case has been made out.

 

On irreparable  damages, the crucial issue here is sand mining.  Whereas  counsel for    the Respondent s submitted that once sand minding is stopped, then the case will have been decided.  I respectively  disagree because the case pending is ownership  of the land where sand mining is taking place.  That is what this Court will decide  in HCCS NO. 105 OF 2017.  As for stopping of sand  minding by  temporary  injunction, that will be for a short time  pending the decision on ownership of the area.  And it will not be  the respondent only to stop, but even the applicant  will not be allowed to do the sand mining.  Both  sides  will be  stopped.  This is  because excavation of said is  a drain to the land and the value of sand keeps  increasing, hence  qualifying to be irreparable damage  to the applicant.   So it  will be whoever wins  the main suit who will then continue with sand excavation.  Since  I am satisfied that the two conditions of prima facie case and irreparable damage have been met, then I do hereby proceed to allow the application.  A temporary injunction is hereby granted as prayed.   Since  main case is pending, costs to be in the cause.  Hearing of main suit  to be fast trucked  during the month of November, 2017. 

 

Wilson Masalu Musene

Judge

28/09/2017